Wagner (a pseudonym) v The King - [2025] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0236

HENRY WAGNER (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	PRIEST, McLEISH and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2025
DATE OF JUDGMENT:	3 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 56
JUDGMENT APPEALED FROM:	[2024] VCC (Judge Georgiou)

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CRIMINAL LAW – Interlocutory appeal – Decision not to exclude circumstantial telecommunications evidence said to demonstrate that alleged offender was in vicinity of burglaries and arson at relevant times – Whether probative value of evidence outweighed by danger of unfair prejudice – Limitations of evidence capable of being exposed in cross-examination and addressed by jury direction – Leave to appeal refused.

Evidence Act 2008 ss 135, 137.

Moore (a pseudonym) v The King (2024) 98 ALJR 1119, applied; Moreno (a pseudonym) v The King (2023) 307 A Crim R 519, referred to.

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Counsel
Applicant:		Mr	J Connolly
Respondent:		Mr	G Hayward
Solicitors
Applicant:	Hofman Carroll Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MCLEISH JA
ORR JA:

The applicant faces trial in the County Court on nine charges of theft,[2] eight charges of burglary[3] and a single charge of arson.[4] On each of the charges other than the charge of arson, the applicant is charged with a co-accused.
[2]Contrary to s 74(1) of the Crimes Act 1958.
[3]Contrary to s 76(1) of the Crimes Act 1958.
[4]Contrary to ss 197(1) and (6) of the Crimes Act 1958.
It is alleged that the applicant and his co-accused committed a series of burglaries between 26 January 2022 and 10 February 2022 at homes in the suburbs of Malvern East, Burwood East, Point Cook, Werribee, Middle Park, Moonee Ponds, Essendon and Attwood. The applicant is also alleged to have set fire to a car used in the burglaries, which was found burnt out in Clarkefield on 18 February 2022.
The prosecution case is circumstantial. The central issue in the trial is the identity of the offenders who committed the burglaries and associated thefts, as well as the alleged arson.
One of the categories of evidence upon which the prosecution proposes to rely, which it describes as comprising an ‘extremely significant’ part of its case, is telecommunications evidence. The telecommunications evidence is said to establish that the applicant was in the vicinity of each of the burgled premises at the time of the burglaries and thefts and in the vicinity of the car used in the burglaries on the day of the arson. It is also said to establish that the applicant was, at various points in time, moving in line with a car that was detected by CityLink and which bore the same stolen registration plates observed on the car involved in some of the burglaries.

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 Wagner (a pseudonym) v The King

Details

AGLC: Wagner (a pseudonym) v The King [2025] VSCA 56
Case: [2025] VSCA 56
Decision Date: 3 April 2025

CaseChat Overview and Summary

The case before the court involved an interlocutory appeal by Wagner, whose real identity is protected by a pseudonym, challenging the decision to admit circumstantial telecommunications evidence against him in a criminal proceeding. The evidence in question suggested that Wagner was in the vicinity of several burglaries and acts of arson at the relevant times. The appeal focused on whether the probative value of the telecommunications evidence was outweighed by the risk of unfair prejudice to the appellant. The court was tasked with determining whether the probative value of the evidence outweighed any prejudicial effects, considering the potential for limitations of the evidence to be exposed through cross-examination and addressed by jury directions.

The legal issues at hand revolved around the admissibility of circumstantial evidence under the Evidence Act 2008, specifically sections 135 and 137. The court had to assess whether the evidence was sufficiently relevant and whether the danger of unfair prejudice to the appellant was significant enough to warrant exclusion. The appellant argued that the evidence was speculative and could unfairly prejudice the jury against him. The prosecution maintained that the evidence was probative and that any prejudicial effect could be mitigated through proper cross-examination and jury directions.

The court, in refusing leave to appeal, held that the probative value of the circumstantial telecommunications evidence was not outweighed by the risk of unfair prejudice. It relied on the decision in Moore v The King, where similar evidence was admitted despite the appellant's arguments about prejudice. The court reasoned that the evidence was relevant to establishing Wagner's presence at the crime scenes and that the potential for prejudice could be managed through the procedural safeguards of cross-examination and jury directions. The court found that the probative value of the evidence outweighed any prejudicial effect, and therefore, the evidence was admissible.

No final orders were made in this interlocutory appeal, as the matter proceeded to trial with the evidence in question being admitted.

Orders