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Gentry (A Pseudonym) v DPP [2014] VSCA 211

Gentry (A Pseudonym) v DPP [2014] VSCA 211

Case [2014] VSCA 211 2 September 2014

Tendency Evidence

Sexual Offences Against Child Under Age of 16

Interlocutory Appeal

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2014 0176

LUCAS GENTRY (A PSEUDONYM)[1]	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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

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JUDGES:	REDLICH, TATE and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 September 2014
DATE OF JUDGMENT:	2 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 211
RULING APPEALED FROM:	DPP v [Gentry] (Unreported, County Court of Victoria, Judge Quin, 8 August 2014)

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CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Sexual offences against child under age of 16 – Single complainant – Evidence of sexual interest in complainant and willingness to act on that interest – Velkoski v The Queen [2014] VSCA 121, considered – Use of evidence of charged acts as tendency evidence – Versi v The Queen [2013] NSWCCA 206, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R S Sleeth with Ms R J Haylock	Victoria Legal Aid
For the Respondent	Mr P B Kidd SC with Ms D M Guesdon	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

This is an application for leave to appeal against an interlocutory decision that certain evidence was admissible as tendency evidence in the applicant’s trial for a number of sexual offences against a child under the age of 16. All charges relate to the same complainant. The trial judge certified, pursuant to s 295(3)(a) of the Criminal Procedure Act2009, that if the evidence the subject of the interlocutory decision were ruled inadmissible the prosecution’s case would be substantially weakened. The sole ground of appeal is that the trial judge erred in ruling that the evidence in question was admissible as tendency evidence.

The evidence the subject of the judge’s ruling related to the complainant’s possession of a number of items of underwear which the complainant alleges were given to her by the applicant. Three of those items contain seminal stains which upon forensic examination are said to contain the applicant’s DNA, and two of those items also contain DNA of the complainant. There is no suggested DNA of any other contributor on any of the underwear. The complainant may also give evidence regarding two other pairs of underwear which were never located but were allegedly involved in some of the alleged offending. The Crown has given notice that it relies upon this evidence as tendency evidence to show that the applicant: (i) acted in a particular way toward the complainant; and (ii) had a sexual interest in the complainant. The Crown also sought to rely on the complainant’s evidence as to the circumstances in which she came to possess the underwear and the presence of the applicant’s DNA on the underwear as evidence of context and circumstantial evidence. The judge ruled the evidence admissible as tendency evidence but deferred the question of…

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 Gentry (A Pseudonym) v DPP [2014] VSCA 211

Details

AGLC: Gentry (a Pseudonym) v Director of Public Prosecutions [2014] VSCA 211 [2014] VSCA 211
Case: [2014] VSCA 211
Decision Date: 2 September 2014

CaseChat Overview and Summary

Gentry (A Pseudonym) v DPP [2014] VSCA 211 involved the appellant, Gentry, who was appealing against an interlocutory decision of the County Court of Victoria. Gentry was charged with various sexual offences against a child under the age of sixteen. The case concerned the admissibility of certain evidence in the trial, specifically, whether evidence of the appellant's sexual interest in the complainant and willingness to act on that interest was properly admitted as tendency evidence.

The legal issues the court needed to address included whether the trial judge correctly exercised their discretion in admitting the challenged evidence and whether the evidence was relevant and admissible under the principles outlined in Velkoski v The Queen [2014] VSCA 121 and Versi v The Queen [2013] NSWCCA 206. The appellant argued that the evidence of the charged acts should not have been admitted as tendency evidence, as it was not relevant to any matter that needed to be determined in the trial.

The Court of Appeal considered the principles established in Velkoski, which held that tendency evidence can be admitted if it is relevant to a matter in issue and has significant probative value. The court held that the evidence of the charged acts was relevant to the appellant's propensity to commit the charged offences and had significant probative value in light of the single complainant. The Court further found that the trial judge had exercised their discretion correctly in admitting the challenged evidence, and the evidence was properly admitted under the principles outlined in Versi. The appeal was therefore dismissed.

The final orders of the Court of Appeal were that the appeal against the interlocutory decision of the County Court be dismissed. The case was remitted to the County Court for further proceedings.

Orders