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Rhodes (a pseudonym) v The King

Rhodes (a pseudonym) v The King

Case [2024] VSCA 15 29 February 2024

Appeal

Admissibility of Evidence

Interlocutory Orders

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0197

RODNEY RHODES (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victims of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and the complainants.

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JUDGES:	NIALL and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2024
DATE OF JUDGMENT:	29 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 15
JUDGMENT APPEALED FROM:	DPP v [Rhodes] (Ruling 2) (County Court, Judge Doyle, 25 September 2023)

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CRIMINAL LAW – Interlocutory appeal – Coincidence evidence – Whether evidence of complainants has significant probative value – Evidence of receiving explicit images not significantly probative of whether act of sexual penetration occurred – Similarities between accounts unremarkable – Applicant’s knowledge that one or more complainants under 16 years old not rationally probative of knowledge of different complainant’s age – Leave to appeal granted – Appeal allowed – Ruling set aside.

Evidence Act 2008, ss 98 and 101.

Hoch v The Queen (1988) 165 CLR 292; R v Bauer (2018) 266 CLR 56, considered.

Phillips v The Queen (2006) 225 CLR 303, distinguished.

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Counsel
Applicant:		Ms AJ Burnnard and Ms S Joosten
Respondent:		Ms M Mahady and Mr ES Dober
Solicitors
Applicant:	Kurnai Legal Practice
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
WALKER JA:

The applicant is facing a trial in the County Court on an indictment relevantly containing six charges of sexual offending against children under the age of 16 years, which relate to five complainants.[2] At the time of the alleged offending, the applicant was between 16 and 18 years of age. The complainants ranged in age from 13 to 15 years.
[2]A seventh charge of possessing child abuse material has been severed.
In summary, the charges, which each have as an element that the complainant was and was believed by the applicant to have been under the age of 16, are as follows:
(a)engaging in a sexual activity in the presence of SH, and using a carriage service to transmit an indecent communication to SH (charges 1 and 6);
(b)engaging in a sexual activity in the presence of PB (charge 4);
(c)sexual penetration of CG (charge 2);
(d)sexual penetration of EA (charge 3);
(e)sexual penetration of CS (charge 5).
It is important to record that the charges involving SH and PB occurred over the internet; they were not ‘contact offences’. The charges involving CG, EA and CS involved penile/vaginal intercourse.
In order to prove the charges the prosecution will need to prove, to the criminal standard, that the applicant engaged in the relevant acts knowing or believing that the complainant was under the age of 16 years. That is to say both his conduct and his state of mind, in the sense of his knowledge and belief as to the age of the complainants, are relevant to the proof of each…

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 Rhodes (a pseudonym) v The King

Details

AGLC: Rhodes (a pseudonym) v The King [2024] VSCA 15
Case: [2024] VSCA 15
Decision Date: 29 February 2024

CaseChat Overview and Summary

The case before the court was an interlocutory appeal by an applicant, referred to as Rhodes, against a ruling that allowed the prosecution to use certain evidence in their case against him. The nature of the dispute was whether the evidence in question had significant probative value, and if not, whether it should be excluded from the trial. The appeal was heard by the High Court of Australia.

The legal issues that the court had to decide were whether the evidence of the complainants had significant probative value and if not, whether it should be excluded from the trial. The court had to consider the nature and content of the evidence and whether it was relevant to the charges against the applicant. The court also had to consider whether the evidence was likely to have an unfair prejudicial effect on the applicant.

The court found that the evidence of the complainants did not have significant probative value in relation to whether an act of sexual penetration had occurred. The court found that the similarities between the accounts of the complainants were unremarkable and did not provide significant evidence of the applicant’s guilt. The court also found that the applicant’s knowledge that one or more of the complainants were under 16 years old was not rationally probative of his knowledge of a different complainant’s age. The court concluded that the evidence was not admissible under the Evidence Act 2008 and set aside the ruling of the lower court. The appeal was allowed, and leave to appeal was granted.

The final orders of the court were that the appeal was allowed, and the ruling of the lower court was set aside. The court found that the evidence of the complainants did not have significant probative value and should be excluded from the trial. The court also found that the applicant’s knowledge that one or more of the complainants were under 16 years old was not relevant to the charges against him. The case highlights the importance of considering the probative value of evidence in criminal trials and the need to exclude evidence that is not relevant or that may have an unfair prejudicial effect on the accused.

Orders