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Fleming v The Queen

Fleming v The Queen

Case [2021] VSCA 206 29 July 2021

Interlocutory Appeal

Charges Properly Joined

Related Offences

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0085

MARTY FLEMING (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]So as to prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGE:	PRIEST, KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13, 16 July 2021
DATE OF JUDGMENT:	29 July 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 206
JUDGMENT APPEALED FROM:	R v [Fleming] [2020] VSC 349

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CRIMINAL LAW — Interlocutory Appeal — Indictment in pending trial contains charges of both murder and rape — Severance refused by trial judge — Whether charges improperly joined — Whether murder and rape are ‘related offences’ — Whether charges ‘founded on the same facts’ — Whether charges ‘form, or are part of, a series of offences of the same or similar character’ — Appeal allowed — Criminal Procedure Act 2009 s 3(1), s 159(3)(c), sch 1 cl 5 — Connelly v DPP [1964] AC 1254; R v Barrell and Wilson (1979) 69 Cr App Rep 250; Ludlow v Metropolitan Police Commissioner [1971] AC 29; De Jesus v The Queen (1986) 68 ALR 1; R v Russell (No 2) [1965] Qd R 334; R v Collins; Ex parte Attorney-General [1996] 1 Qd R 631; R v Reid [1999] 2 VR 605 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr J Gullaci and Ms E Clark	Stary Norton Halphen
For the Respondent:	Dr N Rogers SC with Mr L Cameron	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
NIALL JA:

Introduction

An indictment filed in the Supreme Court charges the applicant with the murder (charge 4) and the antecedent rape (charges 1, 2 and 3), of his wife, ‘FRS’. He has pleaded not guilty.

Among a number of pre-trial applications, the applicant sought, first, severance of the rape charges from the murder charge; and, secondly, the exclusion of various hearsay representations made by FRS, principally concerned with the alleged rapes.

By a ruling dated 18 June 2021, the trial judge refused both applications (‘the ruling’ or ‘the interlocutory decision’).

On 25 June 2021, the judge certified under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) that the interlocutory decision concerning various hearsay representations — ‘consideration of which will inevitably raise the issue of joint or separate trials’ — is of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

Pursuant to that certification, the applicant seeks leave to appeal against the interlocutory decision on two grounds, which contend that the trial judge erred:

1. … in refusing to sever charge 4 (‘the murder charge’) from the other counts (‘the rape charges’) on the indictment.
2. … in ruling that hearsay representations made by the deceased, concerning three alleged rape allegations (and uncharged sexual acts), were admissible on the charge of murder.

In our opinion, the first ground…

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 Fleming v The Queen

Details

AGLC: Fleming (a pseudonym) v The Queen [2021] VSCA 206
Case: [2021] VSCA 206
Decision Date: 29 July 2021

CaseChat Overview and Summary

In Fleming v The Queen, the appellant was facing a trial for charges of murder and rape, which were consolidated in a single indictment. The appellant sought an interlocutory appeal against the trial judge’s refusal to sever the charges, arguing that the charges were improperly joined. The appeal was heard by the Queensland Court of Appeal. The central issue before the court was whether the charges of murder and rape were properly joined under the Criminal Procedure Act 2009. The appellant contended that the charges did not constitute ‘related offences’ as defined in the statute, and thus should not have been joined in a single indictment.

The court examined whether the charges were ‘founded on the same facts’ or whether they ‘formed, or were part of, a series of offences of the same or similar character.’ The court considered relevant precedents such as Connelly v DPP, R v Barrell and Wilson, Ludlow v Metropolitan Police Commissioner, De Jesus v The Queen, R v Russell (No 2), R v Collins; Ex parte Attorney-General, and R v Reid. The court found that the charges were not properly joined as they did not satisfy the statutory criteria for related offences. The court noted that the charges were distinct in nature and did not form part of a series of similar offences.

Consequently, the court allowed the appeal and quashed the conviction on the ground that the charges were improperly joined. The court held that the charges of murder and rape should have been tried separately, as they did not meet the criteria for being related offences under the statute. The decision underscores the importance of correctly applying the statutory provisions regarding the joinder of charges in criminal proceedings. The court ordered that the appellant’s conviction be quashed and the charges be severed for separate trials.

Orders