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Allen v R

Allen v R

Case [2013] VSCA 44 6 March 2013

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2012 0218

ANTHONY MARK ALLEN	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WEINBERG and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 January 2013
DATE OF JUDGMENT	6 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 44
JUDGMENT APPEALED FROM	The Queen v Allen (Unreported, County Court of Victoria, Judge Chettle, 28 August 2012)

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CRIMINAL LAW – Appeal - Sentence - Contempt - Refusal to give evidence - Sentenced to 8 months' imprisonment - Whether manifestly excessive - Significance of applicant’s evidence for trial - Whether prosecution case ‘substantially weakened’ - Finding open and relevant - Application for leave to appeal refused.

PRACTICE AND PROCEDURE - Contempt - Refusal to give evidence - Whether appropriate for judge to proceed summarily - County Court Civil Procedure Rules 2008 (Vic) O 75.

PRACTICE AND PROCEDURE – Appeal - Contempt - Appeal against sentence for refusal to give evidence - Crown as proper respondent - Re Perkins; Mesto v Galpin [1998] 4 VR 505; Fraser v The Queen [1984] 3 NSWLR 212 applied.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Cameron Marshall
For the Crown	Ms F K Forsyth	Victorian Government Solicitors Office

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Priest JA. For the reasons which his Honour gives, I too would refuse leave to appeal.

WEINBERG JA:

I agree, for the reasons given by Priest JA, that leave to appeal should be refused.

PRIEST JA:

Introduction

In my opinion, for reasons that follow, this application for leave to appeal against a sentence of eight months’ imprisonment for contempt, imposed on the applicant by a judge of the County Court on 28 August 2012, should be refused.

Course of the proceeding

Before going into the merits of the application for leave, it is necessary to outline the course of the proceedings.

On 27 August 2012, a judge of the County Court charged the applicant with contempt committed in the face of the court; and the following day, 28 August 2012, the judge sentenced him to be imprisoned for eight (8) months.

By a Notice of Application for Leave to Appeal Against Sentence (‘the Notice’) and an accompanying Written Case dated 2 November 2012, the applicant sought leave to appeal against the sentence. There were four grounds of appeal, which I will discuss in further detail below. The Notice nominated the ‘County Court of Victoria’ as the respondent. I will later return to consider whether it was appropriate

that it do so.

An application for bail was refused by a judge of this Court on 20 November 2012. No question arose during the course of that application as to whether the proper respondent had been joined.

The application for leave to appeal came before the Court on 31 January 2013. Initially, the Court granted the Attorney General leave to appear amicus curiae, there being no other contradictor.[1]…

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 Allen v R

Details

AGLC: Allen v R [2013] VSCA 44
Case: [2013] VSCA 44
Decision Date: 6 March 2013

CaseChat Overview and Summary

The case of Allen v R involved the appellant, who had been sentenced to eight months' imprisonment for contempt due to his refusal to give evidence. The appellant argued that the sentence was manifestly excessive and appealed against the decision. The Crown opposed the appeal, arguing that the sentence was appropriate given the appellant's refusal to testify despite a clear legal obligation to do so. The case was heard in the Court of Appeal, where the appellant sought to challenge the severity of his sentence and the process by which it was determined.

The central legal issues addressed by the court were whether the sentence imposed was manifestly excessive and whether the trial judge was correct in proceeding summarily under the County Court Civil Procedure Rules 2008 (Vic) O 75. Additionally, the court needed to determine the appropriate respondent for an appeal against a sentence for contempt due to refusal to give evidence. The appellant argued that his evidence would have substantially weakened the prosecution's case, making the sentence unjust. However, the Crown maintained that the sentence was justified and that the appellant's evidence was not as critical as claimed.

In its decision, the court found that the sentence was not manifestly excessive. The court considered the significance of the appellant's evidence and found that it was not as pivotal to the prosecution's case as the appellant had argued. The court also addressed the procedural issue of the appropriate respondent for the appeal, affirming that the Crown was the correct respondent. The court applied precedent from cases such as Re Perkins; Mesto v Galpin and Fraser v The Queen to support its findings. Ultimately, the court concluded that the sentence was within the trial judge's discretion and dismissed the appeal.

The final orders of the court were that the appeal against the sentence was dismissed, and the Crown was affirmed as the proper respondent for such appeals. The court did not find the sentence to be manifestly excessive, and the appellant's application for leave to appeal was refused.

Orders