De Vries v The Queen - [2013] VSCA 210

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0296

RICHARD STEPHEN DE VRIES	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BONGIORNO and OSBORN JJA and HARGRAVE AJA
WHERE HELD	MORWELL
DATE OF HEARING	13 August 2013
DATE OF JUDGMENT	13 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 210	1^st Revision: 23 August 2013 – [12], [23], [28], [29], [30], [38]
JUDGMENT APPEALED FROM	R v De Vries [2012] VSC 564 (Lasry J)

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CRIMINAL LAW – Application for leave to appeal against conviction – Murder – Manslaughter – Remarks made by prosecutor about a prosecution witness in final address – Prosecutor not relying on improper inferences – Defence did not rely upon evidence of witness in question – Trial judge gave direction in respect of the remarks in question – R v MRW (1999) 113 A Crim R 308; R v Kennedy (2000) 118 A Crim R 34; R v Teasdale (2004) 145 A Crim R 345 distinguished – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Dann	Pica Criminal Lawyers
For the Respondent	Mr B Kissane	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

I invite Osborn JA to deliver the first judgment.

OSBORN JA:

On 21 June 2012 a jury convicted Richard De Vries of one charge of murder and one charge of manslaughter. He now seeks leave to appeal against these convictions on the basis of observations concerning a witness made by the prosecutor in the course of final address.

The charges arose from a violent confrontation in the early hours of 19 February 2011 in the car park of residential units in Moe. In the course of that confrontation the applicant fatally stabbed Evan Rudd (leading to the conviction for murder) and shortly thereafter fatally stabbed Roy Poole (leading to the conviction for manslaughter).

On 18 February 2011 the applicant visited his friend, Wesley Bremner, who lived at unit one, 1 High Street, Moe. The unit is part of a block of six units, with three units on each side of a driveway. The applicant arrived in a 1980s Mercedes-Benz at about 6:30 pm and parked at the rear of the block. He met up with his stepbrother Steven Turner at Bremner's unit. Turner had arrived earlier with another man. At around 7:00 pm the applicant and Turner walked into Moe, where they attended two drinking establishments and consumed a number of drinks.

The deceased men, Evan Rudd and Roy Poole, both aged 29, were friends. Rudd lived in unit six, an upstairs unit in the same block of units as Bremner. Rudd lived with Rodney Havis (whom the judge described as the key witness at the trial) and Havis' girlfriend Kristey Lowater. On the night in question, Poole finished work and went to visit Rudd, arriving at about 10:00 pm. He parked his Holden Commodore behind Havis' allotted car space and in doing so, he blocked in the applicant’s car.

Shortly after midnight, the applicant and Turner returned…

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 De Vries v The Queen

Details

AGLC: De Vries v The Queen [2013] VSCA 210
Case: [2013] VSCA 210
Decision Date: 13 August 2013

CaseChat Overview and Summary

The appellant, De Vries, was convicted of murder and was seeking leave to appeal against his conviction. The case involved the death of a woman and the appellant's criminal trial where the primary issues were the nature of the remarks made by the prosecutor regarding a prosecution witness and their impact on the trial. The court was tasked with determining whether these remarks warranted an appeal against the conviction.

The legal issues revolved around whether the prosecutor's comments during the final address regarding a prosecution witness were improper and whether they necessitated a new trial. The court considered the principles from R v MRW, R v Kennedy, and R v Teasdale, which provided guidance on the circumstances under which a prosecutor's remarks might be deemed improper. The appellant argued that the remarks were prejudicial and influenced the jury, but the court had to assess whether these comments constituted an abuse of process or if they could be justified within the bounds of a fair trial.

In examining the remarks, the court noted that the trial judge had given a direction to the jury in response to the prosecutor's comments, which aimed to mitigate any potential prejudice. The court found that the prosecutor was not relying on any improper inferences and that the defence did not rely on the evidence of the witness in question. Given these factors, the court held that the remarks did not constitute a miscarriage of justice. The court concluded that the trial judge's direction sufficiently addressed any potential prejudice, and thus, the appellant's conviction remained valid.

Accordingly, the court refused the appellant's application for leave to appeal against his conviction. The remarks made by the prosecutor, while perhaps inappropriate, did not result in a miscarriage of justice, and the trial judge's direction effectively managed any prejudicial impact.

Orders