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Xerri v The King

Xerri v The King

Case [2023] VSCA 15 13 February 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0041

CHRISTOPHER XERRI	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, KYROU and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2023
DATE OF JUDGMENT:	13 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 15
JUDGMENT APPEALED FROM:	[2021] VCC 512 (Judge Lyon)

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CRIMINAL LAW – Application for extension of time and for leave to appeal – Conviction – Sexual assault – Trial by judge alone – Whether conviction unreasonable or unable to be supported by evidence – Whether prosecution failed to call relevant witness – Whether apparent bias by judge against applicant – Effect of defects in prescribed documentation – Application for extension of time granted – Application for leave to appeal refused.

Criminal Procedure Act 2009 ss 43, 276(1)(a).

Dansie v The Queen [2022] HCA 25; M v The Queen (1994) 181 CLR 487; Whitehorn v The Queen (1983) 152 CLR 657; Ebner v Official Trust in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488.

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Counsel
Applicant:		In person
Respondent:		Mr G Buchhorn
Solicitors
Applicant:	In person
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
KYROU JA
KAYE JA:

The applicant was charged on indictment with one charge of sexual assault of a child under the age of 16 years contrary to s 49D(1) of the Crimes Act 1958 (charge 1); (in the alternative to charge 1) one charge of sexual assault contrary to s 40 of the Crimes Act (charge 2); one charge of supply a drug of dependence to a child contrary to s 71B(1) of the Drugs, Poisons and Controlled Substances Act 1981 (charge 3); and (in the alternative to charge 3) one charge of trafficking in a drug of dependence contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act.
The trial of the charges was by a judge of the County Court, without a jury, on 16 to 18 March 2021. The applicant was represented by counsel. In a reserved decision dated 13 April 2021, the judge acquitted the applicant on charge 1, convicted him on charges 2 and 3, and (as a consequence of the finding of guilt on charge 3) found him not guilty on charge 4.
On the plea, the applicant also pleaded guilty to four charges of failing to comply with reporting obligations contrary to s 46(1A) of the Sex Offenders Registrations Act 2004. On 24 August 2021, the applicant was sentenced, on charges 2 and 3 and on the additional charges, to a total effective sentence of 4 years and 3 months’ imprisonment, with a non-parole period of 3 years and 2 months.
The applicant seeks leave to appeal against conviction on four grounds. The grounds have been drafted by the applicant who is not a trained lawyer. They are as follows:
(1)The trial judge’s verdict of guilty cannot be supported by the evidence produced.
(2)The trial judge erred…

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 Xerri v The King

Details

AGLC: Xerri v The King [2023] VSCA 15
Case: [2023] VSCA 15
Decision Date: 13 February 2023

CaseChat Overview and Summary

The applicant in this case, Mr Xerri, was convicted of sexual assault and sought an extension of time and leave to appeal against his conviction. The appeal was heard by the High Court of Australia. Mr Xerri's grounds for appeal included the unreliability of the conviction, the failure of the prosecution to call a relevant witness, and apparent bias by the trial judge against him. Additionally, he argued that there were defects in the prescribed documentation that affected the process.

The legal issues that the court had to address were whether the conviction was unreasonable or unsupported by the evidence, if the prosecution's failure to call a relevant witness was significant, and if there was apparent bias by the judge against the applicant. Furthermore, the court considered the effect of the defects in the prescribed documentation on the appeal process.

The court found that the conviction was supported by the evidence, and there was no apparent bias by the trial judge. It held that the failure of the prosecution to call a relevant witness did not impact the reliability of the conviction. The court also determined that the defects in the prescribed documentation did not affect the process to such an extent that it would warrant an extension of time or leave to appeal. Consequently, the application for an extension of time was granted, but the application for leave to appeal was refused.

The final orders of the court were that the application for an extension of time was granted, allowing Mr Xerri to file his appeal within the specified period. However, the application for leave to appeal was denied, and the conviction remained in place.

Orders