Dong v the Queen - [2013] VSCA 354

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0036

CHANG ZHONG DONG

THE QUEEN

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JUDGES	WHELAN and PRIEST JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 November 2013
DATE OF JUDGMENT	5 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 354
JUDGMENT APPEALED FROM	[2012] VSC 525 (Coghlan J)

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CRIMINAL LAW – Appeal against conviction of attempted murder – Whether jury verdict unreasonable – Recognition evidence – Intention to kill – Jury verdict supported by the evidence – Whether substantial miscarriage of justice by late production of evidence – Whether substantial miscarriage of justice by failure to identify and properly direct on prior inconsistent statements – Whether substantial miscarriage of justice by failure to give post-offence conduct direction - No substantial miscarriage of justice – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr L Carter and Mr M Stanton	Lethbridges Pty Ltd
For the Crown	Ms D Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

WHELAN JA:

I agree with Lasry AJA.

PRIEST JA:

I also agree with Lasry AJA.

LASRY AJA:

On 3 April 2012, after a 10 day trial in the trial division of this Court, the applicant was convicted by a jury of attempted murder. On 1 November 2012, following a plea hearing which had been conducted on 5 June 2012, the applicant was sentenced to 8 years’ imprisonment and with a period of 5 years to be served before the applicant was eligible for release on parole. Pre-sentence detention was declared at 375 days.

The applicant now applies for leave to appeal against his conviction on the following grounds:

1.The verdict is unreasonable or unable to be supported by the evidence because the jury ought not to have been satisfied beyond reasonable that the applicant was identified as the offender.
2.The verdict was unreasonable or unable to be supported by the evidence because the jury ought not to have been satisfied beyond reasonable doubt that the applicant stabbed the complainant with the intention to kill him.
3.There has been a substantial miscarriage of justice by reason of the prosecution’s failure to disclose the four photographs of the applicant’s jacket prior to the cross-examination of the complainant.
4.The trial judge erred in refusing to discharge the jury as a consequence of the prosecution’s failure to disclose four photographs of the applicant’s jacket until the conclusion of the evidence of the informant.
5.The trial judge erred in his directions regarding prior inconsistent statements by the complainant, in particular by:
(a)failing to identify which statements were capable of being treated as prior inconsistent statements;
(b)directing in relation to the use of the prior inconsistent statements as evidence in the case that ‘it is not really contended that that is how you ought to use it’.

6.The trial judge erred in failing to give an ‘Edwards direction’ concerning the applicant’s post-offence conduct, in circumstances where the prosecutor

raised the issue without notice in his closing…

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 Dong v the Queen

Details

AGLC: Dong v The Queen [2013] VSCA 354
Case: [2013] VSCA 354
Decision Date: 5 December 2013

CaseChat Overview and Summary

The appellant, Dong, appealed against his conviction for attempted murder, arguing that the jury verdict was unreasonable, particularly in light of the late production of recognition evidence, the failure to identify and properly direct on prior inconsistent statements, and the omission to give a post-offence conduct direction. The appeal was heard by the High Court of Australia. The primary contention was whether the jury verdict was unreasonable, given the circumstances surrounding the evidence presented. Furthermore, the court examined whether the late production of recognition evidence, the failure to properly direct the jury on prior inconsistent statements, and the absence of a post-offence conduct direction amounted to a substantial miscarriage of justice.

The court considered whether the jury's verdict was unreasonable, taking into account the totality of the evidence. It was determined that the jury had sufficient evidence to conclude that the appellant had the necessary intention to kill. The court also assessed whether the late production of recognition evidence, the failure to adequately direct on prior inconsistent statements, and the omission of a post-offence conduct direction constituted a substantial miscarriage of justice. The court found that the late production of recognition evidence did not prejudice the appellant's case, as the evidence was not pivotal to the outcome. Additionally, the court held that any errors in the identification and direction of prior inconsistent statements did not result in a substantial miscarriage of justice. The omission of a post-offence conduct direction was also found not to have materially affected the outcome of the trial.

After thoroughly reviewing the evidence and legal arguments presented, the court concluded that there was no substantial miscarriage of justice in the trial. The appellant's conviction for attempted murder was upheld, and the appeal was dismissed. The court held that the jury's verdict was reasonable and supported by the evidence, and that any procedural errors did not lead to an unjust outcome. The appellant's conviction and sentence were therefore affirmed.

Orders