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James v The Queen

James v The Queen

Case [2013] VSCA 55 19 March 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0102

SAMUEL JAMES	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WHELAN and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 January 2013
DATE OF JUDGMENT	19 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 55 1^st Revision, 20 March 2013, [152]
JUDGMENT APPEALED FROM	R v James [2011] VSC 596 (Williams J)

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CRIMINAL LAW – Appeal – Conviction – Alternative counts of intentionally or recklessly causing serious injury – Failure to leave ‘injury’ alternative – Relevance of course of trial and defence counsel’s forensic decisions – Lies as consciousness of guilt – Whether lies relied upon capable of constituting implied admissions – Failure to direct as to evidence of bad character – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Valos Black & Associates
For the Respondent	Mr P Kidd SC with Mr G Barr	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the considerable advantage of reading in draft the respective reasons for judgment of Whelan JA and Priest JA. Their Honours have comprehensively described the course of events at the trial and have clearly exposed the legal issues raised by the grounds of appeal, in particular by ground 1 (concerning the judge’s failure to leave alternative and lesser counts to the jury).

Like Whelan JA, I have concluded that the appeal should be dismissed. I would reject ground 2, concerning consciousness of guilt, for the reasons which his Honour gives. As to ground 1, I respectfully agree with Whelan JA’s analysis of the course of the trial and with his reasons for concluding that the ground fails. As appears from what Priest JA has written, however, this ground raises an important issue of principle. The following additional considerations are relevant, in my view, as supporting the conclusion that ground 1 fails.

On the view taken by Priest JA, the fundamental right to a fair trial means that no conduct on the part of defence counsel can deny an accused the possibility of conviction for a lesser alternative offence, provided that it was a realistic possibility on the evidence.[1] In the present case, his Honour holds, the appellant was entitled to have the lesser alternatives[2] put — and the judge was obliged to put them — to the jury, notwithstanding the ‘calculated abstention’ of his counsel from requesting that the lesser alternatives be left.[3]
[1]See [200] below.
[2]Of intentionally (or recklessly) causing injury, rather than serious injury.
[3]See [196] below.

With great respect, I do not think that such an absolute proposition can be sustained on the current state of the law. On the contrary, it seems to me to be inconsistent with a series of decisions in the High Court and in this Court, to which I will refer. Those decisions emphasise that, in the appellate consideration of whether the course of a trial has occasioned a miscarriage of justice, very great significance is attached to…

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 James v The Queen

Details

AGLC: James v The Queen [2013] VSCA 55
Case: [2013] VSCA 55
Decision Date: 19 March 2013

CaseChat Overview and Summary

The appellant, James, was convicted on alternative counts of intentionally or recklessly causing serious injury. He appealed against his conviction, arguing that the trial judge should have directed the jury to consider the failure to leave alternative as an available option, and that the trial judge erred by not directing the jury about evidence of his bad character. The case was heard in the High Court of Australia.

The central legal issues revolved around the trial judge’s directions to the jury regarding the alternative counts of the indictment and the relevance of the course of the trial and the defence counsel’s forensic decisions. Additionally, the court needed to determine whether James’ lies during the trial could be considered as implied admissions of guilt and if the trial judge erred by not directing the jury on evidence of bad character.

The High Court held that the trial judge’s failure to direct the jury on the failure to leave alternative did not render the conviction unsafe or unsatisfactory. The court further found that the course of the trial and the defence counsel’s decisions did not prejudice the appellant to the extent that it affected the fairness of the trial. The lies made by the appellant during the trial were considered as evidence of bad character but were not regarded as implied admissions of guilt. The court determined that the trial judge did not err in not directing the jury on the evidence of bad character, as it was not of such significance that it required specific direction. Consequently, the appeal was dismissed.

The final orders of the court confirmed the dismissal of the appeal, maintaining the conviction of the appellant on the alternative counts of intentionally or recklessly causing serious injury.

Orders