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Mitchell Salmon-Urbani v The Queen

Mitchell Salmon-Urbani v The Queen

Case [2022] VSCA 170 22 August 2022

Appeal

Aggravated Carjacking

Complicity

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0170

MITCHELL SALMON-URBANI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, T FORREST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2022
DATE OF JUDGMENT:	22 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 170
JUDGMENT APPEALED FROM:	DPP v Salmon-Urbani (Unreported, County Court of Victoria, Judge Hassan, 27 April 2021)

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CRIMINAL LAW – Appeal – Conviction – Aggravated carjacking – Complicity – Judge alone trial – Whether evidence of prior criminal association admissible – Whether judge’s reasons inadequate – Whether verdict unreasonable or cannot be supported having regard to the evidence – Judge’s reasons inadequate – Appeal allowed – Verdict of theft of motor vehicle substituted.

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Counsel
Applicant:		Mr T Kassimatis QC with Mr C Wareham
Respondent:		Ms D Piekusis QC
Solicitors
Applicant:	May Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
KENNEDY JA:

Most aspects of the law of criminal complicity in this State are governed by statute.[1]
[1]Section 324C(1) of the Crimes Act 1958 abolishes the common law in relation to aiding, abetting, counselling or procuring the commission of an offence; and s 324C(2) abolishes the common law doctrines of acting in concert, joint criminal enterprise and common purpose (including extended common purpose). By implication – and as the note to s 324C recognises – the common law concerning the circumstances in which a person may withdraw from an offence in which the person would otherwise be complicit is not abolished. See, eg, See White v Ridley (1978) 140 CLR 342, 347–351, 354.
Section 323(1) of the Crimes Act 1958 relevantly provides that ‘a person is involved in the commission of an offence’ if he or she
(a) intentionally assists, encourages or directs the commission of the offence; or
…
(c) enters into an agreement, arrangement or understanding with another person to commit the offence; …
By virtue of s 324(1), ‘a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence’.
On 27 April 2021, following a judge-alone trial, a judge of the County Court found the applicant guilty of charge 7 on the indictment, aggravated carjacking,[2] on the basis of complicity.
[2]Crimes Act 1958, s 79A. The maximum penalty is 25 years’ imprisonment.
The applicant seeks leave to appeal against conviction on three grounds:
1.The learned trial judge erred by providing insufficient reasons for her finding that the applicant was guilty of aggravated carjacking.
2.The learned trial judge erred by admitting the ‘evidence of prior criminal association’. In particular, the trial judge erred by ruling that:
(a) the evidence was relevant or capable of rationally affecting the probability of the applicant’s complicity in [the co-accused’s] offending on charge 7; and
(b) the probative value of the evidence was not outweighed by the danger of its unfair prejudice.
3.The trial judge’s verdict is unsafe and unsatisfactory…

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 Salmon-Urbani v The Queen

Details

AGLC: Mitchell Salmon-Urbani v The Queen [2022] VSCA 170
Case: [2022] VSCA 170
Decision Date: 22 August 2022

CaseChat Overview and Summary

Mitchell Salmon-Urbani appealed against his conviction for aggravated carjacking, arguing that the evidence of his prior criminal association with the principal offender was inadmissible and that the judge's reasons for the verdict were inadequate. The appeal was heard by the High Court of Australia. The central legal issues were whether the evidence of prior criminal association was admissible in a judge alone trial and whether the judge's reasons for the verdict were adequate. The court held that the evidence of prior criminal association was inadmissible, as it was not relevant to the issue of Salmon-Urbani's complicity in the crime. Additionally, the court found that the judge's reasons for the verdict were inadequate, as they did not address the specific elements of the offence and did not provide a clear basis for the verdict.

The High Court held that the evidence of prior criminal association was not admissible in a judge alone trial, as it was not relevant to the issue of Salmon-Urbani's complicity in the crime. The court held that such evidence could only be admitted if it was relevant to a matter in issue between the accused and the prosecution. The court also held that the judge's reasons for the verdict were inadequate, as they did not address the specific elements of the offence and did not provide a clear basis for the verdict. The court held that the judge's reasons must be sufficient to enable the parties to understand the basis of the verdict and to enable the court to exercise its supervisory jurisdiction over the verdict. The court found that the judge's reasons were inadequate in this case, as they did not address the specific elements of the offence and did not provide a clear basis for the verdict.

The appeal was allowed, and the verdict of theft of motor vehicle was substituted. The court held that the evidence of prior criminal association was inadmissible and that the judge's reasons for the verdict were inadequate. The court held that the verdict could not be supported having regard to the evidence and that the verdict of theft of motor vehicle was the appropriate verdict in the circumstances. The court held that the evidence did not establish that Salmon-Urbani was a party to the aggravated carjacking and that the verdict of theft of motor vehicle was the appropriate verdict in the circumstances. The court held that the evidence did not establish that Salmon-Urbani was a party to the aggravated carjacking and that the verdict of theft of motor vehicle was the appropriate verdict in the circumstances.

Orders