R v Ramon Harris (A Pseudonym) - [2015] HCATrans 334

[2015] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M112 of 2015

B e t w e e n -
THE QUEEN
Applicant
and
RAMON HARRIS (A PSEUDONYM)
Respondent
Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2015, AT 10.17 AM

MS N. ROGERS, SC: If the Court pleases, I appear with my learned friend, MR B.L. SONNET, for the applicant. (instructed by Acting Solicitor for Public Prosecutions)

MR G.J. LYON, QC: If the Court pleases, I appear with my learned friend, MR C.J. PEARSON, for the respondent. (instructed by Paul Vale Criminal Law)

KEANE J: Ms Rogers.

MS ROGERS: Your Honour, the first thing that we must acknowledge and grapple with is the reluctance of this Court to grant special leave from interlocutory decisions, of which this is one. However, we point out that the accused is currently on bail and the trial is listed to commence on 28 August next year for 15 days to accommodate two consecutive trials should severance be granted by the trial judge as was flagged in Harris v The Queen [2015] VSCA 112 – flagged that that probably should happen.

Nevertheless, our submission is that there are quite exceptional circumstances. Firstly, we say that the point is one of general application. Any uncertainty concerning the application and operation around the coincidence rule highlighted in Velkoski v The Queen [2014] VSCA 121 is not conducive to the administration of justice in Victoria. There may be a continued misapplication of coincidence principles to sexual assault trials in this State and such trials make up a large bulk of the County Court list in this State and the prosecution makes application to utilise tendency and/or coincidence evidence almost on a daily basis.

The other reason that we say that there are exceptional circumstances is that the interests of justice require a grant of special leave in this particular case. That is because unless the principles are dealt with by this Court it is inevitable that there will be severance of the indictment because there is no cross‑admissibility in this matter and, thus, the prosecution case will be inevitably weakened for each complainant in each trial.

Can I go to the three errors that we say were made by the court below? The first error is contained, or is set out, at paragraphs 3.25 to 3.27 in our outline of submissions at page 48 of the application book. In a nutshell, that error is that the court misunderstood the trial judge’s ruling as to the evaluation of the penile anal penetration accounts described by each of the two complainants. The trial judge said that the buggery acts were “vanilla”, and if I can take your Honours to page 7 of the application book at lines 31 to 34:

I noted during the course of discussion that the manner in…

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 R v Ramon Harris (A Pseudonym)

Details

AGLC: R v Ramon Harris (A Pseudonym) [2015] HCATrans 334
Case: [2015] HCATrans 334
Decision Date

CaseChat Overview and Summary

This matter concerns an application for special leave to appeal to the High Court of Australia by Ramon Harris (a pseudonym) against a decision of the Victorian Court of Appeal. The applicant sought to challenge the Court of Appeal's determination regarding the admissibility of tendency and coincidence evidence in his criminal trial. The core of the dispute revolved around whether the evidence of two complainants, alleging similar sexual acts, possessed sufficient probative value to be admitted as coincidence evidence, particularly in light of perceived dissimilarities in the alleged offending.

The legal issues before the High Court were whether the Victorian Court of Appeal erred in its application of the principles governing the admissibility of tendency and coincidence evidence under the uniform evidence legislation. Specifically, the applicant argued that the Court of Appeal incorrectly assessed the "underlying unity" and "significant probative value" of the complainants' evidence by overemphasising dissimilarities and misinterpreting the trial judge's findings. The applicant contended that the Court of Appeal's reasoning, influenced by cases such as *Velkoski v The Queen*, created uncertainty and a potential misapplication of coincidence principles in sexual assault trials in Victoria, thereby weakening the prosecution's case and necessitating severance of the indictment.

The applicant's primary submission was that the Court of Appeal misunderstood the trial judge's characterisation of the alleged buggery acts as "vanilla," which was intended to signify a lack of unique signature rather than a lack of unusualness. The applicant argued that the trial judge actually considered the acts unusual, particularly given the age of the complainants, and that the Court of Appeal erred by finding the evidence lacked significant probative value due to four identified dissimilarities. These dissimilarities, relating to the presence of another person, pre-masturbation, ejaculation, and the time gap between events, were argued to be marginal and did not detract from the overall probative force of the evidence when considered in conjunction with the similarities and the independent nature of the complainants' accounts. The applicant further submitted that the Court of Appeal's approach, influenced by *Velkoski*, elevated the requirement for "striking similarity" and failed to properly consider the combined force of independent allegations of similar acts.

The respondent argued that the application for special leave should be refused, primarily because the applicant failed to identify a genuine point of public importance or a divergence in principle between jurisdictions. The respondent contended that the issues raised concerned the application of established principles to the facts of the case, rather than an error of law, and that the Court of Appeal correctly evaluated the evidence, including the dissimilarities, in determining that the coincidence evidence did not possess significant probative value. The respondent also highlighted that the trial judge himself struggled to find significant probative value in the evidence, and that the Court of Appeal's consideration of the complexity of directing a jury on uncharged acts further supported the decision to not admit the evidence as cross-admissible.

Orders