Mitchell Benson (a pseudonym)1 v The Queen - [2014] VSCA 51

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0166

MITCHELL BENSON (A PSEUDONYM)¹	Applicant
	v
THE QUEEN	Respondent

---

JUDGES	NEAVE, BONGIORNO and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 February 2014
DATE OF JUDGMENT	28 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 51
JUDGMENT APPEALED FROM	DPP v [Benson] (Unreported, County Court of Victoria, Judge Douglas, 19 July 2013).

---

Application for leave to appeal against conviction and sentence – One charge of rape – Applicant sentenced to total effective sentence of seven years imprisonment with a non‑parole period of five years – Trial judge erred in admitting evidence of the Applicant’s past violent conduct as relationship evidence – Substantial miscarriage of justice – Application granted – Appeal allowed – New trial ordered – Baini v The Queen (2012) 246 CLR 469 – s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Turnbull Lawyers
For the Respondent	Mr R A Elston SC	Mr C Hyland, Solicitor for Public Prosecutions

¹To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

NEAVE JA:

On 29 May 2013 the applicant, Mitchell Benson, was found guilty by a County Court jury of one charge of raping his wife. He was acquitted of charges of intentionally causing injury, recklessly causing injury and making a threat to kill. On 19 July 2013, the trial judge sentenced him to a total effective sentence of seven years imprisonment with a non-parole period of five years. He now seeks leave to appeal against his conviction and sentence.

Background

The applicant had lived with the complainant for 13 years. At the time of the alleged offending they had been married for six years and had four young children, JB, SB, CB and EB, who were 11, 10, 7 and 4 years old, respectively.

The main evidence led by the prosecution was as follows. The complainant said that about a month before the alleged offence, the applicant hit her when she refused to have sex with him. Because the relationship had been a violent one, this was the ‘last straw’ and she told him that she wanted to leave him. They continued sleeping in the same bed for a time, but on Friday 6 May 2011, she told the applicant that she had decided to start sleeping in the spare room.

In the early hours of Sunday, 8 May 2011, the applicant, who had been drinking, entered the spare bedroom, got into bed with the complainant and tried to cuddle her. The complainant told the applicant to ‘get off me’ and jumped out of the bed. The applicant attempted to persuade the complainant to go with him to the main bedroom and the complainant retreated to the kitchen. The applicant pulled her up a short flight of stairs…

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 Mitchell Benson (a pseudonym)1 v The Queen

Details

AGLC: Mitchell Benson (a pseudonym)1 v The Queen [2014] VSCA 51
Case: [2014] VSCA 51
Decision Date: 28 March 2014

CaseChat Overview and Summary

Mitchell Benson (a pseudonym) applied for leave to appeal against his conviction and sentence on a charge of rape. The application was heard in the Court of Appeal of the Supreme Court of Victoria. The applicant was sentenced to a total effective sentence of seven years imprisonment with a non-parole period of five years. The applicant's primary contention was that the trial judge erred in admitting evidence of his past violent conduct as relationship evidence, which amounted to a substantial miscarriage of justice.

The legal issues before the court were whether the trial judge erred in admitting the impugned evidence and, if so, whether that error amounted to a substantial miscarriage of justice warranting leave to appeal and a new trial. The court considered the principles set out in Baini v The Queen and section 276(1)(b) of the Criminal Procedure Act 2009 (Vic). The court found that the trial judge's admission of the past violent conduct evidence was an error as it did not meet the criteria for admissibility as relationship evidence. This error substantially affected the fairness of the trial, leading to a substantial miscarriage of justice.

The court granted the application for leave to appeal. The conviction and sentence were quashed, and a new trial was ordered. The court found that the erroneous admission of the past violent conduct evidence had a significant impact on the jury's decision-making process and that, without this evidence, it was open to the jury to entertain a reasonable doubt about the applicant's guilt.

Orders