Elliott Puckett (a pseudonym)[1] v The Queen - [2019] VSCA 103

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0031

ELLIOTT PUCKETT (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 a pseudonym in place of the name of the applicant.

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JUDGES:	KYROU, KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 May 2019
DATE OF JUDGMENT:	15 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 103
JUDGMENT APPEALED FROM:	DPP v [Puckett] (Unreported, County Court of Victoria, 14 November 2018) (Judge Gucciardo)

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CRIMINAL LAW – Procedure – Interlocutory appeal – Evidence – Admissibility – Decision affecting conduct at trial – Appellate court to decide on admissibility – Criminal Procedure Act 2009 s 295(3)(a), (b).

EVIDENCE – Admissibility – Sexual offences – Coincidence evidence – Sufficient similarity test – Consent in issue – Whether evidence lacked significant probative value – Whether probative value of evidence outweighed by prejudicial effect — Evidence Act 2008 ss 98(1), 101(2) considered — Application for leave to appeal granted and appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr C Wareham	James Dowsley & Associates
For the Respondent:	Ms D Mandie	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
KAYE JA
NIALL JA:

The applicant is charged on indictment with one charge of assault with intent to commit aggravated rape (charge 1), assault with intent to rape (charge 2, alternative to charge 1), common assault (charge 3, alternative to charge 2), aggravated rape (charge 4) and rape (charge 5, alternative to charge 4). The offences were alleged to have taken place on 7 November 1982, when the applicant was 16 years of age. The complainant, LD, was then 39 years of age.

In 1990, the applicant was charged with a number of offences involving the sexual assault and rape of a different complainant, JS, on 14 December 1989 (‘the subsequent offending’). The applicant pleaded guilty to those offences, and was sentenced to a term of imprisonment in respect of them. In the present case, the prosecution has given notice to the applicant, pursuant to s 98(1)(a) of the Evidence Act 2008, that it intends to adduce evidence of the subsequent offending as coincidence evidence. Before the empanelment of the jury, the trial judge ruled that the evidence of the subsequent offending is admissible pursuant to s 98(1)(a) of the Act. Having been granted a certificate under s 295(3) of the Criminal Procedure Act 2009, the applicant seeks leave to appeal to this Court against that decision.

Circumstances of the alleged offending

The circumstances of the offending, alleged in the present case, are outlined in the summary of prosecution opening.

In 1982, the applicant was living in Bendigo Street Prahran a short distance from the scene of the alleged offences. On the evening in question, the complainant attended the Duke of York Hotel on the corner of Clifton and High Streets Prahran in company with her son and daughter. At about midnight,…

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.

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Details

Case: [2019] VSCA 103
Decision Date: 15 May 2019

CaseChat Overview and Summary

In the matter of Elliott Puckett against The Queen, the High Court was called upon to consider the admissibility of certain evidence presented during the course of a trial. The respondent, Puckett, was facing charges relating to sexual offences. The primary issue before the court was whether the trial judge had erred in admitting certain coincidence evidence in accordance with the provisions of the Evidence Act 2008. Specifically, the court needed to determine whether the probative value of the evidence outweighed any prejudicial effect it may have had on the proceedings.

The legal questions the court addressed involved the interpretation and application of sections 98(1) and 101(2) of the Evidence Act 2008. The court needed to decide if the evidence, which was to be used to establish a similarity in circumstances between the current case and previous incidents, was sufficiently probative to assist the jury in making a decision on the issue of consent, and whether it was outweighed by its potential to cause prejudice. Additionally, the court considered whether the trial judge had correctly applied the principles set out in the Criminal Procedure Act 2009, particularly sections 295(3)(a) and (b), which relate to decisions affecting conduct at trial and the role of the appellate court in deciding on admissibility.

The High Court, after reviewing the evidence and the trial judge's decision, found that the trial judge had not erred in admitting the coincidence evidence. The court held that the evidence was sufficiently similar to the incidents in question to be probative of the issue of consent, and that its probative value was not outweighed by the prejudicial effect. The court also found that the trial judge had correctly applied the relevant statutory provisions. Consequently, the appeal was dismissed, and the decision of the trial judge was upheld.

[1] A pseudonym used to protect the identity of the respondent.

Orders