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Jamieson v The Queen

Jamieson v The Queen

Case [2017] VSCA 140 16 June 2017

Appeal

Breach of Trust

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0167

IAN FRANCIS JAMIESON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, OSBORN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 May 2017
DATE OF JUDGMENT:	16 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 140
JUDGMENT APPEALED FROM:	[2016] VSC 406 (Hollingworth J)

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CRIMINAL LAW & PROCEDURE – Application for leave to appeal against conviction –Change of Plea – Murder – Whether trial judge erred in refusing application for leave to set aside guilty plea – Whether refusal to permit change of plea resulted in miscarriage of justice – Whether judge erred in failing to find applicant had viable defence – Whether failure to consider if there was an issuable question of guilt amounted to failure to take into account a relevant consideration – Relevance of accused’s subjective belief in innocence – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Desmond	Vines Lawyers
For the Respondent	Mr C Boyce SC	John Cain, Solicitor for Public Prosecutions

ASHLEY JA:
OSBORN JA:
SANTAMARIA JA:

On 5 April 2016, the applicant, Ian Jamieson, pleaded guilty before a judge in the Trial Division to the murders of his neighbours, Gregory Holmes, Peter Lockhart and Mary Lockhart. On 22 July 2016, following a plea hearing conducted on 20 July, he was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1

Murder

[common law]

Life imprisonment

25 years’ imprisonment

-

2

Murder

[common law]

Life imprisonment

Life imprisonment

-

3

Murder

[common law]

Life imprisonment

Life imprisonment

-

Total Effective Sentence:

Life imprisonment

Non-Parole Period:

30 years’ imprisonment

Pre-sentence Detention Declared:

640 days

6AAA Statement:

Life imprisonment without parole

Other orders: Pursuant to pt 2A of the Sentencing Act 1991, the Court declared the offender be sentenced as a serious violent offender on Charges 2 and 3.

Ground of proposed appeal

Now, the applicant seeks leave to appeal against his conviction on charge 1, that is, the charge relating to Mr Holmes;[1] and, if leave is granted, that his appeal be allowed. He relies upon this ground:

1.The conviction in relation to Charge 1 – murder of Gregory Holmes should be set aside/quashed. The applicant made an Application to change his Plea which was refused. The trial judge erred in refusing the Application insofar as Her Honour:
(a)made findings of fact not open on the evidence;
(b)misapplied the relevant test/law in determining the Application resulting in a miscarriage of justice; and/or
(c)although the trial judge addressed the question of whether the guilty plea was made freely and voluntarily, Her Honour failed to address the question whether the applicant intended by his plea to accept guilt for an offence of which he truly believed himself to be guilty and this was an error which requires the discretionary ruling/judgment to be set aside.

[1]An extension of time to bring the application having earlier been granted.

In our opinion, for the reasons which follow, the application lacks…

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 Jamieson v The Queen

Details

AGLC: Jamieson v The Queen [2017] VSCA 140
Case: [2017] VSCA 140
Decision Date: 16 June 2017

CaseChat Overview and Summary

Jamieson was convicted of murder and appealed against the decision to a higher court, seeking leave to appeal against the conviction. The crux of the appeal was the trial judge's refusal to permit a change of plea from guilty to not guilty. Jamieson argued that the refusal resulted in a miscarriage of justice, and that the trial judge had erred by not finding that he had a viable defence. Additionally, Jamieson contended that the trial judge's failure to consider whether there was an issuable question of guilt amounted to the failure to take into account a relevant consideration.

The court examined whether the trial judge erred in refusing to permit the change of plea. It was noted that the trial judge had considered the evidence and had formed a view that there was no miscarriage of justice. The court found that the trial judge had not erred in refusing to permit the change of plea, as it was within the trial judge's discretion to do so. Furthermore, the court found that the trial judge had not failed to find that Jamieson had a viable defence, as there was no evidence to support such a claim. Finally, the court held that the relevance of Jamieson's subjective belief in his innocence was not a relevant consideration in determining whether the trial judge had erred.

The application for leave to appeal was dismissed, and the conviction was upheld. The court found that the trial judge had not erred in refusing to permit the change of plea, and that there was no miscarriage of justice. The court also held that the trial judge had not failed to find that Jamieson had a viable defence, and that the relevance of Jamieson's subjective belief in his innocence was not a relevant consideration.

Orders