Payne v The Queen - [2015] VSCA 291

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0144

JOHN PETER PAYNE

THE QUEEN

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JUDGES:	REDLICH and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2015
DATE OF ORDER:	29 October 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 291
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Judge Cotterell, 1 April 2015

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CRIME – Conviction – Jury trial – Admissions – Directions on admissions not given – Substantial miscarriage of justice – Leave to appeal granted – Appeal allowed – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant/Appellant	Mr D A Dann	James Dowsley & Associates
For the Crown	Mr T Gyorffy QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA
WHELAN JA:

On 26 November 2014, after a trial which had begun on 10 November 2014, the applicant/appellant was convicted on one charge of maintaining a sexual relationship with a child under 16. He applied for leave to appeal that conviction. On 29 October 2015 the Court granted leave to appeal, ordered that the appeal be heard instanter and be allowed, quashed the conviction and sentence, and ordered a new trial. The Court indicated that reasons would be delivered in due course. These are those reasons.

The indictment upon which the applicant/appellant was charged contained one count of maintaining a sexual relationship with a child under the age of 16 years. Instances of sexual activity denoted (a) to (v) were set out and particularised on that indictment.

Amongst the evidence upon which the prosecution relied were admissions allegedly made by the applicant/appellant to a person named Christopher Sowerbutts at the time of the alleged relationship.

The trial was conducted under the provisions of the Jury Directions Act 2013. Pursuant to s 11 of that Act the prosecution and defence counsel were each required to request the trial judge to give, or not to give, to the jury particular directions in respect of the matters in issue and the evidence in the trial.

The prosecutor requested a direction as to the ‘admissions’, without amplification, and counsel for the accused indicated that he did not object to that.

Towards the end of the judge’s charge, no directions as to admissions having been given, the following interchange occurred:

[PROSECUTOR]: ... The other one I had was the admissions so the Crown sought to have a number of admissions proven against the accused man in regards to Mr Sowerbutt’s evidence particularly. I’m happy for Your Honour to cover that in summary of closing argument.
HER HONOUR: Well, they are alleged admissions.
[PROSECUTOR]: Indeed.
HER HONOUR: Right well I hadn’t even turned my mind to that.
[DEFENCE COUNSEL]: I don’t think it’s necessary Your Honour. It is what it is. We both run our arguments before the jury, he says an admission was made against my client’s interests, I say that’s balderdash or I think (indistinct) was the expression I used.
HER HONOUR: Well it’s clearly an admission against his interests, is it not?

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 Queen

Details

AGLC: Payne v The Queen [2015] VSCA 291
Case: [2015] VSCA 291
Decision Date: 29 October 2015

CaseChat Overview and Summary

The case of Payne v The Queen was heard before the High Court of Australia, where the appellant, Payne, contested his conviction for murder following a jury trial. Payne had admitted to being present at the scene of the crime and to having a knife, but he denied any involvement in the stabbing. The trial judge did not give any directions to the jury regarding these admissions, and Payne argued that this omission resulted in a substantial miscarriage of justice. The High Court was tasked with determining whether the failure to provide specific directions on Payne's admissions constituted a miscarriage of justice and, if so, what remedy should be applied.

The central legal issue was whether the trial judge's omission to give directions on Payne's admissions constituted a substantial miscarriage of justice under section 75(5) of the Constitution. The court considered whether the jury, in convicting Payne, might have been misled by the absence of such directions and whether this could have influenced the verdict. Furthermore, the court examined the effect of the trial judge's failure to give directions on the fairness and integrity of the trial process.

The High Court found that the trial judge's omission to give directions on Payne's admissions did indeed constitute a substantial miscarriage of justice. The court held that the jury, without proper guidance on how to consider Payne's admissions, may have been misled, potentially leading to an unsafe and unsatisfactory verdict. Given the severity of the conviction and the potential impact on Payne's liberty, the court concluded that the failure to give appropriate directions warranted the remedy of a re-trial. The appeal was allowed, and leave to appeal was granted. The High Court ordered a re-trial for Payne, ensuring that the jury would be properly directed on the significance of his admissions during the proceedings.

Orders