Toby Quinn (a pseudonym)[1] v The Queen - [2018] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0071

TOBY QUINN (A PSEUDONYM)[1]	Appellant
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 Appellant.

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JUDGES:	WEINBERG and PRIEST JJA, and McDONALD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2018
DATE OF JUDGMENT:	9 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 82
JUDGMENT APPEALED FROM:	DPP v [Quinn] (Unreported, County Court of Victoria, Judge Tinney, 11 October 2016)

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CRIMINAL LAW — Appeal — Conviction — Sexual penetration of and indecent acts with a child under 16 — Other misconduct evidence — Text messages sent between appellant and complainant — Failure of trial judge to give anti-propensity warning — Whether substantial miscarriage of justice resulted — Appeal allowed — Jury Directions Act 2015 ss 16, 29.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C T Carr	Tony Hargreaves and Partners
For the Respondent	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA:

Introduction

Substantially for the reasons given by McDonald AJA, whose judgment we have had the benefit of reading in draft, we agree that grounds 1 and 3 cannot be upheld, but seek to add some observations of our own.

We also agree that ground 2 should succeed, but we do so principally for reasons that differ from his Honour’s. Ground 2 should be upheld, save with respect to the conviction on charge 1. We thus would allow the appeal; set aside the convictions and sentences on charges 2, 3, 4, 5 and 6; and order that there be a new trial on those charges. As will become clear, however, we are of the view that conviction on charge 1 was inevitable, so that the appeal with respect to that charge must be dismissed.[2] Our reasons for those conclusions follow.
[2]Given that the conviction on charge 1 will stand, it will be necessary to make orders with respect to the appellant’s sentence.

Given his Honour’s thorough treatment of the evidence, the course of the trial and the submissions made in this Court, we are largely absolved from their repetition, save to the extent necessary to make our reasons readily comprehensible.

The admission of the text messages

Somewhat economically expressed, ground 1 asserts that a ‘substantial miscarriage of justice occurred as a result of the learned trial judge admitting into evidence Exhibit B’.

Prior to trial, the prosecution flagged an intention to rely upon a large number of text messages between the mobile phones of the appellant and complainant (‘SS’) — to a large extent, reflecting their sexual desire for each other — in the period of six months following the time when the charged acts were alleged to have occurred. Over objection by defence counsel, the trial judge ruled the whole body of the text messages to be admissible. From the body of text messages…

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.

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Details

Case: [2018] VSCA 82
Decision Date: 9 April 2018

CaseChat Overview and Summary

The case of Toby Quinn (a pseudonym) v The Queen involves an appeal against a conviction for sexual penetration of and indecent acts with a child under 16, along with other misconduct. The court addressed the admissibility of text messages exchanged between the appellant and the complainant and the failure of the trial judge to provide an anti-propensity warning as required by the Jury Directions Act 2015. The appellant argued that the admission of the text messages led to a substantial miscarriage of justice because it allowed the jury to infer a sexual relationship between the appellant and the complainant, which was not directly relevant to the charges. The appeal was heard in the Victorian Court of Appeal.

The legal issues before the court included whether the trial judge was required to give a warning about the potential for propensity reasoning when admitting the text messages and whether the failure to do so constituted a substantial miscarriage of justice. The court also needed to determine whether the convictions on specific charges should stand or if a new trial was necessary. The admissibility of the text messages under sections 97 and 101 of the Evidence Act 2008 was another significant point of contention, with arguments centring on whether the prosecution had invoked tendency reasoning by using the messages to demonstrate a sexual relationship.

The court found that neither defence counsel nor the prosecutor requested the trial judge to give an anti-propensity warning regarding the text messages, but concluded that there were substantial and compelling reasons for such a direction to be given. The failure to provide the warning resulted in a substantial miscarriage of justice, leading to the upholding of the second ground of appeal. The convictions on charges 2, 3, 4, 5, and 6 were deemed to be unsustainable, necessitating a new trial on those charges. However, the conviction on charge 1 was considered inevitable. The court also addressed the admissibility of the text messages, finding that the prosecution's use of the messages constituted tendency reasoning, and thus, the evidence should have been subject to the safeguards provided by sections 97 and 101 of the Evidence Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would dismiss ground 1 and 3. I have upheld ground 2 for reasons which differ to those set out in the judgment of Weinberg and Priest JJA. I disagree with their Honours’ conclusion that the trial judge was requested by the prosecutor to give a s 29 direction in respect of Exhibit B and failed to comply with the request. I have concluded that neither defence counsel nor the prosecutor requested the trial judge to give the jury a s 29 direction in respect of Exhibit B. However, I agree with their Honours’ conclusion that irrespective of whether a request was made, there were substantial and compelling reasons for the trial judge to have given a s 29 direction. The trial judge was therefore required to give such direction. As a result of his failure to do so ground 2 must be upheld. For the reasons given by Weinberg and Priest JJA I agree that the conviction on charges 2, 3, 4, 5 and 6 cannot stand and that a new trial should be ordered on those charges. I also agree with their Honours that conviction on charge 1 was inevitable. Ground 1: a substantial miscarriage of justice occurred as a result of the learned trial judge admitting into evidence Exhibit B. Mr Carr, who appeared for the appellant, submitted that the use of the text messages for the purpose of establishing a sexual relationship between the appellant and the complainant involved tendency reasoning, which the prosecution had expressly disavowed. He submitted that the evidence was admitted and left to the jury as evidence from which the jury could reason that the appellant had been involved in a sexual relationship with the complainant, from which the jury could reason directly to guilt. Mr Carr submitted that the admission of the evidence to demonstrate the existence of a sexual relationship between an adult and a child invited reasoning that the offending was more likely to have occurred by reason of the appellant’s ‘guilty passion’ for the complainant. Mr Carr submitted that the prosecution invokes tendency reasoning if it adduces evidence not merely to address questions that would naturally arise in the minds of the jury, but in order to positively demonstrate, in proof of guilt, the existence of a sexual attraction or a sexual relationship between an adult and a child. Mr Carr submitted that the admission of such evidence is subject to satisfying ss 97 and 101 of the Evidence Act 2008 (‘Evidence Act’). In support of the propositions set out above Mr Carr cited a passage from the judgment of Priest JA in Murdoch (A Pseudonym) v R:In my opinion, relationship evidence — including context evidence — should be seen for what it is. It is tendency evidence. As such it owes its admissibility to ss 97 and 101 of the Act. Thus, notwithstanding the manner in which distinctions with respect to relationship evidence have been recognised and maintained by courts interstate, a more satisfactory approach would be to treat the admissibility of relationship evidence in the same manner as other tendency evidence. Were such an approach adopted, it might bring some coherence to an otherwise somewhat confused landscape.[32][32](2013) 40 VR 451, 474 [93].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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