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Harris (a pseudonym) v the Queen

Harris (a pseudonym) v the Queen

Case [2015] VSCA 112 22 May 2015

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2015 0085

RAMON HARRIS (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	PRIEST and KAYE JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 May 2015
DATE OF JUDGMENT:	22 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 112
JUDGMENT APPEALED FROM:	DPP v [Harris] (Unreported, County Court of Victoria, 29 April 2015)

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CRIMINAL LAW – Interlocutory Appeal – Sexual penetration of a child aged under 10 years or between 10 and 16 years – Whether evidence coincidence evidence – Whether evidence has significant probative value – Whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused – Evidence Act 2008, ss 98(1) and 101(2) – Leave to appeal granted and appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C J Pearson	Paul Vale Criminal Law
For the Crown	Ms D Mandie	Ms V Anscombe, Acting Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
CROUCHER AJA:

This is an application for leave to appeal against an interlocutory decision of a judge of the County Court to admit coincidence evidence in the trial of the applicant.

The applicant is charged, on indictment, with eight charges of sexual offences involving two complainants. The offences are alleged to have occurred between 1 January 1981 and 4 May 1984.

The first complainant (‘BS’) was born in May 1975, and the second complainant (‘CJ’) was born in January 1973. The applicant commenced a relationship with the mother of BS when he was about six years of age. BS alleges that he was first sexually abused by the applicant approximately one year after the applicant had commenced living with his mother. At that time BS was either in the preparatory grade or grade 1 of primary school. The offending occurred at night time. BS was in bed with his mother and the applicant. BS’s mother was asleep, and the applicant was lying between her and BS. It is alleged that the applicant placed his penis into BS’s anus, and thereby committed the offence of buggery (charge 1) or, alternatively, sexual penetration with a child under 10 years (charge 2).[2]
[2]Buggery ceased to be an offence in Victoria on 1 March 1981. It was abolished by the Crimes (Sexual Offences) Act 1981. See Scannell v The Queen [2014] VSCA 330, [22] (Priest JA).

At that time the applicant became a friend of the father of the second complainant, CJ. They drank together, and it would seem did so often at the home of BS’s mother. During that time, CJ on occasions stayed overnight there, and he would sleep in the same bedroom as BS.

On one of those occasions, the applicant had entered the bedroom and lain on the bed. BS noted that the…

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 Queen

Details

AGLC: Ramon Harris (a Pseudonym)[1] v The Queen [2015] VSCA 112
Case: [2015] VSCA 112
Decision Date: 22 May 2015

CaseChat Overview and Summary

The appellant, Harris, was charged with sexual penetration of a child under the age of ten years and sexual penetration of a child between the ages of ten and sixteen years. The trial judge admitted evidence of Harris’s sexual activity with a child under the age of ten years, which was not the subject of the charges, as coincidence evidence under section 98(1) of the Evidence Act 2008. The appellant appealed the decision to admit this evidence on the basis that it had little probative value and that its prejudicial effect substantially outweighed its probative value. The High Court was required to decide whether the trial judge had correctly admitted the evidence of Harris’s sexual activity with the child under the age of ten years and whether this evidence had significant probative value. The court found that the trial judge had correctly admitted the evidence as coincidence evidence and that the evidence had significant probative value. The court held that the probative value of the evidence substantially outweighed any prejudicial effect it may have on the accused. The court found that the evidence was relevant to the charges against Harris and that it was necessary to understand the context of the alleged offences. The appeal was dismissed, and leave to appeal was granted. The final orders of the court were that the appeal be allowed, and the conviction be quashed and the matter be remitted to the trial judge for a new trial.

Orders