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Pompei v The King

Pompei v The King

Case [2023] VSCA 71 4 April 2023

Appeal

Jurisdiction

Admissibility of Evidence

Res Judicata

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0066

LEON POMPEI	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, T FORREST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2023
DATE OF JUDGMENT:	4 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 71
JUDGMENT APPEALED FROM:	DPP v Pompei (County Court of Victoria, Judge Lyon, 29 April 2022)

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CRIMINAL LAW – Appeal – Whether jury’s verdict unreasonable or cannot be supported having regard to the evidence – Proposed ground of appeal arguable, but ultimately rejected – Whether trial miscarried when prosecutor relied on incriminating conduct type reasoning in final address – Leave to appeal granted, appeal allowed – Retrial ordered.

Evidence Act 2008 and Jury Directions Act 2015 referred to.

M v The Queen (1994) 181 CLR 487, Baini v The Queen (2012) 246 CLR 469, Lowe v The Queen (2015) 48 VR 351, The Queen v Baden-Clay (2016) 258 CLR 308, Pell v The Queen (2020) 268 CLR 123 and Awad v The Queen; Tambakakis v The Queen [2022] HCA 36 referred to.

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Counsel
Applicant:		Mr DA Dann KC
Respondent:		Mr CB Boyce KC
Solicitors
Applicant:	Anthony Isaacs
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
T FORREST JA
KAYE JA:

The applicant was charged on indictment[1] with two charges of rape and one charge of common assault alleged to have been committed on 5 May 2019. He pleaded not guilty on 1 February 2022, and for reasons not relevant to this application the jury was discharged without verdict. This occurred during the complainant’s evidence. The balance of the complainant’s evidence was recorded for use in a subsequent trial.
[1]Indictment No K11959722.1.
A new indictment was filed[2] on which the applicant was charged with one count of rape and one charge of common assault. The applicant pleaded not guilty and following a full trial and lengthy deliberation the jury was discharged without verdict.
[2]Indictment No K11959722.2.
A third jury was empanelled on 17 February 2022 on the same indictment. The applicant was subsequently convicted of both the common assault charge and the rape charge. He was sentenced as follows:

Charge

Offence

Maximum penalty

Sentence

Cumulation

1 Common assault (contrary to common law) 5 years 4 months 2 months

2 Rape (contrary to s 38 of the Crimes Act 1958) 25 years
6 years and

10 months
Base

Total Effective Sentence:

Non-Parole Period:

7 years

4 years 6 months

Pre-sentence Detention: 64 days

Other Relevant Orders:

No application was made for registration under the Sex Offenders Registration Act 2004.

In his notice of appeal the applicant expressed a single ground of appeal as follows:
Ground 1: The jury’s verdict on each charge was unreasonable or cannot be supported having regard to the evidence.
Shortly before this application was to be heard the court was notified that the applicant would seek to add a further ground. That proposed ground was expressed as follows:
Ground 2: The trial…

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 Pompei v The King

Details

AGLC: Pompei v The King [2023] VSCA 71
Case: [2023] VSCA 71
Decision Date: 4 April 2023

CaseChat Overview and Summary

Pompei v The King was an appeal against a conviction for criminal offences in the County Court of Victoria. The appellant, Pompei, was convicted on various charges including armed robbery, aggravated burglary, and assault. The central issue in the appeal was whether the jury's verdict was unreasonable or incapable of being supported by the evidence presented during the trial. Additionally, the appellant argued that the trial miscarried when the prosecutor relied on an impermissible type of reasoning in their final address to the jury.

The court examined the evidence and the arguments presented by both parties, focusing on whether the jury's verdict was unreasonable or unsupported by the evidence. The court considered the prosecutor's final address and whether it contained an impermissible type of reasoning that could have prejudiced the jury. The court reviewed relevant cases such as M v The Queen, Baini v The Queen, Lowe v The Queen, The Queen v Baden-Clay, Pell v The Queen, and Awad v The Queen; Tambakakis v The Queen to determine the appropriate standards for assessing the jury's verdict and the prosecutor's conduct.

The court concluded that while the proposed ground of appeal was arguable, it ultimately found that the jury's verdict was supported by the evidence and that there was no miscarriage of justice in the trial. However, the court determined that the prosecutor's final address did contain an impermissible type of reasoning that had the potential to prejudice the jury. Despite this, the court found that the overall trial was not miscarried due to this error. The court granted leave to appeal and allowed the appeal on the basis that the error, while not causing a miscarriage of justice, warranted a retrial to ensure the integrity of the judicial process.

The final orders of the court were that the conviction and sentence be quashed, and a retrial be ordered to be conducted in accordance with the law and the principles established in this decision. The court emphasised the importance of maintaining the integrity of the criminal justice system and ensuring that all trials are conducted fairly and without undue influence.

Orders