Marks-Vincenti v The Queen - [2015] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0252

TONY MARKS-VINCENTI	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P and WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2015
DATE OF JUDGMENT:	1 April 2015	1^st Revision: 2 April 2015 para [42]
MEDIUM NEUTRAL CITATION:	[2015] VSCA 54
JUDGMENT APPEALED FROM:	DPP v Marks-Vincenti (Unreported, County Court of Victoria, Judge Cotterell, 27 October 2014)

---

CRIMINAL LAW – Conviction – Aggravated burglary – Applicant’s stepfather lessee of residential premises – Applicant’s half-sister and her partner also resided in house – Stepfather gave qualified approval to applicant to visit him at residence except when ‘drunk’ – Half-sister and partner purported to ban applicant from entering premises – Whether applicant could be found, in those circumstances, to have entered as a trespasser – Half-sister and partner not in exclusive possession of house and lacked authority to revoke right of entry granted by stepfather – Alternative basis upon which prosecution could be mounted – Dependent upon inference as to limited nature of stepfather’s permission – Conviction quashed and new trial, confined to alternative case, ordered.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S R Kennedy	Tait Lawyers
For the Crown	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA
BEACH JA:

On 17 September 2014, the applicant (now aged 34) was convicted by a jury in the County Court at Horsham of one charge of aggravated burglary, and one charge of common law assault. He was sentenced on 27 October 2014 as follows:

Charge Offence Maximum Sentence Cumulation

1 Aggravated burglary [s 77(1) Crimes Act 1958] 25 years 9 months Base

3 Common law assault 5 years 6 months Nil

Total effective sentence:

9 months’ imprisonment

Other orders: That both sentences be served concurrently with the balance of a parole period then being served. Upon the completion of the term of imprisonment to serve a Community Correction Order for a period of 15 months (250 hours unpaid community work).

The applicant sought leave to appeal against conviction, but in respect of the aggravated burglary charge only. At the hearing of the leave application, senior counsel for the Crown conceded that one of the grounds relied upon by the applicant must succeed, with the consequence that the conviction for aggravated burglary ought be quashed, and a re-trial ordered in respect of that charge.

In our view, that concession was entirely proper. On that basis, we granted leave to appeal, and allowed the appeal instanter. We made orders directing that a re-trial take place in respect of the aggravated burglary charge. We indicated at the time that we would publish our detailed reasons in due course. These are those reasons.

Grounds of appeal

The applicant sought leave to appeal against conviction on a number of grounds. For present purposes, it is necessary only to set out the ground in respect of which the concession was made,…

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 Marks-Vincenti v The Queen

Details

AGLC: Marks-Vincenti v The Queen [2015] VSCA 54
Case: [2015] VSCA 54
Decision Date: 1 April 2015

CaseChat Overview and Summary

In the case of Marks-Vincenti v The Queen, the applicant appealed against a conviction for aggravated burglary. The applicant, who had a contentious relationship with his family, visited his stepfather’s residence where he was not permitted to enter if he was drunk. Although his half-sister and her partner resided in the house, they did not hold exclusive possession and lacked the authority to override the stepfather’s permission. The central issue was whether the applicant entered the premises as a trespasser given the complex dynamics of family consent and possession.

The court had to determine whether the applicant’s presence at the residence constituted a trespass under the circumstances. The legal issue revolved around the interpretation of consent and possession in the context of family relationships and whether the half-sister and her partner had the authority to exclude the applicant. The court found that the half-sister and her partner did not have exclusive possession and could not revoke the permission granted by the stepfather. Consequently, the applicant’s entry could not be deemed a trespass.

The court quashed the conviction, holding that the prosecution's alternative basis, which depended on the inference regarding the limited nature of the stepfather’s permission, required further examination. The reasoning was that the alternative case relied on an inference that the stepfather’s permission was limited to non-intoxicated visits, a matter that should be considered by a jury. A new trial, limited to the alternative case, was ordered to address this issue adequately.

The final orders of the court included the quashing of the applicant’s conviction for aggravated burglary and the ordering of a new trial, confined to the alternative basis that the prosecution could pursue. This new trial would focus on the inference regarding the stepfather's permission and its limitations.

Orders