Matthews (a pseudonym) v The King

Case [2023] VSCA 229

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0119
DOUGLAS MATTHEWS (A PSEUDONYM)[1] Applicant
v
THE KING Respondent

[1]To avoid the possibility of identifying the alleged victims of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant and complainants.

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JUDGES: KENNEDY and MACAULAY JJA and J FORREST AJA
WHERE HELD: Melbourne
DATE OF HEARING: 25 August 2023
DATE OF JUDGMENT: 22 September 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 229
JUDGMENT APPEALED FROM: DPP (Vic) v [Matthews] (County Court of Victoria, Judge Meredith, 1 June 2023)

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CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Sexual assault – Rape – Whether complainants’ evidence capable of showing sexual interest and willingness to act on that interest – Whether evidence of significant probative value – Whether prejudicial effect remediable by jury direction – Leave to appeal granted – Interlocutory decision affirmed.

Criminal Procedure Act 2009, s 298; Evidence Act 2008, ss 97, 101.

Gustav (a pseudonym) v The King [2023] VSCA 141, Hughes v The Queen (2017) 263 CLR 338, Phillips v The Queen (2006) 225 CLR 303, R v Bauer (a pseudonym) (2018) 266 CLR 56.

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Counsel
Applicant: Mr J Connolly
Respondent: Mr A Grant

Solicitors
Applicant: Dribbin and Brown Criminal Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
MACAULAY JA
J FORREST AJA:

  1. The applicant, Douglas Matthews, is currently facing trial before a jury in the County Court at Ballarat. He has been charged with the sexual assault of three women (four charges). In addition, he is charged with the rape of one of the women. As things presently stand, he will be tried on all charges in the one trial.

  2. In each instance, it is alleged that the offences occurred between November 2020 and March 2021 at the applicant’s home in rural Victoria where he carried on a business as a masseur. Each of the women allege that the offending occurred during a massage that he was performing.

  3. On 30 November 2022, the prosecution gave notice (the ‘notice’) — as it was required to do under s 97(1)(a) of the Evidence Act 2008 (the ‘Act’) — that it intended to use the evidence of each of the women to prove the tendency of the applicant to have both a particular state of mind (namely a sexual interest in his female clients), and to sexually assault females who were attending him in his capacity as a masseur.

  4. Each of the three women alleged that the applicant had without their consent touched their breasts. One (‘SK’) also alleged that he had touched her clitoris and then inserted his fingers into her vagina. The applicant has maintained that any contact with his female clients’ breasts was consensual as it formed part of the massage service he was providing. He denies that he had any sexual interest in his clients and denies that he made any contact with the…

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Matthews (a pseudonym) v The King [2023] VSCA 229
Case
[2023] VSCA 229
Decision Date

CaseChat Overview and Summary

In the matter of Matthews (a pseudonym) v The King, the Court of Appeal was called upon to review an interlocutory decision relating to the admissibility of tendency evidence in a criminal trial involving serious sexual assault charges. The appeal centred on the contention that evidence of the complainants' past sexual behaviour was relevant to demonstrate their sexual interest and willingness to act on that interest, and whether such evidence had significant probative value and whether any prejudicial effect could be remediated by jury direction.

The legal issues at the core of the appeal were whether the tendency evidence proposed by the prosecution met the criteria set out in the Evidence Act 2008, specifically whether the evidence had significant probative value and whether this value substantially outweighed any prejudicial effect on the accused. The court had to consider the two-step test for determining significant probative value and whether the probative value substantially outweighed the prejudicial effect, as articulated in Hughes v The Queen and Phillips v The Queen.

The Court of Appeal, comprising Kirou, Kennedy and Kaye JJA, upheld the trial judge's decision, finding that the proposed tendency evidence did not meet the statutory requirements. The court held that the evidence did not sufficiently support the tendency or make the facts of the charged offence more likely. The court further found that any prejudicial effect of the evidence could not be sufficiently remediated by jury direction. Accordingly, the court granted leave to appeal but affirmed the interlocutory decision.

No further orders were made by the Court of Appeal in this interlocutory appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In a criminal proceeding, it is not sufficient that the tendency evidence is of significant probative value. Pursuant to s 101 of the Act, the probative value of the evidence must also substantially outweigh any prejudicial effect that it may have on the accused:101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. In Hughes, Kiefel CJ, Bell, Keane and Edelman JJ enunciated the two‑step test applied by the judge in determining whether evidence is of ‘significant probative value’:The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence … In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[22][22](2017) 263 CLR 338, 356–7 [41]; [2017] HCA 20, cited in Klein (a pseudonym) v The King [2022] VSCA 249, [85] (Priest AP, Beach and T Forrest JJA). See also McPhillamy v The Queen (2018) 361 ALR 13, 19 [26] (Kiefel CJ, Bell, Keane and Nettle JJ), 20–1 [33] (Edelman J); [2018] HCA 52; TL v The King (2022) 405 ALR 578, 585–6 [28]–[29] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35. Recently, in Townsend (a pseudonym) v The King,[23] this Court (Kyrou, Kennedy and Kaye JJA) said of the admissibility of tendency evidence:In order to determine whether the evidence, on each of the charges in this case, is admissible as tendency evidence in respect of the other charges, it is necessary to address four fundamental questions, namely:(1)Whether the evidence, in respect of a particular charge, supports the particular tendency that is sought to be relied on;(2) Whether that tendency has a probative value in respect of the offence that is the subject of one of the other charges; that is, whether the proposed tendency evidence is capable of rationally affecting the assessment, by the jury, of the probability of a particular fact in issue on one or more of the other charges; (3)Whether, as such, the tendency evidence sought to be relied on has significant probative value in respect of that fact in issue;(4)Whether the probative value of that tendency evidence would substantially outweigh any prejudicial effect it may have on the accused person.[24][23][2022] VSCA 201.[24]Ibid [21] (citations omitted).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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