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Reeves (a pseudonym) v The Queen

Reeves (a pseudonym) v The Queen

Case [2017] VSCA 291 13 October 2017

Appeal

Admissibility of Evidence

Criminal Liability

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0168

LUCAS REEVES (A PSEUDONYM)[1]	Applicant
V
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and certain other people.

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JUDGES:	SANTAMARIA, KAYE JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2017
DATE OF JUDGMENT:	13 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 291

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CRIMINAL LAW – Appeal – Interlocutory rulings – Pleas of not guilty – Using a carriage service to procure a person under 16 years of age for sexual activity – Using a carriage service to groom a person under 16 years of age for sexual activity – Using a carriage service to transmit indecent communications to a person under 16 years of age – Refusal to certify – Admissibility of tendency evidence – Whether mobile phone seized under common law power of seizure – Leave to appeal refused on all grounds – Criminal Procedure Act 2009 s 295 – Evidence Act 2008 ss 97 and 101 – Field v Sullivan [1923] VLR 70 – Levine v O’Keefe [1930] VLR 70.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Crown	Mr S Ginsbourg	Office of Public Prosecutions

SANTAMARIA JA

KAYE JA

T FORREST AJA:

The applicant is currently facing trial in the County Court at Melbourne. He is charged as follows:

(a) Using a carriage service to procure a person under 16 years of age for sexual activity (s 474.26 Criminal Code Act 1995 (Cth) (‘the Code’): 4 counts.

(b) Using a carriage service to groom a person under 16 years of age for sexual activity (s 474.27(1) of the Code): 4 counts.

(c) Using a carriage service to transmit indecent communications to a person under 16 years of age (s 474.27A of the Code): 4 counts.

There are four complainants. The applicant is charged with committing each of the three types of offences against all four early teenage girls. Thus there are a total of twelve charges.

A jury has not yet been empanelled.

On 26 July 2017, the trial judge delivered a ruling in which he rejected the defence application to exclude all evidence obtained from the applicant’s mobile phone seized on 21 October 2015, the day of the applicant’s arrest (‘the seizure ruling’).

On 28 July 2017, the trial judge delivered a ruling which permitted tendency evidence to be led in the prosecution case. The effect of this ruling was that allegations made in the case involving a particular complainant became cross-admissible in the cases involving the other complainants (‘the tendency ruling’).

The applicant requested the trial judge certify under s 295(3) of the Criminal Procedure Act 2009 (Vic) (‘the Act’) that one or other of the preconditions for certification within that subsection had been met in respect of one or other or both of the seizure ruling and the tendency ruling. His…

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 Reeves (a pseudonym) v The Queen

Details

AGLC: Lucas Reeves (a pseudonym)[1] v The Queen [2017] VSCA 291
Case: [2017] VSCA 291
Decision Date: 13 October 2017

CaseChat Overview and Summary

Reeves (a pseudonym) appealed against the refusal of the Supreme Court of Victoria to certify an interlocutory ruling of the County Court of Victoria. The respondent, the Crown, had charged Reeves with using a carriage service to procure a person under 16 years of age for sexual activity, to groom a person under 16 years of age for sexual activity, and to transmit indecent communications to a person under 16 years of age. The appeal focused on the trial judge's refusal to certify certain interlocutory rulings, including the admissibility of tendency evidence relating to Reeves' previous conduct with adolescent girls, and whether the mobile phone seized from him was done so under a valid power of seizure.

The primary legal issues before the court were whether the trial judge had erred in refusing to certify the interlocutory rulings regarding the admissibility of the tendency evidence and the validity of the power of seizure used to obtain the mobile phone. The court considered whether the trial judge had applied the correct legal principles in assessing the relevance and probative value of the tendency evidence, as well as whether the power of seizure was valid under the common law or the Criminal Procedure Act 2009. The court also examined the decision of the County Court to refuse leave to appeal on all grounds.

