Hodgetts, R. v

Factual and Procedural Background

This is an application for leave to appeal against conviction referred to the full court by the Registrar. The application arises from convictions returned at a military trial before Judge Legard at the Military Court at The City on 25 July 2025. The Appellant was convicted of one count of assault by penetration (Charge 2) and three counts of sexual assault (Charges 4(a), 5(a) and 8). He was acquitted of other charges (including Charges 3, 6 and 7). The incidents in issue involved two encounters between the Appellant and the Complainant in October 2023 (the first incident dated to 6 October 2023 and the second to the night of 19–20 October 2023). Forensic swabs taken after the second incident produced DNA profiles attributable to the Appellant, including on a high vaginal swab, which the experts said very strongly supported digital vaginal penetration. The Appellant denied the allegations and suggested possible indirect transfer of DNA. He was sentenced to a total of 66 months' imprisonment and dismissed from the Armed Forces.

Legal Issues Presented

1. Whether leave to appeal against the Appellant's convictions should be granted.
2. Whether alleged investigative failings by the service police — principally the failure timely to investigate or interview in relation to the earlier (first) incident and failure to review the ABE recording before planning the investigation — amounted to misconduct rendering the convictions unsafe.
3. Whether the exclusion by the trial judge (Judge Legard) of evidence of prior complaints by the Complainant (a non-defendant bad character application under s.101 Criminal Justice Act 2003) was correct and whether any challenge should affect safety of conviction.

Arguments of the Parties

Appellant's Arguments

• The service police failed to investigate the first incident properly, including failing to interview the Appellant about it and failing to review the ABE recording; this deprived the Appellant of the opportunity to rely earlier on photographic evidence and to have a different investigative and trial strategy.
• Had the investigation been conducted properly, additional lines of inquiry (timely interview of a witness present, review of mobile phones) would have been pursued and might have undermined the Complainant's account or explained the DNA findings.
• The alleged investigative misconduct rendered the convictions arising from the second incident unsafe.

Respondent's Arguments (Company A)

• The Appellant suffered no prejudice from investigative failings in respect of allegations (Charges 6 and 7) of which he was acquitted.
• Speculation about what other witnesses might have said or what further investigation might have shown is insufficient to render the convictions unsafe.
• The trial judge's exclusion of non-defendant bad character evidence was correct; there is no direct attack upon that ruling in these proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first recorded statutory anonymity provisions under the Sexual Offences Amendment Act 1992. It reviewed the factual matrix: two incidents involving the Appellant and the Complainant, the timing and evolution of charges (amendments where the Complainant expressed uncertainty), the forensic evidence (DNA on multiple swabs including high vaginal swab), the Appellant's denials and suggestion of indirect transfer, and that the trial Board received agreed expert material addressing transfer. The court considered the excluded application under s.101 Criminal Justice Act 2003 and concluded Judge Legard was right to exclude non-defendant bad character evidence; the later decision in R v Hurley demonstrated that no proper evidential foundation existed to admit prior complaints as deliberate fabrications.

On the misconduct/investigation point, the court accepted that there were investigative shortcomings (failure to listen to the ABE recording, late interview of a witness, limited phone examination) and that disciplinary/regulatory processes were addressing complaints about that. However, the court assessed whether those failings rendered the convictions unsafe. It observed that the Board had been alerted by the trial judge to take any prejudice from inadequate investigation into account and that the Board acquitted the Appellant on the allegations connected to the first incident. Crucially, the conviction for the single act of digital vaginal penetration was strongly supported by the forensic evidence for which there was no credible alternative explanation before the Board. Speculative possibilities about what further investigation might have revealed were insufficient to show the convictions were unsafe.

Holding and Implications

APPLICATION FOR LEAVE TO APPEAL DISMISSED

The court refused leave to appeal and dismissed the application. The direct effect is that the convictions and sentence remain undisturbed. The court indicated that disciplinary or regulatory consequences for investigative conduct are matters for other bodies. No new legal precedent was established beyond applying existing authorities (including R v Hurley) to the facts of this case.