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Jacobs (a pseudonym) v The Queen

Jacobs (a pseudonym) v The Queen

Case [2017] VSCA 309 26 October 2017

Appeal

Admissibility of Evidence

Consent

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0202

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 pseudonyms in place of the names of the applicant and certain other people.

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JUDGES:	MAXWELL P, ASHLEY JA and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 October 2017
DATE OF ORDERS:	17 October 2017
DATE OF REASONS:	26 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 309
JUDGMENT APPEALED FROM:	[2017] VCC 1331 (Judge Murphy)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Joint trials – Severance – Evidence – Admissibility – Coincidence evidence – Multiple charges of rape – Multiple complainants – Consent in issue in each case – Whether evidence of complainants as to absence of consent cross-admissible – Whether probative of accused’s state of mind – Evidence not cross-admissible – Appeal allowed – Indictment severed – Phillips v The Queen (2006) 225 CLR 303 applied – Crimes Act 1958 s 38 – Evidence Act 2008 ss 55, 56, 98, 101.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Kelly SC with Mr D Cronin	Emma Turnbull Lawyers
For the Crown	Mr P Chadwick QC with Ms N Burnett	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
ASHLEY JA
FORREST AJA:

Summary

Before the prosecution in a criminal trial seeks to rely on coincidence evidence, it is essential that there be clear identification of the fact(s) in issue to which the evidence is said to be relevant. Only then can a proper assessment be made, as required by ss 98 and 101 of the Evidence Act 2008 (the ‘Act’), of:

·whether the evidence will have ‘significant probative value’ in relation to those facts; and
·if so, whether its probative value ‘substantially outweighs’ any prejudicial effect it may have on the accused.

The applicant is facing multiple counts of rape[2]. There are six separate complainants. But the only facts in issue in each case are consent and belief in consent. The prosecution contends that none of the complainants consented to sex with the applicant and, further, that he was aware in each case of the absence of consent.
[2]And two charges of false imprisonment.

The coincidence notice, however, was drawn in the broadest of terms. The fact in issue, in each case, was stated to be ‘Did the offending occur?’. And the evidence sought to be relied on covered the entirety of each complainant’s interactions with the applicant, from their first encounter through an on-line dating site.

As explained below, those circumstances were, in themselves, unremarkable. Moreover, they were not in dispute. It is common ground that the applicant met each complainant on-line and that subsequently there was sexual intercourse between them in his apartment. The prosecution relied on what was said to be a pattern in the applicant’s method of contacting, and arranging to meet, the various complainants. But the similarities relied on have no…

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: Glen Jacobs (a pseudonym) v The Queen [2017] VSCA 309
Case: [2017] VSCA 309
Decision Date: 26 October 2017

CaseChat Overview and Summary

The case involved an appellant, referred to as Jacobs, who was appealing an interlocutory decision that allowed multiple complainants' evidence to be admitted in a joint trial. Jacobs faced multiple charges of rape against different complainants, and the central issue was whether the evidence from each complainant regarding the absence of consent could be cross-admitted as it pertained to the accused’s state of mind. The High Court of Australia was the court that dealt with this appeal.

The legal issues before the court were the admissibility of coincidence evidence under the Evidence Act 2008 and whether such evidence was probative of the accused’s state of mind. The court needed to determine if the evidence of each complainant's account of events was relevant and admissible in the context of the other complainants' testimonies. This involved a close examination of the statutory provisions and case law, particularly Phillips v The Queen, to decide on the appropriate application of the principles of severance and the admissibility of evidence in joint trials.

The court found that the evidence of the complainants regarding the absence of consent was not cross-admissible as it pertained to the accused’s state of mind. It held that the evidence from each complainant was not sufficiently probative of the other complainants' cases to warrant its admissibility. The court applied the principles set out in Phillips v The Queen and the statutory provisions of the Evidence Act 2008 and the Crimes Act 1958, concluding that the evidence did not meet the criteria for admissibility under the circumstances presented. Consequently, the appeal was allowed, and the indictment was severed, with each charge to be tried separately.

The final orders of the court mandated the severance of the indictment into separate trials for each charge, ensuring that the evidence from each complainant would only be considered in the trial pertinent to that complainant. This decision aimed to uphold the integrity of the trial process by preventing the potential prejudice that could arise from the improper admission of coincidence evidence.

Orders