Mathieson v The Queen - [2021] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0088

STEPHEN MATHIESON	Applicant
v
THE QUEEN	Respondent

S EAPCR 2020 0093

BRADLEY BERRY	Applicant
v
THE QUEEN	Respondent

S EAPCR 2021 0030

RICHARD SMITH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 April 2021
DATE OF JUDGMENT:	23 April 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 102
JUDGMENT APPEALED FROM:	DPP v Smith (Unreported, County Court of Victoria, Judge Smith, 19 August 2019) (Conviction).

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CRIMINAL LAW — Appeal — Conviction — Applicants convicted of aggravated burglary, intentionally causing serious injury and kidnapping — Whether judge wrongly deprived applicants of a ‘defence’ — Whether trial judge erred in directing jury on hypotheses consistent with innocence — Whether trial judge erred in directing jury to put aside any aspect of complainant’s evidence disbelieved — Whether judge’s charge lacked balance — Combination of errors resulted in substantial miscarriage of justice — Appeal allowed — Retrial ordered — Steinberg v Commissioner of Taxation (Cth) (1975) 134 CLR 640 and R v Defrutos [1998] 2 VR 589 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Mathieson:	Ms C Boston	Garde Wilson Lawyers
For the Applicant Berry:	Ms C Boston	Garde Wilson Lawyers
For the Applicant Smith:	Mr P Smallwood	Giorgianni & Liang Lawyers
For the Respondent:	Mr D Glynn	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
T FORREST JA:

Introduction

On 19 August 2019, a jury empanelled in the County Court found each applicant guilty of aggravated burglary[1] (charge 1), intentionally causing injury[2] (charge 2) and kidnapping[3] (charge 3), but acquitted them of armed robbery[4] (charge 4).[5]
[1]Crimes Act 1958, s 77.
[2]Crimes Act 1958, s 18.
[3]Crimes Act 1958, s 63A.
[4]Crimes Act 1958, s 75A.
[5]On 19 November 2019, the judge sentenced all applicants to 30 months’ imprisonment on each of the charges of aggravated burglary and kidnapping, and to six months’ imprisonment on the charge of intentionally causing injury. Orders for cumulation resulted in each case in a total effective sentence of four years’ imprisonment, upon which the judge fixed a non-parole period of two years.

The applicants each now seek leave to appeal against conviction on four overlapping grounds as follows:[6]

1.   The learned trial judge erred in directing the jury to the effect that there was no evidence that the complainant had made a deal to provide the dyno^[[7]] to the accused.
2.   The learned trial judge erred in failing to adequately direct the jury in relation to the prosecution’s burden to exclude all reasonable hypotheses consistent with innocence.
3.   The learned trial judge erred in directing the jury to the effect that they could put to one side any aspects of the complainant’s evidence which they did not accept.
4.   The judge’s charge to the jury was so unfair to the applicant in its lack of balance that it has resulted in…

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 Mathieson v The Queen

Details

AGLC: Mathieson v The Queen [2021] VSCA 102
Case: [2021] VSCA 102
Decision Date: 23 April 2021

CaseChat Overview and Summary

The appellants, Mathieson and his co-defendants, appealed their convictions for aggravated burglary, intentionally causing serious injury, and kidnapping. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The appellants contended that the trial judge had deprived them of a viable defence and had otherwise erred in the directions given to the jury, leading to a substantial miscarriage of justice.

The primary legal issues before the court were whether the trial judge had wrongly deprived the appellants of a defence, whether the judge had erred in directing the jury on hypotheses consistent with innocence, and whether the judge had erred in directing the jury to set aside any aspect of the complainant’s evidence that they disbelieved. Furthermore, the court considered whether the judge’s charge lacked balance, which, in combination with the other errors, resulted in a substantial miscarriage of justice.

In considering these issues, the court found that the trial judge had indeed erred in depriving the appellants of a viable defence. The court held that the judge's directions to the jury on hypotheses consistent with innocence and to set aside aspects of the complainant’s evidence were also incorrect. The court found that the combination of these errors led to a lack of balance in the charge and resulted in a substantial miscarriage of justice. The court emphasised that the cumulative effect of these errors meant that the appeal could not be dismissed as merely a theoretical possibility of a miscarriage of justice.

The court allowed the appeal, quashed the convictions, and ordered a retrial. The court's decision was grounded in the principles established in Steinberg v Commissioner of Taxation (Cth) and R v Defrutos, which provide that a combination of errors can cumulatively lead to a miscarriage of justice, warranting a retrial.

Orders