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Baini v R

Baini v R

Case [2011] VSCA 298 5 October 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0243

MICHEL BAINI
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ, NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE (Sitting at Bendigo)
DATE OF HEARING:	18 September 2011
DATE OF JUDGMENT:	5 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 298
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Wood, 16 July 2010)

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CRIMINAL LAW – Conviction – Blackmail – Many counts referrable to one complainant – Whether judge erred by refusing to sever single count relating to a second complainant – Prejudice to applicant – No formal ruling – Judge suggested that it was for the applicant to demonstrate that prejudice ‘far outhweigh[ed] convenience’ – Judge applied erroneous view of law in exercising his discretion – Whether miscarriage of justice – Demirok v The Queen [1976] VR 244 – Application of proviso to s 568(1), Crimes Act 1958 – Weiss v R (2005) 224 CLR 300 – Applicant’s conviction on severance count brought about substantial miscarriage of justice – Whether other guilty verdicts unsafe or unsatisfactory – Whether judge erred in his directions as to prior inconsistent statements – Leave to appeal granted and appeal allowed in respect of applicant’s conviction on severance count – New trial ordered on that count – Application for leave to appeal otherwise refused.

Sections 371 and 372, Crimes Act 1958
Section 60, Evidence Act 2008

CRIMINAL LAW – Sentence – Aggregate sentence – Failure to comply with requirements stated in DPP v Felton (2007) 16 VR 214 and R v Grossi (2008) 23 VR 500 – Application for leave to appeal against sentence granted and appeal allowed – New aggregate sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L C Carter with Ms A P Halphen	Dean Cole & Associates
For the Crown	Mr T Gyorffy with Mr C T Carr	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

I have had the generous benefit of considering the draft judgment of Ashley JA. I would make the same orders contemplated in the draft for the reasons stated by his Honour.

I would make one additional observation. The trial judge refused an application to sever Count 50. As Ashley JA observes,[1] the trial judge did not provide formal reasons for doing so, but referred instead to the arguments explored in argument. In my view, the decision of the learned trial judge to aver to oral argument rather than give reasons for his disposition of such a serious application constituted a failure of judicial method. The question of whether a severance order ought to be granted is a serious one with serious consequences for the trial of an accused. A decision to refuse such an application which is attended by error has, in certain circumstances, as it has here, the capacity to vitiate the trial and any conviction recorded against an alleged offender.
[1]See [38], [47].

As this Court stated in Brittingham v Williams:

We must not be taken as…

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 Baini v R

Details

AGLC: Baini v R [2011] VSCA 298
Case: [2011] VSCA 298
Decision Date: 5 October 2011

CaseChat Overview and Summary

The case of Baini v R involved an appeal by the applicant against his convictions for blackmail. The applicant was found guilty of multiple counts of blackmail, with many of the counts referring to one complainant. However, one count related to a second complainant. The applicant challenged the refusal of the trial judge to sever the single count relating to the second complainant, arguing that this refusal caused him prejudice. The High Court of Australia heard the appeal and addressed the legal issues regarding the severance of the count and the potential miscarriage of justice.

The court examined whether the judge had applied the correct legal principles in deciding to not sever the single count. The judge suggested that it was for the applicant to demonstrate that any prejudice far outweighed the convenience of not severing the count. However, the court held that the judge had applied an erroneous view of the law in exercising this discretion. The court noted that the judge did not make a formal ruling on the severance application and that the case of Demirok v The Queen and Weiss v R provided the correct approach. The applicant's conviction on the severance count brought about a substantial miscarriage of justice.

The court also assessed whether the other guilty verdicts were unsafe or unsatisfactory and whether the judge had erred in his directions as to prior inconsistent statements. The court found that the other guilty verdicts were not affected by any error in the severance count decision. However, the court allowed the appeal in respect of the applicant's conviction on the severance count and ordered a new trial on that count. The application for leave to appeal was otherwise refused. Additionally, the court granted leave to appeal against the sentence and found that the aggregate sentence did not comply with the requirements set out in DPP v Felton and R v Grossi. The appeal against the sentence was allowed, and a new aggregate sentence was imposed.

Orders