CRIMINAL LAW – Leave to appeal – Conviction – Manslaughter by unlawful and dangerous act – Throwing object at head and kick to hip – Whether substantial miscarriage of justice occasioned by jury directions on causation – Where multiple contributing factors to cause of death – Complex medical evidence – Where directions found to be consistent with ‘substantial and significant’ cause test – Ground not established.
EVIDENCE – Hearsay – Exceptions to hearsay rule – Opinion evidence – Business records – Whether medical records were inadmissible – Where trial counsel made a forensic decision not to object to medical records – Ground not necessary to determine.
EVIDENCE – Tape recording of offender demanding CCTV footage of assault be wiped – CCTV footage of offender’s arrival and departure from scene – Whether evidence was prejudicial or irrelevant – Where evidence of post-offending conduct involved use as incriminating conduct reasoning – Appeal allowed.
[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
Maskell v The King [2025] VSCA 170
Case
[2025] VSCA 170
Decision Date
CaseChat Overview and Summary
The appellant, Maskell, sought leave to appeal his conviction of manslaughter by an unlawful and dangerous act, which involved throwing an object at a person's head and kicking them in the hip. The appeal challenged several aspects of the trial, including the jury directions on causation, the admissibility of medical records, and the use of certain evidence. The Supreme Court of Victoria considered the appeal and found that the grounds for leave to appeal were not established. Maskell argued that the jury directions on causation resulted in a substantial miscarriage of justice, given the complex medical evidence and multiple contributing factors to the victim's death. The court held that the directions were consistent with the 'substantial and significant' cause test and did not occasion a substantial miscarriage of justice. Maskell also claimed that the medical records were inadmissible hearsay; however, the court noted that trial counsel made a strategic decision not to object to their admission, and the ground was not necessary to determine.
Further, Maskell contended that the tape recording of him demanding the CCTV footage be wiped, along with footage of his arrival and departure from the scene, was prejudicial and irrelevant. The court found that the evidence was relevant as it demonstrated post-offending conduct that could be used as incriminating conduct. The appeal was dismissed, and no leave to appeal was granted. The court held that the jury directions on causation did not occasion a substantial miscarriage of justice, the medical records were properly admitted, and the contested evidence was relevant and admissible. Consequently, the conviction and sentence remained undisturbed.