Walker and Kormez v The Queen

[2011] VSCA 160

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2009 0958

SHAWN EDWARD WALKER	Applicant
	v
THE QUEEN	Respondent

S APCR 2009 0969

OSCAR KORMEZ	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL ACJ, BONGIORNO and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 March 2011
DATE OF ORDERS	21 March 2011
DATE OF JUDGMENT	3 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 160
JUDGMENT APPEALED FROM	R v Walker & Kormez (Unreported, County Court of Victoria, Judge Shelton, 16 October 2009 (verdict), 8 December 2009 (sentence))

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CRIMINAL LAW – Appeal – Conviction – Rape, sexual penetration of child under 16, production of child pornography – Crown concessions – Appeals allowed – Convictions set aside – Worsnop v The Queen [2010] VSCA 188 applied.

CRIMINAL LAW – Trial – Presentment – Multiple charges laid – ‘Overloaded’ presentment – Difficulties created for judge, jury and counsel.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Walker	Mr D A Dann with Mr M J Gumbleton	Melinda Walker, Criminal Law Solicitor
For the Applicant Kormez	Mr M J Croucher	Doogue & O’Brien
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ
BONGIORNO JA
HARPER JA:

1. The applicants are both men in their 20s.  They were presented jointly in the County Court on a 17-count presentment alleging serious sexual assaults against two 14-year-old girls.

1. The Crown case at trial was that the applicants had met the girls at a service station and arranged to meet them again some days later.  On the second occasion, they bought alcohol for the girls and eventually took them to a secluded area where they parked.  It was there, and while travelling there, that the offences were alleged to have been perpetrated.

1. The counts on which the applicants were presented, and the verdicts of the jury, were as follows:

No	Count	Verdict
1-2	Indecent act with a child under 16	Guilty
3	Production of child pornography	Guilty
4	Rape	Not guilty
5	Sexual penetration of a child under the age of 16	Guilty
6	Rape	Guilty
7	Sexual penetration of a child under the age of 16	No verdict[1]
8-9	Administering a drug for the purposes of sexual penetration	Not guilty
10-11	False imprisonment	Not guilty
12	Rape	Guilty
13	Sexual penetration of a child under the age of 16	No verdict
14	Rape	Guilty
15	Sexual penetration of a child under the age of 16	No verdict
16-17	Threat to inflict serious injury	Not guilty

[1]Counts 5, 7, 13 and 15 were alternative counts.  If the applicants were found not guilty in relation to counts 4, 6, 12 and 14, then they could be convicted on these counts.

Crown concessions

1. The written submissions filed on behalf of the Crown conceded that the convictions on all counts other than counts 1–3 should be set aside and a retrial directed.  On that basis, the applications were listed for an expedited hearing, before the Court’s duty bench.  At the hearing, like concessions were made in respect of counts 1 and 2. 

1. We concluded that the concessions were properly made.  (Beyond noting that the rape convictions had to be set aside on the same ground as succeeded in Worsnop v The Queen,[2] concerning the direction to the jury on belief in consent, it is unnecessary to elaborate).  Orders were made accordingly.  The sentence on count 3 was quashed, and the question of sentencing remitted to the County Court to be dealt with in conjunction with the retrials.

   [2][2010] VSCA 188.

Overloaded presentment

1. In the course of argument, there was discussion between the bench and counsel about what appeared to be an unduly large number of counts on the presentment.  It was noted that the offending occurred essentially as part of a single incident, taking place over a limited period.  Bongiorno JA expressed views similar to those which he later expressed in Davy v The Queen,[3] as follows:

The discretion that prosecutors have in relation to the framing of indictments is, of course, undoubted.  However, the proper functioning of the criminal justice system and the efficient disposition of cases by trial courts is a matter of legitimate concern for this Court.  Unwieldy, unnecessarily long and ‘overloaded’ indictments are productive, not only of oppression of those against whom they are brought, but also of an increased risk of judicial error in trials and in sentencing.  They complicate and lengthen trials and place an unacceptable burden on trial judges and juries.  It has long been accepted by prosecutors that in framing an indictment the prosecutor should aim to expose adequately the alleged criminality of the person to be arraigned and give the sentencing judge adequate scope to impose appropriate punishment, with properly constructed sentences, in the event of a conviction.

[3][2011] VSCA 98, [22].

1. Counsel for each applicant and counsel for the Crown indicated their concurrence with his Honour’s views.  At the conclusion of argument, all three counsel submitted that, from their own experience, an overloaded presentment almost always made the conduct of a trial considerably more difficult for all participants – judge, jury, prosecutor and defence.  Counsel submitted that it would be of assistance to prosecuting authorities if this Court were to address the issue.  We think this is an appropriate case in which to do so.

1. The counts preferred against the two accused included not only counts of rape and other serious offences but also counts of aiding and abetting the commission of some of those offences.  Why those counts or the count of threatening to inflict serious injury (of which both accused were acquitted) were necessary is not immediately apparent.  In our view, they ‘overloaded’ the presentment.

1. The difficulties which the presentment created for the trial judge are obvious.  His Honour had to direct the jury on 17 different sets of facts, all arising within a very short time frame.  The law on a number of different offences had to be related to the facts relevant to each of those counts.  Unsurprisingly, the judge’s charge (with a jury question and necessary discussion with counsel) appears to have occupied some, at least, of three separate days.  It generated over 160 pages of transcript.

1. The jury’s task was just as onerous.  They were required to understand the law applicable to a number of different offences and then to remember all of the judge’s directions of law relating to the individual offences, and to criminal trials generally, whilst considering the facts of which they were satisfied beyond reasonable doubt.  There is also the obvious difficulty of sentencing a person convicted of numerous offences arising out of the same transaction or a series of closely connected transactions.

1. In our view, prosecutors would be well advised when framing an indictment to bear all of these matters in mind.  Of course, in exposing the criminality of the persons charged the prosecutor must also be mindful of the strictures imposed on a sentencing court by cases such as R v De Simoni,[4] R v Newman and Turnbull,[5] R v Hill,[6] R v Medcraft,[7] Savvas v The Queen[8] and others.  These cases show the parameters within which uncharged acts can be taken into account in the sentencing process without transgressing fundamental common law principles.  They should not, however, prevent a careful prosecutor from framing an indictment which assists the criminal trial process rather than hinders it.

   [4](1981) 147 CLR 383.

   [5][1997] 1 VR 146.

   [6][1979] VR 311.

   [7](1992) 60 A Crim R 181.

   [8](1995) 183 CLR 1.

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