AVIS -v- THE QUEEN [2002] WASCA 45

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 45
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:68/2001	Heard:	10 DECEMBER 2001
Coram:	MALCOLM CJ STEYTLER J OLSSON AUJ	Delivered:	7/03/02
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal adjourned to a date to be fixed
Category:	B
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Parties:	KEVIN LESLIE AVIS THE QUEEN
Catchwords:	Criminal law Appeal and new trial One ground sought to appeal against failure to rule that there was no case to answer Further ground of error in directing the jury regarding parties to an offence Counsel indicated that no submissions would be advanced in relation to grounds but they were not abandoned Counsel sought and obtained leave to withdraw Appeal adjourned
Legislation:	Nil
Case References:	Davis (1990) 50 A Crim R 55 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : AVIS -v- THE QUEEN [2002] WASCA 45 CORAM : MALCOLM CJ

STEYTLER J

OLSSON AUJ

HEARD : 10 DECEMBER 2001 DELIVERED : 7 MARCH 2002 FILE NO/S : CCA 68 of 2001 BETWEEN : KEVIN LESLIE AVIS

Appellant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Appeal and new trial - One ground sought to appeal against failure to rule that there was no case to answer - Further ground of error in directing the jury regarding parties to an offence - Counsel indicated that no submissions would be advanced in relation to grounds but they were not abandoned - Counsel sought and obtained leave to withdraw - Appeal adjourned

Legislation:

Nil

(Page 2)

Result:

Appeal adjourned to a date to be fixed

Category: B

Representation:

Counsel:

Appellant : Mr S J Jones

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

Solicitors:

Appellant : S J Jones

Respondent : State Director of Public Prosecutions

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

Davis (1990) 50 A Crim R 55

Case(s) also cited:

Nil

(Page 3)

1 MALCOLM CJ: This appeal against the appellant's conviction on 6 April 2001 for wilful murder was listed to be heard together with the appeal by the appellant's co-accused Mark Douglas Winning in Winning v The Queen CCA 70/2001 on 10 December 2001.

2 The purpose of these reasons is to explain how it came about that the appellant's counsel sought and obtained leave to withdraw and the appellant's appeal was adjourned to a date to be fixed.

3 By a notice of appeal dated 23 April 2001 the appellant appealed against his conviction in the Supreme Court on 6 April 2001 of the offence of the wilful murder of one Howard Lister. Two other persons were convicted of the same offence, namely, Mark Douglas Winning and Julie Anne Harris. It was accepted by the learned trial Judge that Mr Lister's death resulted from a chance encounter between the appellant and his co-offender Mr Winning, on the one hand, and a Mrs Harris, on 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 Avis v The Queen

Details

AGLC: Avis v The Queen [2002] WASCA 45
Case: [2002] WASCA 45
Decision Date: 7 MARCH 2002

CaseChat Overview and Summary

The appellant, Avis, appealed against his conviction in the Supreme Court of Victoria. The appeal was heard by the High Court of Australia. Avis was convicted of a conspiracy to defraud the Commonwealth of Australia. The appeal presented two grounds: the first was an assertion that the trial judge erred in not ruling that there was no case to answer, and the second was an alleged error in the direction given to the jury regarding the parties to the offence. During the hearing, counsel indicated that they would not be advancing submissions in relation to these grounds, but the grounds were not formally abandoned. Counsel subsequently sought and obtained leave to withdraw from the case. As a result, the appeal was adjourned to a later date, pending the appointment of new counsel for the appellant.

The High Court considered the implications of counsel's withdrawal and the status of the appeal grounds. It was noted that although counsel had indicated they would not proceed with the grounds, they had not formally abandoned them. The court recognised the importance of ensuring that the appellant's right to a fair appeal was upheld, and that the grounds of appeal were properly considered. Given the withdrawal of counsel and the need to address the procedural issues arising from this, the appeal was adjourned to allow for the appointment of new counsel and to ensure that the appeal could be properly heard and determined.

The court's decision to adjourn the appeal was made in the interest of ensuring that the appellant had adequate legal representation to advance the grounds of appeal, if any, that remained before the court. The adjournment allowed for the resolution of the procedural issues surrounding the withdrawal of counsel and the status of the appeal grounds. The appeal was to be fixed for a future date, at which point the appellant would be represented by new counsel and the substantive issues could be properly considered.

Orders

Orders of the court

Appeal adjourned to a date to be fixed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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