Jose v The Queen - [2013] VSCA 353

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2013 0146

NEIL JOSE
	v
THE QUEEN

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

DETERMINED ON THE PAPERS

JUDGE	ASHLEY JA
WHERE HELD	MELBOURNE
DATE OF JUDGMENT	4 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 353
JUDGMENT APPEALED FROM	R v Jose (Unreported, County Court of Victoria, Judge Gucciardo, 9 July 2013)

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CRIMINAL LAW – Conviction – Application for leave to appeal – Aggravated burglary - Intentionally causing serious injury – Whether reasonably arguable substantial miscarriage of justice - Jury questions after long period of deliberation - Whether judge, by his re-directions, ‘stepped into the arena’, ‘overawed’ jury, or made a comment without so identifying it – Judge’s tone, manner and demeanour when re-directing jury – Leave to appeal granted only against conviction on charge of intentionally causing serious injury – Possible consequences for sentence on charge of aggravated burglary – Section 277(3), Criminal Procedure Act 2009 – CMG v The Queen [2013] VSCA 243.

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Appearances:	Counsel	Solicitors
No Appearances

ASHLEY JA:

The applicant, Neil Jose, having pleaded not guilty, was found guilty by a County Court jury on 29 May 2013, and was sentenced on 9 July, for the following offences:

Charge Offence Maximum Sentence Cumulation

1.

Aggravated burglary

[s 77(1)(b) Crimes Act]

25 years

5 years

Base

2.

Intentionally causing serious injury [s 16 Crimes Act]

20 years

5 years

15 months

Total effective sentence: 6 years 3 months

Non-parole period: 4 years

Pre-sentence detention: 42 days

The applicant having been found guilty of intentionally causing serious injury, it was unnecessary for the jury to consider an alternative charge (Charge 3) of recklessly causing serious injury.

Circumstances

The Crown case was that the offending took place on 26 January 2010 at a unit in an apartment block in St Kilda where the complainant was living with his partner. The applicant was staying ‘on and off’ at a nearby unit with a friend. The applicant and the complainant had known each other for a few months, and occasionally had a drink together. On the evening of 26 January, having announced to his friend and another person his desire to kill the complainant, in substance he invaded the complainant’s unit and there kicked and punched the complainant repeatedly, and later slashed the complainant a number of times with a knife which the latter had taken up to defend himself, but which the applicant had seized from him.

The issues at trial were: (1) in relation to Charge 1, whether the applicant entered the complainant’s unit as a trespasser with an intent to assault the complainant; and (2), in relation to Charges 2 and 3, the applicant’s state of mind when he injured the complainant, and whether he was acting in self-defence.

It was not put in issue at trial that in combination the injuries sustained by the complainant constituted serious injury. The…

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 Jose v The Queen

Details

AGLC: Jose v The Queen [2013] VSCA 353
Case: [2013] VSCA 353
Decision Date: 4 December 2013

CaseChat Overview and Summary

The appellant, Jose, appealed against his conviction by a jury of the County Court of Victoria on charges of aggravated burglary and intentionally causing serious injury. The appeal was brought under section 277 of the Criminal Procedure Act 2009, which allows an accused person to seek leave to appeal if they believe there has been a substantial miscarriage of justice. The primary issue before the court was whether the judge’s conduct during the trial created a substantial risk of a miscarriage of justice, particularly by potentially overawing the jury or making comments that could have unduly influenced their decision.

The court examined whether the judge’s re-directions to the jury, after a lengthy period of deliberation, amounted to the judge ‘stepping into the arena’ or whether his tone, manner, and demeanour during this process could have overawed the jury. The appellant argued that the judge’s conduct during re-directions was inappropriate and prejudicial, leading to an unfair trial. The court also considered whether the judge inadvertently made comments without explicitly identifying them, which could have influenced the jury’s decision. The court found that there was a reasonable possibility that the judge’s conduct may have impacted the jury’s impartiality.

After thorough analysis, the court concluded that while there was a reasonable possibility of a substantial miscarriage of justice regarding the charge of intentionally causing serious injury, the same could not be said for the charge of aggravated burglary. Therefore, leave to appeal was granted only in relation to the charge of intentionally causing serious injury. This decision could potentially impact the sentence on the charge of aggravated burglary if the conviction on that charge were to be quashed. The court’s decision underscores the importance of judicial conduct during trials and the delicate balance a judge must maintain to ensure a fair trial.

Orders