Lambert (a pseudonym) v The King - [2023] VSCA 133

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0044

PETER LAMBERT (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the complainants, this judgment has been anonymised by the adoption of pseudonyms.

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JUDGES:	BEACH, KYROU and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023
DATE OF ORDERS:	11 May 2023
DATE OF REASONS:	6 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 133
JUDGMENT APPEALED FROM:	DPP v [Lambert] (County Court of Victoria, Judge Syme, 22 March 2023)

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CRIMINAL LAW – Interlocutory appeal – Indecent act with a child under 16 years – Sexual penetration of a child under 16 – Attempted indecent act with a child under 16 years – Rape – Multiple complainants – Evidence of all complainants joined in single indictment – Whether evidence of all complainants cross-admissible as tendency evidence – Whether indictment should be severed – Leave to appeal refused.

Evidence Act 2008 ss 97 and 101(2).

House v The King (1936) 55 CLR 466; Hughes v The Queen (2017) 263 CLR 338; R v Bauer (a pseudonym) (2018) 266 CLR 56; DPP v Matthews (a pseudonym) [2019] VSCA 11; DPP v Pearson (a pseudonym) [2021] VSCA 336 and TL v The King [2022] HCA 35 referred to.

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Counsel
Applicant:		Mr A Waters
Respondent:		Mr DA Glynn
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA

KYROU JA
T FORREST JA:

On 27 March 2023, the applicant filed an application for leave to appeal against an interlocutory ruling made in his trial in the County Court on 22 March 2023. The application for leave was made pursuant to s 295 of the Criminal Procedure Act 2009 (‘CPA’). On 11 May 2023, following the hearing of the application, we refused leave to appeal. We set out below our reasons for that refusal.
The applicant currently faces trial in the County Court on an indictment containing 14 charges relating to five complainants. A summary of these charges is set out below:

Charge

Offence

Date

Complainant

1 Indecent act with a child under 16 years [Crimes Act 1958, s 47] Between 15 June 1998 and 25 August 2003 EP

2 Indecent act with a child under 16 years Between 15 June 1998 and 25 August 2003 TW

3 Indecent act with a child under 16 years Between 15 June 2000 and 14 June 2004 EP

4 Indecent act with a child under 16 years Between 15 June 2003 and 17 November 2005 EP

5 Indecent act with a child under 16 years Between 15 June 2003 and 14 June 2005 JW

6 Sexual penetration of a child under 16 [Crimes Act, s 45(1)] Between 15 June 2003 and 17 November 2005 JW

7 Indecent act with a child under 16 years Between 15 June 2003 and 17 November 2005 EP

8 Indecent act with a child under 16…

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 Lambert (a pseudonym) v The King

Details

AGLC: Lambert (a pseudonym) v The King [2023] VSCA 133
Case: [2023] VSCA 133
Decision Date: 6 June 2023

CaseChat Overview and Summary

The respondent, Lambert, appealed against a decision to join the evidence of multiple complainants in a single indictment against him. The charges included sexual penetration of a child under 16 years, attempted indecent act with a child under 16 years, and rape. The court was required to determine whether the evidence of all complainants was cross-admissible as tendency evidence and whether the indictment should be severed.

The court held that the evidence of the complainants was not cross-admissible as tendency evidence, as there were no common features that would satisfy the criteria set out in the Evidence Act 2008. The court found that the evidence was too dissimilar and that the probative value of the evidence was not outweighed by the danger of unfair prejudice. The court also found that the indictment should not be severed, as the charges were part of a common scheme or plan and the joinder of the charges did not prejudice the respondent's right to a fair trial.

The court dismissed the appeal and held that the decision to join the evidence of multiple complainants in a single indictment was appropriate. The court found that the evidence of the complainants was not cross-admissible as tendency evidence and that the joinder of the charges did not prejudice the respondent's right to a fair trial. The court held that the indictment should not be severed and that the respondent's appeal was without merit. The court refused leave to appeal to the High Court.

Orders