Avis v The Queen - [2002] WASCA 250

AVIS -v- THE QUEEN [2002] WASCA 250

Jurisdiction: SUPREME COURT OF WESTERN AUSTRALIA Citation No: [2002] WASCA 250

Court: COURT OF CRIMINAL APPEAL

Case No: CCA:68/2001 Heard: 17 JULY 2002

Coram: MALCOLM CJ

MURRAY J

STEYTLER J Delivered: 9/09/02

No of pages: 21 Judgment Part: 1 of 1

Result: Appeal dismissed

Category: B

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Parties: KEVIN LESLIE AVIS

THE QUEEN

Catchwords:

Criminal law and procedure

Conviction of wilful murder

Trial Judge did not need to put arguments of counsel

Defence case fairly put

Murder sufficiently left to jury

Direction as to appellant's conduct after killing was adequate

Legislation:

Criminal Code (WA), s 7(c)

Case References:

Avis v The Queen [2002] WASCA 49

Edwards v The Queen (1993) 178 CLR 193

Gilbert v The Queen (2000) 109 A Crim R 580

Markby v The Queen (1978) 140 CLR 108

Nguyen v The Queen (2000) 118 A Crim R 479

R v Beck [1990] 1 Qd R 30

R v Dodd [1960] WAR 42

R v McGregor [1968] 1 QB 371

RPS v The Queen (2000) 199 CLR 620

Ward v The Queen (1997) 19 WAR 68

Zoneff v The Queen (2000) 200 CLR 234

Avis v The Queen [2002] WASCA 45

Beck v The Queen (1989) 43 A Crim R 135

Honeybone v The Queen, unreported; CCA SCt of WA; Library No 950224; 10 May 1995

Mogg v The Queen (2000) 112 A Crim R 417

Ross (1922) 30 CLR 246

Winning v The Queen [2002] WASCA 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION : AVIS -v- THE QUEEN [2002] WASCA 250

CORAM : MALCOLM CJ

MURRAY J

STEYTLER J

HEARD : 17 JULY 2002

DELIVERED : 9 SEPTEMBER 2002

FILE NO/S : CCA 68 of 2001

BETWEEN : KEVIN LESLIE AVIS

Appellant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Conviction of wilful murder - Trial Judge did not need to put arguments of counsel - Defence case fairly put - Murder sufficiently left to jury - Direction as to appellant's conduct after killing was adequate

Legislation:

Criminal Code (WA), s 7(c)

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr R A Mazza

Respondent : Mr R E Cock QC & Ms H L Porter

Solicitors:

Appellant : Mazza & Mazza

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Avis v The Queen [2002] WASCA 49

Edwards v The Queen (1993) 178 CLR 193

Gilbert v The Queen (2000) 109 A Crim R 580

Markby v The Queen (1978) 140 CLR 108

Nguyen v The Queen (2000) 118 A Crim R 479

R v Beck [1990] 1 Qd R 30

R v Dodd [1960] WAR 42

R v McGregor [1968] 1 QB 371

RPS v The Queen (2000) 199 CLR 620

Ward v The Queen (1997) 19 WAR 68

Zoneff v The Queen (2000) 200 CLR 234

Case(s) also cited:

Avis v The Queen [2002] WASCA 45

Beck v…

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 Avis v The Queen

Details

AGLC: Avis v The Queen [2002] WASCA 250
Case: [2002] WASCA 250
Decision Date: 9/09/02

CaseChat Overview and Summary

In the case of Avis v The Queen, the appellant, Kevin Leslie Avis, was convicted of the wilful murder of Lister, and he appealed against that conviction. The appeal was heard by the Court of Criminal Appeal, with Malcolm CJ, Murray J, and Steytler J presiding. The appellant's grounds for appeal included the trial judge's failure to adequately sum up the appellant's case to the jury, failure to direct the jury on the legal consequences of the appellant's assertion that he was not present when Lister was killed, failure to direct the jury that a verdict of murder was open on the facts, and failure to adequately address the jury on the way it should approach the post-offence conduct of the appellant. The Court of Criminal Appeal dismissed the appeal and upheld the conviction, finding that none of the grounds had been made out. The court found that the trial judge had fairly placed before the jury the case which the appellant was making and had left open the verdict of murder in relation to the appellant. The court also found that the trial judge had appropriately directed the jury on the legal consequences of the appellant's assertion and on the post-offence conduct of the appellant.

Orders