Leonard (a pseudonym) v The Queen

Case [2021] VSCA 172


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0239

NEIL LEONARD (a pseudonym) Applicant
v
THE QUEEN Respondent

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JUDGES: PRIEST, KYROU and NIALL JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 4 June 2021
DATE OF JUDGMENT: 18 June 2021
MEDIUM NEUTRAL CITATION: [2021] VSCA 172
JUDGMENT APPEALED FROM: DPP v [Leonard] (Unreported, County Court, Judge Doyle, 29 October 2020)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Tendency and coincidence evidence – Sexual penetration of a child under 16, indecent act with child under 16 – Admissibility of evidence – Whether trial judge erred in finding evidence admissible – Whether coincidence evidence – Prosecution disavow reliance on coincidence reasoning – Whether s 98 of the Evidence Act 2008 engaged – Appeal allowed – Evidence Act 2008, ss 95, 98 and 101.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr C Wareham Galbally & O’Byran Lawyers
For the Respondent Ms A Moran Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

  1. I agree with the orders proposed by Niall JA and with his reasons for them, but wish to add a few brief observations of my own.

  1. The prosecution sought to prove the identity of the applicant as the offender by employing a process of syllogistic reasoning involving the following steps: the male carer who sexually offended against the complainant gave her an icy pole on an occasion (or on occasions) when he did so; the applicant gave the complainant an icy pole on one occasion; therefore, the applicant is the male carer who sexually offended against the complainant.

  1. As an essential first step in that process of reasoning, the prosecution sought to prove that on an occasion ‘towards the end of 1995’ the complainant’s mother found her daughter alone in a room with a male carer — the Record of Contact suggested that the male carer was the applicant — who had given her daughter an icy pole.

  1. In written submissions, the respondent’s counsel submitted that the ‘evidence of the Record of Contact, and associated evidence given by [the principal] and [the mother] is a key piece of circumstantial evidence which goes to establishing the identity of the alleged offender as the applicant’.  Counsel also submitted in writing that the

relevance of the ‘Record of Contact’ and underpinning event is that it gives rise to the irresistible inference, in combination with other evidence, that the applicant was the male who gave the complainant an icy pole on an occasion when other children were not given the same treat, and that the complainant was taken away from the other children by the applicant so she could have the treat in secret.  The effect of the complainant’s evidence is that there was only one male person at after care who engaged in such conduct with her, and that was the male person who sexually abused her.  Thus, it is a key piece of circumstantial evidence establishing the identity of the alleged offender as the applicant.

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Leonard (a pseudonym) v The Queen [2021] VSCA 172
Case
[2021] VSCA 172
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CaseChat Overview and Summary

Leonard, represented by pseudonym, appealed against a decision of the Supreme Court of Victoria that had allowed the admission of certain evidence in a criminal case. The respondent, The Queen, was represented by the Director of Public Prosecutions. The appeal centred around the admissibility of evidence related to sexual offences against a child under 16. The appellant argued that the trial judge had erred in allowing evidence that was deemed to be of low probative value and potentially prejudicial under the Evidence Act 2008. The appellant contended that the evidence was either of a tendency nature or coincidental, and that its admission was unjust under sections 95 and 101 of the Evidence Act.

The legal issues that the court had to resolve were whether the evidence was of such low probative value that it should not be admitted, and whether it was merely coincidental. The appellant argued that the prosecution's disavowal of relying on coincidence evidence did not negate the possibility that the evidence could still be excluded under section 98 of the Evidence Act. The court had to determine whether the trial judge had correctly exercised the discretion to exclude the evidence under the statute, and if the appeal was to be allowed on the basis that the trial judge had erred in admitting the evidence.

The court found that the trial judge had erred in admitting the evidence. The evidence in question had low probative value and was potentially prejudicial, and as such, it should have been excluded under section 98 of the Evidence Act. The court held that the trial judge's failure to exclude the evidence was a significant error that undermined the fairness of the trial. The appeal was allowed, and the conviction was quashed. The case was remitted to the trial court for a new trial, with directions that the impugned evidence be excluded.

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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