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Robert Pearson (a pseudonym)[1] v The Queen

Robert Pearson (a pseudonym)[1] v The Queen

Case [2016] VSCA 341 21 December 2016

Appeal

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0235

ROBERT PEARSON (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 a pseudonym in place of the name of the applicant.

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JUDGES:	OSBORN JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 December 2016
DATE OF JUDGMENT:	21 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 341
RULING APPEALED FROM:	Director of Public Prosecutions v [Pearson (a pseudonym)] (Unreported, County Court of Victoria, Judge Chettle, 29 November 2016)

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PRACTICE AND PROCEDURE – Criminal law – Interlocutory Appeal – Coincidence rule – Evidence Act 2008 ss 98, 101 – Whether open to trial judge to conclude that the probative value substantially outweighed the prejudicial effect of the evidence – Consideration of circumstances of events as a whole – Consideration of evidence as a whole – Measures available at trial to address potential prejudice – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M FitzGerald	Dr Martine Marich & Associates
For the Crown	Mr G J C Silbert QC with Mr K J Doyle	Mr John Cain, Solicitor for Public Prosecutions

OSBORN JA:
BEALE AJA:

On 29 September 2016, his Honour Judge Chettle determined to admit coincidence evidence on the trial of the applicant for one charge of armed robbery and one of false imprisonment.

The Prosecution proposes to call evidence from a co-offender, DW, not only with respect to the facts founding the offences charged, but also as to the commission jointly by the applicant and DW of offences committed in similar circumstances some months earlier.

The applicant seeks leave to appeal the decision to admit evidence concerning the prior offending as coincidence evidence.

For the reasons which follow, leave to appeal should be refused.

The statutory framework

Section 98 of the Evidence Act 2008 (‘Evidence Act’) provides:

(1)Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Note
One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) Subsection (1)(a) does not apply if—
(a)the evidence is adduced in accordance with any directions made by the court under section 100;…

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 Robert Pearson (a pseudonym)[1] v The Queen

Details

AGLC: Robert Pearson (a pseudonym)[1] v The Queen [2016] VSCA 341
Case: [2016] VSCA 341
Decision Date: 21 December 2016

CaseChat Overview and Summary

In the case of Robert Pearson, the appellant, against The Queen, the respondent, the issue before the court was whether the trial judge was correct to allow evidence that would otherwise be excluded under the coincidence rule. The appeal arose from a criminal trial where the appellant was charged with various offences, including murder. The appellant challenged the admissibility of evidence that was deemed highly prejudicial but highly probative.

The legal issue for the court was whether the trial judge was correct to admit evidence under sections 98 and 101 of the Evidence Act 2008, considering the probative value versus the prejudicial effect. The court had to consider whether the trial judge could lawfully conclude that the probative value substantially outweighed the prejudicial effect, and if so, what factors the trial judge should consider in making this assessment. The court also needed to consider the circumstances of the events as a whole and the measures available at trial to address potential prejudice.

The court found that the trial judge had correctly exercised their discretion in admitting the evidence. The court held that it was open to the trial judge to conclude that the probative value substantially outweighed the prejudicial effect, considering the evidence as a whole and the circumstances of the events. The court noted that the trial judge had considered the potential prejudice and the measures available to address it. The appeal was dismissed, and leave to appeal was refused.

Orders