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DPP v Pearson (a pseudonym)

DPP v Pearson (a pseudonym)

Case [2021] VSCA 336 3 December 2021

Appeal

Admissibility of Evidence

Interlocutory Orders

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0100

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
THOMAS PEARSON (a pseudonym)[1]	Respondent

[1]To avoid the possibility of prejudice in the respondent’s trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	PRIEST, T FORREST and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2021
DATE OF JUDGMENT:	3 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 336
JUDGMENT APPEALED FROM:	DPP v [Pearson] (Unreported, County Court of Victoria, Judge Dempsey, 22 July 2021)

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CRIMINAL LAW – Interlocutory Appeal – Review of refusal to certify – Sexual offences against children – Four charges involving three complainants – Whether judge erred in ruling complainants’ evidence not cross-admissible as tendency evidence across all charges – Whether probative value of tendency evidence substantially outweighed by prejudicial effect – Undue weight given to possibility of emotional response by jury – Failure to consider mitigating effect of jury directions – Evidence cross-admissible – Whether judge erred in severing charges from indictment – No basis for severance – Appeal allowed – Hughes v The Queen (2017) 263 CLR 338; GBF v The Queen [2010] VSCA 135; Snyder (a pseudonym) v The Queen [2021] VSCA 96 considered – Evidence Act 2008 ss 97, 101(2); Criminal Procedure Act 2009 ss 193, 194, 296.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms E Ruddle QC with Ms E James	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent:	Mr J Portelli	David Tamanika Solicitor

PRIEST JA:

Introduction

By notices dated 9 August 2021, the applicant seeks to challenge a trial judge’s ruling made 22 July 2021 refusing to admit certain tendency evidence and to sever the indictment in a trial for sexual offences (‘the ruling’ or ‘the interlocutory decision’),[2] and the judge’s subsequent refusal to certify in relation to the ruling under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’).[3]
[2]DPP v [Pearson] (Unreported, County Court of Victoria, Judge Dempsey, 22 July 2021) (‘Ruling’).
[3]DPP v [Pearson] [No 2] (Unreported, County Court of Victoria, Judge Dempsey, 30 July 2021).

T Forrest and Walker JJA, whose reasons for judgment I have had the advantage of reading in draft, would set aside the trial judge’s orders touching the admissibility of the purported tendency evidence and the severance of the indictment.

I respectfully disagree.

Although, as will become clear, I do not endorse the reasoning which underpins the ruling, I consider that it ultimately was open to the judge to find, first, that the evidence concerning the alleged offending against DF, founding charges 1 and 2, was not admissible as tendency evidence in relation to the alleged offending against HF and SF, charges 3 and 4; secondly, that the evidence concerning the alleged offending against HF and SF was not admissible on a trial of the charges against DF; and, thirdly, that the indictment should be severed, resulting in one trial of charges…

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 DPP v Pearson (a pseudonym)

Details

AGLC: Director of Public Prosecutions v Pearson (a pseudonym) [2021] VSCA 336
Case: [2021] VSCA 336
Decision Date: 3 December 2021

CaseChat Overview and Summary

The case of DPP v Pearson is an interlocutory appeal concerning the refusal to certify four charges involving three complainants relating to sexual offences against children. The appeal was heard in the Victorian Court of Appeal, with the respondent seeking to overturn the trial judge's ruling that the complainants' evidence was not cross-admissible as tendency evidence across all charges. The appellant also contested the trial judge's decision to sever the charges from the indictment, arguing that there was no basis for such action.

The primary legal issues before the court were whether the trial judge erred in ruling that the complainants' evidence was not cross-admissible as tendency evidence, and whether the judge was correct in severing the charges from the indictment. The court examined the principles of tendency evidence under the Evidence Act 2008 and the criteria for severance under the Criminal Procedure Act 2009. The court considered whether the probative value of the tendency evidence substantially outweighed the prejudicial effect, and whether the trial judge unduly weighted the possibility of an emotional response by the jury. Furthermore, the court assessed whether the trial judge had failed to consider the mitigating effect of jury directions.

The court found that the trial judge had erred in ruling that the complainants' evidence was not cross-admissible as tendency evidence across all charges. The court held that the probative value of the tendency evidence substantially outweighed any prejudicial effect, and that the trial judge had failed to consider the mitigating effect of jury directions. The court also found that there was no basis for severance of the charges, as they were all part of the same transaction or series of transactions. Consequently, the appeal was allowed, and the matter was remitted to the trial court for further proceedings. The court referenced Hughes v The Queen, GBF v The Queen, and Snyder v The Queen in reaching its decision.

Orders