DPP v Andelman (Unreported, County Court of Victoria, Judge Douglas, 15 November 2011)
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CRIMINAL LAW — Appeal against conviction — Appellant convicted after trial on 85 counts of theft — Crown alleged that appellant stole money from parking meters while employed as coin collector — Appellant self-represented at trial — Evidence led from co-offenders that they had pleaded guilty and been sentenced for similar thefts while on shifts with appellant — Evidence of substantial coin deposits into appellant’s bank account following 45 of the alleged thefts — Coin deposit evidence used for coincidence purposes though no coincidence notice served — Whether evidence of pleas by co-accused admissible — Whether trial judge obliged to raise potential objections to admissibility of such evidence with self-represented accused — Whether trial judge obliged to raise potential applicability of s 165 of the Evidence Act 2008 — No warning given to jury in relation to evidence of co-accused — Importance of compliance with statutory obligation to provide tendency and coincidence notices — Scope of trial judge’s duty where accused self-represented — MacPherson v The Queen (1981) 147 CLR 512 applied.
CRIMINAL LAW — Appeal against conviction — Application of Criminal Procedure Act 2009 s 276(1) — Whether substantial miscarriage of justice in the appellant’s trial as a result of error or irregularity — Strong Crown case — Serious departure from the prescribed processes for trial — Strength of Crown case not by itself a determinant factor in assessing whether miscarriage of justice occurred — Appeal allowed — Retrial ordered — Baini v The Queen (2012) 293 ALR 472 applied.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr T Kassimatis
Valos Black & Associates
For the Crown
Mr T Gyorffy SC
Mr C Hyland, Solicitor for Public Prosecutions
MAXWELL P WEINBERG JA PRIEST JA:
On 17 October 2011, the appellant, Josef Andelman, was arraigned in the County Court at Melbourne upon an indictment containing 85 charges of theft. He pleaded not guilty. He represented himself at his trial. On 4 November 2011, he was convicted on each charge.
He was subsequently sentenced to four years’ imprisonment with a non-parole period of two years. By leave, he now appeals against his conviction on the following grounds:
1. A substantial miscarriage of justice was occasioned by:
(a)the prosecutor’s having adduced from alleged co-offenders TATNELL and KALIA the fact that each had pleaded guilty to and been sentenced on charges of theft in circumstances where some of those thefts had been allegedly committed with the Applicant; and
(b)the trial judge’s failure, properly or at all, to direct the jury:
(i)against their impermissibly using TATNELL and KALIA’s pleas of guilty against the Applicant; and
(ii)on the dangers of relying…
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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AGLC
Andelman v The Queen [2013] VSCA 25
Case
[2013] VSCA 25
Decision Date
CaseChat Overview and Summary
In the case of Andelman v The Queen, the appellant was convicted on 85 counts of theft following a trial in the Supreme Court of New South Wales. The appellant, who was self-represented during the trial, was found to have stolen money from parking meters while employed as a coin collector. The Crown's case was bolstered by evidence from co-offenders who testified that they had pleaded guilty and been sentenced for similar thefts while on shifts with the appellant. Additionally, there was evidence of substantial coin deposits into the appellant’s bank account following 45 of the alleged thefts.
The primary legal issues the court needed to address included the admissibility of evidence from co-offenders who had pleaded guilty, the trial judge's obligation to raise potential objections to this evidence with a self-represented accused, and whether the trial judge was required to inform the appellant about the potential applicability of section 165 of the Evidence Act 2008. Furthermore, the court had to consider whether the trial judge's failure to warn the jury about the potential unreliability of the co-accused's evidence amounted to a substantial miscarriage of justice. The court also examined whether the strength of the Crown's case could be a determining factor in assessing whether a miscarriage of justice occurred.
The court held that the trial judge had an obligation to raise potential objections to the admissibility of the co-offenders' evidence, especially given that the appellant was self-represented. The court found that the trial judge should have been aware of the potential applicability of section 165 of the Evidence Act 2008 and should have informed the appellant accordingly. Additionally, the failure to warn the jury about the potential unreliability of the co-accused's evidence was a serious departure from the prescribed processes for trial. Given these errors and the strength of the Crown's case, the court concluded that a substantial miscarriage of justice had occurred. The appeal was allowed, and a retrial was ordered in accordance with section 276(1) of the Criminal Procedure Act 2009.