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Peterson (a pseudonym) v The Queen

Peterson (a pseudonym) v The Queen

Case [2019] VSCA 12 7 February 2019

Appeal

Admissibility of Evidence

Criminal Procedure Act 2009

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0263

JEFFREY PETERSON (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]Because this is a interlocutory proceeding, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	MAXWELL P and TAYLOR AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 December 2018
DATE OF ORDERS:	10 December 2018
DATE OF JUDGMENT:	7 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 12
JUDGMENT APPEALED FROM:	DPP v [Peterson] (Unreported, County Court of Victoria, Judge Wilmoth, 4 December 2018)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Review of refusal to certify – Evidence – Tendency evidence – Judge admitted tendency evidence – Judge refused to certify for interlocutory appeal – No error – Application dismissed – Criminal Procedure Act 2009 ss 295, 296.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones	Cinque Oakley Senior
For the Respondent	Dr N Rogers QC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
TAYLOR AJA:

Summary

The applicant was charged on indictment with four charges in respect of the complainant ‘MB’, who is his niece. Charges 1, 2 and 4 allege indecent assault. Charge 3 alleges gross indecency as a course of conduct charge. The trial of that indictment was listed before the County Court sitting in a circuit location.

On 30 November 2018, following argument the previous day, the trial judge ruled that evidence from the applicant’s natural daughter (‘LK’) was admissible in the trial as tendency evidence. The applicant has previously pleaded guilty to indecent assault and incest with respect to LK.

The respondent sought to rely upon the evidence relating to LK to establish that the applicant had a tendency to have a particular state of mind — namely, a sexual interest in young female family members in his care — and to act on that interest and in a particular way, by engaging in sexual acts with young female family members.

On 4 December 2018, the applicant asked the trial judge to certify under s 295(3)(a) of the Criminal Procedure Act 2009 (the ‘Act’) that this tendency evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. The trial judge refused to do so. On 6 December 2018, pursuant to s 296(1) of the Act, the applicant applied for review of the refusal to certify.

So as to accommodate and preserve the circuit listing of the trial, we heard the application on 10 December 2018. After hearing argument, we announced that the application to review the refusal to certify would be rejected, and that our reasons would be published later. These are those reasons.

Review jurisdiction to be invoked sparingly

This Court has, for some years, stated that interlocutory appeals concerning evidentiary issues should be ‘strictly confined’.[2] This Court has also stated its expectation that practitioners will act responsibly in deciding whether to seek to review the refusal of a…

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 Peterson (a pseudonym) v The Queen

Details

AGLC: Peterson (a pseudonym) v The Queen [2019] VSCA 12
Case: [2019] VSCA 12
Decision Date: 7 February 2019

CaseChat Overview and Summary

The case of Peterson (a pseudonym) v The Queen involves an interlocutory appeal by the appellant against the refusal of the trial judge to certify a matter for appeal. The nature of the dispute pertains to the admissibility of tendency evidence during the appellant's criminal trial. The case was heard in the High Court of Australia.

The legal issues before the court centred on whether the trial judge erred in admitting tendency evidence and subsequently refusing to certify the matter for interlocutory appeal. The appellant argued that the trial judge's decision to admit the tendency evidence was incorrect and that this warranted certification for an interlocutory appeal. The central question was whether the trial judge's refusal to certify the matter for appeal constituted an error that warranted review by the High Court.

In delivering the judgment, the court held that the trial judge's decision to admit the tendency evidence was not erroneous, and therefore, the refusal to certify the matter for interlocutory appeal was also correct. The court examined the legal principles governing the admissibility of tendency evidence and found that the trial judge had correctly applied the relevant legal standards. Consequently, the court dismissed the appellant's application for leave to appeal, affirming the trial judge's decisions.

The final orders of the court were that the application for leave to appeal was dismissed, and the refusal to certify the matter for interlocutory appeal was upheld. The court found no grounds for interference with the trial judge's decisions, and the appellant's appeal was consequently rejected.

Orders