Hicks (a Pseudonym) v the Queen - [2015] VSCA 201

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0001

GARY HICKS (A PSEUDONYM)[1]

THE QUEEN

[1]To ensure that there is no possibility of identification of the victim 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 and WHELAN JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2015
DATE OF JUDGMENT:	4 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 201
JUDGMENT APPEALED FROM:	DPP v [Hicks] (Unreported, County Court of Victoria, Judge Cotterell, 4 December 2014)

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CRIMINAL LAW – Conviction – Sexual offences against a child – Crown alleged applicant committed sexual offences against his half-sister – Tendency evidence led by Crown, over defence objection – Directions on ‘sexual interest’ given over objection by Crown and defence and despite the Crown’s notice not extending to ’sexual interest’ – Directions expanded Crown case – Subsequent directions did not cure or withdraw erroneous directions – Observations on model charges on tendency evidence in Victorian Criminal Charge Book – Appeal allowed and retrial directed – Observations on matters that may be relevant to retrial, including approach to question of reasonable possibility of collusion and youth of applicant when considering admissibility of tendency evidence – Observations on directions on collusion – Observations on directions on absence of evidence of motive to lie – Evidence Act 2008 (Vic) s 97; Velkoski v The Queen [2014] VSCA 121; SLSv The Queen [2014] VSCA 31.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Barton	Malcolm D Motherwell
For the Respondent	Ms F Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA
WHELAN JA
CROUCHER AJA:

Overview

On 3 October 2014, the applicant was convicted of 11 charges of sexual offending against his half-sister following a nine-day trial in the County Court. The indictment contained 14 charges. There were four charges of incest, six charges of indecent assault, and four charges of gross indecency. The jury was directed to acquit the applicant on one charge of incest and one charge of gross indecency (charges 1 and 2). One of the indecent assault charges (charge 12) was an alternative to one of the incest counts upon which the applicant was convicted (charge 11).

On 4 December 2014, the applicant was sentenced as follows:

Charge on Indict-
ment Offence Maximum Sentence Cumulation

3 Gross Indecency [Crimes Act1958 as amended by the crimes (Sexual Offences) Act 1980 s 50(1)] 2 years’ imprisonment 6 months’ imprisonment 1 month

4 Indecent Assault [Crimes Act1958 as amended by the Crimes (Sexual Offences) Act 1980 s 44(1)] 5 years’ imprisonment 3 months’ imprisonment Concurrent

5 Gross Indecency [Crimes Act1958 as amended by the Crimes (Sexual Offences) Act 1980 s 50(1)] 2 years’ imprisonment 10 months’ imprisonment 1 month

6 Incest [Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980 s 52(4)] 7 years’ imprisonment 3…

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 Hicks (a Pseudonym) v the Queen

Details

AGLC: Hicks (a Pseudonym) v the Queen [2015] VSCA 201
Case: [2015] VSCA 201
Decision Date: 4 August 2015

CaseChat Overview and Summary

In the case of Hicks (a Pseudonym) v the Queen, the applicant appealed against his conviction for sexual offences against his half-sister, arguing that the trial judge had erred in his directions to the jury regarding the admissibility and weight of tendency evidence. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The applicant's defence was that the evidence of his half-sister was unreliable due to the possibility of collusion, and that the trial judge should have directed the jury to consider this possibility in the context of the admissibility of the tendency evidence.

The court was required to decide whether the trial judge erred in giving directions to the jury on the admissibility of tendency evidence, and whether those errors were so significant as to necessitate a retrial. The court also needed to consider whether the trial judge's directions on the question of collusion and the absence of evidence of motive to lie were appropriate, and whether the observations on the model charges in the Victorian Criminal Charge Book were relevant to the admissibility of tendency evidence.

The court found that the trial judge had erred in giving directions to the jury on the admissibility of tendency evidence, and that those errors were not cured by subsequent directions. The court held that the error was not trivial, and that the applicant's conviction should be quashed and a retrial ordered. The court also made observations on the approach to the question of reasonable possibility of collusion and the youth of the applicant when considering the admissibility of tendency evidence. The court noted that the observations on the model charges in the Victorian Criminal Charge Book were not binding, but may be relevant to the admissibility of tendency evidence. The court further observed that the directions on collusion and the absence of evidence of motive to lie were not appropriate in the context of this case.

The court allowed the applicant's appeal and directed a retrial. The court also made observations on matters that may be relevant to the retrial, including the approach to the question of reasonable possibility of collusion and the youth of the applicant when considering the admissibility of tendency evidence. The court observed that the directions on collusion and the absence of evidence of motive to lie were not appropriate in the context of this case. The court noted that the observations on the model charges in the Victorian Criminal Charge Book were not binding, but may be relevant to the admissibility of tendency evidence.

Orders