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Leonard (a pseudonym) v The Queen

Leonard (a pseudonym) v The Queen

Case [2021] VSCA 172 18 June 2021

Appeal

Admissibility of Evidence

Tendency and Coincidence Evidence

Criminal Law

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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:

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.

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.

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.

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.

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 Leonard (a pseudonym) v The Queen

Details

AGLC: Leonard (a pseudonym) v The Queen [2021] VSCA 172
Case: [2021] VSCA 172
Decision Date: 18 June 2021

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.

Orders