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…

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 Payne v The King

Details

AGLC: Payne v The King [2024] VSCA 273
Case: [2024] VSCA 273
Decision Date: 20 November 2024

CaseChat Overview and Summary

In the case of Payne v The King, the appellant sought leave to appeal his conviction and sentence for murder. The appeal raised several legal issues, including the admissibility of evidence from a witness who had previously recanted their statement, the fairness of the prosecutor’s closing address, and the appropriateness of the sentence imposed. The case was heard in the High Court of Australia, which assessed the appellant's claims based on the evidence presented and legal principles relevant to criminal trials and sentencing.

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