CRIMINAL LAW – Murder – Joint criminal enterprise – Admissibility of evidence relevant to implementation and concealing of enterprise – Post-offence conduct – Proof of participation in joint enterprise – R v Ibrahim (2003) 7 VR 141, considered.
CRIMINAL LAW – Evidence – Incriminating conduct – Statutory interpretation – Part 6 Jury Directions Act 2013 – Post-offence conduct involving concealment of crime and disposal of body – Notice of evidence of incriminating conduct – Crown eschews reliance on evidence as incriminating conduct – Part 6 alone dictates application of s 25 – Part 3 has no application – Section 9 Jury Directions Act 2013 – Literal construction of s 25 requires explicit reliance on evidence of incriminating conduct – Reading in of word ‘explicit’ if necessary to give effect to legislative intent – Sections 23, 24, 25 Jury Directions Act 2013 – Taylor v Owners – Strata Plan No 11564 (2014) 306 ALR 547; Director of Public Prosecutions v Leys (2012) 296 ALR 96, applied.
CRIMINAL LAW – Evidence – Incriminating conduct – Crown not relying on post-offence conduct as implied admissions – Direction under s 25 not required – Circumstances in which direction under s 27 may be required – Whether judge obliged to give direction under s 27 when not requested – R v Rice (1996) 2 VR 406; R v Chang (2003) 7 VR 236; R v Nguyen (2001) 118 A Crim R 479, discussed – s 15 Jury Directions Act2013 – Xypolitos v The Queen [2014] VSCA 339, applied – No substantial risk of use of evidence as implied admission – Direction to exclude innocent hypothesis.
CRIMINAL LAW – Forensic decision not to seek direction – Knowles v The Queen [2015] VSCA 141, applied – Means by which reasons of trial counsel can be placed before Court.
CRIMINAL LAW – Evidence – Verdict not unsafe or unsatisfactory – Combined effect of circumstantial evidence – Application of Weissensteiner v The Queen (1993) 178 CLR 217, considered – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr T Kassimatis
Pica Criminal Lawyers
For the Respondent
Mr D A Trapnell QC with Ms E Ruddle
Ms V Anscombe, Acting Solicitor for Public Prosecutions
WARREN CJ:
On 31 October 2013 the applicant, Matthew Lowe, was convicted by a jury of the murder of Yengo Faugere (‘the deceased’). The facts and procedural background are set out in detail in the joint judgment of Redlich JA and Robson AJA, and I will not repeat them here.[1] In summary, the Crown case at trial was that the applicant participated in a joint criminal enterprise with…
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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AGLC
Lowe v The Queen [2015] VSCA 327
Case
[2015] VSCA 327
Decision Date
CaseChat Overview and Summary
The defendant, Lowe, was convicted of murder and was appealing his conviction. The appeal focused on several legal issues related to the trial. The central issue was whether the trial judge properly handled evidence related to the implementation and concealment of a joint criminal enterprise, including post-offence conduct. Another key issue was the interpretation and application of sections of the Jury Directions Act 2013 concerning the admissibility and use of evidence of incriminating conduct, particularly in relation to the Crown's decision not to rely on such conduct as implied admissions.
The Court considered whether the Crown's decision not to rely on post-offence conduct as incriminating conduct meant that a direction under section 25 of the Jury Directions Act 2013 was unnecessary. The Court held that the literal construction of section 25 required explicit reliance on the evidence as incriminating conduct, and since the Crown had expressly stated it would not rely on the conduct in this way, no direction was necessary. The Court also explored whether the trial judge was obliged to give a direction under section 27 of the Act when not requested, and concluded that there was no substantial risk of the evidence being used as an implied admission, and thus no requirement for such a direction. The Court further found that the forensic decision of the trial counsel not to seek a direction was appropriately considered and did not undermine the safety or satisfaction of the verdict, especially when the circumstantial evidence was assessed in combination.
Ultimately, the Court dismissed the appeal, affirming that the evidence, when considered together, sufficiently supported the conviction. The Court applied the principles set out in Weissensteiner v The Queen, concluding that the verdict was neither unsafe nor unsatisfactory. The decision underscored the importance of statutory interpretation and the appropriate use of jury directions in criminal trials, particularly when dealing with complex issues of joint criminal enterprise and incriminating conduct.