Schroder v The King - [2024] VSCA 42

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0194

KRIS SCHRODER	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2024
DATE OF JUDGMENT:	21 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 42
JUDGMENT APPEALED FROM:	DPP v Schroder (Unreported, County Court of Victoria, 14 July 2022, Judge Quin)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of attempting to obtain a financial advantage by deception, perjury and related offences – Alleged Will forgery – Application for extension of time within which to seek leave to appeal against conviction – Whether prosecutor impermissibly relied on absence of motive to lie – Whether prosecution impermissibly relied on incriminating conduct – Whether prosecution impermissibly relied on tendency evidence – Whether judge erred in failing to give direction on admissions – Grounds of appeal not capable of succeeding – Application for extension of time refused – Palmer v The Queen (1998) 193 CLR 1; Burns v The Queen (1975) 132 CLR 258 – Evidence Act 2008 s 97.

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Counsel
Applicant:		Ms G Connelly
Respondent:		Ms K Hamill
Solicitors
Applicant:	Law and Advocacy Centre for Women
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
KAYE JA:

Introduction

Maree Elizabeth Hart, a registered nurse, collapsed at her Kew home on 3 February 2015. The next day, 4 February 2015, she underwent a right-sided partial temporal lobectomy, and was found to have an aggressive grade 4 glioblastoma brain cancer. A little over a year later, on 20 February 2016, Ms Hart died. At the time of her death, Ms Hart’s estate was estimated to be worth $2,254,604.88.
In 1994, Ms Hart and the applicant, a psychologist, had formed a relationship. At that time, Ms Hart was living in a residential property that she owned in Newport. She and the applicant commenced living together at the Newport residence in 1998. Later, in May 2006, Ms Hart and the applicant purchased another residential property at 125 Willsmere Road, Kew, as tenants in common, Ms Hart’s share being 80 per cent, and the applicant’s share being 20 per cent.
Ms Hart had executed a Will in 1998 (‘the 1998 Will’), naming as beneficiaries the applicant; her niece, Leah McDermott; and her nephew, Darryl Keeley. The applicant claimed that Ms Hart had subsequently executed another Will on 25 April 2014 (‘the 2014 Will’), which the applicant submitted for probate through solicitors in April 2016. The 2014 Will purported to bequeath the entirety of Ms Hart’s estate to the applicant, who was also named as executrix and trustee.
In circumstances we will later discuss in more detail, the 2014 Will was alleged to be a forgery. As a result, police arrested the applicant on 8 August 2018, and charged her with a raft of offences connected to the alleged execution of the 2014 Will.
Following a contested trial in the County Court, on 14 July 2022 a jury found the…

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 Schroder v The King

Details

AGLC: Schroder v The King [2024] VSCA 42
Case: [2024] VSCA 42
Decision Date: 21 March 2024

CaseChat Overview and Summary

In this case, the applicant, Schroder, appealed against the refusal of the primary judge to grant an extension of time to seek leave to appeal against his conviction. The applicant was found guilty of attempting to obtain a financial advantage by deception, perjury, and related offences. The appeal concerned the alleged forgery of a Will and whether the prosecution had relied on impermissible evidence and whether the judge erred in failing to give a direction on admissions.

The court examined whether the prosecutor impermissibly relied on the absence of a motive to lie, whether the prosecution impermissibly relied on incriminating conduct, and whether the prosecution impermissibly relied on tendency evidence. The court also considered whether the judge erred in failing to give a direction on admissions. The court concluded that the grounds of appeal were not capable of succeeding.

The court held that the prosecution did not impermissibly rely on the absence of a motive to lie, and that the evidence was not obtained through the prosecution relying on incriminating conduct. The court further held that the prosecution did not impermissibly rely on tendency evidence and that the judge was not required to give a direction on admissions. The application for an extension of time was refused.

The court referred to the relevant case law and statutory provisions, including Palmer v The Queen and Burns v The Queen, as well as the Evidence Act 2008 s 97. The court found that the applicant's appeal did not disclose any reasonable prospect of success and that there were no exceptional circumstances that warranted an extension of time. The applicant's application for an extension of time was therefore dismissed.

Orders