Callaway (a pseudonym) v The King - [2024] VSCA 103

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0018

ETHAN CALLAWAY (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms.

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JUDGES:	McLeish, Kaye and T Forrest JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2024
DATE OF JUDGMENT:	21 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 103
JUDGMENT APPEALED FROM:	DPP v [Ethan Callaway] (County Court of Victoria, Judge Carlin, 27 January 2024)

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CRIMINAL LAW – Interlocutory Appeal – Applicant charged with 13 charges of rape, 12 charges of common assault, one charge of attempted rape, one charge of intentionally damaging property and one charge of make threat to kill – Ruling admitted evidence supporting tendencies that applicant believed he was entitled to engage in non-consensual sexual activity with complainant, was physically violent to complainant and believed he was entitled to be so – Whether judge erred in ruling – Judge did not err – Leave to appeal refused.

Evidence Act 2008, ss 97 and 101.

Hughes v The Queen (2017) 263 CLR 338; R v Bauer (2018) 266 CLR 56; Taylor v The Queen [2020] NSWCCA 355; Henderson (a pseudonym) v The Queen [2017] VSCA 237; Harlin (a pseudonym) v The King [2023] VSCA 269, considered.

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Counsel
Applicant:		Mr J Connolly with Mr H Lewis
Respondent:		Mr J Shaw
Solicitors
Applicant:	Ms E Allen, Victorian Aboriginal Legal Service
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA

KAYE JA

T FORREST JA:

This appeal is against a tendency ruling of Judge Carlin in the County Court, admitting into evidence matters contained in two tendency notices filed pursuant to s 97(1) of the Evidence Act 2008.[2]
[2]DPP v [Ethan Callaway] (County Court of Victoria, Judge Carlin, 27 January 2024) (‘Reasons’).
The applicant is currently before her Honour in the County Court charged with 13 charges of rape,[3] 12 charges of common assault,[4] one charge of attempted rape,[5] one charge of intentionally damaging property,[6] and one charge of make threat to kill.[7]
[3]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[4]Contrary to common law.
[5]Contrary to ss 321M and 38(1) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991.
[6]Contrary to s 197(1) of the Crimes Act 1958.
[7]Contrary to s 20 of the Crimes Act 1958.
The offences are alleged to have occurred in the course of an intermittent 13 year relationship between the applicant and the complainant.
Amended Tendency Notice A (‘Notice A’) relates to the rape and attempted rape charges. Amended Tendency Notice B (‘Notice B’) relates to the charges of common assault.

The notices

The tendencies alleged, and the issues they are related to, are as follows:

Notice A

2.The Prosecution seek to rely upon the tendency of the Accused to:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Callaway (a pseudonym) v The King

Details

AGLC: Callaway (a pseudonym) v The King [2024] VSCA 103
Case: [2024] VSCA 103
Decision Date: 21 May 2024

CaseChat Overview and Summary

The applicant, Callaway, appealed against a ruling by a judge of the County Court of Victoria admitting evidence of his past conduct towards the complainant under ss 97 and 101 of the Evidence Act 2008. Callaway was charged with multiple serious offences, including rape and assault, and the prosecution sought to adduce evidence of his past conduct towards the complainant to demonstrate a tendency to engage in non-consensual sexual activity and physical violence. The applicant argued that the judge erred in admitting this evidence, as it was not relevant to any issue in the trial and would be unfairly prejudicial. The Court of Appeal was required to determine whether the trial judge made an error in admitting the evidence, and whether this error was significant enough to warrant allowing the appeal.

The Court of Appeal held that the judge did not err in admitting the evidence. The court found that the evidence was relevant to the charges as it demonstrated the applicant’s belief that he was entitled to engage in non-consensual sexual activity and to be physically violent towards the complainant. The court held that the judge had carefully considered the potential prejudice to the applicant and concluded that it was not unfair. The court referred to previous cases such as Hughes v The Queen, R v Bauer, Taylor v The Queen, Henderson v The Queen, and Harlin v The King, which considered similar issues of admissibility of past conduct evidence. The court found that the trial judge had applied the correct legal principles and made no error in admitting the evidence.

Accordingly, the Court of Appeal dismissed the appeal and refused leave to appeal. The court found that the judge’s ruling was correct and that the evidence was properly admitted. The appeal was dismissed, and the decision of the County Court of Victoria was upheld.

Orders