Sharman (a pseudonym) v The King - [2024] VSCA 5

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0195

LUKE SHARMAN (A PSEUDONYM)[1]	Applicant
v
THE KING	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:	NIALL and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2024
DATE OF JUDGMENT:	15 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 5 First revision (15 February 2024): Annexure A
JUDGMENT APPEALED FROM:	DPP v [Sharman] (County Court of Victoria, Judge Gaynor, 23 October 2023)

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CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Police officer charged with assault offences by using OC spray against seven complainants – Judge ruled evidence cross-admissible – Whether evidence significantly probative of police officer acting unreasonably and without lawful excuse – Whether probative value substantially outweighs prejudicial effect – Applicant must show House v The King (1936) 55 CLR 499 error – Leave to appeal refused.

Evidence Act 2008 ss 97, 101; Criminal Procedure Act 2009 s 295; Crimes Act 1958 ss 458, 459, 462A.

House v The King (1936) 55 CLR 499; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; KJM v The Queen [No 2] (2011) 33 VR 11; PNJ v DPP (2010) 27 VR 146; R v Bauer (2018) 266 CLR 56; Todd (a pseudonym) v The Queen [2016] VSCA 29.

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Counsel
Applicant:		Ms SE Lacy KC with Ms M McDonald
Respondent:		Mr N Hutton with Mr PP Kounnas
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
WHELAN JA:

The applicant has been charged on an indictment with the following offences:
(1)On 2 March 2018, without lawful excuse he intentionally caused injury to Jayden Snowden (charge 1); alternatively, without lawful excuse he recklessly caused that injury (charge 2); alternatively, he assaulted Snowden (charge 3).
(2)On 31 March 2018, he assaulted Marlin Seffelaar (charge 4), Lachlan Cunningham (charge 5), Jake Spreadborough (charge 6), and Timothy Sturgeon (charge 7).
(3)On 27 May 2018, he assaulted Danny Hughes (charge 8) and Hayden Jackson (charge 9); and, on an occasion shortly after that referred to in charge 9, without lawful excuse he recklessly caused injury to Jackson (charge 10), or alternatively, he assaulted Jackson (charge 11).
At the time of the alleged offences, the applicant was a sergeant of police in Sale.
Certain relevant facts are admitted. The applicant was present on each occasion, together with other police. The applicant interacted with each of the complainants. During those interactions, he deployed oleoresin capsicum spray (‘OC spray’) at each of the complainants and, at times, used other physical force.
The prosecution case is that at the time of each relevant interaction, the complainants were not threatening the police or otherwise conducting themselves in such a way as to justify the use of the OC spray and other physical force.…

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 Sharman (a pseudonym) v The King

Details

AGLC: Sharman (a pseudonym) v The King [2024] VSCA 5
Case: [2024] VSCA 5
Decision Date: 15 February 2024

CaseChat Overview and Summary

In Sharman v The King, the appellant, Sharman, sought to appeal the decision of the County Court of Victoria which allowed the introduction of cross-admissible tendency evidence relating to his previous use of OC spray in circumstances that resulted in criminal charges. The appeal was concerned with the admissibility of evidence regarding Sharman's prior conduct in similar circumstances, which involved the use of OC spray against seven individuals. The crux of the case was whether the probative value of this evidence significantly outweighed its prejudicial effect, as required by the Evidence Act 2008.

The primary legal issue before the court was whether the trial judge erred in admitting the cross-admissible evidence under sections 97 and 101 of the Evidence Act 2008. Sharman argued that the trial judge should not have allowed the evidence, as it did not meet the stringent requirements set by House v The King, which mandates that the probative value of such evidence must substantially outweigh any prejudicial effect. Sharman contended that the evidence was not sufficiently probative of his conduct in the instant case and that its admission could lead to unfair prejudice.

The court examined the criteria established by House v The King and subsequent cases such as Hughes v The Queen and IMM v The Queen, which require a high threshold for admitting tendency evidence. The court concluded that the trial judge correctly applied the legal principles in determining that the probative value of the evidence substantially outweighed its prejudicial effect. The court noted that the prior use of OC spray in similar circumstances was highly relevant in establishing Sharman's propensity to act unreasonably and without lawful excuse in using OC spray. Therefore, the appeal was dismissed as Sharman failed to demonstrate a clear error in the trial judge's decision.

The court refused Sharman's application for leave to appeal, affirming the trial judge's decision to admit the tendency evidence. No further orders were made by the court beyond the refusal of leave to appeal.

Orders