Brett Audsley v The Queen - [2018] VSCA 162

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0128

BRETT AUDSLEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2018
DATE OF JUDGMENT:	26 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 162
JUDGMENT APPEALED FROM:	DPP v Audsley (Unreported, County Court of Victoria, Judge Patrick, 19 December 2016 (Conviction), 18 May 2017 (Sentence))

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CRIMINAL LAW — Appeal — Conviction — Aggravated burglary, armed robbery, recklessly causing serious injury and assault — Identification evidence — Offender identified by co-offender — Judge warned jury about dangers of identification evidence —Whether judge sufficiently identified ‘significant matters’ going to reliability — Evidence of making of telephone calls — Whether wrongly admitted — Whether verdict unsafe and unsatisfactory — Leave to appeal refused — Jury Directions Act 2015 ss 35, 36, 37 — Domican v The Queen (1992) 173 CLR 555.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Traczyk	Simon Parsons & Co
For the Crown	Mr C B Boyce SC with Mr J Gullaci	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons of Priest JA. For the reasons which his Honour gives, I too would refuse leave to appeal.

PRIEST JA:

Introduction

Dominic and Colleen Mammone, and their children Stacey and Paul, lived and worked on a farming property in Clyde, a semi-rural suburb south-east of Melbourne. Since the early 1960s, Dominic Mammone had run a vegetable growing business on the property. It was also where the family home was situated.

As long ago now as 10 January 2009, three male intruders entered the Mammone family home. The evident intention of the three intruders was to steal, and, if necessary, to use force or violence to do so. In the course of the terrifying events that followed, Dominic Mammone was hit on the head with a hammer, causing a compound depressed fracture of the skull. That vicious blow changed his life forever, leaving him with serious permanent disabilities. His wife, Colleen Mammone, and his daughter, Stacey Mammone, were robbed and subjected to violence of varying degrees, Stacey at one stage being struck to the head, causing her to fall to the ground.

It was not disputed at trial that the offending had taken place, the central issue in the applicant’s case being whether he was one of the three offenders.

Throughout November and December 2016, the applicant and Jason Parks faced trial in the County Court on charges arising out of the offences perpetrated against the Mammone family. On 19 December 2016, the jury convicted both the

applicant and Parks of aggravated burglary[1] (charge 1); common assault[2] (charge 2); recklessly causing serious injury[3] (charge 3); and armed robbery[4] (charge 4). Subsequently, on 18 May 2017, the trial judge imposed a total effective sentence upon the applicant of six years and six months’ imprisonment, with a non-parole period of six years.[5]

[1]Crimes Act

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 Brett Audsley v The Queen

Details

AGLC: Brett Audsley v The Queen [2018] VSCA 162
Case: [2018] VSCA 162
Decision Date: 26 June 2018

CaseChat Overview and Summary

The appellant, Brett Audsley, sought leave to appeal against his conviction for aggravated burglary, armed robbery, recklessly causing serious injury, and assault. The appeal focused on the reliability of identification evidence provided by a co-offender and the admissibility of evidence regarding telephone calls made by the appellant. The High Court of Australia was tasked with determining whether the trial judge had adequately addressed the significant issues concerning the reliability of the identification evidence and if the evidence of the telephone calls was erroneously admitted.

The court examined whether the trial judge had sufficiently warned the jury about the inherent dangers of relying on identification evidence provided by a co-offender. The appellant contended that the trial judge failed to highlight the "significant matters" that went to the reliability of this evidence, as required by the Jury Directions Act 2015. Additionally, the appellant challenged the admissibility of evidence related to the making of telephone calls, arguing that this evidence should not have been considered by the jury. The court also assessed whether the admission of this evidence rendered the verdict unsafe and unsatisfactory.

The High Court found that the trial judge had appropriately warned the jury about the risks associated with identification evidence and had sufficiently outlined the critical factors impacting its reliability. The court concluded that the evidence regarding the telephone calls was correctly admitted as it was relevant to the appellant's state of mind and the planning of the crimes. Consequently, the court determined that the verdict was neither unsafe nor unsatisfactory. Therefore, the appellant's application for leave to appeal was refused.

The court did not issue any further orders beyond denying the leave to appeal. The convictions and sentences previously imposed by the lower court remained in effect.

Orders