Edward Hill v The Queen - [2018] VSCA 190

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0032

EDWARD HILL	Applicant
V
THE QUEEN	Respondent

S APCR 2017 0034

MATTHEW BRENNAN	Applicant
V
THE QUEEN	Respondent

S APCR 2017 0108

CONSTANTINOS GEORGE SPALIARAS	Applicant
V
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, PRIEST JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 February 2018
DATE OF JUDGMENT:	2 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 190
JUDGMENT APPEALED FROM:	[2017] VSC 33 (Beale J)

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CRIMINAL LAW – Appeal – Conviction – Murder – Joint criminal enterprise – Sustained assault by three applicants – Whether verdicts unsafe and unsatisfactory – Scope of agreement – Agreement to assault conceded – Whether scope of agreement extended to murderous intent – Eyewitness evidence unchallenged – Inference of murderous intent open – Comments by prosecutor about ‘increasing number’ of drug-related murder cases –Application for discharge of jury refused – Whether substantial miscarriage of justice – Potential unfairness eliminated by jury directions – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Murder – Applicant sentenced to 24y with non-parole period of 19y – Heavier sentence than two co-offenders – Whether manifestly excessive – Whether principle of parity infringed – Significant prior convictions for violence – Subsequent convictions – Different role following murder – Knowledge of tendency to act violently when under the influence of ‘ice’ – Poor prospects of rehabilitation – Disparate sentences justified – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (Hill)	Mr L Richter	Stary Norton Halphen
For the Applicant (Brennan)	Mr C G Mandy with Ms A Hancock	Slades & Parsons Solicitors
For the Applicant (Spaliaras)	Mr J Desmond	Valos Black & Associates
For the Respondent	Ms S A Flynn SC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
PRIEST JA
KIDD AJA:

The applicants, Edward Hill (‘Hill’), Matthew Brennan (‘Brennan’) and Constantinos Spaliaras (‘Spaliaras’), pleaded not guilty to the murder of Brendan Bernard (‘Bernard’). On the 18^th day of their joint trial, the jury returned verdicts of guilty in respect of all three applicants. They were sentenced as follows:

·
Hill: 20 years’ imprisonment, with a non-parole period of

15 years;
·
Brennan: 22 years’ imprisonment, with a non-parole period of

17 years; and
·
Spaliaras: 24 years’ imprisonment, with a non-parole period of

19 years.

Each applicant seeks leave to appeal against conviction. Spaliaras also seeks leave to appeal against sentence.

Hill seeks leave to appeal his conviction on the following grounds:

Ground 1: The verdict of guilty is unreasonable or cannot be supported having regard to the evidence led at the applicant’s trial as there was insufficient evidence available either to determine the role of the applicant or to ascertain the requisite mens rea for murder.
Ground 2: A substantial miscarriage of justice occurred because of prejudicial and irrelevant comments about other murder cases and the drug ‘ice’ made by the trial prosecutor during the prosecution opening address.

Brennan seeks leave to appeal his conviction…

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 Edward Hill v The Queen

Details

AGLC: Edward Hill v The Queen [2018] VSCA 190
Case: [2018] VSCA 190
Decision Date: 2 August 2018

CaseChat Overview and Summary

Edward Hill, an appellant, sought to appeal against his conviction and sentence for murder. The dispute involved a joint criminal enterprise where Hill and two others had assaulted a victim, which resulted in the victim’s death. The case was heard in the High Court of Australia. The central legal issues revolved around the safety and satisfaction of the jury's verdict, specifically whether the jury's conclusion that the appellants intended to commit murder was supported by the evidence and whether the sentence imposed was excessive or manifestly disproportionate.

The court examined whether the verdict was unsafe and unsatisfactory, focusing on the scope of the agreement among the appellants. The appellants admitted to agreeing to assault but contested whether this agreement extended to an intent to commit murder. The court found that the eyewitness evidence was unchallenged, allowing the jury to infer murderous intent. Additionally, the court addressed the prosecutor's comments on the rising number of drug-related murders, concluding that these comments did not prejudice the jury's decision as the potential unfairness was eliminated by the jury's directions. The court found no substantial miscarriage of justice in the verdict.

The court also considered the appellant's argument that his sentence was manifestly excessive and violated the principle of parity. Despite the appellant's role in the crime being different from his co-offenders, the court justified the disparity in sentences based on the appellant's significant prior convictions for violence, his subsequent convictions, his knowledge of his violent tendencies under the influence of drugs, and his poor prospects of rehabilitation. The High Court ultimately refused the appellant leave to appeal against both his conviction and sentence.

Orders