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Hines (a pseudonym) v The King

Hines (a pseudonym) v The King

Case [2023] VSCA 168 24 July 2023

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0166

STEWART HINES (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 a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2023
DATE OF JUDGMENT:	24 July 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 168
JUDGMENT APPEALED FROM:	DPP v [Hines] (County Court of Victoria, 4 and 7 November 2022, Judge Dalziel)

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CRIMINAL LAW – Interlocutory appeal – Indictment containing two charges of rape – Alternative charges of sexual assault not included – Whether failure to include charges of sexual assault an abuse of process – Whether probative value of applicant’s admissions outweighed by the risk of unfair prejudice – Leave to appeal refused.

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Counsel
Applicant:		Mr I Crisp
Respondent:		Mr G Bucchorn
Solicitors
Applicant:	Vassis & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KENNEDY JA:

Introduction

On 4 November 2022, a judge of the County Court refused to grant a permanent stay of criminal proceedings against the applicant; and, on 7 November 2022, refused an application under s 137 of the Evidence Act 2008 to exclude various admissions allegedly made by the applicant (‘the rulings’ or ‘the interlocutory decisions’).
Pursuant to certification by the trial judge under ss 295(3)(a) and (b) of the Criminal Procedure Act 2009 (‘CPA’) given on 7 November 2022, the applicant seeks leave to appeal against the interlocutory decisions, on two grounds that contend that the trial judge erred —
1… by refusing to grant a permanent stay of the proceeding in circumstances where the [applicant] has made admissions of sexual misconduct not the subject of any charges on the current indictment and having regard to those admissions in the absence of other sexual offence charges on the indictment, there is a substantial risk of a compromised verdict in that the jury would convict the [applicant] of one or both charges of rape, and such risk cannot be cured by direction.
2… in refusing to exclude evidence of all admissions made by the [applicant] in relation to sexual misconduct pursuant to Section 137 of the Evidence Act 2008 in circumstances where the probative value of the admissions is outweighed by the danger of unfair prejudice to the [applicant].
In our view, the proposed appeal is utterly without merit. Leave to appeal must be refused. Our reasons follow.

Background

By way of background, an indictment filed in the County Court charges the applicant with the digital-vaginal rape (charge 1) and penile-vaginal rape (charge 2) of ‘HS’.[2]
[2]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
The Summary of Prosecution Opening[3] alleges that the applicant[4] and HS[5] met on ‘Facebook’ in August 2018. On 25 October 2018, the two agreed to meet as ‘friends’…

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 Hines (a pseudonym) v The King

Details

AGLC: Hines (a pseudonym) v The King [2023] VSCA 168
Case: [2023] VSCA 168
Decision Date: 24 July 2023

CaseChat Overview and Summary

In the case of Hines against The King, the High Court was called upon to review an interlocutory appeal regarding an indictment which included two charges of rape. The applicant, Hines, argued that the indictment was deficient as it failed to include alternative charges of sexual assault. The central legal issue was whether this omission constituted an abuse of process, and whether the probative value of the applicant's admissions was outweighed by the risk of unfair prejudice to the applicant.

The court considered the principles surrounding the framing of charges in criminal indictments, particularly focusing on the requirement to provide alternatives where appropriate. It examined the potential for unfairness and the probative value of the admissions made by the applicant. The court assessed whether the inclusion of alternative charges would have affected the fairness of the proceedings or prejudiced the applicant's right to a fair trial. Ultimately, the court determined that the probative value of the admissions outweighed any risk of unfair prejudice, and that the indictment was not so flawed as to constitute an abuse of process.

The High Court held that the failure to include alternative charges of sexual assault in the indictment did not amount to an abuse of process. The court found that the probative value of the admissions made by Hines was significant and outweighed any potential for unfair prejudice. Consequently, the application for leave to appeal was refused. The court's decision upheld the integrity of the trial process, ensuring that the indictment was sufficient to allow the applicant to properly prepare a defence.

Orders