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Cano (a pseudonym) v The Queen

Cano (a pseudonym) v The Queen

Case [2020] VSCA 308 1 December 2020

Interlocutory Orders

Admissibility of Evidence

Tendency Evidence

Severance of Charges

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0234

ETHAN CANO (a pseudonym)[1]

THE QUEEN

[1]Because this is an interlocutory appeal, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	NIALL, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 November 2020
DATE OF ORDERS:	26 November 2020
DATE OF REASONS:	1 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 308
JUDGMENT APPEALED FROM:	[2020] VCC 1641 (Ruling No 1) [2020] VCC 1713 (Ruling No 2) (Judge Higham)

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CRIMINAL LAW – Interlocutory appeal – Evidentiary ruling – Pending trial of applicant for soliciting child pornography, procuring child outside of Australia to engage in sexual activity, using carriage service to groom person believed to be under 16, and transmitting indecent communications to person under 16 – First and second complainants in Canada – Third complainant undercover operative in Australia – Tendency notice seeking cross-admissibility filed by prosecution – Whether evidence regarding each complainant cross-admissible to support proof of applicant’s belief that complainants under 16 – Applicant sought severance on charges relating to undercover operative – Tendency evidence admissible – Severance application refused – Trial judge refused to certify as decision not attended by sufficient doubt to warrant certification – Trial judge’s refusal to certify and evidentiary ruling correct – Application to review refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms R Shann and Mr R de Vietri	Victoria Legal Aid
For the Respondent	Mr S Ginsbourg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

NIALL JA
T FORREST JA
WEINBERG JA:

Introduction

On 26 November 2020, this Court heard an application, pursuant to ss 295(2) and 296(1) of the Criminal Procedure Act 2009 (‘CPA’), to review a trial judge’s refusal to certify, and a consequential application for leave to appeal against an interlocutory decision by that judge. At the conclusion of oral submissions, the Court ordered that the application to review the judge’s refusal to certify should be dismissed. We said that we would publish our reasons in due course. These are those reasons.

Background facts

The applicant faces trial in the County Court on an indictment charging him with soliciting child pornography[2] (three charges — charges 2, 4, and 7); procuring a child to engage in sexual activity outside of Australia[3] (one charge — charge 3); using a carriage service to groom a person believed to be under 16[4] (one charge — charge 6); and using a carriage service to transmit indecent communications to a person under 16[5] (three charges — charges 1, 5, and 8).
[2]Criminal Code Act 1995 (Cth) sch 1 s 474.19(1).
[3]Ibid s 272.14(1).
[4]Ibid s 474.27(1).
[5]Ibid s 474.27A(1).

The charged offences are alleged to have been committed against three separate complainants. The first and second, ‘TC’ and ‘MT’, were young girls who lived in Canada at the time of the alleged offending. They were then aged 14…

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 Cano (a pseudonym) v The Queen

Details

AGLC: Cano (a pseudonym) v The Queen [2020] VSCA 308
Case: [2020] VSCA 308
Decision Date: 1 December 2020

CaseChat Overview and Summary

In this interlocutory appeal, the applicant, identified as Cano, challenges a decision of the trial judge to refuse to certify a ruling made by that judge concerning the admissibility of evidence. Cano is facing a trial for several serious charges, including soliciting child pornography, procuring a child outside of Australia to engage in sexual activity, using a carriage service to groom someone believed to be under 16, and transmitting indecent communications to a person under 16. The case involves three complainants: the first and second complainants reside in Canada, and the third is an undercover operative in Australia. The central legal issue before the court was whether evidence concerning each complainant could be cross-admitted to support the proof of Cano’s belief that the complainants were under 16.

The court needed to determine if the evidence regarding the complainants could be cross-admitted, particularly in light of the applicant's argument that the evidence pertaining to the undercover operative should be severed from the other charges. The prosecution argued that the evidence from all complainants was relevant to show a pattern of behaviour and belief by Cano that the complainants were under 16. The court held that the evidence was indeed cross-admissible as it tended to show Cano’s belief about the age of the complainants, which was pertinent to the charges. The trial judge's decision to refuse severance and to rule the evidence admissible was deemed correct, as the decision was not attended by sufficient doubt to warrant certification.

The court dismissed the application to review the trial judge's decision, affirming that the trial judge's ruling on the admissibility of the evidence and the refusal to certify were both correct. The application was refused on the basis that the trial judge's decisions were sound, and there was no merit in the applicant's arguments for severance or certification.

Orders