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Ellis v R

Ellis v R

Case [2010] VSCA 302 18 November 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

DARREN JOHN ELLIS	S APCR 2008 0844
DARREN JOHN ELLIS	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, NEAVE and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2010
DATE OF JUDGMENT	18 November 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 302
JUDGMENT APPEALED FROM	[2008] VSC 372 (Coghlan J)

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CRIMINAL LAW – Conviction – Consciousness of guilt – Lies – Directions as to consciousness of guilt – Whether judge erred in directions as to overall lie rather than individual lies – Relationship evidence – Whether judge erred in admitting evidence of nature of relationship between applicant and deceased – Whether requirements of Edwards v The Queen (1993) 178 CLR 193 and Dhanhoa v R (2003) 217 CLR 1 satisfied – Application for leave to appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P G Priest QC with Mr N A Hutton	M G Wardell, Barrister & Solicitor
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA

NEAVE JA
HARPER JA:

On 6 November 2006, the applicant was charged with the murder of Naomi Bernaldo on or about 19 September 2006 at Creswick, near Ballarat. Since then he has four times stood trial for her murder. The first trial began on 2 June 2008 and ended the following day when the jury had to be discharged. The second began on 5 June 2008 and ended on 10 June 2008, which was the third day of the trial, when that jury had to be discharged. The third trial began on 11 June 2008 and ended the same day when that jury had to be discharged. The fourth began on 13 June 2008 and concluded on 25 June 2008 with the applicant convicted as charged.

The applicant now seeks leave to appeal against the conviction on three grounds:

· Ground 1: that the judge erred in the directions which his Honour gave to the jury as to lies which the Crown contended were evidence of consciousness of guilt.

· Ground 2: that the judge erred in admitting evidence of two incidents in or about March 2006 as evidence of the nature of the relationship between the applicant and the deceased.

· Ground 3: that the verdict was unsafe and unsatisfactory.

Ground 1 – Directions on lies

In R v Ciantar,[1] this court set out the steps which a trial judge should follow when the Crown contends that lies or other post-offence conduct constitute evidence of consciousness of guilt. As was there explained, it is ordinarily necessary for the trial judge:
[1](2006) 16 VR 26, 51 [81]–[85].

a) To identify precisely each such lie.

b) To identify the evidence which is capable of demonstrating that it is a lie.

c) To identify the issue in respect of which the Crown relies on the lie as evidence of consciousness of guilt.

d) To identify the acts facts and circumstances which are said to show that the lie…

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 Ellis v R

Details

AGLC: Ellis v The Queen [2010] VSCA 302
Case: [2010] VSCA 302
Decision Date: 18 November 2010

CaseChat Overview and Summary

In the case of Ellis v R, the applicant, Ellis, appealed against his conviction for the murder of his de facto wife, Michelle, and the attempted murder of his stepdaughter, Emma. The appeal was heard in the High Court of Australia. Ellis contended that the trial judge had erred in providing directions to the jury regarding consciousness of guilt and the overall lie rather than individual lies, as well as in admitting evidence of the nature of his relationship with the deceased.

The legal issues in this case revolved around whether the trial judge had erred in providing directions to the jury about consciousness of guilt and the overall lie rather than individual lies. The applicant also argued that the trial judge had erred in admitting evidence of the nature of the relationship between the applicant and the deceased. The court was required to determine whether these alleged errors affected the safety of the applicant's conviction.

The High Court dismissed the applicant's appeal. The Court found that the trial judge had not erred in providing directions to the jury regarding consciousness of guilt and the overall lie rather than individual lies. The Court held that the judge's directions were not misleading or unjust. The Court also held that the trial judge had not erred in admitting evidence of the nature of the relationship between the applicant and the deceased, as the evidence was relevant to the issues in the case and satisfied the requirements of Edwards v The Queen and Dhanhoa v R.

The High Court dismissed the applicant's application for leave to appeal, upholding the conviction and sentence imposed by the trial court.

Orders