Pears v The King - [2025] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0234

RICHARD PEARS	Applicant
v
THE KING	Respondent

---

JUDGES:	KENNEDY, BOYCE and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2025
DATE OF JUDGMENT:	14 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 35
JUDGMENT APPEALED FROM:	DPP v McKinnon & Anor [2024] VCC 1356 (Judge Riddell)

---

CRIMINAL LAW – Appeal – Conviction – Applicant convicted of recklessly causing injury, theft, and robbery – Whether verdicts unreasonable or cannot be supported having regard to the evidence – Where inconsistencies in evidence of two main prosecution – Where consistency as to involvement of applicant as a secondary offender – Inconsistencies not such that verdicts not open – Whether verdicts inconsistent with not guilty verdict of co-offender on a separate offence – Verdicts explicable and do not affront logic and common sense – Application for extension of time refused where application for leave to appeal would fail.

Criminal Procedure Act 2009, s 275.

M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; Pell v The Queen (2020) 268 CLR 123; Holland v The King [2025] VSCA 5; Booth v The King [2024] VSCA 318, referred to.

---

Counsel
Applicant:		Mr J Barrera
Respondent:		Mr L McAuliffe with Mr J Sivratnam
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
BOYCE JA
KAYE JA:

This application arises out of a violent assault that was allegedly perpetrated against the complainant, Renata Manning (‘Manning’) in Manning’s home in Sunshine in the early hours of the morning on 9 September 2022. The incident was witnessed by Manning’s housemate and sometimes partner, Bradley Hucker (‘Hucker’). The applicant and his co-accused — being William McKinnon (‘McKinnon’) and Boban Djurkovic (‘Djurkovic’) — were all known to Manning.
Following the incident, the applicant was charged with one charge of aggravated burglary (charge 1); one charge of intentionally causing injury (charge 2); one charge of recklessly causing injury (charge 3); one charge of theft of a Subaru car (charge 4); one charge of robbery of a Subaru car key and certain money (charge 5); and, as an alternative to charge 5, one charge of theft of the Subaru car key and certain money (charge 6). He pleaded not guilty to these charges.
In the events leading up to the alleged offending, on 2 September 2022, McKinnon attended the home of Hucker and Manning and asked for $50.00 that he claimed that Hucker owed him. Manning was present at the time and it is apparent that he did not like the fact that McKinnon came into his home, demanding money. The next day, Manning smashed two front windows of McKinnon’s house in retaliation. McKinnon contacted Hucker, and told him that Manning had smashed his windows. During the following week, McKinnon made efforts to find Manning in an attempt to get money to fix his windows.
The prosecution case was that…

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 Pears v The King

Details

AGLC: Pears v The King [2025] VSCA 35
Case: [2025] VSCA 35
Decision Date: 14 March 2025

CaseChat Overview and Summary

Pears was convicted in the Supreme Court of Victoria for recklessly causing injury, theft, and robbery. The applicant appealed against his conviction to the Court of Appeal of the Supreme Court of Victoria, arguing that the verdicts were unreasonable or could not be supported considering the evidence. Pears contended that the inconsistencies in the evidence of the two main prosecution witnesses meant that the verdicts were not open to the jury. The applicant further argued that the verdicts were inconsistent with the not guilty verdict of a co-offender on a separate offence. The Court was required to determine whether the inconsistencies in the evidence rendered the verdicts unreasonable or unsupported, and whether the verdicts were inconsistent with the co-offender’s acquittal.

The Court of Appeal found that the inconsistencies in the evidence did not render the verdicts unreasonable or unsupported. The court noted that there was consistency as to the involvement of the applicant as a secondary offender. The court held that the verdicts were explicable and did not affront logic and common sense. The Court of Appeal concluded that the verdicts were open to the jury, and the applicant’s argument that the verdicts were inconsistent with the co-offender’s acquittal was not sufficient to overturn the verdicts. The Court of Appeal refused the applicant’s application for an extension of time to file an application for leave to appeal, as the application for leave to appeal would fail.

The Court of Appeal held that the verdicts were open to the jury, and the inconsistencies in the evidence did not render the verdicts unreasonable or unsupported. The Court of Appeal found that the verdicts were explicable and did not affront logic and common sense. The Court of Appeal refused the applicant’s application for an extension of time to file an application for leave to appeal, as the application for leave to appeal would fail. The Court of Appeal dismissed the appeal and affirmed the conviction.

Orders