Poole (a pseudonym) v The King - [2022] VSCA 287

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0138

DARRYL POOLE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]The applicant’s name has been anonymized to protect the identities of the complainants.

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JUDGES:	NIALL AND T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2022
DATE OF JUDGMENT:	22 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 287
JUDGMENT APPEALED FROM:	DPP v [Poole] (County Court of Victoria, Judge Cannon, 1 December 2021)

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CRIMINAL LAW – Interlocutory appeal – Common assault – Rape – Making a Threat to Kill – Making a Threat to Inflict Serious Injury – Causing Injury Recklessly – Three complainants – Evidence of three complainants joined in single indictment – Whether indictment should be severed – Whether evidence of each complainant is cross-admissible on tendency basis – Leave to appeal refused.

Evidence Act 2008; Criminal Procedure Act 2009, referred to.

House v The King (1936) 55 CLR 499 ; Papaskomas v R (1999) 196 CLR 297; Festa v R (2001) 208 CLR 593; R v Dickman (2017) 261 CLR 601; Hughes v The Queen (2017) 263 CLR 338; R v Bauer (2019) 266 CLR 58; Dempsey (a pseudonym) v The Queen [2019] VSCA 224, referred to.

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Counsel
Applicants:		Tom Danos and Heather Anderson
Respondent:		Abilene Singh
Solicitors
Applicants:	Docherty Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
T FORREST JA:

Background

The applicant was presented in the County Court at Melbourne on an indictment containing 17 charges. The following table sets out the shorthand version of those charges and, where appropriate, the identity of the alleged victim.

Charge

Offence

Victim

Date

1 Common assault PL 1 November 2017 – 31 December 2017

2 Making threat to inflict serious injury PL 19 August 2019 – 20 August 2019

3 Rape PL 19 August 2019 – 20 August 2019

4 Rape PL 19 August 2019 – 20 August 2019

5 Unlawful imprisonment PL 19 August 2019 – 20 August 2019

6 Common assault HD 1 January 2020 – 31 January 2020

7 Common assault HD 1 January 2020 – 31 January 2020

8 Common assault HD 1 January 2020 – 31 January 2020

9 Common assault HD 1 January 2020 – 31 January 2020

10 Possession of a firearm while a prohibited person N/A 1 January 2020 – 31 January 2020

11 Possession of a firearm while a prohibited person N/A 28 February 2020

12 Rape HD 28 February 2020

13 Possession of a firearm while a prohibited person N/A 1 March 2020

14 Common assault TB 4 March 2020

15 Causing injury recklessly TB 4 March 2020

16 Making threat to kill PL 1 February 2020 – 9 March 2020

17 Possession of a firearm while a prohibited person N/A 1 February 2020 – 9 March 2020

Preliminary argument took place in November 2021. The majority of the charges concerned offences allegedly committed against three female complainants: PL, HD and TB.…

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 Poole (a pseudonym) v The King

Details

AGLC: Poole (a pseudonym) v The King [2022] VSCA 287
Case: [2022] VSCA 287
Decision Date: 22 December 2022

CaseChat Overview and Summary

In the Supreme Court of Victoria, Poole (a pseudonym) sought an interlocutory appeal against the Crown in relation to a criminal matter involving multiple charges and multiple complainants. The appellant was facing charges including common assault, rape, making a threat to kill, making a threat to inflict serious injury, and causing injury recklessly, all of which were alleged to have occurred against three different complainants. Poole sought to have the evidence of the three complainants severed on the basis that it should not be joined in a single indictment and, alternatively, to exclude the evidence on the basis that it was not cross-admissible. The Crown opposed the application.

The legal issues before the court were whether the evidence of each complainant should be severed in accordance with the provisions of the Criminal Procedure Act 2009 and whether the evidence of each complainant was cross-admissible for the purposes of the tendency provisions under the Evidence Act 2008. The court considered the criteria for severance of evidence under the Criminal Procedure Act and the relevant principles of admissibility under the Evidence Act. The court also considered the authorities which had considered similar issues, including the cases of Hughes v The Queen, Dempsey (a pseudonym) v The Queen, and R v Bauer.

The court held that the evidence of each complainant should not be severed, as the charges arose from a common scheme or plan and the evidence of each complainant was relevant to establishing the facts in issue. The court found that the evidence of each complainant was cross-admissible on the basis that it had significant probative value and was not substantially prejudicial. The court considered the authorities on the admissibility of similar fact evidence and found that the evidence of each complainant was admissible under the tendency provisions. Accordingly, Poole’s application for leave to appeal was refused.

No orders were made as to costs.

Orders