Sumner v The Queen

[2010] VSCA 221

SUPREME COURT OF VICTORIA

COURT OF APPEAL

JAMIE LESLIE SUMNER	S APCR 2008  0667
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, MANDIE & BONGIORNO AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2010
DATE OF JUDGMENT:	2 September 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 221
JUDGMENT APPEALED FROM:	[2008] VSC 176 (Nettle JA)

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CRIME – Conviction for murder – Whether Faure warning necessary in relation to principal Crown witness – Corroboration – Essential quality of corroboration evidence – R v Kuster (2008) 21 VR 407 applied – Circumstantial evidence amounting to corroboration – Corroboration of admissions made in numerous conversations – Consistency with facts admitted – Facts otherwise unknown to the person to whom the admission was made – Burns v R (1975) 132 CLR 258;  Matusevich v R (1977) 137 CLR 633 applied – Improbability that consistencies were coincidence – Cumulative effect of facts rendering making of the admissions more probable – Facts more consistent with Crown hypothesis – Whether verdict unsafe or unreasonable.

SENTENCE – Vigilante action – Whether sentence should be reduced on account of the applicant’s distress and human frailty – Term of twenty two years’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M J Croucher Mr K J Dernelley	Theo Magazis & Assoc
For the Crown	Mr J D McArdle Q.C.	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

1. The applicant was jointly presented in the trial division of the Supreme Court with a co-accused, Shaun Benporath, on a count of having murdered Ray Allen.  Following a jury trial, the applicant was found guilty and his co-accused was acquitted.  The applicant was sentenced to 22 years’ imprisonment with a non-parole period of 18 years.  He now seeks leave to appeal against his conviction and sentence. 

1. The applicant relies upon two grounds of appeal against conviction.  Under ground 1, it is contended that the learned trial judge erred by finding that particular pieces of evidence were capable of being corroborative of the evidence of the witness Chi Dung Lien, who testified that the applicant had made inculpatory statements to him on various occasions immediately before and after Ray Allen’s disappearance.  Under ground 2 it is contended that the conviction is unreasonable or not open on the evidence.

The Crown Case

1. Raymond Allen, was last seen in the afternoon of Anzac Day 25 April 2005.  He was reported as a missing person at the Mooroopna Police Station on 27 April 2005. 

1. The Crown case was that Allen was abducted by the applicant and Benporath on the afternoon of 25 April 2005 and was later murdered.  The motive was said to be the applicant’s belief that his brother, while under the influence of prescription drugs and cannabis, had been raped by Allen.  This allegation, which was probably false, was made by his brother when he was admitted to a psychiatric hospital following an attempted suicide.  He was then suffering from a psychosis with consequent florid delusions.

1. It was…