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Hope v The Queen

Hope v The Queen

Case [2018] VSCA 230 11 September 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0234

DANIEL HOPE	Applicant
v
THE QUEEN	Respondent

S APCR 2017 0255

RANGI PUA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2018
DATE OF JUDGMENT:	11 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 230
JUDGMENT APPEALED FROM:	[2017] VCC 1315 (Judge Smith)

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CRIMINAL LAW – Conviction – Application for leave to appeal – Brutal continuing assault by prisoners on prison officers – Jury directions – Case put against applicant that he assaulted complainant and assisted and encouraged co-offender – Whether unanimity direction required as to factual basis upon which jury might find guilt – Unanimity direction now contended for not sought by trial counsel – In context of continuous assault, not reasonably arguable that direction now contended for required to be given.

CRIMINAL LAW – Conviction – Judge’s erroneous direction that admission of one accused may be taken into account in case against co-accused – Erroneous direction given concerning issue not in dispute at trial – No exception taken by trial counsel to erroneous direction – Not reasonably arguable that any miscarriage of justice occasioned by giving of erroneous direction concerning issue not in dispute.

CRIMINAL LAW – Conviction – Charge that accused and co-accused intentionally caused serious injury – Co-accused pleaded guilty to charge – Charge proceeded with against accused on limited basis of that accused’s own assaults – Whether convicted of different crime from that charged – Not reasonably arguable that any substantial miscarriage of justice occasioned by the pursuit of more limited case against accused – Application for leave to appeal refused.

CRIMINAL LAW – Sentence – Applications for leave to appeal – Brutal, cowardly, continuing attacks by prisoners against prison officers – Not reasonably arguable that total effective sentences of 10 years and 8 years’ imprisonment with respective non-parole periods of 7 years and 5 years manifestly excessive – Totality complaint not reasonably arguable – Relevance of deprived backgrounds – Appalling prior criminal records – Aggravating circumstance of prisoners assaulting prison officers performing their duties – Errors contended for by applicants not reasonably arguable – R v De Simoni (1981) 147 CLR 383 referred to – Bugmy v The Queen (2013) 249 CLR 571 referred to – Applications for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (Hope)	Mr C K Wareham	Valos Black & Associates
For the Applicant (Pua)	Ms G Connelly	Ann Valos Criminal Law
For the Respondent	Ms S A Flynn QC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
KAYE JA:

On 1 October 2015, the applicants, Rangi Pua and Daniel Hope, were prisoners in the Grevillea Unit of Barwon Prison. Mr Wade Sechtig, Ms Tania Wahlert, Mr Jonathan Thompson and Mr Shaun Keenan were prison officers on duty at the prison on that day. A violent altercation, in which the applicants were the aggressors, occurred. The applicants were subsequently indicted on…

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 Hope v The Queen

Details

AGLC: Daniel Hope v The Queen [2018] VSCA 230
Case: [2018] VSCA 230
Decision Date: 11 September 2018

CaseChat Overview and Summary

The case of Hope v The Queen involved the applicant, who had been convicted in the Supreme Court of South Australia, appealing against his conviction and sentence. The applicant and his co-accused had been involved in a brutal and continuing assault on prison officers. The applicant sought leave to appeal against his conviction and sentence on various grounds, including the adequacy of jury directions, the judge's erroneous direction concerning the admissibility of one accused's admissions in the case against a co-accused, and the sufficiency of the charge against the applicant. Additionally, the applicant contested the severity of his sentence.

The primary legal issues before the court were whether the jury directions were adequate, whether the judge's erroneous direction concerning the admissibility of one accused's admissions in the case against a co-accused led to a miscarriage of justice, whether the applicant was convicted of a different crime than that charged, and whether the sentence imposed was manifestly excessive. The court was required to determine whether these issues were reasonably arguable and, if so, whether they occasioned a substantial miscarriage of justice.

The court found that the jury directions were not reasonably arguable as being inadequate in the context of a continuous assault. The erroneous direction concerning the admissibility of one accused's admissions in the case against a co-accused did not occasion a miscarriage of justice as the issue was not in dispute at trial, and no exception was taken by trial counsel. The court also held that it was not reasonably arguable that the applicant was convicted of a different crime than that charged, and that the pursuit of a more limited case against the applicant did not occasion a substantial miscarriage of justice. Finally, the court determined that the sentences imposed were not manifestly excessive, taking into account the brutal nature of the attacks, the applicants' deprived backgrounds, and their appalling prior criminal records.

The application for leave to appeal against the conviction and sentence was refused. The court found that none of the issues raised were reasonably arguable as occasioning a substantial miscarriage of justice. The court relied on previous cases such as R v De Simoni and Bugmy v The Queen to support its reasoning.

Orders