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Dempsey (a pseudonym) v The Queen

Dempsey (a pseudonym) v The Queen

Case [2019] VSCA 224 11 October 2019

Appeal

Admissibility of Evidence

Tendency and Coincidence Evidence

Identification Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0172

EDWARD DEMPSEY (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms and initials in place of the name of the applicant and other parties involved.

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JUDGES:	BEACH, KAYE AND ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 September, 3 October 2019
DATE OF JUDGMENT:	11 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 224
JUDGMENT APPEALED FROM:	(Ruling No 1) [2019] VSC 582; (Ruling No 2) [2019] VSC 583 (Taylor J)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Tendency and coincidence evidence – Applicant charged with three charges on two different occasions – Applicant charged with armed robbery on first occasion – Applicant charged with statutory murder and intentionally causing injury in course of armed robbery on second occasion – Applicant denies committing first armed robbery – Applicant denies intention to commit armed robbery by agreement with co-accused the furtherance of which caused death of victim – Whether evidence cross-admissible – Whether trial judge erred in finding evidence of second occasion admissible as tendency evidence to prove first armed robbery – Whether trial judge erred in finding evidence of first occasion admissible as tendency evidence to prove intention to commit second armed robbery – Application for leave to appeal dismissed – Evidence Act 2008 ss 97, 98, 101.

CRIMINAL LAW – Appeal – Interlocutory appeal – Identification evidence – Victim of armed robbery identified applicant from photoboard – Whether trial judge erred in finding identification evidence admissible – Application for leave to appeal dismissed – IMM v The Queen (2016) 257 CLR 300 and DPP v Hague [2018] VSCA 39 applied – Evidence Act 2008 s 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Keating	Slades & Parsons
For the Respondent	Mr M Rochford QC with Ms C Foot	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA

KAYE JA
ASHLEY JA:

The applicant has been charged, on indictment, with one count of armed robbery (charge 1), one count of murder (charge 2) and one count of intentionally causing injury (charge 3). The armed robbery is alleged to have taken place early on 23 April 2018. The other two offences are alleged to have taken place seven days later, on 30 April 2018. Each of the offences are alleged to have occurred at the same location, 29 Wilson Street, Berwick. The victims of the offences were lured to those premises in the same manner. It is alleged that the applicant acted alone in committing the first offence, but that he acted in company with a co-accused, CM, in committing the offences that are the subject of charges 2 and 3.

The prosecution has filed an amended notice of tendency evidence pursuant to s 97(1)(a) of the Evidence Act2008 notifying its intention to adduce tendency evidence in respect of charges 1 and 2. It…

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 Dempsey (a pseudonym) v The Queen

Details

AGLC: Edward Dempsey (a pseudonym)[1] v The Queen [2019] VSCA 224
Case: [2019] VSCA 224
Decision Date: 11 October 2019

CaseChat Overview and Summary

In Dempsey (a pseudonym) v The Queen, the appellant was appealing against the decision of the County Court of Victoria to admit evidence of two separate criminal occasions in the course of his trial. The appellant was charged with armed robbery on the first occasion and statutory murder and intentionally causing injury in the course of an armed robbery on the second occasion. The appellant denied all charges. The legal issues before the Court of Appeal were whether the trial judge erred in admitting evidence of the second occasion as tendency evidence for the first armed robbery and whether the trial judge erred in admitting evidence of the first occasion as tendency evidence for the appellant's intention to commit the second armed robbery. Additionally, the Court of Appeal considered whether the trial judge erred in admitting identification evidence from a victim of the armed robbery.

The Court of Appeal found that the trial judge did not err in admitting evidence of the second occasion as tendency evidence to prove the first armed robbery. The Court found that the evidence was relevant and had significant probative value in proving the appellant's identity as the perpetrator of the first armed robbery. The Court also found that the trial judge did not err in admitting evidence of the first occasion as tendency evidence to prove the appellant's intention to commit the second armed robbery. The Court found that the evidence was relevant and had significant probative value in proving the appellant's intention to commit the second armed robbery. The Court further found that the trial judge did not err in admitting the identification evidence from the victim of the armed robbery. The Court found that the identification procedure was reliable and that the evidence was relevant and had significant probative value in proving the appellant's identity as the perpetrator of the armed robbery.

The Court of Appeal dismissed the appellant's application for leave to appeal. The Court found that the trial judge did not err in admitting the evidence in question and that any errors made by the trial judge were not sufficient to affect the outcome of the trial. The Court further found that the appellant's appeal was not in the interests of justice and that the appeal should be dismissed. The Court did not make any orders in relation to the appeal.

Orders