Mathews v The King

[2024] VSCA 215

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0164

JAY MATHEWS[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	PRIEST, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2024
DATE OF JUDGMENT:	16 September 2024
DATE OF REASONS:	19 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 215
JUDGMENT APPEALED FROM:	DPP v [Mathews] (Unreported, County Court of Victoria, 9 September 2024, Judge Allen)

---

CRIMINAL LAW – Interlocutory appeal – Defence seeks to lead evidence of good character – Whether prosecution permitted to lead evidence in rebuttal – Leave to appeal refused.

---

Counsel
Applicant:		Mr C Mylonas
Respondent:		Mr R de Vietri
Solicitors
Applicant:	Gallant Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
BOYCE JA:

1. Throughout March 2024, the applicant faced trial in the County Court on charges of penile-vaginal rape (charges 6 and 8); attempted penile-anal rape (charge 5); intentionally causing injury (charge 1); recklessly causing injury (as an alternative to charge 1); common assault (charges 3 and 7); and armed robbery (charge 4) (‘the first trial’). Each of the offences embraced by these charges were alleged to have been perpetrated against his wife, ‘JR’, on 18 September 2016.

2. At the close of the prosecution case on 19 March 2024, the judge entered verdicts of acquittal on charge 4 (armed robbery) and charge 8 (rape), since JR had failed to give any evidence that would support either charge.

3. Ultimately, on 28 March 2024, the jury found the applicant not guilty on charge 1 (intentionally causing injury); charges 3 and 7 (common assault); and charge 5 (attempted rape); but found him guilty on charge 2 (recklessly causing injury). On charge 6, rape, however, the jury were unable to agree, and were discharged without verdict.

4. The prosecution intends to retry the applicant on charge 6, rape. Significantly, that alleged rape is alleged to have occurred in the course of the episode in which the activities founding charge 2, recklessly causing injury, occurred.

5. In advance of the retrial, the applicant has indicated in his Defence Response[2] that he maintains that he is of good character and ought be permitted to rely upon it in the retrial. Hence, the defence indicated its intention to lead evidence of good character through prosecution witnesses, and through several witnesses to be called in the defence case. Such evidence would include that he was a good husband and had treated JR with respect.

   [2]See Criminal Procedure Act 2009, s 183.

6. As a result, the prosecution sought an advance ruling on the issue,[3] contending that, should the applicant seek to rely on evidence of good character, the prosecution should be permitted to lead evidence of the applicant’s ‘conviction’ for recklessly causing injury in rebuttal.

   [3]See Evidence Act 2008, s 192A.

7. On 11 September 2024, the judge ruled that, should the applicant lead evidence of his good character, the prosecution ‘are clearly entitled’ to rely on evidence of the applicant’s conviction for recklessly causing injury in rebuttal (‘the interlocutory decision’), observing that: ‘It would be of the highest probative value in rebutting the character evidence if it were being led’.

8. Pursuant to the trial judge’s certification under s 297(1) of the Criminal Procedure Act 2009 (‘CPA’), the applicant sought leave to appeal against the interlocutory decision on the following ground:

   1The learned Judge erred in finding the accused’s finding of guilt to a charge of recklessly causing injury admissible as rebuttal evidence to the accused’s good character evidence on the retrial

9. At the conclusion of oral submissions in support of the application, the Court made an order refusing leave to appeal. These are our reasons for that order.

10. At the outset of his oral submissions, the applicant’s counsel contended that the jury’s finding of guilt for recklessly causing injury in the first trial was not a ‘conviction’. Section 3 of the CPA, however, relevantly defines conviction as including ‘a finding of guilt, whether or not a conviction is recorded’.

11. Counsel for the applicant next submitted that introducing evidence of good character should not permit the prosecution to introduce rebuttal evidence. If, however, an accused person adduces evidence to prove (directly or by implication) that he or she is a person of good character either generally or in a particular respect, ss 110(2) and (3) of the Evidence Act 2008 permit evidence to be led in rebuttal (subject, of course, to relevance, and to discretionary and mandatory exclusions).

12. JR gave evidence at the first trial that, whilst in a locked bedroom of their home, as part of the episode that resulted in the applicant pulling her hair — causing some of it to come away — and slapping her face, causing pain to her head and face. By their verdict on charge 2, it is clear that the jury accepted this evidence.

13. As we have mentioned, the applicant has indicated that (among other things) he wishes to introduce evidence that he had been a good husband and had treated JR respectfully. Given his conviction for recklessly causing injury, however, we consider it to be fanciful to suggest that the applicant should be capable of introducing evidence to in effect suggest that he has no history of violence, without the prosecution being capable of effectively meeting that suggestion.

14. Finally, we note that counsel for the respondent before us indicated that, should it be necessary to lead rebuttal evidence, the prosecution would limit the evidence to the bare conviction, without endeavouring to introduce the surrounding circumstances.[4] In those circumstances, the contention of the applicant’s counsel that s 137 of the Evidence Act 2008 was engaged cannot be accepted.

    [4]See Evidence Act 2008, s 136.

    - - - -