DPP v Maher (Unreported, County Court of Victoria, Judge Parsons, 13 September 2016)
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CRIMINAL LAW – Conviction – Appeal – Culpable driving – Evidence – Incriminating conduct – Leaving scene and concealing motor vehicle – Judge’s charge – Directions to jury about incriminating conduct – Whether directions inadequate – Directions not inadequate – Jury Directions Act 2015, ss 18, 21, 22 and 23.
CRIMINAL LAW – Conviction – Appeal – Evidence – Record of interview – ‘No comment’ answers in record of interview – Judge’s charge – Whether judge’s charge about ‘no comment’ answers inadequate – No inadequacy in judge’s charge – Evidence Act 2008, s 89(1)(a).
CRIMINAL LAW – Conviction – Appeal – Application to add new grounds of appeal – Whether judge impermissibly directed jury as to order of deliberations – No impermissible direction given – Whether jury impermissibly directed when told they needed to find conduct ‘fell so far short that it deserves criminal punishment’ – Jury direction read in context – When read in context, no misdirection – No substantial miscarriage of justice – Application for leave to add new grounds refused – Bouch v The Queen (2017) 80 MVR 85.
CRIMINAL LAW – Sentence – Appeal – Culpable driving, failing to stop after accident and failing to render assistance – Sentence of 9 years’ imprisonment for culpable driving – Total effective sentence of 11 years, with non-parole period of 8 years and 6 months – Whether sentence manifestly excessive – Whether judge erred in finding likelihood of appellant reoffending was ‘likely’ – Sentence not manifestly excessive – Judge erred in finding of likelihood of reoffending – Appeal allowed – Sentences of imprisonment set aside – Appellant resentenced to 7 years and 6 months on culpable driving – Appellant resentenced to total effective sentence of 9 years and 6 months, with non-parole period of 7 years.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Ms M Fox QC with Mr J Moore
Lethbridges
For the Respondent
Mr C B Boyce SC
Mr J Cain, Solicitor for Public Prosecutions
BEACH JA
McLEISH JA COGHLAN JA:
The appellant was convicted by a jury in the County Court of one charge of culpable driving, one charge of failing to stop after an accident and another charge of failing to render assistance after an accident. She was sentenced to a total effective term of 11 years’ imprisonment with a non-parole period of 8 years and 6 months.
The appellant was granted leave to appeal against her conviction by Priest JA on two grounds, and leave to appeal against her sentence on four grounds. At the hearing of the appeal, she sought leave to add two additional grounds…
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
AGLC
Stephanie Joy Maher v The Queen [2017] VSCA 381
Case
[2017] VSCA 381
Decision Date
CaseChat Overview and Summary
The case of Maher v The Queen was heard in the High Court of Australia. The appellant, Maher, was convicted of culpable driving, failing to stop after an accident, and failing to render assistance, following a motor vehicle accident in which another person was killed. The primary legal issues involved the adequacy of the judge's directions to the jury regarding incriminating conduct, the judge's charge about the appellant's 'no comment' answers in the record of interview, and the overall sentence imposed. The appeal further sought to add new grounds concerning the direction of the jury's deliberations.
The court examined whether the directions given to the jury about incriminating conduct were inadequate and found that they were not. The judge's charge regarding the appellant's 'no comment' answers during the record of interview was also reviewed, and the court held that there was no inadequacy in the charge. Additionally, the court considered whether the judge had improperly directed the jury on the order of deliberations and the standard required for conduct to deserve criminal punishment. The court found that the directions, when read in context, did not constitute a misdirection, and therefore, there was no substantial miscarriage of justice.
The court dismissed the application to add new grounds of appeal, noting that the directions to the jury were proper and no misdirection occurred. In terms of the sentence, the court found that while the original sentence of 9 years' imprisonment for culpable driving was not manifestly excessive, the judge had erred in finding the likelihood of the appellant reoffending was 'likely'. Consequently, the appeal was allowed, and the sentences of imprisonment were set aside. The appellant was resentenced to 7 years and 6 months for culpable driving, resulting in a total effective sentence of 9 years and 6 months, with a non-parole period of 7 years.
The High Court's decision highlights the importance of the adequacy of jury directions and the correct application of sentencing principles in criminal cases. The court's ruling on the sentence also underscores the need for careful consideration of factors contributing to the likelihood of reoffending.