The Court of Appeal held that the trial judge had not erred in refusing to certify the interlocutory rulings. In relation to the tendency evidence, the court found that the trial judge had correctly assessed its relevance and probative value, and had not erred in admitting it. The court further held that the power of seizure was valid under the common law, and the trial judge had not erred in admitting the evidence obtained from the mobile phone. The Court of Appeal dismissed the appeal and refused leave to appeal on all grounds. The appeal was thus unsuccessful, and the interlocutory rulings of the County Court remained uncertified.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As indicated in Table A below, the tendency evidence relates to the following fact(s) in issue in the proceeding: The tendency sought to be proved is the tendency of [Lucas Reeves] to act in a particular way, namely:(c)contacting adolescent girls whom he had not met previously through Facebook Messenger,(d)persuading them to disclose to him that they had engaged in sexual activity with him,(e)threatening to report or publicise their disclosure in order to pressure or control their behaviour,(f)engaging in sexualised and indecent communications with them,(g)attempting to persuade them to meet with him, and(h)attempting to persuade them to engage in sexual activity. As indicated in Table B below, the conduct of which evidence will be adduced, and particulars of the date, time, place and the circumstances in which that conduct occurred, and the name of each person who saw, heard or otherwise perceived that conduct, are:

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Lucas Reeves (a pseudonym)[1] v The Queen [2017] VSCA 291

Most Recent Citation

Stuart v Rabobank Australia Ltd [2021] FCA 1388

Cases citing this decision · 13 of 13 shown

R v Mr, JB and CS (young persons) (No 3)
[2024] NSWSC 259 Para 27

…nd the autopsy report reveals a reasonably significant blood alcohol reading in the deceased’s post-mortem blood. 2. See Reeves (a pseudonym) v R (2013) 41 VR 275; [2013] VSCA 311 at [56].…
Stuart v Rabobank Australia Ltd
[2021] FCA 1388

…ll ER Rep 77 Reeves (a pseudonym) v R (2013) 41 VR 275; [2013] VSCA 311 Reilly v Australia and New Zealand Banking Group Limited (No 2) [2020] FCA 1502 RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71 Sarina v Fairfax Media Publications Pty Ltd (2018) 365 ALR 15; [2018] FCAFC 190 Sent v Jet Corporation of Australia P…
R v Sharpe (No 5)
[2021] NSWSC 52 Para 16

…88 NSWLR 93; [2015] NSWCCA 10 at [70]‑[72]. 6. See Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [34]. 7. See Reeves (a pseudonym) v R (2013) 41 VR 275; [2013] VSCA 311 at [56]. 8. See Galea v Farrugia [2013] NSWCA 164 at [85]. 9. See Hughes at [41]; McPhillamy v The Queen [2018] HCA 40; (2018) 361 ALR 1…
Brodie Larsen (a pseudonym) v The Queen
[2020] VSCA 335 Para 1

…we need say nothing further about it. [17]See GBF v The Queen [2010] VSCA 135 [34] (Nettle, Harper JA and Hansen AJA); Reeves v The Queen (2013) 41 VR 275; [2013] VSCA 311 [56]–[58] (Maxwell ACJ). [18][2010] VSCA 135 [34] (Nettle, Harper JA and Hansen AJA).…
R v Dunn
[2019] ACTSC 75 Para 1

…e Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2017] VSCA 291; 20 VR 14 at [19]-[30].…
R v Waghorn
[2019] ACTSC 72

…LR 346 R v Hidic [2017] ACTSC 307 R v Kepaoa [2017] ACTSC 414 R v Laipato (unreported Nield AJ, 16 September 2010) R v LT [2017] ACTSC 343 R v Martin [2017] VSCA 291; 20 VR 14 R v Meyboom [2012] ACTCA 48 R v McBride [2017] ACTSC 102 R v McNeill [2018] ACTSC 125 R v Myles [2017] ACTSC 194 R v Neish (Unreported, Ref…
R v Smith
[2019] ACTSC 65

…79; 121 A Crim R 380 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Jurisic [1998] NSWSC 423; 45 NSWLR 209 R v Kekalainen [2014] ACTSC 132 R v Martin [2017] VSCA 291; 20 VR 14 R v Meyboom [2012] ACTCA 48 R v Mumberson [2011] NSWCCA 54 R v Pham [2015] HCA 39; 256 CLR 550 R v Richardson [2016] ACTSC 133 R v Toumo’ua…
R v Salcedo; R v Stretton (No 3)
[2018] ACTSC 305 Para 1

…e Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2017] VSCA 291; 20 VR 14 at [19]-[30].…
R v Sikounnabouth
[2018] ACTSC 296

…] ACTSC 261 R v Booth [2016] ACTSC 365 R v Coogan [2017] ACTSC 238 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Lockwood [2018] ACTSC 288 R v Martin [2017] VSCA 291; 20 VR 14 R v Meyboom [2012] ACTCA 48 R v Parker [2018] ACTSC 55 Smith v The Queen [2011] NSWCCA 163 Veen v The Queen (No 2) (1988) 164 CLR 465 Zdrav…
R v Lockwood
[2018] ACTSC 288

