Doherty v The Queen - [2019] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0070

TREVOR DOHERTY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE, NIALL AND WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 March 2019
DATE OF JUDGMENT:	4 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 70
JUDGMENT APPEALED FROM:	[2017] VSC 626 (T Forrest J)

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CRIMINAL LAW – Murder – Application for leave to appeal against conviction –Incriminating conduct evidence – Applicant took hostages in siege to prevent arrest – Whether belief of guilt only reasonable explanation – Alternative explanation not reasonably open and depends upon prejudicial evidence not admitted pursuant to forensic decision of trial counsel – Application dismissed – DPP v Zhuang [2014] VSC 276, DPP v Scriven [Ruling No 4] [2015] VSC 220 cited – Jury Directions Act 2015 s 20(1)(b).

EVIDENCE – Whether siege evidence wrongly admitted – Whether probative value outweighed by prejudicial effect – Strong probative value – Prejudicial effect diminished by directions – Evidence Act 2008 s 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Mr G Thomas, Barrister and Solicitor
For the Respondent	Ms S Flynn QC	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA

NIALL JA
WEINBERG JA:

The applicant was convicted on a charge that he murdered Christopher Stevens at Seaford on 14 December 2015. He was sentenced, on that charge, to 21 years’ imprisonment. At the time of the plea, he was also sentenced, on a number of charges contained in a separate indictment. The total effective sentence imposed on the applicant for all the offences was 25 years’ imprisonment.

At the trial, the prosecution relied on four items of conduct of the applicant during the period of approximately 17 hours after he struck the blow that caused the death of Stevens. The fourth such item concerned the circumstances in which the applicant was involved in a 12 hour stand-off, in siege-like circumstances, in a house in Frankston, which culminated in his arrest by police at those premises. That event was described, in argument, as flight event number 4. At the trial, counsel for the applicant did not object to the first two items of post-offence conduct sought to be relied on by the prosecution. However, before the empanelment of the jury, he objected to the third and fourth items. The trial judge ruled that both of those pieces of evidence were admissible as incriminating conduct engaged in by the applicant after he had stabbed Stevens.[1]
[1]R v Doherty, Unreported, T Forrest J, 28 April 2017 (‘the Ruling’).

The application for leave to appeal is directed solely to the ruling by the judge that evidence of the fourth flight event was admissible as incriminating conduct. Specifically, the applicant relies on two grounds in support of the application, namely:

Ground 1:The learned trial judge erred in ruling that the evidence of ‘Flight Event 4’ (the siege evidence) was, on the basis of the evidence as a whole, reasonably capable of being viewed…

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 Doherty v The Queen

Details

AGLC: Trevor Doherty v The Queen [2019] VSCA 70
Case: [2019] VSCA 70
Decision Date: 4 April 2019

CaseChat Overview and Summary

Doherty sought leave to appeal against a conviction for murder, arguing that the trial judge erred in admitting evidence of an earlier siege. The respondent, The Queen, opposed the application, maintaining that the trial judge correctly admitted the evidence. The application came before the Court of Appeal.

The court was required to determine whether the trial judge erred in admitting evidence of the siege, where Doherty had taken hostages to avoid arrest. The legal issue was whether Doherty's belief of guilt was the only reasonable explanation for the conduct, or if an alternative explanation was reasonably open. Additionally, the court needed to decide if the probative value of the evidence outweighed any prejudicial effect, particularly in light of the trial counsel's forensic decisions.

The court held that Doherty's belief of guilt was the only reasonable explanation for his conduct, and that any alternative explanation depended upon prejudicial evidence not admitted. The court noted that the prejudicial effect was diminished by directions given to the jury. The court found that the trial judge correctly admitted the evidence under the Evidence Act 2008, as its probative value outweighed any prejudicial effect. The application for leave to appeal was dismissed.

The court did not make any further orders.

Orders