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Matthews v The Queen

Matthews v The Queen

Case [2021] VSCA 20 16 February 2021

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0127

MARK MATTHEWS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2021
DATE OF JUDGMENT:	16 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 20
JUDGMENT APPEALED FROM:	[2019] VCC 2231 (Judge M Sexton)

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CRIMINAL LAW – Appeal – Conviction and Sentence – Applicant convicted of one charge of criminal damage, one charge of aggravated burglary, two charges of intentionally causing injury, two charges of recklessly causing injury and one charge of common assault – Total effective sentence 7 years’ imprisonment – Non-parole period 4 years 10 months – Jury discharged on first trial – Applicant convicted on second trial – Two jurors discharged during second trial – Whether miscarriage of justice caused by decision by judge to proceed with jury of ten – Whether guilty verdict on common assault charge unsafe and unsatisfactory – Whether judge took into account irrelevant considerations in sentencing – Leave to appeal granted – Appeal dismissed – Carson v The Queen [2019] VSCA 317, Wu v The Queen (1999) 199 CLR 99, R v Baden-Clay (2016) 258 CLR 308, Pell v The Queen [2020] HCA 12 applied, Guden v The Queen (2010) 28 VR 288 considered, Juries Act 2000 s 44.

PRACTICE AND PROCEDURE – Application for extension of time to file application for leave to appeal – Grounds of appeal reasonably arguable – Extension of time granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC with Ms G F Connelly	Criminal Lawyers Geelong
For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
NIALL JA:

The applicant was charged on indictment with one charge of criminal damage (charge 1), one charge of aggravated burglary (charge 2), two charges of intentionally causing injury (charges 3 and 5), two charges of recklessly causing injury (charges 4 and 6) and one charge of common assault (charge 7).

The applicant first stood trial in respect of those charges in a circuit sitting of the County Court in Geelong on 22 February 2019. After a trial lasting 12 days, on 12 March 2019, the jury was unable to agree on charges 1, 2, 3, 5 and 7 but returned guilty verdicts on charges 4 and 6. The guilty verdicts on charges 4 and 6 were invalid, because they were alternative charges, and the jury had not returned a verdict acquitting the applicant on the primary charge. Accordingly, the jury verdicts on those charges were set aside.

Subsequently, on 3 October 2019, the applicant again stood trial in Geelong on the same charges. At the time of the empanelment, the jury was informed that it would be a five (or seven) day trial. However, as commonly occurs, it became apparent, at the end of the first week, that that estimate would be exceeded. On 11 October, the judge was advised that two jurors had informed her…

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 Matthews v The Queen

Details

AGLC: Mark Matthews v The Queen [2021] VSCA 20
Case: [2021] VSCA 20
Decision Date: 16 February 2021

CaseChat Overview and Summary

The appellant, Matthews, appealed against his conviction and sentence for various criminal offences, contending that the trial process was fundamentally flawed and that his sentence was excessive. The appeal was heard by the Victorian Court of Appeal. Matthews was convicted of one charge of criminal damage, one charge of aggravated burglary, two charges of intentionally causing injury, two charges of recklessly causing injury, and one charge of common assault. He was sentenced to a total effective term of imprisonment of seven years, with a non-parole period of four years and ten months. The jury was discharged during the first trial, and Matthews was subsequently convicted in a second trial. Two jurors were discharged during the second trial, and the remaining jurors proceeded to deliver a guilty verdict.

The primary legal issues in the appeal concerned whether the decision of the trial judge to proceed with a jury of ten, after two jurors were discharged, caused a miscarriage of justice. Matthews also argued that the guilty verdict on the common assault charge was unsafe and unsatisfactory, and that the trial judge had taken into account irrelevant considerations when determining his sentence. The Court of Appeal considered relevant case law and statutory provisions, including the application of the Juries Act 2000 s 44.

The Court of Appeal found that the trial judge did not cause a miscarriage of justice by proceeding with the jury of ten. It held that the jury was still capable of delivering a fair and reliable verdict, and that there was no evidence to suggest that the reduced number of jurors affected the outcome of the trial. The Court also concluded that the guilty verdict on the common assault charge was safe and satisfactory, as it was supported by the evidence presented at trial. Furthermore, the Court found that the trial judge had not taken into account any irrelevant considerations in sentencing, and that the sentence imposed was appropriate in the circumstances. Accordingly, the appeal was dismissed. The Court did, however, grant an extension of time for Matthews to file his application for leave to appeal, finding that the grounds of appeal were reasonably arguable.

Orders