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Morton (a pseudonym) v The Queen

Morton (a pseudonym) v The Queen

Case [2020] VSCA 49 16 March 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0031

JETHRO MORTON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the complainants, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant, the complainants and other individuals.

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JUDGES:	MAXWELL P, BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 February 2020
DATE OF ORDERS:	24 February 2020
DATE OF REASONS:	16 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 49
JUDGMENT APPEALED FROM:	DPP v [Morton] (Unreported, County Court of Victoria, Judge Tinney, 18 February 2020 (Stay Ruling)); DPP v [Morton] (Unreported, County Court of Victoria, Judge Tinney, 18 February 2020 (Certification Ruling))

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CRIMINAL LAW – Appeal – Interlocutory appeal – Review of refusal to certify – Nine charges of unlawful and indecent assault of a girl – Four complainants were daughters of two of applicant’s sisters – Delay of 53–56 years since alleged offending – Death of applicant’s parents and mother of three complainants who lived in house in which seven offences allegedly occurred – Death of other witnesses – Mother of fourth complainant exculpatory witness but 90 years of age with poor memory – Judge refused permanent stay of charges – Refusal to certify for interlocutory appeal – Application for review of refusal to certify – Refusal of stay not reasonably open – Leave to appeal granted – Appeal allowed – Permanent stay granted – Hermanus v The Queen (2015) 44 VR 335; [2015] VSCA 2 applied – Criminal Procedure Act 2009 ss 295, 296.

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APPEARANCES:

Counsel

Solicitors

For the Applicant

Ms A K Brennan

with Mr M A Reardon

Victoria Legal Aid

For the Respondent

Mr G B Hevey

Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

Summary

The applicant was facing trial on 10 charges alleging that he committed sexual offences against his five nieces between 1963 and 1966. On two occasions — the first in November 2019, the second in February this year — he applied to a judge of the County Court for a permanent stay of the criminal proceedings, on the ground that the passage of time since the alleged offences meant that it was impossible for him to obtain a fair trial.

With the exception of charge 10, both applications failed. Judge O’Connell stayed charge 10, but otherwise refused the application. His Honour’s detailed reasons were published on 2 December 2019.[2] The second application was made to Judge Tinney. The change of circumstances said to justify the second application was his Honour’s ruling to exclude certain complaint evidence, a matter left unresolved by the first ruling. Judge Tinney likewise refused the stay application and, moreover, refused to certify his decision for an interlocutory appeal.[3]
[2]DPP v [Morton] [2019] VCC 1938.
[3]Criminal Procedure Act 2009 s 295(3)(b).

The applicant applied under s 296(1) of the Criminal Procedure Act 2009 to review Judge Tinney’s refusal to certify.…

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 Morton (a pseudonym) v The Queen

Details

AGLC: Morton (a pseudonym) v The Queen [2020] VSCA 49
Case: [2020] VSCA 49
Decision Date: 16 March 2020

CaseChat Overview and Summary

The case of Morton (a pseudonym) v The Queen involved an appellant who appealed against the refusal of a permanent stay of charges brought against him for nine counts of unlawful and indecent assault of a girl. The alleged offences occurred over a period of 53–56 years ago, with four complainants being the daughters of two of the appellant’s sisters. The trial judge had refused a permanent stay of the charges, and the appellant sought a review of that decision. The Court of Appeal was tasked with determining whether the refusal to grant a permanent stay was reasonably open.

The central legal issue before the Court of Appeal was whether the refusal to grant a permanent stay of the charges against the appellant was reasonably open. The appellant argued that the significant delay in bringing the charges, the death of key witnesses, including the appellant’s parents and the mother of three of the complainants, and the unreliability of the sole surviving witness, rendered the prosecution an abuse of process. The Court of Appeal was required to consider whether the judge’s refusal to stay the charges was within the range of reasonable decisions.

In examining the matter, the Court of Appeal considered the criteria for granting a stay under the Criminal Procedure Act 2009 and the relevant case law, particularly Hermanus v The Queen. The court found that the significant delay in bringing the charges, the death of critical witnesses, and the unreliability of the remaining witness due to advanced age and poor memory were compelling factors. These factors made it highly probable that a fair trial would not be possible. The Court of Appeal concluded that the refusal of a stay was not reasonably open and allowed the appeal, granting a permanent stay of the charges against the appellant.

The Court of Appeal allowed the appeal and granted a permanent stay of the charges, finding that the refusal to do so was not reasonably open. This decision highlights the importance of timely prosecution and the unavailability of key evidence in determining the fairness of a trial.

Orders