R v Memery - [2002] VSCA 223

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.197 of 2001

THE QUEEN
	v.
NORMAN ALEXANDER MEMERY

---

JUDGES:	PHILLIPS, C.J., PHILLIPS and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 and 26 November 2002
DATE OF JUDGMENT:	20 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 223

---

Criminal law – Murder – Death of the new partner of applicant’s former partner – Death by stabbing during street fight with applicant – Whether open to the jury to find self-defence negatived – Whether evidence of previous damage to property properly admitted – Whether to be considered under Christie discretion or under statute as propensity evidence – Whether defence prejudiced by late statement of key witness – Whether expert opinion flawed – No error identified – Application dismissed – Crimes Act 1958 s.398A.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C. with Ms R.E. Carlin	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. S. Gillespie-Jones	Paul A. Vale Pty.

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Phillips, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

PHILLIPS, J.A.:

This is an application for leave to appeal against a conviction for the manslaughter of one Trevor Tamme (“the deceased”). The applicant, who was born on 8 January 1958 was arraigned on one count of murder on 13 May 2000. The Crown case was closed on 5 June. The applicant did not give evidence, but one witness was called on his behalf. On 13 June the jury returned its verdict, finding the applicant not guilty of murder, but guilty of manslaughter. The applicant admitted four previous convictions from two court appearances, these relating to the breach of intervention orders, and on 19 June a plea in mitigation was made on his behalf. On 26 July the applicant was sentenced to six years’ imprisonment, with a non-parole period of four years. On 30 July the applicant filed notice of the application for leave to appeal against conviction.

The facts

The killing of the deceased by the applicant is not in issue. It happened in the early hours of 13 May 2000, outside the home of one Ruth Hartney, which was in Westmount Road, Healesville. The applicant and Ms Hartney had formerly been in a relationship of some standing, which she had broken off in January 2000. Shortly after that, she had commenced a relationship with the deceased. At about 2 a.m. on 13 May, Ms Hartney received a telephone call, but when she went to the phone there was no answer. By pressing star-10-hash she discovered the caller’s number to be that of the applicant. What followed was that the applicant, who had been drinking earlier that night, drove to Ms Hartney’s home and arrived at about 3.30 a.m., parking the car nearby. He then committed a number of acts of criminal damage at Ms Hartney’s home, much of which was captured…

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 R v Memery

Details

AGLC: R v Memery [2002] VSCA 223
Case: [2002] VSCA 223
Decision Date: 20 December 2002

CaseChat Overview and Summary

In the case of R v Memery, the defendant was convicted of the murder of the new partner of his former partner, who died from a stab wound during a street fight with the defendant. The case was heard in the Supreme Court of Victoria, which was tasked with determining several legal issues. The primary issues included whether the jury could find that the defendant's claim of self-defence was negated, the admissibility of evidence regarding prior property damage, and whether the defendant was prejudiced by a late statement from a key witness. Additionally, the court had to consider whether expert opinion evidence was flawed and whether the discretion under the Christie principle or statutory provisions applied to the evidence.

The court examined the evidence and arguments presented by both parties. Regarding self-defence, the court found that the evidence allowed the jury to conclude that the defendant's claim of self-defence was negated, given the circumstances of the altercation and the defendant's actions. The court also determined that the evidence of prior property damage was properly admitted and did not constitute propensity evidence but rather relevant evidence under the discretion allowed by statute. The court held that the defendant was not prejudiced by the late statement of a key witness, as the statement did not impact the fairness of the trial. Furthermore, the court found no flaws in the expert opinion provided, which supported the jury's decision.

The Supreme Court of Victoria concluded that no legal errors were identified in the trial process or in the jury's verdict. The application for appeal was dismissed, and the conviction was upheld. The court's decision was in line with statutory provisions and existing case law, ensuring that the principles of justice and fairness were upheld in the proceedings. The final orders of the court were that the appeal was dismissed and the conviction and sentence imposed by the trial judge were affirmed.

Orders