…enry [1999] NSWCCA 111; 46 NSWLR 346 R v Isaacs (1997) 41 NSWLR 374 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Lindley-Jones [2014] ACTSC 296 R v Martin [2017] VSCA 291; 20 VR 14 R v Minnis [2014] ACTSC 268 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pham [2015] HCA 39; 256 CLR 550 R v Seears [2015] ACTSC 109 Rubinho…
McElroy v The Queen
[2018] VSCA 126 Para 1

…Court observed that no doubt had been cast over this line of authority over the last ninety-odd years: Reeves v The Queen [2017] VSCA 291 [29] (Santamaria and Kaye JJA and T Forrest AJA).…
Lucas Reeves (a pseudonym)[1] v The Queen
[2017] VSCA 343 Para 1

…On 13 October 2017, this Court refused both applications and published written reasons.[4] [4] Reeves (a pseudonym) v The Queen [2017] VSCA 291 (Santamaria and Kaye JJA and T Forrest AJA).…
Page v The Queen
[2015] VSCA 357 Para 1

…ueen (2013) 41 VR 275, 289–90 [54]–[56]; Rapson [2014] VSCA 216 [35]. See also Saoud v The Queen [2014] NSWCCA 136 [52]. In the case of the admitted offending, the chosen activity was massage. The child would naturally have had no hesitation in allowing the applicant to touch her because, she believed, he would be…

View all 13 citing cases →

Cases cited in this decision · 9 of 9 shown

Bauer v The Queen (No 2)
[2017] VSCA 176 Para 1

…In Bauer v R (No 2) ,[14] this Court extracted the following principles from the reasons of the majority in Hughes : [14][2017] VSCA 176.…
Hughes v The Queen
[2017] HCA 20

…." The principles in respect of tendency evidence have been the subject of numerous appellate decisions. The recent High Court decision of Hughes v R [2017] HCA 20 is of particular importance. In that case in the majority judgment at paragraph 39 the court stated:…
Haddara v The Queen
[2014] VSCA 100 Para 1

…t was drawn’.[13] [12](1936) 55 CLR 499; KJM v R (No 2) (2011) 33 VR 11. [13] CV v DPP [2014] VSCA 58 [17], referred to in Bray (a pseudonym) v R (2014) 46 VR 623.…
CV v DPP
[2014] VSCA 58 Para 1

…er it was open to him to draw the evaluative conclusion that was drawn’.[13] [12](1936) 55 CLR 499; KJM v R (No 2) (2011) 33 VR 11. [13] CV v DPP [2014] VSCA 58 [17], referred to in Bray (a pseudonym) v R (2014) 46 VR 623.…
KJM v The Queen (No 2)
[2011] VSCA 268 Para 1

…that determination involves an evaluation of the merits of the admissibility argument. [10]See PNJ v DPP (2010) 27 VR 146. [11]See KJM v R (No 2) (2011) 33 VR 11.…
MA v The Queen
[2011] VSCA 13 Para 1

…cannot be in the interests of justice to grant leave to appeal, only then to dismiss the appeal. [26]See KJM v R (No 2) (2011) 33 VR 11. [27] MA v R (2011) 31 VR 203, 205 [5] (Redlich JA, with whom Weinberg and Bongiorno JJA agreed). [28]Section 297(1)(a)–(c) of the Act.…
PNJ v DPP
[2010] VSCA 88 Para 1

…f these reasons. This is because part of that determination involves an evaluation of the merits of the admissibility argument. [10]See PNJ v DPP (2010) 27 VR 146. [11]See KJM v R (No 2) (2011) 33 VR 11.…
Bunning v Cross
[1978] HCA 22 Para 1

…] The focus is on the nature of the impropriety and the insult it may occasion on the integrity of the criminal process. [25] Bunning v Cross (1978) 141 CLR 54.…
House v R
[1936] HCA 40 Para 1

…roached the question by reference to correct principles and whether it was open to him to draw the evaluative conclusion that was drawn’.[13] [12](1936) 55 CLR 499; KJM v R (No 2) (2011) 33 VR 11. [13] CV v DPP [2014] VSCA 58 [17], referred to in Bray (a pseudonym) v R (2014) 46 VR 623.…

Legislation cited in this decision · 3

Evidence Act 2008 (Vic)
101, 97 3 mentions (from Para 1)
Criminal Procedure Act 2009 (Vic)
295 2 mentions (from Para 1)
Criminal Code Act 1995 (Cth)
1 mention