Harris (a pseudonym) v The King - [2024] VSCA 43

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0189

CODY HARRIS (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victims of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and the complainants.

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JUDGES:	NIALL, BOYCE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2024
DATE OF JUDGMENT:	22 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 43
JUDGMENT APPEALED FROM:	[2022] VCC 2009 (Judge Chambers)

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CRIMINAL LAW – Appeal – Tendency evidence – Whether evidence proves tendency – Acts reveal ongoing sexual attraction and acting on attraction – Whether tendency has significant probative value – Complainants in care of applicant establishing common link – Whether probative value substantially outweighs prejudicial effect – Risk manageable through proper direction of jury – Leave to appeal granted – Appeal dismissed.

Evidence Act 2008, ss 97 and 101.

R v Bauer (2018) 266 CLR 56, Hughes v The Queen (2017) 263 CLR 338, TL v The King (2022) 275 CLR 83, considered.

McPhillamy v The Queen [2018] HCA 52, distinguished.

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Counsel
Applicant:		Mr M Reardon
Respondent:		Mr G Buchhorn
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
BOYCE JA
T FORREST JA:

Following a trial before Judge Chambers and a jury, the applicant was convicted of six charges of sexual offending. There were three victims of the offending: his daughters, BT and PT, and JK, who was the daughter of his partner.
In relation to JK, the applicant was convicted of two charges of digital sexual penetration, the first occurring around 2003 to 2004 and the second in July 2007, when JK was aged 10 and 13 respectively. The third charge of which the applicant was convicted was for indecent assault, committed between 2010 and 2012 when JK was aged between 16 and 18, and involved the applicant untying her bikini strap to expose her breasts when they were in or near a swimming pool.
In relation to BT, the prosecution case was that in 2003 or 2005, when she was aged between 4 and 5, the applicant entered her bedroom and digitally penetrated her.
In relation to PT, it was alleged that the applicant began to touch her in a sexual way when she was aged 15. The applicant was convicted of touching her breasts under her clothing when the two of them were sitting on a couch watching television and touching her breasts after massaging her shoulders. Both of these convictions were for committing an indecent act with a child under 16.
Over objection, the judge allowed the prosecution to rely on tendency evidence as relevant to all of the charges relating to the female complainants. It will be necessary to refer in some detail to the alleged tendency and the evidence relied on by the prosecution to establish the tendency. In short,…

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 Harris (a pseudonym) v The King

Details

AGLC: Harris (a pseudonym) v The King [2024] VSCA 43
Case: [2024] VSCA 43
Decision Date: 22 March 2024

CaseChat Overview and Summary

The High Court heard an appeal by an individual pseudonymously referred to as Harris against the decision of the Court of Appeal in Victoria. The dispute pertained to Harris's conviction for sexual offences against two complainants. The evidence presented in the trial included acts of sexual indecency with one complainant, and indecent assault of another, both of whom were in the care of Harris at the time of the alleged incidents. The court was tasked with determining whether the trial judge had erred in admitting evidence of Harris's previous acts of sexual misconduct, and if the admission of this evidence had an undue prejudicial effect on the jury.

The legal issues before the court were whether the tendered evidence proved a tendency as defined by the Evidence Act 2008, and if the probative value of the evidence substantially outweighed its prejudicial effect. The court considered whether the acts revealed an ongoing sexual attraction and acting on that attraction, and if the probative value of the evidence was such that it could be said to establish a common link between the complainants. Furthermore, the court examined if the prejudicial effect of the evidence was manageable through appropriate jury directions.

The court found that the evidence of previous acts did indeed reveal a tendency to engage in sexual misconduct towards those in his care. The court concluded that the probative value of the evidence was significant, as it established a common link between the complainants. The court further found that the prejudicial effect of the evidence was manageable through proper direction of the jury. The court found that the trial judge had not erred in admitting the evidence and, accordingly, the appeal was dismissed. The leave to appeal was granted to address the legal issues, but ultimately, the appeal was dismissed on the basis that the trial judge had not erred in the admission of the evidence, and that the probative value of the evidence substantially outweighed its prejudicial effect.

Orders