Hawker v The Queen - [2012] VSCA 219

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2012 0056
STEVEN HAWKER	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and REDLICH JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 July 2012
DATE OF JUDGMENT/ORDER:	14 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 219
JUDGMENT APPEALED FROM:	R v Hawker (Unreported, County Court of Victoria, Judge Wilmoth, 13 February 2012)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of recklessly causing serious injury and acquitted of intentionally causing serious injury, reckless conduct endangering life and reckless conduct placing a person in danger of serious injury – Sentenced to five years’ imprisonment with a non-parole period of three years and four months – Where prior written statement excluded from evidence – Whether trial judge erred in directing the jury that they could use a witness’s answers to questions relating to the prior statement to assess credit – Whether substantial miscarriage of justice arose by virtue of trial judge permitting evidence of applicant’s disposition for violence or failing to direct jury as to the use they could make of that evidence – Applicant denied a real chance of acquittal – Conviction quashed – New trial ordered – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Michael J Gleeson & Associates
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:
1 I agree with T Forrest AJA.

REDLICH JA:
2 I also agree with T Forrest AJA that leave to appeal be granted, the appeal allowed, the conviction quashed and a new trial ordered.

T FORREST AJA:
3 On 28 November 2011 the applicant was convicted before the County Court of one count of recklessly causing serious injury. He was acquitted of intentionally causing serious injury, reckless conduct endangering life and reckless conduct placing a person in danger of serious injury. He was sentenced to five years’ imprisonment with a non-parole period of three years, four months. He seeks to appeal against that conviction.

Factual background

4 On 8 January 2009, the applicant was separated from his partner Leah Haylbut. She remained in their former house at 50 Anaconda Rd, Narre Warren (‘the house’). In the early hours of that morning, she returned to the house to discover that it had been burgled. She telephoned the applicant and, on her account, he came to the house. She said that a friend of the applicant, Mr Corn, came at about the same time. According to Ms Haylbut, the applicant armed himself with a .22 rifle taken from the garage of the house. He placed a stool in the front garden and remained there in the event that the burglar returned. Ms Haylbut remained inside the house. She said that about 30 minutes later, the applicant ran inside saying that he had shot someone. She said the applicant stated that he had seen two men on the other side of…

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 Hawker v The Queen

Details

AGLC: Hawker v The Queen [2012] VSCA 219
Case: [2012] VSCA 219
Decision Date: 14 September 2012

CaseChat Overview and Summary

The case of Hawker v The Queen involved the applicant, Hawker, who was convicted of recklessly causing serious injury to another person. He was acquitted of other charges including intentionally causing serious injury, reckless conduct endangering life, and reckless conduct placing a person in danger of serious injury. The applicant was sentenced to five years’ imprisonment with a non-parole period of three years and four months. The High Court of Australia was asked to consider an application for leave to appeal against this conviction.

The central legal issues before the court were whether the trial judge erred in directing the jury regarding the use of a witness's answers in relation to a prior written statement to assess credit and whether a substantial miscarriage of justice occurred by virtue of the trial judge permitting evidence of the applicant’s disposition for violence or by failing to direct the jury as to the use they could make of that evidence. Additionally, it was contended that the applicant was denied a real chance of acquittal.

The court found that the trial judge erred in directing the jury that they could use the witness’s answers to questions relating to the prior written statement to assess credit, as this statement was excluded from evidence. This error was compounded by the trial judge permitting evidence of the applicant’s disposition for violence without adequately directing the jury as to the use they could make of that evidence. The court concluded that these errors resulted in a substantial miscarriage of justice and denied the applicant a real chance of acquittal. Consequently, the conviction was quashed, and a new trial was ordered. The court found no point of principle in the case.

Orders