JUDGES	REDLICH, PRIEST JJA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	2 September 2013
DATE OF JUDGMENT	18 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 318
JUDGMENT APPEALED FROM	[2012] VSC 570 (Lasry J)

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CRIMINAL LAW – Appeal against conviction – Murder – Recklessly cause serious injury – Prosecutor relied on lies told by the applicant in his record of interview – Whether judge was required to give a Zoneff or Broadhurst direction – Dhanhoa v The Queen (2003) 217 CLR 1; AE v The Queen [2011] VSCA 168 considered – Zoneff direction was necessary – No substantial miscarriage of justice – Claim of self-defence arose solely out of the applicant’s record of interview – Jury rejected his account – Verdict of guilty was inevitable – Baini v The Queen (2012) 246 CLR 469; Baini v The Queen [2013] VSCA 157 applied – Section 274 of the Criminal Procedure Act 2009.

CRIMINAL LAW – Inconsistent verdicts – Stab wounds to each victim inflicted within seconds of each other – Applicant found to have murderous intent for one victim and reckless intent to cause serious injury for other – Whether it was open to the jury to find that the applicant possessed a different level of intention.

CRIMINAL LAW – Application for leave to appeal against sentence – Applicant wrongly sentenced as a ‘serious violent offender’ under s 6B(2)(b) of the Sentencing Act 1991 – Sentencing discretion re-opened – No different sentence should be imposed – Application for leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Turnbull Lawyers
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

After a trial in the Supreme Court in August 2012, the applicant was convicted of murder and recklessly causing serious injury.[1] On 22 November 2012, he was sentenced to 20 years’ imprisonment on the charge of murder, four years’ imprisonment on the charge of recklessly causing serious injury with an order of two years’ cumulation on the lesser charge resulting in a total effective sentence of 22 years. A non-parole period of 16 years was fixed.
[1]He was acquitted of intentionally causing serious injury and convicted on the alternative count of recklessly causing serious injury.

The offences took place on 26 September 2010. The victims, Amanda Lee and Adam Fielding, were living together in Wodonga. At 11.30 pm, Lee received a text message from the applicant, demanding repayment of the $200 she owed him. Lee and the applicant had a series of hostile telephone conversations. At some stage during the conversations, Fielding left his house and walked to the applicant’s house nearby followed shortly thereafter by Lee, who drove there.

The trial centred on the evidence given by Lee. The applicant did not give evidence, but extracts of his record 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 Crocker v The Queen

Details

AGLC: Crocker v The Queen [2013] VSCA 318
Case: [2013] VSCA 318
Decision Date: 18 November 2013

CaseChat Overview and Summary

The applicant, Crocker, was convicted of murder and attempted murder and appealed against his conviction and sentence. The appeal was heard in the Supreme Court of Victoria. The central issue was whether the judge should have directed the jury to consider the applicant's lies told in his record of interview, and whether the jury could reasonably find different levels of intent for the two victims. The court considered the relevant authorities, including Dhanhoa v The Queen and AE v The Queen, and concluded that a Zoneff direction was necessary but did not result in a substantial miscarriage of justice. The jury rejected the applicant's account, and the verdict of guilty was inevitable.

The court also considered whether it was open to the jury to find different levels of intent for the two victims, despite the stab wounds being inflicted within seconds of each other. The court held that it was open to the jury to find that the applicant possessed a different level of intention for each victim, relying on Baini v The Queen and Baini v The Queen. The applicant also sought leave to appeal against his sentence, arguing that he was wrongly sentenced as a serious violent offender. The court reopened the sentencing discretion but determined that no different sentence should be imposed, and the application for leave to appeal was refused.

Orders