Legal Research
Cases
Astbury v The Queen

Astbury v The Queen

Case [2020] VSCA 132 26 May 2020

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0074

ALEXANDER DAVID ASTBURY	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	KAYE, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 MAY 2020
DATE OF JUDGMENT:	26 MAY 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 132
JUDGMENT APPEALED FROM:	[2019] VSC 97 (Incerti J (formerly Zammit J))

---

CRIMINAL LAW – Appeal – Conviction – Applicant convicted of murder – Circumstantial case - Death of victim caused by severe blunt force trauma to chest – Submission by prosecutor in final address that death caused by applicant jumping on chest of victim - No such proposition foreshadowed in prosecution opening – Not put to applicant in cross-examination – Whether miscarriage of trial due to significant departure in prosecutor’s closing address from prosecutor’s opening – Breach of rule in Browne v Dunn (1893) 6 R 67 – Prosecutor’s proposition in closing address as to method by which fatal injuries were inflicted not supported by evidence – Whether verdict unreasonable and not supported by evidence – Evidence as a whole did not allow an inference that murderous intent existed at the time fatal injuries were inflicted – Leave to appeal granted – Appeal allowed – Conviction of murder quashed – Substituted with conviction of manslaughter – R v Tangye (1992) 92 A Crim R 545, Tran v The Queen (2000) 105 FCR 182 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Marsh with Ms E Ramsay	Victoria Legal Aid
For the Respondent	Ms D Piekusis QC with Ms R Sharp	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
NIALL JA
WEINBERG JA:

Rafet Demirel (‘Demirel’) died during the course of a violent struggle with the applicant that took place on 11 February 2017. The applicant was charged with his murder. On 19 October 2018, he was convicted by a jury of that offence. He was sentenced to 18 years’ imprisonment, with a non-parole period fixed at 14 years and six months. The applicant seeks leave to appeal against his conviction.

The incident, that resulted in the death of Demirel, occurred in premises in Baxter Street, Coburg, that were owned by Demirel and his wife. The property contained a house and two bungalows. At the time of the offence, Demirel and his wife lived in the second bungalow on the property. The applicant and his partner had been tenants of the first bungalow since March 2016. The house was occupied by three tenants. The evidence established that there had been no major issues involving the applicant and Demirel until the week immediately preceding the offence. At that time, the applicant had begun arguing with his partner, having accused her of infidelity. The arguments, which were heard by the neighbours, escalated to the point that the applicant locked his partner out of the bungalow and began removing her belongings from it. A number of witnesses, who gave evidence at the trial, described the applicant as then being in a state of…

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 Astbury v The Queen

Details

AGLC: Alexander David Astbury v The Queen [2020] VSCA 132
Case: [2020] VSCA 132
Decision Date: 26 MAY 2020

CaseChat Overview and Summary

The case of Astbury v The Queen involved the appellant, Astbury, who had been convicted of murder in the Supreme Court of Victoria. Astbury appealed against his conviction, contending that his conviction was unsafe and unsatisfactory due to a significant departure in the prosecutor's final address from the prosecution opening and the evidence presented. The central issue in this appeal was whether the prosecutor’s closing argument introduced a new theory of the case that was not supported by the evidence and whether this constituted a miscarriage of justice.

The court examined the prosecutor's final address to determine whether it introduced a new theory that was not foreshadowed in the prosecution opening or put to the appellant in cross-examination. The court noted that the prosecutor's closing address suggested the death was caused by the appellant jumping on the victim's chest, a proposition that was neither foreshadowed in the opening nor put to the appellant during cross-examination. The court held that this constituted a significant departure from the prosecution's case, breaching the rule established in Browne v Dunn. Furthermore, the court found that the proposition in the closing address regarding the method of inflicting fatal injuries was not supported by the evidence.

In light of these findings, the court concluded that the evidence as a whole did not allow an inference of murderous intent at the time the fatal injuries were inflicted. Consequently, the court allowed the appeal, quashed the conviction of murder, and substituted it with a conviction of manslaughter, consistent with the principles set out in R v Tangye and Tran v The Queen. The decision underscores the importance of maintaining consistency in the presentation of the prosecution's case and the necessity for a conviction to be supported by evidence that allows for a reasonable inference of the requisite intent.

Orders