| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0214 |
| REBECCA PAYNE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McLEISH, KAYE and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 October 2024 |
| DATE OF JUDGMENT: | 20 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 273 |
| JUDGMENT APPEALED FROM: | DPP v Payne (Supreme Court of Victoria, Incerti J, 15 March 2023) (Conviction); [2023] VSC 286 (Sentence) |
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CRIMINAL LAW – Appeal – Conviction – Witness gave evidence in VARE, s 198B hearing and special hearing – Differences in accounts – Witness alleged to have recanted VARE evidence during special hearing – Witness accepted evidence product of guesswork – Whether evidence relevant – Whether evidence so inherently incredible, fanciful or preposterous it could not be accepted by rational jury – Evidentiary issues within province of jury to resolve – Evidence relevant – Whether probative value of evidence outweighed by danger of unfair prejudice – Evidence prejudicial but not unfair – Leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Prosecutor’s closing address – Criticism of prosecution witness – Speculation – Characterisation of expert evidence – Onus of proof – Personal opinion – Hypothetical scenario – Whether failure to act with scrupulous fairness – Whether issues giving rise to substantial miscarriage of justice – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Murder – Standard sentence offence – Applicant gave deceased biscuit containing crushed temazepam tablets – Body of deceased placed in freezer – Deceased subjected applicant to ongoing extreme and prolonged physical sexual and emotional abuse – Applicant’s situation ‘inescapable’ – Sentence 16 years’ imprisonment – Non-parole period 10 years – Whether sentence and non-parole period manifestly excessive – Provocation relevant to moral culpability – Tyne v Tasmania (2005) 15 Tas R 221, referred to – No cases available to consider current sentencing practice – Applicant’s moral culpability so attenuated that maximum and standard sentences not helpful yardsticks – Mercy – Unusual and remarkable case – Leave to appeal granted – Appeal allowed – Sentence 12 years’ imprisonment – Non-parole period 7 years.
Evidence Act 2008, ss 55, 56, 137.
IMM v The Queen (2016) 257 CLR 300, applied.
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| Counsel | |||
| Applicant: | Ms V Drago | ||
| Respondent: | Ms S Flynn KC with Mr ES Dober | ||
Solicitors | |||
| Applicant: | Balmer & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
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MCLEISH JA
KAYE JA
T FORREST JA:
Introduction
On 15 March 2023, the applicant, now aged 45 years, was convicted of murder following a 15 day trial by jury in the Supreme Court. She had pleaded guilty to a charge of manslaughter when arraigned before the jury.
Following a plea in mitigation on 22 May 2023, the applicant was sentenced on 1 June 2023 to 16 years’ imprisonment with a non-parole period of 10 years. She seeks leave to appeal against both conviction and sentence.[1]
[1]An extension of time is required: see [140] below.
Overview of facts and proceedings
In light of the relatively narrow…
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- AGLC
- Payne v The King [2024] VSCA 273
- Case
- [2024] VSCA 273
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed by the court were whether the evidence from the witness, who claimed their earlier statement was based on guesswork, was relevant and admissible, and if its probative value outweighed any prejudicial effect. The court also examined whether the prosecutor’s closing address contained improper speculation and commentary on the character of the evidence, and if the sentence was manifestly excessive given the circumstances of the case. The court considered these issues within the framework of the Evidence Act 2008 and relevant case law.
The court found that the evidence from the witness was relevant and admissible, despite its questionable reliability, as it was within the jury's province to assess the credibility and weight of such evidence. The court further held that while the prosecutor's comments were speculative, they did not amount to a failure to act with scrupulous fairness. Regarding the sentence, the court determined that the original sentence was not manifestly excessive but acknowledged the appellant's diminished moral culpability due to the prolonged abuse he endured. Consequently, the court reduced the sentence to 12 years’ imprisonment with a non-parole period of 7 years.
The High Court granted leave to appeal and allowed the appeal in part, modifying the sentence to reflect the unique circumstances of the case. The final orders of the court included the reduction of the appellant's sentence and the non-parole period as outlined above.
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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