and John Booth v The Queen - [2014] VSCA 258

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0108 S APCR 2014 0141
JOHN BOOTH	Applicant
v
THE QUEEN	Respondent

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JUDGE:	REDLICH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No oral hearing requested
DATE OF JUDGMENT:	21 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 258
JUDGMENT APPEALED FROM:	DPP v Booth (Unreported, County Court of Victoria, Judge Tinney, 12 August 2013 (Conviction), 3 April 2014 (Sentence))

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APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION AND SENTENCE
(DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE
CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Application for leave to appeal against conviction – Witness unavailable at trial – Statement admitted in to evidence – Evidence Act 2008 s 65 – Whether content relevant to issue in trial – Motive – Whether statement should have been excluded pursuant to s 137 – Leave to appeal refused.

CRIMINAL LAW – Application for leave to appeal against sentence – Principles in R v Verdins (2007) 16 VR 269 invoked on the plea – Sentencing judge rejected expert evidence of mental disorder and intellectual disability – No error in findings of fact.

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DETERMINED ON THE PAPERS

REDLICH JA:

The applicant was convicted in the County Court at Melbourne on charges of criminal damage, aggravated burglary, common law assault and kidnapping and was sentenced to a total effective sentence of nine years and three months with a non-parole period of seven years. He seeks leave to appeal against his conviction and sentence.

The relevant facts may be briefly summarised. In the early hours of the morning of 26 April 2011 the applicant had been at Vault nightclub in Werribee with Steven Kane. A man named Enzo Fornito was also at the club. Mr Fornito was the boyfriend of the complainant, Cassie Hunt. There was a verbal confrontation at the nightclub between Mr Fornito and the applicant in relation to Ms Hunt. There was an escalation in the argument in the club between Mr Fornito and his friends and the applicant and his friends and the two groups were asked to leave the club. A physical fight erupted outside the club between the two groups. During the fight outside the club, Mr Kane was knocked to the ground and the applicant assisted Mr Kane to leave. The applicant drove away from the club with Mr Kane and a third male. As the applicant left the nightclub around 3.10am, the vehicle he was driving sustained some damage in a single vehicle accident. At 3.30am, Ms Hunt and her mother, Karen Hunt, were asleep in their unit in Altona. The applicant and other men descended on the unit and from outside the premises, broke every window in the unit. That conduct constituted the charge of criminal damage. The car that had been driven by the applicant away from the nightclub had been parked in a street around the corner from the unit, close enough to walk to the Hunts’ residence and then return…

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 and John Booth v The Queen

Details

AGLC: and John Booth v The Queen [2014] VSCA 258
Case: [2014] VSCA 258
Decision Date: 21 October 2014

CaseChat Overview and Summary

John Booth brought an application for leave to appeal against his conviction and sentence in the High Court of Australia. The central dispute was whether the lower court erred in admitting a statement from an unavailable witness under section 65 of the Evidence Act 2008, and whether this statement should have been excluded under section 137 of the same Act. The statement in question was considered relevant to the issue of motive at trial. Booth also challenged the sentence imposed on him, arguing that the sentencing judge made errors in disregarding expert evidence regarding his mental disorder and intellectual disability.

The legal issues before the court were whether the content of the witness's statement was relevant to the issue of motive and, if so, whether the statement should have been excluded under section 137 of the Evidence Act 2008 due to potential unfairness. Additionally, the court had to determine whether the sentencing judge made any errors in fact or in the application of sentencing principles, particularly in relation to the rejection of expert evidence concerning Booth's mental and intellectual conditions.

The court found that the content of the witness's statement was indeed relevant to the issue of motive and was properly admitted under section 65 of the Evidence Act 2008. The court held that there was no unfairness warranting exclusion under section 137. Furthermore, the court examined the sentencing principles set out in R v Verdins and found no error in the sentencing judge's rejection of the expert evidence. The court upheld the findings of fact made by the sentencing judge, concluding that the sentence was appropriate given the circumstances.

The High Court refused leave to appeal against both the conviction and the sentence. The decision stands, and the lower court's findings and sentence are upheld.

Orders