SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0036
| CHANG ZHONG DONG |
| v |
| THE QUEEN |
- - -
| 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) |
- - -
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…
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- AGLC
- Dong v The Queen [2013] VSCA 354
- Case
- [2013] VSCA 354
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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