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:

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.

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.

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

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…

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 Walker and Kormez v The Queen

Details

AGLC: Walker and Kormez v The Queen [2011] VSCA 160
Case: [2011] VSCA 160
Decision Date: 3 June 2011

CaseChat Overview and Summary

In the case of Walker and Kormez v The Queen, the appellants sought to appeal their convictions for various serious offences, including rape, sexual penetration of a child under 16, and the production of child pornography. The Supreme Court of Victoria was tasked with reviewing the convictions and the manner in which the charges were presented during the trial. The appellants argued that the trial was unfair due to the number and nature of the charges laid against them, which they claimed resulted in an 'overloaded' presentment. The court had to decide whether the presentation of multiple serious charges in a single trial was prejudicial and whether it created difficulties for the judge, jury, and counsel.

The court considered whether the presentation of multiple serious charges against the appellants was an error that could have prejudiced their right to a fair trial. It examined whether the trial was rendered unfair by the number and nature of the charges and if this constituted a miscarriage of justice. The court referenced previous case law, particularly Worsnop v The Queen [2010] VSCA 188, to determine whether the appellants' right to a fair trial was compromised. The court found that the multiple charges did indeed create significant difficulties for the judge, jury, and counsel, leading to an unfair trial.

The reasoning of the court was that the appellants' right to a fair trial was compromised by the 'overloaded' presentment of charges. The court held that the difficulties created for all parties involved in the trial process were substantial enough to warrant the setting aside of the convictions. The court applied the principles established in Worsnop v The Queen, concluding that the appellants were entitled to an appeal on the grounds of a miscarriage of justice. Consequently, the appeals were allowed, and the convictions were set aside. The court's decision emphasised the importance of ensuring a fair trial by avoiding an excessive number of charges that could prejudice the proceedings.

Orders