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]
[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.…
Continue reading Morton (a pseudonym) v The Queen
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- AGLC
- Morton (a pseudonym) v The Queen [2020] VSCA 49
- Case
- [2020] VSCA 49
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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