Harlen (a pseudonym) v The King

Case [2023] VSCA 269

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0133
HAROLD HARLEN (A PSEUDONYM)[1] Applicant
v
THE KING Respondent

[1]So as to prevent any risk of prejudice to the proper administration of justice, these reasons for judgment have been anonymised by the adoption of pseudonyms in place of certain names.

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JUDGES: McLEISH, NIALL and KENNEDY JJA
WHERE HELD: Melbourne
DATE OF HEARING: 20 October 2023
DATE OF JUDGMENT: 9 November 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 269
JUDGMENT APPEALED FROM: DPP v [Harlen] (Ruling No 2) (County Court of Victoria, Judge Doyle, 27 March 2023)

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CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Indictment containing 14 charges including two charges of rape – Evidence of charged acts and uncharged act relating to complainant, and evidence of charged acts relating to former intimate partner – Tendency to have willingness to engage, or to actually engage, in verbal violence and physical violence as a means of control towards former intimate partners – Whether evidence of significant probative value – Whether probative value of evidence substantially outweighs prejudicial effect – Leave to appeal refused.

Evidence Act 2008, ss 91, 97, 101.

Hughes v The Queen (2017) 263 CLR 338, Taylor v The Queen [2020] NSWCCA 355, Townsend (a pseudonym) v The King [2022] VSCA 201, Morey (a pseudonym) v The King [2023] VSCA 153, considered - Henderson (a pseudonym) v The Queen [2017] VSCA 237, distinguished.

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Counsel
Applicant: Mr C Mylonas
Respondent: Mr CB Boyce KC with Ms CJ Duckett

Solicitors
Applicant: Valos Black & Associates
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
NIALL JA
KENNEDY JA:

Introduction

  1. The applicant, Harold Harlen, is currently facing trial before a jury in the County Court. The trial is due to commence on 29 November 2023. He has been charged with 14 charges, which include two charges of rape.[2] The charges arise out of the breakdown of a relationship between the applicant and the complainant, Ms Stephanie Abbott, who is the applicant’s previous partner.

    [2]Indictment 2A contains the following charges: two charges of false imprisonment contrary to common law; one charge of stalking contrary to s 21A of the Crimes Act 1958; two charges of causing injury recklessly contrary to Crimes Act 1958, s 18; two charges of common assault contrary to the common law; one charge of contravention of order intending to cause harm or fear for safety contrary to Family Violence Protection Act 2008, s 123A(2); two charges of causing injury intentionally contrary to Crimes Act 1958, s 18; one charge of making a threat to kill contrary to Crimes Act 1958, s 20; two charges of rape contrary to Crimes Act 1958, s 38(1), as amended by Crimes Amendment (Sexual Offences) Act 2016; and one charge of persistent contravention of a family violence intervention order contrary to Family Violence Protection Act 2008, s 125A.

  2. By a tendency notice dated 28 September…

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Details
AGLC
Harlen (a pseudonym) v The King [2023] VSCA 269
Case
[2023] VSCA 269
Decision Date

CaseChat Overview and Summary

Harlen, the appellant, sought leave to appeal against the decision of a trial judge to admit tendency evidence in his trial for multiple charges including two charges of rape. The respondent, the Crown, opposed the application. The issue before the court was whether the trial judge erred in admitting evidence that the appellant had a tendency to engage in verbal and physical violence towards former intimate partners. The court was required to determine whether the probative value of this evidence substantially outweighed any prejudicial effect it may have on the appellant.

The court held that the trial judge did not err in admitting the evidence. The court found that the evidence was of significant probative value in relation to the charged offences. The court noted that the evidence strongly supported the tendency that the appellant had a willingness to engage, or actually engage, in verbal violence and physical violence as a means of control towards former intimate partners. The court also found that this tendency strongly supported the proof of facts making up the charged offences, which involved acts of verbal and physical violence towards the complainant. The court considered that the probative value of the evidence substantially outweighed any prejudicial effect it may have on the appellant.

The court refused leave to appeal. The court found that the trial judge correctly applied the principles set out in Hughes and Townsend in determining the admissibility of the tendency evidence. The court also found that the trial judge correctly considered the prejudicial effect of the evidence and whether its probative value substantially outweighed any such effect. The court concluded that the trial judge’s decision to admit the evidence was not erroneous.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In a criminal proceeding, it is not sufficient that the tendency evidence is of significant probative value. Pursuant to s 101 of the Act, the probative value of the evidence must also substantially outweigh any prejudicial effect that it may have on the accused:101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution(1)This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.(2)Tendency 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.… In Hughes, Kiefel CJ, Bell, Keane and Edelman JJ enunciated the two-step test to be applied in determining whether evidence is of ‘significant probative value’:The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence … In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[47][47](2017) 263 CLR 338, 356–7 [41]; [2017] HCA 20, cited in Klein (a pseudonym) v The King [2022] VSCA 249, [85] (Priest AP, Beach and T Forrest JJA). See also McPhillamy v The Queen (2018) 361 ALR 13, 19 [26] (Kiefel CJ, Bell, Keane and Nettle JJ), 20–1 [33] (Edelman J); [2018] HCA 52; TL v The King (2022) 275 CLR 83, 95–6 [28]–[29] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35. In Townsend (a pseudonym) v The King, this Court (Kyrou, Kennedy and Kaye JJA) said of the admissibility of tendency evidence:In order to determine whether the evidence, on each of the charges in this case, is admissible as tendency evidence in respect of the other charges, it is necessary to address four fundamental questions, namely: (1)Whether the evidence, in respect of a particular charge, supports the particular tendency that is sought to be relied on; (2)Whether that tendency has a probative value in respect of the offence that is the subject of one of the other charges; that is, whether the proposed tendency evidence is capable of rationally affecting the assessment, by the jury, of the probability of a particular fact in issue on one or more of the other charges;(3)Whether, as such, the tendency evidence sought to be relied on has significant probative value in respect of that fact in issue; [and](4)Whether the probative value of that tendency evidence would substantially outweigh any prejudicial effect it may have on the accused person.[48][48][2022] VSCA 201, [21] (citations omitted).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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