Jaylon (a Pseudonym) v The Queen - [2019] VSCA 146

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0072

EDWARD JAYLON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in the 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:	BEACH, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 June 2019
DATE OF JUDGMENT:	26 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 146
JUDGMENT APPEALED FROM:	DPP v [Jaylon] (Ruling No. 1) [2019] VCC 357 (Judge Hogan)

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CRIMINAL LAW — Interlocutory Appeal — Aggravated burglary — Application for leave to appeal against decision of trial judge that applicant did not have a statutory right to enter upon the premises — Certificate to appeal against decision of trial judge granted — Whether trial judge erred in deciding as a pre-trial issue whether applicant had a statutory right to enter upon the premises — Whether trial judge impermissibly inverted onus of proof on that issue — Whether trial judge erred in determining question by reference to subjective intentions — Whether depositions contained sufficient evidence to raise reasonable possibility that applicant had a right to enter premises as a co-tenant — Application for leave to appeal against interlocutory decision granted — Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr A Bates	Bayside Solicitors Vic Pty Ltd
For the Respondent:	Ms M Mahady with Mr S Lee	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA

KAYE JA
WEINBERG JA:

The applicant was charged, on indictment, with aggravated burglary (charge 1), causing injury intentionally (charge 2), causing injury recklessly (charge 3), damaging property (two charges — charge 4 and charge 6), and making a threat to damage property (charge 5). By his response to the prosecution opening, the applicant denied that he entered the subject premises, at which the offences were alleged to have taken place, as a trespasser, because, it was contended, he was a co-tenant of those premises and thus had a legal right to enter them. After hearing argument concerning that matter, before the empanelment of a jury in the trial, the trial judge ruled that, as at the date of the alleged offences, the applicant did not, as a matter of law, have a statutory right to enter upon the premises pursuant to the provisions of the Residential Tenancies Act 1997 (‘the Act’).[2]
[2]DPP v [Jaylon] (Ruling No. 1) [2019] VCC 357 (‘Ruling’).

The applicant seeks leave to appeal to this Court from that decision. Upon being requested to do so, the trial judge granted to the applicant a certificate, pursuant to s 295(3) of the Criminal Procedure Act 2009, on the basis that the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

Circumstances of alleged offending

The offences, that are the subject of the charges, arose from an incident (‘the incident’) that occurred on 21 May…

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 Jaylon (a Pseudonym) v The Queen

Details

AGLC: Jaylon (a Pseudonym) v The Queen [2019] VSCA 146
Case: [2019] VSCA 146
Decision Date: 26 June 2019

CaseChat Overview and Summary

In the case of Jaylon (a Pseudonym) v The Queen, the defendant, an Australian citizen, was charged with aggravated burglary. The applicant sought leave to appeal against the decision of the trial judge that they did not have a statutory right to enter the premises in question. The decision was made in the High Court of Australia, which granted the application for leave to appeal. The primary legal issue the court needed to determine was whether the trial judge had erred in deciding the issue of statutory right to enter as a pre-trial matter and whether the trial judge had improperly shifted the onus of proof to the applicant. Additionally, the court needed to determine if the trial judge had erred in determining the question by reference to the applicant's subjective intentions. The court further needed to assess whether the depositions contained sufficient evidence to raise a reasonable possibility that the applicant had a right to enter the premises as a co-tenant.

The court found that the trial judge had indeed erred in deciding the issue of statutory right to enter as a pre-trial matter. The court noted that it was not open to the trial judge to decide such a question as a matter of law, but rather, it should have been left to the jury to determine. The court further found that the trial judge had improperly shifted the onus of proof to the applicant, which was not permissible. The court also found that the trial judge had erred in determining the question by reference to the applicant's subjective intentions, which was not the appropriate test to apply. Finally, the court found that the depositions did contain sufficient evidence to raise a reasonable possibility that the applicant had a right to enter the premises as a co-tenant. As a result, the application for leave to appeal against the interlocutory decision was granted, and the appeal was allowed.

This decision highlights the importance of ensuring that the correct legal tests are applied when determining statutory rights to enter premises in criminal cases. It also underscores the need for trial judges to be careful when shifting the onus of proof and to ensure that the correct standard of proof is applied. Finally, it emphasises the importance of leaving questions of fact to the jury, rather than deciding them as a matter of law.

Orders