Keene v The King - [2023] VSCA 142

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0003

CHRISTOPHER DOUGLAS KEENE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2023
DATE OF JUDGMENT:	13 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 142
JUDGMENT APPEALED FROM:	DPP v Keene (County Court, Judge Lyon, 17 October 2022)

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CRIMINAL LAW – Appeal – Conviction – Judge made comments during trial – Whether comments give rise to reasonable apprehension of bias – Not persuaded first impugned comment directed to applicant – Well open to judge to stamp authority on course of trial in way he did – No adequate explanation for failing to apply for disqualification on basis of comments.

CRIMINAL LAW – Appeal – Conviction – Charge for perverting course of justice by providing false information to Court as to availability of residential address and relationship with person living at address in support of bail application – Whether judge conflated availability of address with false relationship with person – Even if considered discretely would have capacity to mislead – Falsity went to both existence of relationship and applicant’s intention to live at proposed address – Applicant’s contended approach artificial – Leave to appeal refused.

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Counsel
Applicant:		Mr DN McGlone
Respondent:		Mr DA Glynn
Solicitors
Applicant:	Angus Cameron Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
TAYLOR JA:

Following a trial before a judge alone, the applicant was found guilty of a single charge of attempting to pervert the course of justice. The indictment alleged that between 27 April 2020 and 11 June 2020, the applicant engaged in conduct that had a tendency to pervert the course of justice by attempting to mislead the County Court on 1 June 2020 ‘by putting false information to the Court as to his relationship with Tracey Stephen (‘Stephen’) and the availability of a residential address in support of an application for bail’.
The applicant stood trial together with John Verdesoto (‘Verdesoto’) who was charged with the same offence but on the slightly different basis that he was alleged to have prevailed upon Stephen to give false evidence in relation to the applicant’s bail application. Verdesoto was discharged following a successful no case submission on the basis that the prosecution could not prove, to the criminal standard, that he had prevailed upon Stephen to give evidence as opposed to giving false information to the police.

The prosecution case

Verdesoto and the applicant are friends. They were on remand at the same time (for unrelated offending) at Marngoneet Correctional Centre. Having initially failed in a bail application, the applicant applied for bail a second time in the County Court and in doing so relied[1] on an affidavit from Stephen that they were known to each other and that if bailed, the applicant could live at her house.
[1]The affidavit was provided to the judge and the prosecution on the bail application and discussed but not formally read…

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 Keene v The King

Details

AGLC: Keene v The King [2023] VSCA 142
Case: [2023] VSCA 142
Decision Date: 13 June 2023

CaseChat Overview and Summary

In the case of Keene v The King, the appellant, Keene, sought to appeal his conviction for perverting the course of justice. The matter was heard in the High Court of Australia. Keene argued that comments made by the trial judge during the course of the trial created a reasonable apprehension of bias against him. He also contended that the judge had conflated two separate issues in his consideration of the evidence, namely the availability of the residential address and the false relationship with the person residing at that address.

The court was required to determine whether the judge's comments gave rise to a reasonable apprehension of bias and whether the judge had conflated the two issues in his consideration of the evidence. The court examined the comments made by the judge during the trial and found that they did not give rise to a reasonable apprehension of bias. The court also found that the judge's consideration of the evidence was not flawed, even if the two issues were considered discretely.

The High Court held that the comments made by the judge during the trial did not give rise to a reasonable apprehension of bias. The court found that it was well open to the judge to stamp his authority on the course of the trial in the way he did. The court also found that the judge's consideration of the evidence was not flawed, even if the two issues were considered discretely. The court held that the falsity went to both the existence of the relationship and the applicant's intention to live at the proposed address. The court further held that the applicant's contended approach was artificial. Leave to appeal was refused.

Orders