Zac Morley (a pseudonym)[1] v The Queen - [2020] VSCA 180

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0035

ZAC MORLEY (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 June 2020
DATE OF JUDGMENT:	2 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 180
JUDGMENT APPEALED FROM:	DPP v [Morley] (Unreported, County Court of Victoria, Judge Cahill, 12 February 2020)

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CRIMINAL LAW – Interlocutory appeal – Fraudulently inducing persons to invest money – Indictment containing charges alleging applicant knowingly or recklessly made false promise and dishonestly concealed material facts – Whether charges bad for patent and latent duplicity – Leave to appeal refused – R v Ginies [1972] VR 394; R v Walsh (2002) 131 A Crim R 299; Secretary of State for Trade v Markus [1976] AC 35 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Thomson	C Marshall & Associates
For the Respondent	Mr C B Boyce QC with Mr M Cookson	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
EMERTON JA:

Introduction

An indictment filed in the County Court charges the applicant and his brother, ‘DJ’, with fraudulently inducing persons to invest money.[2]
[2]They are jointly charged with six charges (charges 1 to 6), and DJ individually faces a seventh charge (charge 7).

Prior to empanelment, counsel for the applicant applied to quash the indictment, claiming that the charges against his client ‘are bad for patent and latent duplicity’.

In a ruling dated 12 February 2020, the trial judge refused to quash the indictment (‘the ruling’ or ‘the interlocutory decision’). Later, on 21 February 2020, the judge refused to certify under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) that the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

By a Notice dated 25 February 2020, the applicant seeks review of the refusal to certify and seeks leave to appeal against the interlocutory decision.

On the review of a refusal to certify, s 296(4) of the CPA requires the Court to consider the matters referred to in s 295(3) — including whether the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal — and permits the Court to grant leave to appeal if satisfied as required by s 297. Section 297 permits the Court to give leave to appeal against an interlocutory decision ‘only if the court is satisfied that it is in the interests of justice to do so’ having regard to enumerated factors, including whether the determination of the appeal against the interlocutory decision may resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial (s 297(1)(b)(iii)); or reduce the likelihood of a successful appeal against conviction in 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.

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Details

Case: [2020] VSCA 180
Decision Date: 2 July 2020

CaseChat Overview and Summary

The defendant, Zac Morley, appealed against the decision of the County Court of Victoria to deny his application to quash an indictment that charged him with multiple counts of defrauding investors. The case was heard by the Court of Appeal, which needed to determine whether the charges in the indictment were flawed due to patent and latent duplicity. The court's task was to examine whether the charges were so complex and multifaceted that they could not be understood by an ordinary person, or whether they combined multiple offences into a single charge in a manner that was misleading or unfair to the defendant.

The primary legal issue before the court was whether the indictment was defective due to patent or latent duplicity. Patent duplicity occurs when a charge is so convoluted that it cannot be understood, while latent duplicity arises when a single charge combines multiple offences in a way that is misleading or unfair. The court had to assess the complexity and clarity of the charges against the principles established in previous cases such as R v Ginies, R v Walsh, and Secretary of State for Trade v Markus. These cases provide the legal framework for determining whether an indictment is clear enough to allow the defendant to understand the charges and prepare a defence.

The Court of Appeal found that the charges in the indictment were clear and did not suffer from patent or latent duplicity. The court held that the charges were sufficiently detailed to inform the defendant of the nature of the allegations against him and to enable him to prepare a proper defence. The court drew on the reasoning in R v Ginies, which emphasises the need for charges to be comprehensible to an ordinary person, and in R v Walsh, which addresses the concept of latent duplicity. Additionally, the court referred to Secretary of State for Trade v Markus, which discusses the standards for determining whether an indictment is fair and just. Given these considerations, the court concluded that the charges were not defective and denied the defendant's application to quash the indictment.

The Court of Appeal dismissed the appeal and refused leave to appeal, affirming that the indictment was valid. The defendant was required to proceed with his trial on the charges as laid out in the indictment. This decision underscored the importance of clarity and fairness in criminal charges, ensuring that defendants are adequately informed of the allegations against them.

Orders