Anandan v The Queen - [2011] VSCA 413

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0481
RUBEN ANANDAN	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE JA, COGHLAN and LASRY AJJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 November 2011
DATE OF JUDGMENT	12 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 413
JUDGMENT APPEALED FROM	R v Anandan (Unreported, County Court of Victoria, Judge Jenkins, 29 November 2010)

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CRIMINAL LAW – Appeal against conviction – Intentionally cause serious injury – Evidence – Admissibility – Whether judge erred in allowing the informant to give evidence of interpretation of what appeared in CCTV footage – Relevance – Whether judge erred in failing to direct jury to disregard opinion evidence of informant – Whether judge erred in direction on self-defence and impact of role as an ‘original aggressor’ – Appeal allowed – New trial ordered – Smith v The Queen (2001) 206 CLR 650, applied; Zecevic v DPP (1987) 162 CLR 645, considered – Evidence Act 2008, s 55.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr M D Stanton	Robert Stary & Associates
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I have had the considerable advantage of reading in draft the reasons for judgment of Coghlan AJA and I agree with his Honour that the appeal should be allowed and a new trial ordered. But I wish to add some observations of my own.

The Crown case at trial

The case which the Crown sought to prove at trial was that, on 27 February 2009, Andrew Paterson attended the Burvale Hotel in Nunawading with his twelve year old son, girlfriend Alana Skelsey and friend Andrew Mack. The group was seated at an outside table in the beer garden. The appellant was seated nearby with his girlfriend, Adele Dosser, and three male friends.

While Paterson was away in the toilet, the appellant approached the group’s table and removed two chairs. Skelsey took offence at the removal of the chairs and went to the appellant’s table and demanded their return. The appellant responded with words to the effect of ‘fuck off ya bitch.’ Dosser began verbally to abuse Skelsey. Skelsely grabbed a handful of chips from the appellant’s plate and ate them as she returned to her own table.

The appellant and Dosser went over and confronted Skelsey at her table and they and she exchanged insults. Mack intervened and the situation momentarily quietened down.

Paterson then returned from the bathroom and joined in the exchange of abuse. A physical altercation began after the appellant began to throw food towards the group. The appellant spat at Paterson’s face and Paterson approached the appellant. The appellant was observed to be holding a Stanley knife box cutter behind his back in his left hand. When Paterson approached, the appellant pulled him down and slashed his back across the shoulders from left to right. Paterson was then punched by a friend of the appellant.

The appellant was…

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 Anandan v The Queen

Details

AGLC: Anandan v The Queen [2011] VSCA 413
Case: [2011] VSCA 413
Decision Date: 12 December 2011

CaseChat Overview and Summary

The case of Anandan v The Queen involved the appellant's appeal against his conviction for intentionally causing serious injury to the victim. The appeal was heard in the High Court of Australia. The central issues of the appeal were the admissibility of evidence provided by an informant, the interpretation of CCTV footage, and the judge's direction to the jury regarding self-defence and the role of the appellant as an original aggressor.

The court was required to determine whether the trial judge had erred in allowing the informant to provide evidence concerning the interpretation of CCTV footage, the relevance of such evidence, and whether the judge had erred in failing to direct the jury to disregard this opinion evidence. Additionally, the court needed to assess whether the judge had correctly directed the jury on the issue of self-defence and the impact of the appellant's role as an original aggressor on this defence.

The High Court found that the trial judge had indeed erred in several respects. The court held that the opinion evidence of the informant regarding the interpretation of CCTV footage was not admissible as it was irrelevant and prejudicial. The court also determined that the judge had not properly directed the jury on the issue of self-defence, particularly regarding the impact of the appellant's role as an original aggressor. These errors were significant enough to affect the safety of the conviction, leading the court to conclude that the appeal should be allowed and a new trial ordered. The court relied on previous decisions such as Smith v The Queen and Zecevic v DPP, and relevant provisions of the Evidence Act 2008, in reaching its decision.

Orders