Leif Douglas Hughes v The Queen - [2014] VSCA 4

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2013 0040

LEIF DOUGLAS HUGHES	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 February 2014
DATE OF JUDGMENT	6 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 4
JUDGMENT APPEALED FROM	R v Hughes (Unreported, County Court of Victoria, Judge Parsons, 6 September 2012 (Conviction))

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one charge each of aggravated burglary, intentionally causing serious injury, making a threat to kill and reckless conduct endangering life – Charges relate to two separate incidents in Benalla – Trial judge provided a map to the jury following a request through the tipstaff – Counsel were advised subsequently of the request and the provision of the map – No objection immediately taken – Later a request to discharge the jury – Application for discharge refused – Whether the trial judge erred in providing the map without first communicating that fact to counsel and inviting submissions – Whether providing the map to the jury was a serious departure from the prescribed processes for trial – Application for leave to appeal against conviction refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Turnbull Lawyers
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I invite Priest JA to deliver the first judgment.

PRIEST JA:

Introduction

Following a nine day trial, on 6 September 2012 a jury in the County Court at Shepparton convicted the applicant of aggravated burglary (charge 1), intentionally causing serious injury (charge 2),[1] making a threat to kill (charge 4) and reckless conduct endangering life (charge 5). On 22 February 2013 the trial judge sentenced him to a total effective sentence of eight (8) years and six (6) months, upon which a non-parole period of six (6) years and six (6) months’ imprisonment was fixed.
[1]The applicant was acquitted of recklessly causing serious injury, charge 3, which was an alternative to the second charge.

The applicant now seeks leave to appeal against his convictions on two complementary grounds:

1. The learned trial judge erred in failing to disclose the fact and content of a jury question (relating to a map) received during the jury’s deliberations.
2.The learned trial judge erred in answering the jury’s question (i.e. providing a map) without giving the applicant’s counsel an opportunity to make submissions.

For reasons that follow, I would grant the application for leave to appeal, but dismiss the appeal.

The offences

The applicant was tried with co-offender, Joel Beresford. Beresford was charged with aggravated burglary (charge 1), intentionally causing serious injury (charge 2) and recklessly causing serious injury (charge 3). (The jury were directed to acquit him on charges 2 and 3. Beresford, who was found guilty on charge 1, has not sought leave to appeal.)

Two separate incidents occurring in Benalla on 9 June 2011 led to the applicant’s convictions. 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.

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Details

Case: [2014] VSCA 4
Decision Date: 6 February 2014

CaseChat Overview and Summary

Leif Douglas Hughes was convicted of one count each of aggravated burglary, intentionally causing serious injury, making a threat to kill, and reckless conduct endangering life. These charges related to two separate incidents that occurred in Benalla. The applicant sought leave to appeal against his conviction, arguing that the trial judge erred by providing a map to the jury without first communicating that fact to counsel and inviting submissions on the matter. The applicant also contended that providing the map to the jury constituted a serious departure from the prescribed processes for trial.

The primary legal issues before the court were whether the trial judge erred in providing the map to the jury without first consulting with counsel and whether such action was a serious departure from the appropriate trial processes. The court considered the trial judge's actions in the context of the overall trial process and examined whether any such error could have materially affected the outcome of the trial. The court also evaluated the circumstances under which the map was provided and whether it was necessary for the jury to understand the evidence and make an informed decision.

The court found that while the trial judge should have ideally consulted with counsel before providing the map to the jury, the failure to do so did not constitute a serious departure from the appropriate trial processes. The court emphasised that the trial judge's intention was to assist the jury in understanding the evidence, and there was no evidence to suggest that the map influenced the jury's decision. Consequently, the application for leave to appeal against the conviction was refused.

The court ordered that the application for leave to appeal against the conviction be dismissed and that the applicant's convictions stand as determined by the trial judge.

Orders