KARMA Gurung v The Queen - [2019] VSCA 196

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0165

KARMA GURUNG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU, EMERTON and WEINBERG JJA
WHERE HELD:	MILDURA
DATE OF HEARING:	29 August 2019
DATE OF JUDGMENT:	11 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 196
JUDGMENT APPEALED FROM:	DPP v Gurung (Unreported, County Court of Victoria, Judge Stuart, 29 June 2018)

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CRIMINAL LAW – Appeal – Conviction – One charge of armed robbery – Distinct description of offender by victim – Applicant twice denied offending in record of interview – Informant mistakenly gave evidence that applicant gave ‘no comment’ record of interview – Whether trial judge erred in refusing to admit ‘further addendum to agreed facts’ after close of prosecution case to correct this error – Whether trial judge’s charge unbalanced – Whether trial judge erred in failing to answer jury question adequately – Whether miscarriage of justice – Leave to appeal granted – Appeal allowed – Applicant to be retried – Jury Directions Act 2015 ss 65(b); 66(2)(a), (e), (f) – R v Kotzmann [1999] 2 VR 123; R v Davies (2005) 11 VR 314; DPP v Newman (a pseudonym) [2015] VSCA 25.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S N Andrianakis	Emma Turnbull Lawyers
For the Respondent	Mr B F Kissane QC with Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
EMERTON JA

WEINBERG JA:

The applicant stood trial in the County Court, at Melbourne, on a single charge of armed robbery. On 1 May 2018, he was convicted of that offence. On 29 June 2018, he was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Armed robbery [s 75A Crimes Act 1958]	25 years’ imprisonment	3 years and 6 months’ imprisonment	-
Non-parole period:		2 years and 3 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		172 days
Other relevant orders:		Forensic Sample Order

The applicant now seeks leave to appeal against conviction. He relies upon the following grounds of appeal:

Ground 1:A substantial miscarriage of justice occurred as a result of the Trial Judge refusing to admit into evidence a ‘further addendum to agreed facts’ that the applicant denied the offending in his record of interview with police.
Ground 2: In directing the jury as to different pathways that could be taken to reach a unanimous verdict, there was an imbalance favourable to the prosecution case in that:
(a) two examples of the road to a guilty verdict were provided;

(b) there were no examples of the road to an acquittal; and
(c) the Trial Judge refused to correct the imbalance –
resulting in a substantial miscarriage of justice.

Ground 3: The Trial Judge erred in refusing to answer the jury’s question ‘Did the victim ID the Accused?’ resulting in a substantial miscarriage of justice.

Background facts

At about 5.30 pm on 24 March 2017, the victim, Nathan Chen, then aged 17, was…

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 KARMA Gurung v The Queen

Details

AGLC: KARMA Gurung v The Queen [2019] VSCA 196
Case: [2019] VSCA 196
Decision Date: 11 September 2019

CaseChat Overview and Summary

The applicant, Karma Gurung, appealed against his conviction for one charge of armed robbery. The case was heard in the Supreme Court of Victoria, Court of Appeal. The central dispute was whether the trial judge had erred in various respects, leading to a potential miscarriage of justice.

The court had to determine if the trial judge erred by refusing to admit a ‘further addendum to agreed facts’ after the close of the prosecution’s case. This addendum was intended to correct the record of interview, where the applicant was mistakenly described as having given a ‘no comment’ response instead of denying the offence twice. The court also considered whether the trial judge’s charge to the jury was unbalanced and whether the trial judge had adequately answered a jury question. Furthermore, the court needed to assess whether these errors amounted to a miscarriage of justice.

The Court of Appeal found that the trial judge had indeed erred in not admitting the addendum, leading to an unbalanced charge to the jury. Additionally, the court held that the trial judge’s response to the jury’s question was inadequate. These errors were deemed to have caused a miscarriage of justice. Consequently, the appeal was allowed, and the applicant was to be retried. The court relied on the Jury Directions Act 2015 and relevant case law to reach its decision.

Orders