Asling v The Queen - [2018] VSCA 132

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0101

STEPHEN JOHN ASLING	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ, BEACH and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2018
DATE OF JUDGMENT:	23 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 132
JUDGMENT APPEALED FROM:	[2017] VSC 38 (Kaye JA)

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CRIMINAL LAW – Appeal – Conviction – Murder – Whether verdict unreasonable or cannot be supported having regard to evidence – Evidence of witnesses whose evidence may be unreliable – Evidence from witnesses with motive to lie – Evidence from witness involved in offending – Evidence from witness whose credibility was subject of significant attack – Contradictory evidence – Vague evidence – Whether jury must have entertained doubt about guilt of applicant – Application for leave to appeal granted – Appeal dismissed.

EVIDENCE – Admissibility – Hearsay evidence – Maker of representation not available – Whether hearsay representation made in circumstances that made it likely that representation reliable – Probative value of evidence – Danger of unfair prejudice – Whether probative value outweighed by danger of unfair prejudice to accused – Evidence Act 2008, ss 65(2)(d)(ii) and 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr M Goldberg	Stary Norton Halphen Lawyers
For the Respondent	Mr B Kissane QC with Ms E Ruddle	Mr J Cain, Solicitor for Public Prosecutions

FERGUSON CJ

BEACH JA
ASHLEY JA:

On 13 December 2003, shortly after midnight, Graham Kinniburgh was shot and killed in Belmont Avenue, Kew. The deceased had been to dinner in Caulfield on this night and returned home. Shortly after arriving home, he was gunned down in the street. The deceased was shot three times: once in the head, once in the shoulder and once in the thigh. Neighbours observed two men leaving the scene in a sedan motor vehicle.

On 4 November 2015, the applicant was charged with the murder of the deceased. On 18 March 2017, following a trial, the applicant was found guilty of that murder. Subsequently, on 21 April 2017, the applicant was sentenced to life imprisonment with a non-parole period of 27 years.[1]
[1]DPP v Asling (Sentence) [2017] VSC 191 (‘Sentencing Reasons’).

The Crown case at trial was that the applicant, Carl Williams, Terence Blewitt and a person known as Witness A entered into an agreement to kill the deceased. Witness A gave evidence at trial that he initially provided the applicant and Blewitt with guns, cash and drugs, as a down-payment on behalf of Williams, to kill Lewis Moran. When the applicant and Blewitt were slow to perform this task, Williams ordered them to kill the deceased instead. The Crown alleged that it was the applicant and Blewitt who shot and killed the deceased on 13 December 2003. The Crown case was one of joint criminal enterprise. That was the basis upon which the Crown sought to impose criminal liability on the applicant.

The applicant was not linked to the…

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 Asling v The Queen

Details

AGLC: Asling v The Queen [2018] VSCA 132
Case: [2018] VSCA 132
Decision Date: 23 May 2018

CaseChat Overview and Summary

In the High Court of Australia, Asling appealed against his conviction for murder. The case involved the murder of a victim, and the appeal questioned the reasonableness of the verdict given the evidence presented. The evidence included testimonies from witnesses who had potential motives to lie and were involved in the offence, as well as testimonies from witnesses whose credibility had been significantly attacked. The testimonies were contradictory and vague, raising questions about whether the jury must have had doubts about the applicant's guilt. The appeal was granted, but ultimately dismissed.

The primary legal issue before the court was whether the verdict was unreasonable or could not be supported considering the evidence. This included the admissibility of hearsay evidence from a witness who was not available, and whether the probative value of the evidence outweighed the danger of unfair prejudice to the accused. The court considered the provisions of the Evidence Act 2008, including sections 65(2)(d)(ii) and 137, which address the admissibility of hearsay and the balancing of probative value against unfair prejudice.

The court found that the jury could have reasonably found the applicant guilty based on the evidence presented, despite its imperfections and contradictions. The court held that the probative value of the evidence was not outweighed by the danger of unfair prejudice, and therefore, the verdict was not unreasonable or incapable of being supported. The appeal was dismissed, and the conviction for murder was upheld.

No specific orders were made beyond the dismissal of the appeal and the upholding of the conviction. The court did not grant a new trial or order any other remedy.

Orders