Anile v The Queen - [2018] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0218

JOHN ANILE	Appellant
v
THE QUEEN	Respondent

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JUDGES	PRIEST, BEACH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 and 21 August 2018
DATE OF ORDERS	21 August 2018
DATE OF REASONS	17 September 2018
MEDIUM NEUTRAL CITATION	[2018] VSCA 235
JUDGMENT APPEALED FROM	DPP v Anile (Unreported, County Court of Victoria, Judge Coish, 16 June 2017 (Conviction))

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CRIMINAL LAW — Appeal — Conviction — Appellant convicted of money laundering and obtaining financial advantage by deception — Prosecution failure to disclose relevant material which was potentially exculpatory or capable of having assisted defence case — Improper cross-examination by prosecutor — Incompetence of defence counsel in manner trial conducted— Judge’s charge — Inappropriate unreliable witness warning — Aggregate of errors giving rise to miscarriage of justice — Appeal allowed — New trial ordered.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr S Gillespie-Jones with Ms E McKinnon	Ressan Lawyers
For the Respondent	Ms D Piekusis with Ms J Croxford	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
WEINBERG JA:

Introduction

It has been said that the central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law.[1] Another way of putting this is that an accused person has the right not to be tried unfairly. In the present case, far too many things went wrong in the appellant’s trial for this Court to conclude that his trial was not unacceptably unfair. In our view, an aggregate of defects — including the objectively unfair tactics of the prosecutor, the incompetence of defence counsel in the manner in which he conducted the trial, the judge’s failure to rein-in improper cross-examination, and the significant misdirection of the jury in a particular respect — combined to effect a substantial miscarriage of justice. Quite separately, the conviction on charge 2, for obtaining financial advantage by deception, was unsupported by the evidence in light of the way in which that charge was particularised and framed. The appellant’s convictions for money laundering and obtaining financial advantage by deception cannot be permitted to stand.
[1]See Jago v District Court of NSW (1989) 168 CLR 23, 56–7 (Deane J) (‘Jago’). It has also been observed that a criminal defendant ‘is entitled to a fair trial but not a perfect one’: US v Lutwak, 344 US 604, 619 (1953). See also Jago, 49 (Brennan J); Dietrich v The Queen (1992) 177 CLR 292, 362 (Gaudron J); R v Dupas (No 3) (2009) 28 VR 380, 422 [158] (fn 93) (Ashley JA), 430–31 [188] (Weinberg JA); Romolo v The Queen [2016] NSWCCA 240 [28] (Button J); Packard (a Pseudonym) v The Queen [2018] VSCA 45 [112]–[114] (Priest JA).

As a result, at the conclusion of the hearing of the appellant’s application for leave to appeal against conviction in this Court, we made orders granting…

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 Anile v The Queen

Details

AGLC: John Anile v The Queen [2018] VSCA 235
Case: [2018] VSCA 235
Decision Date: 17 September 2018

CaseChat Overview and Summary

The appellant was convicted of money laundering and obtaining financial advantage by deception. The case was heard in the High Court of Australia. The appellant appealed against the conviction on various grounds, including the failure of the prosecution to disclose relevant material, improper cross-examination by the prosecutor, incompetence of defence counsel, and the judge’s charge to the jury.

The central legal issues in the appeal were whether the cumulative effect of the identified errors during the trial resulted in a miscarriage of justice, thereby warranting a new trial. The court examined whether the prosecution's failure to disclose potentially exculpatory evidence, the manner in which the prosecutor conducted cross-examination, the shortcomings in the defence counsel's performance, and the judge's instructions to the jury collectively undermined the fairness of the trial. The appellant argued that these errors deprived him of a fair trial, necessitating a fresh trial to rectify the miscarriage of justice.

The High Court found that the aggregate of the errors indeed amounted to a miscarriage of justice. The court held that the prosecution’s failure to disclose relevant material that could have assisted the defence was significant. Additionally, the inappropriate cross-examination by the prosecutor and the judge's unreliable witness warning further prejudiced the appellant. The court also considered the inadequacies in the defence counsel's conduct, which compounded the overall unfairness. Consequently, the High Court concluded that the appellant was denied a fair trial due to these cumulative errors, leading to the allowance of the appeal and the ordering of a new trial.

Orders