Pham v The King - [2024] VSCA 159

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0080

KAI PHAM (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	LYONS, BOYCE & T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2024
DATE OF JUDGMENT:	10 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 159
JUDGMENT APPEALED FROM:	DPP v Kai Pham (a pseudonym) (Ruling) (County Court of Victoria, Judge McInerney, 2 May 2024)

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CRIMINAL LAW – Interlocutory appeal – Evidence – Rape – Sexual assault – Identification evidence – Identification from a photoboard – Probative value – Judge required to assume acceptance of evidence by jury – Risk of suggestion – Risk of displacement – Danger of unfair prejudice – Complainant overseas for identification – Complainant sent photoboard by email – Whether probative value of evidence outweighed by danger of unfair prejudice – Probative value of evidence moderate or moderate to low – Unfair prejudice slight – Leave to appeal refused.

CRIMINAL LAW – Interlocutory appeal – Evidence – Evidence Act 2008, s 137 – Standard of appellate review – Whether rule in House v The King (1936) 55 CLR 499 applies – Whether ‘correctness standard’ applies – Warren v Coombs (1979) 142 CLR 531.

Criminal Procedure Act 2009 s 295; Evidence Act 2008, ss 135, 137; Jury Directions Act 2015, s 36.

R v Dickman (2017) 261 CLR 601; IMM v The Queen (2016) 257 CLR; Warren v Coombs (1979) 142 CLR 531, applied. House v The King (1936) 55 CLR 499; Moreno (a pseudonym) v The King [2023] VSCA 98, considered. Bayley v The Queen (2016) 260 A Crim R 1; DPP v Hague [2018] VSCA 39; Dempsey (a pseudonym) v The Queen [2018] VSCA 39; Fowkes v The King (2023) 72 VR 95; R v Dupas (No 3) (2009) 28 VR 380, discussed.

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Counsel
Applicant:		Ms M Brown
Respondent:		Ms J Piggott
Solicitors
Applicant:	Slades & Parsons
Respondent:	Office of Public Prosecutions

LYONS JA
BOYCE JA
T FORREST JA:

Introduction

The applicant faces trial in the County Court on two charges of sexual assault (charges 1 and 2), one charge of attempted rape (charge 3) and two charges of rape (charges 4 and 5).
The prosecution case is that, on two occasions in October 2019, the applicant attended a massage parlour in suburban Melbourne. The complainant, who had recently arrived from overseas, worked as a masseuse at this massage parlour. The prosecution allege that on each occasion the applicant engaged the complainant to massage him. It is alleged that during the course of each massage the applicant sexually offended against the complainant.
The prosecution seek to adduce at trial the fact that, some 11 months after the alleged offending, the complainant picked the applicant out of a photoboard that contained photographs of the faces of 12 men. By the time of this later identification, the complainant had returned to her country of origin — Japan.
The identification occurred during…

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 Pham v The King

Details

AGLC: Pham v The King [2024] VSCA 159
Case: [2024] VSCA 159
Decision Date: 10 July 2024

CaseChat Overview and Summary

The respondent, a citizen of Vietnam, was charged with a number of sexual offences against a woman who had been staying with him. The woman made a complaint to police in Vietnam, who subsequently sent her a photoboard of eight men by email for identification purposes. The woman selected the respondent’s photograph from the photoboard. The respondent sought to exclude the identification evidence from the jury’s consideration on the basis that the probative value of the evidence was outweighed by the danger of unfair prejudice. The trial judge rejected this application. The respondent now appealed to the Court of Appeal, seeking leave to appeal against the trial judge’s decision.

The appeal raised two legal issues. The first was whether the probative value of the identification evidence was outweighed by the danger of unfair prejudice. The second was the standard of appellate review to apply when determining the first issue.

The Court of Appeal found that the probative value of the identification evidence was moderate or moderate to low, and that the danger of unfair prejudice was slight. The Court noted that the identification had been made by the complainant from a photoboard sent by email, and that she had not been present in court to give evidence. The Court found that the risk of suggestion, displacement, and unfair prejudice was slight. The Court noted that the trial judge had considered the relevant factors, including the reliability of the identification and the reliability of the complainant’s evidence. The Court found that the trial judge’s decision was open on the evidence. The Court found that the rule in House v The King did not apply, and that the correctness standard applied. The Court found that the trial judge’s decision was correct.

The Court dismissed the appeal and refused leave to appeal.

Orders