Becker v The King

[2023] VSCA 332

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0042

SHEREE BECKER	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, PRIEST JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2023
DATE OF JUDGMENT:	14 December 2023
DATE OF REASONS:	21 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 332
JUDGMENT APPEALED FROM:	DPP v Becker [2022] VCC 2058 (Judge McInerney)

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CRIMINAL LAW — Appeal — Conviction — Applicant convicted of seven charges of obtaining financial advantage by deception — Mortgage fraud — Complex and document heavy trial — Interventions by trial judge during prosecution opening — Prosecution opening akin to a ‘workshop exercise’ — Further interventions by trial judge during witness examination — Comments made by trial judge when charging the jury — Whether trial judge entered the arena — The adversarial system — Trial judge crossed the line between roles of judge and advocate — Interventions had the capacity to deflect the jury from giving fair and proper consideration to the defence case — Substantial miscarriage of justice — Appeal allowed — Retrial ordered.

CRIMINAL LAW — Appeal — Conviction — Whether verdict on charge 1 unreasonable or could not be supported having regard to the evidence — Prosecution case on charge 1 depended upon acceptance of truthfulness of co-offender’s account — Where jury accepted co-offender’s evidence as credible and reliable — Whether improbabilities of co-offender’s account arise by reason of other evidence — Whether there was unchallenged inconsistent evidence — Combined force of evidence capable of establishing guilt — Leave to appeal refused.

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Counsel
Applicant:		Mr D Dann KC with Mr P Smallwood
Respondent:		Ms D Piekusis KC with Ms B Goding
Solicitors
Applicant:	Galbally & O’Bryan
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

EMERTON P, PRIEST JA AND KIDD AJA:

PART A:. INTRODUCTION

PART B:. THE FACTS

(1).... The prosecution case at trial

(a)          Charge 1

(b)          Charge 2

(c)          Charge 3

(d)          Charge 4

(e)          Charge 5

(f)          Charge 6

(g)          Charge 7

(h)          Available pathways to guilt

(2).... The applicant’s case at trial

(a)          The deposits particular (charges 2, 3, 4, 5, 6 and 7)

(b)          The payslips and income particulars (charges, 1, 2, 3, 4, 6 and 7)

(c)          Causation

PART C:. GROUND 1

(1).... The essence of ground 1

(2).... Parties’ arguments

(a)          The applicant

(b)          The respondent

(3).... Legal principles

(a)          Judicial intervention

(b)          Judicial comment

(4).... Analysis

(a)          The interventions during the prosecutor’s opening

(b)          Mid-trial interventions

(c)          The judge’s charge

(d)          The response of the applicant’s trial counsel to the interjections and comments

(5).... Conclusion

PART D:. GROUND 2

(1).... Parties’ arguments

(a)          The applicant

(b)          The respondent

(2).... Legal principles

(3).... Analysis

(a)          The conflict between Akkala and the witnesses Anand and Iva

(b)          Internal inconsistencies and false evidence

(c)          Other infirmities

(d)          Absence of documentary evidence

(4).... Conclusion

PART E:. ORDERS

EMERTON P
PRIEST JA
KIDD AJA:

PART A:INTRODUCTION

1. The applicant, Sheree Becker, was charged on…