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Danny (a pseudonym) v The Queen

Danny (a pseudonym) v The Queen

Case [2018] VSCA 223 4 September 2018

Interlocutory Orders

Admissibility of Evidence

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0030

CARL DANNY (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of the identification of the victim of sexual offending, and so as to prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	WHELAN, PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 August 2018
DATE OF JUDGMENT:	4 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 223
RULING APPEALED FROM:	DPP v [Danny] (Unreported, 30 January 2018, County Court of Victoria, Judge McInerney)

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CRIMINAL LAW – Interlocutory appeal – Sexual offending against child complainants – Tendency evidence – Whether error in admitting tendency evidence – Evidence Act 2008 ss 97(1)(b) and 101(2) – Hughes v The Queen (2017) 344 ALR 187; IMM v The Queen (2016) 257 CLR 300 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	Emma Turnbull Lawyers Pty Ltd
For the Respondent	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
PRIEST JA
KAYE JA:

Overview

An indictment filed in the County Court charges the applicant with five charges of indecent act with a child under 16.[2] There are two complainants. Charges 1, 2 and 3 relate to a female child, ‘BLS’, aged seven or eight years at the time of the alleged offences; and charges 4 and 5 relate to a female child, ‘CBH’, aged 10 or 11 years at the relevant time. Two charges — charges 1 and 5 — allege that the applicant rubbed the vagina of the BLS and CBH respectively whilst making direct contact under clothes and underclothes; and three charges — charges 2, 3 and 4 — allege that the applicant rubbed the vagina of the relevant complainant over clothes or underclothes. The prosecution asserts that the evidence of each complainant is admissible as tendency evidence.
[2]Crimes Act 1958, s 47(1).

The ruling on tendency evidence

By a notice of tendency evidence dated 29 January 2018, filed pursuant to s 97(1) of the Evidence Act 2008 (‘the Act’), the prosecution indicated its intention to adduce the following tendency evidence:[3]
[3]Emphasis added.

4. The tendency sought to be proved is the tendency of [Carl DANNY] to:
(1) Have a particular state of mind namely:
(a) a sexual interest in pre-pubescent females;
And:
(2) Act in a particular way namely:
(a) touching/rubbing the vagina (inside or outside underwear) without penetration (Charges 1 – 5);
(b) touching/rubbing the vagina whilst the complainant is sitting on the accused’s lap (Charges 1, 2, 4, 5);
(c) touching/rubbing the vagina having grabbed the complainant in the context of play (Charge 1, 2, 4, 5);
(d) touching/rubbing the vagina whilst other persons are in the vicinity other than the complainant’s father (Charges 1 – 5).

The following day, on 30 January 2018, a judge ruled…

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 Danny (a pseudonym) v The Queen

Details

AGLC: Carl Danny (a pseudonym)[1] v The Queen [2018] VSCA 223
Case: [2018] VSCA 223
Decision Date: 4 September 2018

CaseChat Overview and Summary

In the case of Danny (a pseudonym) v The Queen, the defendant, Danny, appealed an interlocutory decision of the County Court of Victoria that allowed the prosecution to adduce tendency evidence in the form of past sexual offending against child complainants. The Court of Appeal was tasked with determining whether the trial judge erred in admitting the tendency evidence under sections 97(1)(b) and 101(2) of the Evidence Act 2008. The legal issues centred on whether the evidence was relevant, whether it had significant probative value, and whether its admission would unfairly prejudice the defendant.

The Court of Appeal found that the trial judge had correctly exercised their discretion in admitting the tendency evidence. The court noted that the relevance of the evidence lay in its ability to demonstrate a pattern of behaviour that aligned with the charged offences, thereby supporting the identification of Danny as the perpetrator. The probative value of the evidence was deemed substantial, given the similarities in the nature of the offences and the circumstances surrounding them. The court also found that the prejudicial effect of the evidence was not excessive, as it was necessary to establish a crucial aspect of the prosecution's case.

The Court of Appeal upheld the trial judge's decision, affirming that the admission of the tendency evidence was not erroneous. The court referenced the High Court's decision in Hughes v The Queen and the Full Court's decision in IMM v The Queen to support its findings. The appeal was dismissed, and the case was remitted to the County Court for further proceedings.

Orders