Morey (a pseudonym) v The King - [2023] VSCA 153

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0087

TRISTAN MOREY (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant so as to prevent the identification of the victim of any sex offending.

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JUDGES:	BEACH, T FORREST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2023
DATE OF JUDGMENT:	23 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 153
JUDGMENT APPEALED FROM:	[2022] VCC 955 (Judge Chambers)

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CRIMINAL LAW – Conviction – Appeal – Rape (3 charges) and intentionally causing injury (1 charge) – Whether convictions were unreasonable or not supported by the evidence – Open to jury to convict – Convictions not unreasonable – Evidence – Tendency evidence – Whether tendency evidence admitted at trial admissible – Whether tendency evidence had significant probative value – Whether probative value of tendency evidence substantially outweighed prejudicial effect – Tendency evidence not admissible – Appeal allowed – Retrial ordered.

CRIMINAL LAW – Sentence – Whether sentence of 18 months’ imprisonment for theft of motor vehicle manifestly excessive – Whether sentence should be varied pursuant to s 277(3) of Criminal Procedure Act 2009 – Sentence of 18 months set aside – Applicant resentenced to 1 month’s imprisonment.

Crimes Act 1958, ss 36(1), 36A and 38; Evidence Act 2008, ss 97 and 101(2); Criminal Procedure Act 2009, s 277(3).

M v The Queen (1994) 181 CLR 487, Dansie v The Queen (2022) 403 ALR 221, Hughes v The Queen (2017) 263 CLR 238, Henderson v The Queen [2017] VSCA 237, referred to.

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Counsel
Applicant:		Mr C Mylonas
Respondent:		Mr C Boyce KC
Solicitors
Applicant:	Brown McComish
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
T FORREST JA
KAYE JA:

In March 2022, the applicant was tried in the County Court on ten charges arising out of incidents alleged to have occurred on three separate days: 9 February 2019, 6 April 2019 and 7 April 2019. The complainant was Matilda Provan.[2] At the time of the alleged offending, the applicant and Ms Provan had been in an intimate relationship for approximately two years. The relationship was a volatile one, marked by drug abuse and periods of homelessness. The charges were as follows:
•9 February 2019: causing injury intentionally[3] (charge 1); alternatively, causing injury recklessly[4] (charge 2); and contravening a family violence intervention order intending to cause harm or fear for the safety of a protected person[5] (charge 3);
•6 April 2019: causing injury intentionally (charge 4); alternatively, common assault (charge 5); and rape[6] (charges 6, 7 and 8); and
•7 April 2019: common assault (charge 9); and making a threat to kill[7] (charge 10).
[2]A pseudonym.
[3]Contrary to s 18 of the Crimes Act 1958.
[4]Contrary to s 18 of the Crimes Act 1958.
[5]Contrary to s 123A(2) of the Family Violence Protection Act 2008.
[6]Contrary to s 38(1) of the

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 Morey (a pseudonym) v The King

Details

AGLC: Morey (a pseudonym) v The King [2023] VSCA 153
Case: [2023] VSCA 153
Decision Date: 23 June 2023

CaseChat Overview and Summary

The appellant, Morey, was convicted of three counts of rape and one count of intentionally causing injury. He appealed his convictions and the sentence imposed by the trial judge. The appeal was heard by the Victorian Court of Appeal. The appellant contended that his convictions were unreasonable or not supported by the evidence, and that the trial judge should not have admitted certain tendency evidence. He also argued that the sentence of 18 months' imprisonment for theft of a motor vehicle was manifestly excessive and should be varied.

The Court of Appeal considered whether the convictions were unreasonable or not supported by the evidence, and whether the tendency evidence admitted at trial was admissible. The Court noted that the appellant's convictions were open to the jury and were supported by the evidence. The Court held that the tendency evidence was not admissible as its probative value did not substantially outweigh its prejudicial effect. The Court also considered the appellant's argument regarding the sentence, and held that the sentence of 18 months' imprisonment was manifestly excessive and should be varied.

The Court of Appeal allowed the appeal and ordered a retrial of the appellant's convictions. The Court set aside the sentence of 18 months' imprisonment for theft of a motor vehicle and resentenced the appellant to one month's imprisonment. The Court noted that the appellant's convictions for rape and intentionally causing injury were not affected by the Court's decision. The Court referred to several authorities, including M v The Queen, Dansie v The Queen, Hughes v The Queen, and Henderson v The Queen, in reaching its decision.

Orders