JUDGES:	MAXWELL P, T FORREST and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 May 2021
DATE OF JUDGMENT:	16 June 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 165
JUDGMENT APPEALED FROM:	[2019] VSC 852 (Kaye JA)

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CRIMINAL LAW – Appeal – Conviction – Murder – Whether jury verdict unreasonable or cannot be supported having regard to the evidence – Whether open to jury to find intention to cause really serious injury – Whether applicant intended to cause ‘really serious injury’ or ‘serious injury’ – Meaning of ‘really serious injury’ for jury to determine – Constitutional role of jury as finder of fact – Advantages of juries over appellate courts – Jury’s unique advantage of collective deliberation process – Proper for jury to bring ordinary experience to bear on determinations of fact – Jones v The Queen [2020] VSCA 160, Doney v The Queen (1990) 171 CLR 207, R v Goodall [2007] VSCA 63, M v The Queen (1994) 181 CLR 487, R v Baden-Clay (2016) 258 CLR 308 applied – Criminal Procedure Act 2009 s 276(1)(a) – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood, with Mr T McCulloch of counsel	Stary Norton Halphen
For the Respondent	Mr P L Bourke QC, with Ms K Argiropoulos of counsel	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
T FORREST JA
WALKER JA:

The applicant, AK,[1] was found guilty of murder in the Supreme Court on 13 September 2019. He was sentenced on 20 December 2019 to 20 years’ imprisonment with a minimum of 15 years before parole eligibility. He now seeks leave to appeal against that conviction on a single ground:

The verdict of the jury was unreasonable or cannot be supported having regard to the evidence.

[1]Pseudonyms have been used as the applicant, PM and MM were under the age of 18 at the time of the offence.

This ground adopts the words of s 276(1)(a) of the Criminal Procedure Act 2009, which provides that this Court must allow an appeal against conviction if the appellant can satisfy us either ‘that the verdict of the jury is unreasonable or [that it] cannot be supported having regard to the evidence’.

Legal principles

The applicant must establish that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge of murder.[2] This Court is required to make its own independent evaluation of the evidence.[3] In doing so, however, it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that Parliament has entrusted the jury with the principal responsibility of determining the guilt or otherwise of the applicant.[4]
[2]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’), cited in SKA v…

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 AK v The Queen

Details

AGLC: Ak v The Queen [2021] VSCA 165
Case: [2021] VSCA 165
Decision Date: 16 June 2021

CaseChat Overview and Summary

The applicant, AK, appealed against his conviction for murder, contending that the jury’s verdict was unreasonable and could not be supported by the evidence. The case was heard by the Court of Appeal in Victoria. The central issue was whether the jury could lawfully find that AK intended to cause a really serious injury, and whether AK himself intended to cause such an injury. Another question was the interpretation of the term ‘really serious injury’ as it pertains to the jury’s determination.

The court examined the authorities, focusing on the role of the jury as the fact-finder and the advantage of their collective deliberative process. The court held that it was open to the jury to conclude that AK intended to cause a really serious injury based on the evidence presented. The jury was entitled to use their ordinary experience and common sense in determining the meaning of ‘really serious injury’. The court concluded that the jury’s verdict was neither unreasonable nor unsupported by the evidence. The court found that AK’s argument did not establish that the jury had failed to properly direct itself in relation to the necessary intention.

The appeal was dismissed, and leave to appeal to the High Court was refused. The conviction for murder was upheld.

Orders