R v Morgan - [2009] VSCA 225

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 604 of 2007

THE QUEEN
	v
JAMIE MICHAEL MORGAN

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JUDGES	ASHLEY, NEAVE JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 September 2009
DATE OF JUDGMENT	23 October 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 225
JUDGMENT APPEALED FROM	R v Morgan (Unreported, County Court of Victoria, Judge Duggan, 19 April 2007)

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CRIMINAL LAW – Applications for leave to appeal against both conviction and sentence – Armed robbery – Whether evidence was evidence of positive identification or similarity only – Whether verdict unsafe and unsatisfactory – Transcript – Failure by judge to warn jury that transcript was not evidence – Application for leave to appeal against conviction granted, appeal allowed and re-trial ordered.

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Appearances:	Counsel	Solicitors
For the Crown	Ms G T Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	C Marshall & Associates

ASHLEY JA
LASRY AJA:

On 16 April 2007 in the County Court, after a short trial in which the jury’s deliberations took longer than the evidence, the applicant was found guilty by majority verdict of one count of armed robbery. After a later plea hearing, he was sentenced to seven and a half years’ imprisonment, with a six year non-parole period. The applicant seeks leave to appeal both against his conviction and sentence.

Grounds of appeal

Of five original grounds of appeal against conviction, two were argued before this Court. They were:

(3)The learned trial judge failed to give a full, proper and adequate identification warning to the jury during the course of his charge.

(5) The guilty verdict of the jury was unsafe and unsatisfactory.

At the outset of the hearing of the appeal, the applicant was granted leave to add the following grounds of appeal.

(6)The trial judge erred in failing to direct the jury as to prior inconsistent statements.
(7)The trial judge erred in his direction to the jury as to the availability of a majority verdict.
(8)The trial judge erred in failing to adequately direct the jury as to the use that could be made of the transcript.

Later still, leave was granted to add a further ground:

(9)The trial of the applicant miscarried as a result of an aggregation of errors.

In respect of the appeal against sentence, neither of the grounds originally relied upon was eventually pressed. Leave was granted to the applicant, however, to rely upon the following ground:

That in light of fresh evidence relating to the cancellation of the Applicant’s parole the sentencing discretion should be re-opened.

Facts. An overview

The offence of which the applicant was convicted took place on 20 September 2005. The offender entered a shop in Canterbury Road, Box Hill, which consisted of a small post office and bank agency. At the time, the shop operator, Ms Alice Huang, was working behind the counter alone and there were no other customers in the shop. After making enquiries with her about the availability of banking…

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 Morgan

Details

AGLC: R v Morgan [2009] VSCA 225
Case: [2009] VSCA 225
Decision Date: 23 October 2009

CaseChat Overview and Summary

In the matter of R v Morgan, the appellant was convicted of armed robbery and appealed against both his conviction and sentence. The case was heard in the High Court of Australia. The key issue before the court was whether the evidence presented at the trial was of positive identification or merely similarity, and if the verdict was unsafe and unsatisfactory. The appellant argued that the trial judge's failure to warn the jury that the transcript was not evidence resulted in a miscarriage of justice.

The court considered whether the trial judge's failure to warn the jury about the transcript not being evidence was an error that could have led to a miscarriage of justice. The court found that the judge's omission could have misled the jury into treating the transcript as substantive evidence, which could have affected the verdict. The court held that the omission was a significant error that undermined the fairness of the trial and could have led to an unsafe and unsatisfactory verdict. The court concluded that the appellant's appeal against conviction should be allowed, and a re-trial should be ordered.

The High Court granted the appellant leave to appeal against his conviction and allowed the appeal. The court ordered a re-trial to rectify the error in the original trial. The court's decision highlights the importance of ensuring that the jury is properly instructed about the nature and status of evidence presented during a trial. The court's decision also underscores the need for trial judges to be vigilant in ensuring that the jury is not misled by any evidence presented during the trial.

Orders