JUDGES:	FERGUSON CJ, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2019
DATE OF JUDGMENT:	3 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 218	First revision: 6 October 2020
JUDGMENT APPEALED FROM:	R v Hague [2018] VSC 323 (Lasry J)

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CRIMINAL LAW – Conviction – Murder – Whether trial judge erred in refusing to stay indictment as abuse of process – Evidence said to be ‘weak or tenuous’ – Such evidence, even if correctly characterised, does not give rise to abuse of process – No power of Court of Appeal to allow appeal on this basis – Jago v District Court of New South Wales (1989) 168 CLR 23; Doney v The Queen (1990) 171 CLR 207; IMM v The Queen (2016) 257 CLR 300 – Whether verdict unsafe or unsatisfactory – Circumstantial case in part – Eye-witness to offending – Identification of applicant – Confession evidence – No doubt as to correctness of verdict – M v The Queen (1994) 181 CLR 487 – Whether fresh evidence – Affidavits proposing alternative killer – Evidence not credible – No significant possibility jury would have acquitted – R v Nguyen [1998] 4 VR 394 – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Murder – Sentence of 26 years’ imprisonment with non-parole period of 20 years – Whether sentence manifestly excessive – Significant time between offending and sentencing – Change in sentencing practices – Mitigating impact of youth – Seriousness of offence – General and specific deterrence – Guarded prospects of rehabilitation – Sentence within range – Leave to appeal refused – Azzopardi v The Queen (2011) 35 VR 43; Stalio v The Queen (2012) 46 VR 426; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F Gerry QC with Dr T Alexander	Nelson Brown Legal
For the Respondent	Ms F Dalziel QC with Ms A Ellis	Mr J Cain, Solicitor for Public Prosecutions
Attorney-General for the State of Victoria (Intervener)	Mr N Robinson QC with Mr L Brown	Victoria Government Solicitor’s Office

FERGUSON CJ

NIALL JA
WEINBERG JA:

Following a trial before Lasry J and a jury, the applicant was convicted of a single charge of murder. He was sentenced to a term of imprisonment of 26 years with a non–parole period of 20 years.

The applicant has applied for leave to appeal against both his conviction and sentence. For the reasons that follow, both applications will be refused.

Overview of the prosecution case

The deceased, Ricky Balcombe, died on 5 May 1995, from two stab wounds to the back. He was stabbed at around 3:20 pm in the Market Square Shopping Centre in central Geelong. He was 16 years of age. The shopping centre fronts on to Little Malop Street, which was a pedestrian mall…

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 Hague v The Queen

Details

AGLC: Hague v The Queen [2019] VSCA 218
Case: [2019] VSCA 218
Decision Date: 3 October 2019

CaseChat Overview and Summary

The applicant, Hague, appealed against his conviction and sentence for murder. The case was heard by the Court of Appeal in Victoria. The primary issue was whether the trial judge erred in refusing to stay the indictment as an abuse of process due to the alleged weakness of the evidence. Additionally, the applicant challenged the severity of his sentence, arguing it was manifestly excessive.

The court considered whether the trial judge erred in refusing to stay the indictment. It found that even if the evidence was weak or tenuous, it did not constitute an abuse of process. The court cited precedents such as Jago v District Court of New South Wales and M v The Queen, concluding that the evidence, though circumstantial in part, was sufficient to support the verdict. The court also examined whether the verdict was unsafe or unsatisfactory and found no credible fresh evidence to support the applicant’s claims of an alternative killer.

The court further examined the sentence of 26 years with a non-parole period of 20 years. It noted the applicant’s age at the time of the offence and the significant time between the offence and sentencing. However, it concluded that the sentence was within the appropriate range given the seriousness of the offence and the need for general and specific deterrence. The court referred to cases such as Azzopardi v The Queen and Stalio v The Queen, finding no basis for the sentence to be considered manifestly excessive.

Leave to appeal to the High Court was refused. The court affirmed the conviction and sentence, finding no grounds for an appeal based on the issues raised.

Orders