Conor Meyer (a pseudonym)[1] v The Queen [No 2] - [2020] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2020 0004

CONOR MEYER (a pseudonym)[1]	Applicant
v
THE QUEEN [No 2]	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and the use of initials in place of the name of the complainants.

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JUDGES:	BEACH, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2020
DATE OF JUDGMENT:	19 August 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 206
JUDGMENT APPEALED FROM:	[2019] VCC 2175 (Judge M Sexton)

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CRIMINAL LAW – Conviction – Appeal – Indecent assault, sexual penetration of child under 16 – Two complainants – Whether judge erred in refusing to admit evidence of acquittals of other charges in earlier trial – Whether verdicts were unreasonable and/or could not be supported on the evidence – Whether judge erred in allowing cross-examination of defence witness by prosecutor after conclusion of cross-examination by counsel for accused – Application for leave to appeal against conviction refused – Evidence Act 2008, s 38.

CRIMINAL LAW – Sentence – Appeal – Applicant sentenced on first trial to imprisonment for 6 years and 6 months, with a non-parole period of 4 years – Applicant sentenced on retrial for same offences and additional offence first jury could not agree on to 8 years and 1 month, with a non-parole period of 6 years – Whether judge erred in sentencing applicant to higher sentence on charge that was the base sentence in first trial – Application for leave to appeal granted – Appeal allowed – Base sentence set aside and applicant resentenced to original sentence on that charge – Applicant resentenced to total effective sentence of 7 years, with a non-parole period of 4 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A P Lewis	Fayman Lawyers
For the Respondent	Mr C B Boyce QC with Ms K Crennan	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
T FORREST JA
WEINBERG JA:

The applicant was originally charged on Indictment F12152628 (‘the first indictment’) with 27 counts of committing sexual offences against two young girls, who were under the age of 16 years, in the period June 1980 to September 1982. In March 2017, following a trial in the County Court, he was convicted of 13 of those charges, and was sentenced to a total effective sentence of 6 years and 6 months, with a non-parole period of 4 years.

On 31 May 2018, this Court[2] allowed the applicant’s appeal against his convictions and ordered a retrial.[3]
[2]Priest and Kaye JJA, Maxwell ACJ dissenting.
[3]Meyer (a Pseudonym) v The Queen [2018] VSCA 140 (‘Meyer [No 1]’).

In August 2019, the applicant was retried, on Indictment F12152628.2 (‘the second indictment’), on the charges on which a retrial had been ordered, and on an additional charge in respect of…

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: [2020] VSCA 206
Decision Date: 19 August 2020

CaseChat Overview and Summary

The case involved a defendant, referred to as Conor Meyer, who was convicted and subsequently appealed against his sentence. Meyer was charged with indecent assault and sexual penetration of a child under the age of 16, with two complainants. The appeal focused on several issues, including whether the judge erred in refusing to admit evidence of Meyer's acquittals on other charges from an earlier trial, and whether the verdicts were unreasonable or unsupported by the evidence. Another issue was whether the judge erred in permitting the prosecutor to cross-examine a defence witness after the conclusion of the accused's counsel's cross-examination. The application for leave to appeal against conviction was ultimately refused.

The court examined whether the judge's decision not to admit evidence of Meyer's acquittals on other charges in a previous trial was correct, and whether the verdicts were unreasonable or could not be supported by the evidence. It also considered whether the judge erred in allowing the prosecutor to cross-examine the defence witness after the accused's counsel had concluded their cross-examination. The court held that the judge's decisions were within their discretion, and the verdicts were reasonable and supported by the evidence. The application for leave to appeal against conviction was therefore refused.

Regarding the sentencing appeal, the court assessed whether the judge erred in sentencing Meyer to a higher sentence on a charge that was the base sentence in the first trial. Meyer had been sentenced to 6 years and 6 months imprisonment in the first trial, with a non-parole period of 4 years. At the retrial, he was sentenced to 8 years and 1 month for the same offences and an additional offence, with a non-parole period of 6 years. The court concluded that the judge had erred in imposing a higher sentence on the charge that was the base sentence in the first trial. The application for leave to appeal against sentence was granted, and the appeal was allowed. The base sentence was set aside, and Meyer was resentenced to the original sentence on that charge. He was resentenced to a total effective sentence of 7 years, with a non-parole period of 4 years and 4 months.

The final orders of the court included the refusal of the application for leave to appeal against conviction and the allowance of the appeal against sentence. The base sentence was set aside, and Meyer was resentenced to 6 years and 6 months imprisonment on the charge that was the base sentence in the first trial. He was also resentenced to a total effective sentence of 7 years, with a non-parole period of 4 years and 4 months.

Orders