| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0122 |
| MICHAEL JACOBS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]In order not to prejudice the administration of justice, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 November 2024 |
| DATE OF JUDGMENT: | 11 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 309 |
| JUDGMENT APPEALED FROM: | DPP v Jacobs (a pseudonym) [2024] VCC 878 (Judge Trapnell) |
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CRIMINAL LAW – Interlocutory appeal – Sexual offences against children – Fourteen charges involving three complainants – Whether probative value of tendency substantially outweighed by prejudicial effect – Sexual interest and willingness to act on that interest – Significant probative value – Charges linked by familial connection and trust – Risk to prejudice can be overcome with jury directions – Evidence is cross-admissible – Correctness standard of appellate review applied – Leave to appeal refused.
Crimes Act 1958, ss 49A(1), 49D(1); Criminal Procedure Act 2009, s 295(3)(b); Evidence Act 2008, ss 97(1), 101(2).
Dempsey (a pseudonym) v The Queen [2019] VSCA 224; Harris (A Pseudonym) v The Queen [2024] VSCA 43; Hughes v The Queen (2017) 263 CLR 338; Moore (a pseudonym) v The King (2024) 419 ALR 169; R v Bauer (2018) 266 CLR 56; TL v The King (2022) CLR 83, applied; Clark (a pseudonym) v The Queen [2015] VSCA 297; DPP v Pearson (a pseudonym) [2021] VSCA 336; Elomar v The Queen (2014) 316 ALR 206; Gardiner v The Queen (2006) 162 A Crim R 233; RWC v R [2010] NSWCCA 332, considered.
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| Counsel | |||
| Applicant: | Mr CK Wareham with Mr R Robertson | ||
| Respondent: | Mr JCJ McWilliams with Ms P Long | ||
Solicitors | |||
| Applicant: | Dribbin & Brown Criminal Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
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PRIEST JA
T FORREST JA:
The applicant is currently the subject of a 14-charge indictment in the County Court. It is alleged that the applicant sexually offended against three complainants: ‘AB’, ‘CD’ and ‘EF’.
The charges against AB
Charges 1 to 5 allege that the applicant intentionally sexually penetrated AB, a child under the age of 12 years, in various ways.[2] Charges 6 and 7 allege that the applicant sexually touched, AB, a child under 16 years, in circumstances contrary to community standards of acceptable conduct.[3] These offences were alleged to have been committed between 1 April 2018 and 30 June 2021.
[2]Contrary to s 49A(1) of the Crimes Act 1958.
[3]Contrary to s 49D(1) of the Crimes Act 1958.
The charges against CD
Charges 8 to 12 allege the applicant sexually touched CD, a child under the age of 16 years, in circumstances contrary to community standards of acceptable conduct.[4] These offences were alleged to have been committed between 1 April 2018 and 31 July 2021.
[4]Contrary to…
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- AGLC
- Jacobs (a pseudonym) v The King [2024] VSCA 309
- Case
- [2024] VSCA 309
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the probative value of the tendered evidence substantially outweighed its prejudicial effect, as required by section 97(1) of the Evidence Act 2008. The court also considered the relevance of the evidence in light of the charges being linked by familial connection and trust, and the risk of prejudice to the accused. It examined the authorities on cross-admissibility of evidence in sexual offence cases and the appropriate standard of appellate review.
The court held that the evidence of past sexual offences had significant probative value, particularly given the familial connection and the trust factor inherent in the relationship between the accused and the victims. The risk of prejudice, while acknowledged, could be mitigated through appropriate jury directions. The court applied the correctness standard of appellate review and found that the lower court had correctly admitted the evidence. The appeal was dismissed, and leave to appeal was refused.
No further orders were made.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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