Hollingsworth v The Queen - [2021] VSCA 354

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0212

LUKE HOLLINGSWORTH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL, KENNEDY JJA AND MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2021
DATE OF JUDGMENT:	17 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 354
JUDGMENT APPEALED FROM:	[2020] VCC 282 (Judge Taft)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one charge of intentionally causing serious injury to six-week old daughter – Evidence admitted of previous episodes of family violence between applicant and child’s mother, a family violence intervention order and associated intervention by Department of Health and Human Services – Whether evidence relevant – Evidence admitted of victim’s older injuries – Applicant gave exculpatory account in record of interview – Whether error in admitting family violence evidence as inadmissible tendency evidence – Whether error in not excluding family violence evidence pursuant to s 137 of the Evidence Act 2008 – Evidence Act 2008, ss 55, 97 and 138 – Whether family violence evidence admissible for context – HML v The Queen (2008) 235 CLR 334, Aleski (a pseudonym) v The Queen [2020] VSCA 124, WFS v The Queen (2011) 33 VR 406, Ritchie (a pseudonym) v The Queen [2019] VSCA 202 – Whether family violence evidence admissible to rebut anticipated defence – Ivanoff v The Queen [2015] VSCA 116 – Extension of time to file notice of application for leave to appeal granted – Leave to appeal granted in respect of grounds concerning admission of family violence evidence, but appeal dismissed – Leave to appeal refused on remaining proposed grounds.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P P Kounnas	Gallant Law
For the Respondent	Mr J C J McWilliams	Office of Public Prosecutions

NIALL JA
KENNEDY JA
MACAULAY AJA:

Introduction

At 6:28 pm on the evening of 10 June 2016, Kelly Morgan[1] took her six-week old daughter, May,[2] by taxi to the local hospital. Upon examination in the emergency department, a doctor observed that some of May’s limbs were making jerky movements, consistent with fitting, and that May maintained an abnormal, fixed downward gaze with minimal interaction with medical staff. A small boggy swelling was identified over the right parietal region of her skull. Significantly, that swelling doubled in size over a matter of hours at the hospital. A paediatrician was called in, as were other specialists. An ultrasound scan revealed significant bleeding in the brain.
[1]‘Kelly Morgan’ is the name for the child victim’s mother. To avoid the identification of the victims of family violence, the names of the victim, the victim’s mother and siblings, and some members of the victim’s household have been anonymised. In the interests of the administration of justice we have not anonymised the name of the offender.
[2]A pseudonym.

Later that evening, medical staff observed bruising beginning to appear on May’s right foot and both of her calves were noticed to be tight. At 3:00 am the next morning, May was…

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.

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Details

Case: [2021] VSCA 354
Decision Date: 17 December 2021

CaseChat Overview and Summary

In the matter of Hollingsworth v The Queen, the applicant appealed against his conviction for intentionally causing serious injury to his six-week old daughter. The trial judge had admitted evidence of previous episodes of family violence between the applicant and the child’s mother, a family violence intervention order, and intervention by the Department of Health and Human Services. The applicant argued that this evidence was irrelevant and prejudicial, and should not have been admitted.

The legal issues before the court were whether the evidence of family violence was relevant and admissible under the Evidence Act 2008, and whether it was an error to not exclude the evidence pursuant to s 137 of the Evidence Act 2008. The court considered the principles established in HML v The Queen, Aleski (a pseudonym) v The Queen, WFS v The Queen, Ritchie (a pseudonym) v The Queen, and Ivanoff v The Queen, which established that evidence of family violence can be admissible for context and to rebut anticipated defences.

The court found that the evidence of family violence was relevant and admissible for context, as it provided important background information about the relationship between the applicant and the child’s mother. The court also found that the evidence was admissible to rebut the anticipated defence of accidental injury, as it demonstrated a pattern of violent behaviour by the applicant. The court held that the trial judge had not erred in admitting the evidence, and that there was no basis for excluding it under s 137 of the Evidence Act 2008. The appeal was dismissed, but leave to appeal was granted in respect of the grounds concerning the admission of family violence evidence.

The court granted an extension of time to file the notice of application for leave to appeal, and granted leave to appeal in respect of the grounds concerning the admission of family violence evidence. However, the appeal was ultimately dismissed, and leave to appeal was refused on the remaining proposed grounds.

Orders