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…
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- AGLC
- Gentry (a Pseudonym) v Director of Public Prosecutions [2014] VSCA 211 [2014] VSCA 211
- Case
- [2014] VSCA 211
- Decision Date
CaseChat Overview and Summary
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.
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