East (a pseudonym) v The King - [2022] VSCA 214

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0063

TIMOTHY EAST (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of a victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2022
DATE OF JUDGMENT:	4 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 214
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Deputy Chief Judge M Sexton, 10 May 2022

---

CRIMINAL LAW – Interlocutory appeal – Applicant charged with orally penetrating his daughter (Charge 1) – Applicant charged with sexually touching his daughter (Charges 2 and 3) – Evidence sought to be led of a witness’ observations of the content of a video said to depict Charge 1 – Evidence sought to be led of a witness’ observations of the content of two videos said to depict the complainant showering at the applicant’s house – Witness unsure of whether videos depicted complainant – Videos not to be produced by prosecution – Whether witness’ evidence can be characterised as circumstantial evidence – Whether evidence is relevant – whether witness’ evidence of the oral sex video is excluded by s 137 Evidence Act 2008 – Whether witness’ evidence of shower videos is excluded by s 97 and s 101 Evidence Act 2008 – Leave to appeal allowed – Appeal granted – Evidence of videos excluded from applicant’s trial.

Evidence Act, ss 55, 97 101, 137.

House v The King (1936) 55 CLR 499 and IMM v The Queen (2016) 257 CLR 300 applied.

---

Counsel
Applicants:		Mr A Malik and Ms F Fox
Respondent:		Ms J Piggott
Solicitors
Applicants:	Adrian Dessi Legal
Respondent:	Office of Public Prosecutions

KYROU JA
T FORREST JA:

The applicant is indicted on one count of incest (charge 1), allegedly constituted by penile/oral sexual penetration, and two charges of intentionally sexually touching a child under 16 (charges 2 and 3). The complainant is the applicant’s biological daughter.
The offending relates to two incidents. The incest charge is said to have occurred at some time between 23 July 2018 and 31 October 2018 in the applicant’s bedroom. The second incident is alleged to have occurred between 23 July 2018 and 19 November 2018. The applicant is alleged to have touched the complainant on the breast and vagina while she showered in his bathroom.
In pre-trial argument, the applicant sought to exclude evidence of KB, the applicant’s former partner, relating to observations she asserts she made of three videos. KB is not the mother of the complainant. Those videos were said by the prosecution to depict:
(a)The complainant performing oral sex on the applicant — that is said to be the act that constitutes charge 1.
(b)The complainant in the shower (two videos). The contents of the videos are said to constitute tendency evidence that demonstrates that the applicant has…

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 East (a pseudonym) v The King

Details

AGLC: East (a pseudonym) v The King [2022] VSCA 214
Case: [2022] VSCA 214
Decision Date: 4 October 2022

CaseChat Overview and Summary

The applicant, East, sought an interlocutory appeal against the decision of a magistrate to admit certain evidence in his trial for charges of sexual penetration and touching of his daughter. The Full Court of the Supreme Court of Victoria heard the appeal. The legal issues before the court were whether the witness's evidence regarding the content of videos, which the prosecution did not intend to produce, could be characterised as circumstantial evidence, whether it was relevant, and whether certain provisions of the Evidence Act excluded the evidence.

The court found that the evidence of the witness was not admissible as it was considered hearsay and did not fall within any of the exceptions provided by the Evidence Act. The court also found that the evidence was not relevant as the prosecution did not intend to produce the videos in question. Additionally, the court held that the evidence was excluded by sections 97, 101, and 137 of the Evidence Act, which pertain to the exclusion of evidence on the grounds of privilege, fairness, and hearsay, respectively. The court granted the appeal and excluded the evidence of the videos from the applicant's trial.

The court's decision was based on the principles set out in House v The King and IMM v The Queen, which established the criteria for the admissibility of evidence and the exceptions to the hearsay rule. The court held that the evidence in question did not meet the criteria for admissibility and was excluded by the provisions of the Evidence Act. The court also noted that the exclusion of the evidence did not necessarily mean that the prosecution's case would be weakened, as there was other evidence available to prove the charges against the applicant. The Full Court allowed the applicant's appeal and granted leave to appeal.

Orders