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Erickson (a pseudonym) v The Queen

Erickson (a pseudonym) v The Queen

Case [2021] VSCA 234 27 August 2021

Appeal

Admissibility of Evidence

Compensatory Damages

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0075

OWEN ERICKSON (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, NIALL and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2021
DATE OF JUDGMENT:	27 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 234
JUDGMENT APPEALED FROM:	DPP v [Erickson] (a pseudonym) (Unreported, County Court of Victoria, Judge Doyle, 4 June 2021)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of evidence – Whether probative value of evidence outweighed risk of unfair prejudice – Whether trial judge erred in finding evidence admissible – Whether evidence regarding content of photographs admissible to support proof of committing an indecent act and digital penetration – Appeal allowed – Evidence Act 2008, ss 85, 90, 97, 101.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L Richter	Peter Lunt and Associates
For the Respondent	Mr N Hutton	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
NIALL JA
EMERTON JA:

Before the Court is an application for leave to appeal from an interlocutory decision of a judge of the County Court in which the judge overruled an objection to tendency evidence in a trial for sexual offences concerning a single complainant.[2]
[2]DPP v [Erickson] (Unreported, County Court of Victoria, Judge Doyle, 4 June 2021 [20] (‘Reasons’). The judge certified in accordance with s 295(3) of the Criminal Procedure Act2009 on the basis that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.

As originally filed, the applicant faced trial in the County Court on an indictment containing 8 charges. Charges 1 to 6 concern the same complainant, the applicant’s step daughter, ‘GC’, and contain a number of alternative charges alleging sexual offending. For present purposes the charges can be simplified and treated as one charge of committing an indecent act by touching GC’s vagina and one charge of digital penetration of her vagina. The charged acts are alleged to have occurred on two separate occasions between 7 December 2015 and 31 December 2018. GC was born in December 2008 and was between 7 and 10 years of age at the relevant time. For ease of reference, these charges will be referred to as the sexual assault charges.

Charge 7 alleges the possession by the applicant of child abuse material described in the indictment as images of naked females aged between ‘about 11 and 13 years old with their breasts or genitals or both exposed’. None of the images comprising charge 7 are of GC. The judge ordered that charge 7 be severed and it will be tried separately.[3]
[3]Reasons [29].

Charge 8 alleges that the applicant produced child abuse material, being photographs of GC’s genital or anal region.

In order to prove the sexual assault charges, the prosecution 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 Erickson (a pseudonym) v The Queen

Details

AGLC: Erickson (a pseudonym) v The Queen [2021] VSCA 234
Case: [2021] VSCA 234
Decision Date: 27 August 2021

CaseChat Overview and Summary

Erickson, an individual known by a pseudonym, appealed against the Queen, challenging the admissibility of certain evidence in the context of a criminal trial. The case was heard in a higher court, which had jurisdiction to hear the interlocutory appeal concerning the admissibility of evidence. The primary issue was whether the trial judge erred in finding that the probative value of the evidence outweighed the risk of unfair prejudice, as required by the Evidence Act 2008. Specifically, the appellant contested the admissibility of evidence concerning the content of photographs, which was presented to support the proof of committing an indecent act and digital penetration. The court's task was to review the trial judge's decision and determine if there was any error in admitting the contested evidence.

The court examined the relevant provisions of the Evidence Act 2008, including sections 85, 90, 97, and 101. These sections outline the criteria for assessing the admissibility of evidence, focusing on the balance between the probative value of the evidence and the risk of unfair prejudice. The court considered whether the trial judge correctly applied these provisions in deciding the admissibility of the contested evidence. It was necessary to assess whether the evidence had sufficient probative value to justify its admission, while also considering the potential for unfair prejudice to the appellant. The court found that the trial judge did not adequately address the balance required by the Evidence Act 2008, leading to an error in the admission of the evidence.

Consequently, the court allowed the appeal, concluding that the trial judge erred in finding the evidence admissible. The court found that the risk of unfair prejudice substantially outweighed the probative value of the evidence, leading to an unjust outcome for the appellant. The higher court ordered that the evidence in question should not have been admitted and directed the lower court to reconsider the matter in light of the correct application of the Evidence Act 2008. The final orders included a direction for the trial to be reconducted without the inadmissible evidence, ensuring that the appellant's rights were properly protected under the law.

Orders