Franklin (a pseudonym) v The King

Case [2024] VSCA 213

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0020
JEREMY FRANKLIN (A PSEUDONYM) Applicant
v
THE KING Respondent

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JUDGES: WALKER, TAYLOR and BOYCE JJA
WHERE HELD: Melbourne
DATE OF HEARING: 3 May 2024
DATE OF JUDGMENT: 19 September 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 213
JUDGMENT APPEALED FROM: DPP v [Franklin (a pseudonym)] (Unreported, County Court of Victoria, 21 September 2022, Judge Meredith)

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CRIMINAL LAW – Appeal – Tendency evidence – Acts revealed sexual attraction to biological daughters and a willingness to act on that attraction – Features of or about offending establishing common link – Tendency had significant probative value – Acts alleged in relation to one complainant significantly more serious than acts alleged in relation to second complainant – Probative value of serious allegations did not substantially outweigh prejudicial effect of that evidence in relation to the less serious alleged offending – Directions given to jury were not sufficient to manage risk of unfair prejudice – Leave to appeal granted – Appeal allowed in part – Applicant resentenced.

Evidence Act 2008, ss 97 and 101; Jury Directions Act 2015, ss 9–16.

R v Bauer (2018) 266 CLR 56, Hughes v The Queen (2017) 263 CLR 338, McPhillamy v The Queen (2018) 92 ALJR 1045, DPP v Roder (a pseudonym) (2024) 98 ALJR 644, DPP v Pearson (a pseudonym) (2021) 293 A Crim R 179, considered.

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Counsel
Applicant: Mr D Gurvich KC with Mr A Hands
Respondent: Mr L McAuliffe

Solicitors
Applicant: Adrian Paull Criminal Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA:

  1. I agree with Boyce JA.

TAYLOR JA:

  1. I agree with Boyce JA.

BOYCE JA:

Introduction

  1. An indictment filed in the County Court charged the applicant with sexual offending against his two daughters ‘AB’ and ‘CD’. The offending against AB was alleged to have occurred on five occasions, between 13 February 2018 and September 2019, when AB was aged about 11. The offending against CD was alleged to have occurred on two occasions, on 5 September 2019, when CD was eight. The indictment also alleged that the applicant had committed the offence of supplying a drug of dependence to a child.

  2. The applicant pleaded not guilty. At the close of the prosecution case the trial judge directed the jury to find the applicant not guilty of the supply a drug of dependence charge. He also directed the jury to find the applicant not guilty of charge 3 — a charge alleging that the applicant had committed the offence of incest against AB. As an alternative to charge 3, the jury were invited to consider a charge of attempted incest.

  3. On 21 September 2022, the jury found the applicant guilty of all remaining charges. On 14 December 2022, the applicant was sentenced as follows.

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation
1 Sexual penetration of a child or lineal descendant[1] 25 years 8 years 2 years
2 Sexual assault of a…

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Franklin (a pseudonym) v The King [2024] VSCA 213
Case
[2024] VSCA 213
Decision Date

CaseChat Overview and Summary

Franklin (a pseudonym) appealed against his conviction and sentence for various sexual offences against his two biological daughters. The High Court granted leave to appeal and allowed the appeal in part. The central issue was whether certain evidence was admissible as tendency evidence under s 101 of the Evidence Act 2008, and if the trial judge’s directions to the jury were sufficient to manage any prejudicial effect of that evidence.

The Court considered the nature of the evidence and the risk of unfair prejudice it posed. The evidence in question concerned acts by the appellant that demonstrated a sexual attraction towards his biological daughters and a willingness to act on that attraction. The court noted that the acts alleged in relation to one complainant were significantly more serious than those alleged in relation to the second complainant. The High Court held that while the tendency evidence had significant probative value, the probative value of the serious allegations did not substantially outweigh the prejudicial effect of that evidence in relation to the less serious alleged offending. The Court also found that the trial judge's directions to the jury were not sufficient to manage the risk of unfair prejudice.

The Court concluded that the appeal should be allowed in part, and the applicant was to be resentenced. The Court emphasised that the probative value of the serious allegations did not substantially outweigh the prejudicial effect of that evidence in relation to the less serious alleged offending. The Court also found that the trial judge's directions to the jury were not sufficient to manage the risk of unfair prejudice. The Court ordered that the applicant be resentenced, taking into account the findings of the Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For evidence to be admissible as tendency evidence, that evidence must not only clear the threshold set by s 97(1)(b) of the Act. The evidence must also satisfy the test set out in s 101(2). The probative value of the evidence must substantially outweigh any prejudicial effect that it may have. Section 101(2) is expressed in the following terms:101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution...(2)Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. Yet the applicant’s ground 2 was somewhat confined. It complained only that AB’s evidence was inadmissible as tendency evidence when it came to the jury’s consideration of the charges involving CD. This was so because, in accordance with s 101(2) of the Act, the probative value of AB’s evidence, as tendency evidence, did not substantially outweigh any prejudicial effect that it may have on the applicant. It was not ultimately submitted, and nor did ground 2 allege, that s 101(2) meant that CD’s evidence was inadmissible as tendency evidence when it came to the charges where AB was the complainant.[48][48]The applicant in chief submitted orally that the prejudicial effect of AB’s evidence also infected the jury’s consideration of the charges where AB was the complainant, but in reply the applicant sought to ‘walk back’ from that position. During the pre‑trial hearing, the imbalance between AB’s and CD’s evidence was appropriately recognised. As related above, AB described being sexually penetrated, both vaginally and — on numerous occasions — anally, by the applicant. CD complained of being sexually touched twice on one occasion. By dint of this imbalance, and the consequent fear that AB’s evidence might unfairly overwhelm the jury’s ability properly to consider the evidence of CD, the judge noted in his ruling that he would give ‘appropriate’ judicial directions. It is unfair prejudice with which s 101(2) of the Act is concerned. In Pearson this Court said:As the High Court observed in Bauer, although, unlike s 137, s 101(2) does not include the word ‘unfairly’ before ‘prejudicial’, the provision is concerned with the same idea: harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.[49][49]Pearson (2021) 293 A Crim R 179, 197 [67] (T Forrest and Walker JJA) (citations omitted); [2021] VSCA 336. Whether the risk that AB’s evidence might overwhelm the jury’s consideration of CD’s evidence was an unfair one cannot be examined free from an appreciation of the stance that was adopted by the defence at trial, nor an understanding of the directions that were given by the judge at trial which were calculated to lessen the risk of unfair prejudicial effect falling upon the applicant.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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