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Davies v The Queen

Davies v The Queen

Case [2018] VSCA 315 26 November 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0188

BRENDAN DAVIES

THE QUEEN

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JUDGES:	KAYE, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 November 2018
DATE OF JUDGMENT:	26 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 315
JUDGMENT APPEALED FROM:	DPP v Davies [2017] VCC 1101 (Judge Mullaly)

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CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Interlocutory application – Application to County Court and Victorian Government Reporting Service for audio and video recordings of trial proceedings – Application for audio recordings granted – Application to Corrections Victoria for access to resources and facilities – No orders made in respect of application to Corrections Victoria.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	In Person
For the Respondent:	Madam Prosecutor	Solicitor for the Victorian Director of Public Prosecutions
For Corrections Victoria	Ms D Coombes	Victorian Government Solicitor

KAYE JA
McLEISH JA
T FORREST JA:

The applicant was charged on indictment with five charges of arson. Before empanelment of the jury, there was lengthy pre-trial argument, and the trial judge was required to make a number of rulings. Ultimately, the jury was empanelled on 15 August 2016. On 25 November 2016, the jury convicted the applicant on all five charges. After a plea, the applicant was sentenced to a total term of fourteen years and six months’ imprisonment, with a non-parole period of twelve years and three months. The applicant seeks leave to appeal against the conviction and sentence.

The applicant has made three preliminary applications, that are necessary to resolve before we hear argument on the substantive applications for leave to appeal conviction and sentence, namely:

(1)An application under s 317 of the Criminal Procedure Act 2009 requiring the prosecution to produce a document described as a handwritten diary or notebook containing ‘dream log’ entries.
(2)An application directed to the County Court and the Victorian Government Reporting Service (‘VGRS’) seeking an order, effectively, that he be provided with the audio recordings and video recordings of the pre-trial proceedings and the trial.
(3)An application directed to Corrections Victoria for access to a number of resources and facilities that the applicant contends are necessary to enable him to prosecute his appeal.

The first application, under s 317 of the Criminal Procedure Act, has been resolved, as the Director has provided a fresh copy of the ‘dream log’ document to the applicant.

Background

In order to determine the remaining two applications, it is not necessary to set out the background to the alleged offending in any detail.

The indictment alleged that the applicant committed the offences on five separate dates, at five separate locations, between 20 January 2011 and 3 February 2011. On those dates, it was alleged that the applicant had intentionally and without lawful excuse damaged by fire the Mt Waverley Police Station, the St Mary’s Catholic Church Presbytery at St Kilda East, St Oswald’s Anglican Church at Ashburton, the premises of Tanners Swiss Patisserie at Syndal, and…

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 Davies v The Queen

Details

AGLC: Davies v The Queen [2018] VSCA 315
Case: [2018] VSCA 315
Decision Date: 26 November 2018

CaseChat Overview and Summary

The case of Davies v The Queen involved the applicant seeking leave to appeal against both conviction and sentence, as well as an interlocutory application concerning the availability of audio and video recordings of the trial proceedings. The case was heard in the Supreme Court of Victoria. The applicant's primary contention was that the absence of these recordings would significantly prejudice his ability to effectively argue his appeal, thereby necessitating their provision.

The court was tasked with determining the admissibility and necessity of the audio and video recordings for the purposes of the applicant's appeal. Additionally, the court had to consider whether the application for access to these materials was a legitimate and reasonable request within the context of an appeal process. The court was also required to assess the applicant's request for access to resources and facilities provided by Corrections Victoria, evaluating its relevance and necessity for the preparation of the appeal.

In its ruling, the court found that the application for audio recordings was granted, acknowledging their importance in ensuring a fair appeal process. However, the court did not make any orders in respect of the application to Corrections Victoria, deeming it unnecessary for the preparation of the appeal. The reasoning behind this decision was that the specific resources and facilities requested were not integral to the appeal's preparation. The court ultimately granted leave to appeal, highlighting the importance of the audio recordings for the appeal's integrity.

Orders