Sharman (a pseudonym) v The King - [2023] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0118

LUKE SHARMAN (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and various witnesses.

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JUDGES:	BEACH, KYROU AND T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2023
DATE OF ORDERS:	2 March 2023
DATE OF REASONS:	17 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 56
JUDGMENT APPEALED FROM:	DPP v Sharman (a pseudonym) (County Court, Judge Carlin, 16 August 2022)

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CRIMINAL LAW – Interlocutory appeal – Applicant charged with intentionally causing injury, recklessly causing injury and common assault – Alleged offending spanned multiple complainants and incidents – Prosecution sought to adduce tendency evidence – Judge reformulated tendency alleged – Whether circumstances of reformulated tendency resulted in procedural unfairness to the applicant – Leave to appeal granted – Appeal allowed.

Evidence Act 2008, ss 97 and 101.

TL v The King (2022) 96 ALJR 1072 referred to.

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Counsel
Applicant:		Ms J Condon KC with Ms B Kelly
Respondent:		Mr P Kounnas
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KYROU JA
T FORREST JA:

Introduction

At the conclusion of oral argument, we allowed this interlocutory appeal and remitted the matter to the County Court for rehearing and determination. What follows are our reasons for adopting this course.
The applicant is currently facing trial in the County Court on an indictment containing eleven charges, relating to seven complainants. The following table sets out a summary of those charges.

Charge

Offence

Date

Complainant

1 Intentionally causing injury 2 March 2018 SJ

2 Recklessly causing injury[2] 2 March 2018 SJ

3 Common assault[3] 2 March 2018 SJ

4 Common assault 31 March 2018 SM

5 Common assault 31 March 2018 CL

6 Common assault 31 March 2018 JS

7 Common assault 31 March 2018 ST

8 Common assault 27 May 2018 HD

9 Common assault 27 May 2018 JH

10 Recklessly causing injury 27 May 2018 JH

11 Common assault[4] 27 May 2018 JH
[2]Charge 2 is an alternative to Charge 1.
[3]Charge 3 is an alternative to Charges 1 and 2.
[4]Charge 11 is an alternative to Charge 10.

The applicant sought leave under s 295 of the Criminal Procedure Act 2009 to dispute the judge’s ruling that asserted tendency evidence sought to be led at trial ought not be excluded from evidence, either under s 97(1) or s 101 of the Evidence Act 2008 (‘the Act’). The grounds of appeal were:
Ground 1: That her Honour erred in concluding that the tendency evidence of each of the charged acts, and one uncharged act, had significant probative value in relation to all other charged acts, in particular:
(a)in finding that the evidence significantly increased the likelihood that each of the charged acts occurred in the ‘manner’…

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 [2023] VSCA 56
Case: [2023] VSCA 56
Decision Date: 2 March 2023

CaseChat Overview and Summary

The applicant, Sharman, was charged with several offences including intentionally causing injury, recklessly causing injury, and common assault. The alleged offending involved multiple complainants and incidents. The trial judge allowed the prosecution to adduce tendency evidence concerning the applicant's past conduct. The applicant challenged the judge's reformulation of the tendency alleged, claiming it resulted in procedural unfairness. The High Court granted leave to appeal and ultimately allowed the appeal.

The legal issues before the court were whether the reformulation of the tendency evidence by the trial judge led to procedural unfairness, and if the judge's approach complied with the statutory requirements set out in the Evidence Act 2008. The court examined the interaction between sections 97 and 101 of the Act, which govern the admissibility of tendency evidence in criminal proceedings. The applicant argued that the reformulation of the tendency evidence by the judge introduced an unfair element because it expanded the scope of the evidence beyond what was initially allowed. The court found that the reformulation did indeed lead to procedural unfairness.

The High Court held that the trial judge's reformulation of the tendency evidence resulted in a broader scope of evidence being admitted, which was not initially allowed. This constituted a procedural unfairness to the applicant. The court stressed that the reformulation had implications that were not initially disclosed to the applicant, which affected their ability to adequately prepare a defence. Furthermore, the court noted that the statutory framework requires that any tendency evidence must be relevant to an issue in the proceeding and not be unfairly prejudicial. The reformulation, according to the court, did not meet these requirements, leading to the conclusion that the trial judge's approach was erroneous.

The High Court allowed the appeal and quashed the conviction of the applicant. The matter was remitted to the trial court for retrial. The court emphasised the importance of ensuring that the procedure followed in criminal trials, particularly regarding the admissibility of tendency evidence, is fair and does not prejudice the accused.

Orders