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Jacobs (a pseudonym) v The Queen

Jacobs (a pseudonym) v The Queen

Case [2019] VSCA 285 6 December 2019

Appeal

Admissibility of Evidence

Causation

Conviction

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0160
S APCR 2018 0161
S APCR 2018 0162

GLEN JACOBS (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 and the use of initials in place of the complainants and other witnesses.

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JUDGES:	PRIEST and KAYE JJA, and KENNEDY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 November 2019
DATE OF JUDGMENT:	6 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 285 First Revision: 13 December 2019
JUDGMENT APPEALED FROM:	[2018] VCC 721 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Applicant charged with rape and other sexual offences – Separate trials in respect of each complainant – Issues in each trial whether complainant consented to sexual activity and whether applicant aware of lack of consent – Applicant convicted on one charge of rape in first proceeding and two charges of rape in second proceeding – Whether trial judge erred in admitting expert evidence of psychiatrist in first and second proceedings under s 108C of the Evidence Act2008 and s 388 of the Criminal Procedure Act 2009 – Expert evidence not capable of rationally affecting assessment of a fact in issue in first and second proceedings – Whether admission of expert evidence led to substantial miscarriage of justice – Application for leave to appeal granted – Appeal allowed – Conviction in first proceeding and convictions in second proceeding quashed – Criminal Procedure Act 2009 ss 276(1)(b), 388 – Evidence Act 2008 ss 55, 76, 79, 108C – MA v The Queen (2013) 40 VR 546; M v The Queen [2011] NZCA 191 considered.

CRIMINAL LAW – Appeal – Conviction – Applicant convicted on one charge of rape in third proceeding – Applicant denied non-consensual intercourse with complainant – Applicant offered complainant to stay in his apartment – Applicant told complainant apartment had two bedrooms – Apartment was a studio apartment – Complainant arrived and applicant told her he recently moved to studio apartment – Trial judge admitted lease of studio apartment on basis that lease was relevant to applicant’s credibility – Whether substantial miscarriage of justice – Lease not admissible as credibility evidence under ss 108A and 108B of the Evidence Act2008 – Documentary evidence tendered to jury capable of being given undue weight – Substantial miscarriage of justice due to admission of lease into evidence – Application for leave to appeal granted – Appeal allowed – Conviction in third proceeding quashed – Evidence Act 2008 ss 102, 108A, 108B.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC with Ms G Connelly	Emma Turnbull Lawyers
For the Respondent	Mr B Sonnet	Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
KENNEDY AJA:

The applicant was originally subject to a 21 charge indictment which alleged that he had committed a number of sexual offences in respect of…

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 Jacobs (a pseudonym) v The Queen

Details

AGLC: Jacobs (a pseudonym) v The Queen [2019] VSCA 285
Case: [2019] VSCA 285
Decision Date: 6 December 2019

CaseChat Overview and Summary

The applicant, referred to as Jacobs, was convicted of multiple sexual offences following three separate trials. In the first trial, Jacobs was convicted of one charge of rape, while in the second trial, he was convicted on two charges of rape. In the third trial, Jacobs was convicted of one charge of rape. Jacobs appealed the convictions, arguing that the trial judge erred in admitting certain evidence, which led to a substantial miscarriage of justice. The legal issues for the court to determine were whether the trial judge erred in admitting the expert evidence of a psychiatrist and the lease of the studio apartment as credibility evidence, and whether such errors led to a substantial miscarriage of justice.

The court examined the evidence in question, considering whether the expert evidence of the psychiatrist was capable of rationally affecting the assessment of facts in issue. The court also considered whether the lease of the studio apartment was admissible as credibility evidence under the Evidence Act 2008. The court found that the expert evidence was not capable of rationally affecting the assessment of facts in issue, and therefore, its admission was erroneous. Similarly, the court found that the lease of the studio apartment was not admissible as credibility evidence, and its admission led to a substantial miscarriage of justice.

The court allowed the appeal and quashed the convictions in the first and second proceedings due to the erroneous admission of expert evidence. The court also allowed the appeal in the third proceeding and quashed the conviction due to the erroneous admission of the lease of the studio apartment as credibility evidence. The court found that the errors in admitting the evidence led to a substantial miscarriage of justice. As a result, the applicant's convictions were quashed, and he was granted leave to appeal.

Orders