Lee (a pseudonym) v The King - [2024] VSCA 10

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0191

JASON LEE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant, victims and other family members.

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JUDGES:	McLEISH, KENNEDY, and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2024
DATE OF JUDGMENT:	21 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 10
JUDGMENT APPEALED FROM:	DPP v [Lee] (County Court of Victoria, Judge Brookes, 28 July 2022)

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CRIMINAL LAW – Appeal – Conviction – Incest – Sexual assault of a child under 16 – Common assault – Applicant found guilty of seven charges of incest, one charge of sexual assault of a child under 16, and one charge of common assault in respect of his three biological daughters – Sentenced to 18 years and six months’ imprisonment with a non-parole period of 14 years – Whether trial judge’s failure to give the mandatory directions in relation to general tendency evidence and sexual interest tendency required by s 27 of the Jury Directions Act 2015 and incorporated in [4.17.1] and [4.17.2] of the Criminal Charge Book resulted in a substantial miscarriage of justice – Whether trial miscarried as a result of the admission of tendency evidence – Whether trial judge’s decision to proceed to verdict with a jury of ten persons in context of ongoing COVID-19 outbreak resulted in a substantial miscarriage of justice – Trial judge’s failure to give requisite s 27 direction could have affected the outcome of the trial – Leave to appeal granted – Appeal allowed – Retrial ordered.

Crimes Act 1958, ss 49D, 50C; Jury Directions Act 2015, ss 12, 14, 26, 27, 43, 44; Criminal Procedure Act 2009, s 276(1)(b).

Karam v The King [2023] VSCA 318, Baini v The Queen (2012) 246 CLR 469, Awad v The Queen (2022) 275 CLR 42, applied; Hughes v The Queen (2017) 263 CLR 338, considered; Wu v The Queen (1999) 199 CLR 99, Kennedy v The King [2023] VSCA 86, discussed.

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Counsel
Applicant:		Ms G Connelly
Respondent:		Ms S Clancy
Solicitors
Applicant:	Greg Thomas Barrister and Solicitor
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
KENNEDY JA
T FORREST JA:

On 13 April 2022, the applicant was found guilty by a jury of seven charges of incest, one charge of sexual assault of a child under 16, and one charge of common assault.
The applicant was sentenced to a total effective sentence of 18 years and six months’ imprisonment with a non-parole period of 14 years. The table below sets out the particulars of each sentence.

Charge

Offence

Maximum

Sentence

Cumulation

1 Incest — sexual penetration of a child or lineal descendant[2] (Jessica) 25 years’ imprisonment 9 years’ imprisonment Base

2 Incest — sexual penetration of a child…

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 Lee (a pseudonym) v The King

Details

AGLC: Lee (a pseudonym) v The King [2024] VSCA 10
Case: [2024] VSCA 10
Decision Date: 21 February 2024

CaseChat Overview and Summary

Lee was convicted in the County Court of Victoria of seven charges of incest, one charge of sexual assault of a child under 16, and one charge of common assault in respect of his three biological daughters. He was sentenced to 18 years and six months’ imprisonment with a non-parole period of 14 years. The central issue in the appeal was whether the trial judge’s failure to provide the mandatory directions in relation to general tendency evidence and sexual interest tendency, as required by s 27 of the Jury Directions Act 2015, resulted in a substantial miscarriage of justice. The court also considered whether the trial miscarried due to the admission of tendency evidence and whether the trial judge’s decision to proceed with a jury of ten persons during the COVID-19 outbreak caused a substantial miscarriage of justice.

The Supreme Court of Victoria held that the trial judge’s omission to provide the necessary directions regarding tendency evidence could have influenced the jury’s decision. The mandatory directions, as outlined in [4.17.1] and [4.17.2] of the Criminal Charge Book, were intended to ensure the jury understood the limited purpose of the evidence and did not convict based on prejudice or sympathy. The court emphasised the importance of these directions in a case with multiple complainants, where the risk of prejudice was heightened. Given the gravity of the charges and the length of the sentence, the court concluded that the absence of these directions could have led to a substantial miscarriage of justice. The court also noted that the admission of tendency evidence, without proper direction, may have unfairly swayed the jury's decision.

As a result, the appeal was allowed, and a retrial was ordered. The court held that the trial judge’s failure to give the requisite directions under s 27 of the Jury Directions Act 2015 meant that the trial did not proceed as it should have, potentially compromising the fairness of the verdict. The Supreme Court emphasised the need for strict adherence to the statutory requirements when dealing with tendency evidence to safeguard the integrity of the trial process. The decision underscored the importance of ensuring that juries are properly guided on the use and limitations of such evidence to prevent unjust outcomes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 27 of the JDA provides as follows: Direction on other misconduct evidence adduced by the prosecution(1)Defence counsel may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution.(2)In giving a direction referred to in subsection (1), the trial judge must—(a)identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and(b)if the evidence forms only part of the prosecution case against the accused, inform the jury of that fact; and(c)direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused.(3)In giving a direction referred to in subsection (1), the trial judge need not—(a)explain further what the jury should consider in deciding whether to use the other misconduct evidence; or(b)identify impermissible uses of the other misconduct evidence; or (c)refer to any other matter.NoteSection 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so. In this multiple complainant case, appropriate model directions are found in [4.17.1] of the charge book. It is unnecessary to rehearse them in detail. The tendency alleged would be recited by the judge together with a summary of the parties’ arguments and an identification of the relevant evidence. The jury would then be directed as to the use to be made of the tendency evidence — namely that if the jury find that the accused had the relevant tendency, then they can use that to find that it is more likely that the accused committed the relevant offence or offences. The [4.17.1] model direction then suggests that the jury be charged as follows. You must keep this evidence in perspective. It is only one part of the prosecution’s case.[10] It is not enough to convict the accused that you find [he/she] [identify the tendency evidence] or [identify the alleged tendency]. You can only find NOA guilty of a charge if you are satisfied of [his/her] guilt of that charge beyond reasonable doubt, based on the whole of the evidence.As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of showing that [describe relevant tendency] and so is more likely to have committed the offence(s) charged. You must not use the evidence for any other purpose.[11][10]If the tendency evidence is the whole of the prosecution case, then this sentence should be omitted.[11]Citations in original. Underlined emphasis added. It is unnecessary to set out [4.17.2], which deals with a single complainant indictment. We note however that those suggested model directions also conclude with the same emphasised words as those in [4.17.1].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Charge	Offence	Maximum	Sentence	Cumulation
1	Incest — sexual penetration of a child or lineal descendant[2] (Jessica)	25 years’ imprisonment	9 years’ imprisonment	Base
2	Incest — sexual penetration of a child…