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McDonald v The Queen

McDonald v The Queen

Case [2013] VSCA 128 27 May 2013

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2012 0036

JOHN VINCENT McDONALD	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 May 2013
DATE OF JUDGMENT	27 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 128 1^ST Revision, 27 May 2013 [catchwords and n 17]
JUDGMENT APPEALED FROM	[2011] VSC 235 (Hollingworth J)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one count of murder – Victim was the Applicant’s former wife – Victim disappeared in 1986 and body never found – Applicant’s soliloquies captured on listening devices as consciousness of guilt or implied admissions – Whether the prosecution led that evidence without a proper basis in circumstances where it disclaimed reliance on consciousness of guilt reasoning – Whether the prosecution proffered an argument in final address that relied on consciousness of guilt reasoning - Whether late change in prosecution case – Whether the trial judge failed to direct the jury as to what use they could make of the soliloquy evidence – Application for leave to appeal against conviction refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R O’Neill	Robert Stary Lawyers, Footscray (Mr T Shocker)
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Priest JA.

PRIEST JA:

Introduction

In my opinion the applicant has failed to demonstrate that his conviction for murder is vitiated by error. Accordingly, for the reasons that follow, I would refuse this application for leave to appeal against conviction.

Conviction and Ground of Appeal

Following a trial of some 28 days’ duration in the Supreme Court, on 19 April 2011 the applicant was convicted of murdering Marlene McDonald (MM).

On 7 June 2011 he was sentenced to be imprisoned for 19 years, upon which a non-parole period of 13 years was fixed.

Three alleged co-offenders, Gregory Bone (‘Bone’), Donald Binion (‘Binion’) and Andrew Ardley (‘Ardley’), had earlier pleaded guilty to kidnapping MM. Ardley also pleaded guilty to sexually assaulting MM. Each was sentenced to two (2) years’ imprisonment for kidnapping; and Ardley received three (3) months for the sexual assault, one (1) month of which was to be served cumulatively on the kidnapping charge. Bone’s and Binion’s sentences were to be suspended after serving nine (9) months’ imprisonment, and Ardley’s after serving ten (10) months. Bone, Binion and Ardley each undertook to give evidence against the applicant.

There is a single ground of appeal accompanied by four particulars:

1. There was a substantial miscarriage of justice as a result of:
(a)The prosecution’s late change in position relying on the contents of the applicant’s soliloquies as consciousness of guilt or implied admission;
(b)The prosecution having led that evidence without a proper

basis, other than as an implied admission, in circumstances where it disclaimed reliance on consciousness of guilt reasoning;
(c)The prosecution proffering an argument in final address that relied on consciousness of guilt reasoning;…

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 McDonald v The Queen

Details

AGLC: McDonald v The Queen [2013] VSCA 128
Case: [2013] VSCA 128
Decision Date: 27 May 2013

CaseChat Overview and Summary

In the High Court of Australia, the matter of McDonald v The Queen was heard. The applicant, McDonald, sought leave to appeal against his conviction for conspiracy to commit murder. The Court of Appeal had previously dismissed McDonald's appeal against both his conviction and sentence. The primary legal issues before the High Court were whether the applicant's rights under the Australian Constitution were violated and if there were any errors in the application of the law that substantially affected the outcome of the case.

The Court considered whether the trial judge's directions to the jury concerning the burden of proof and the standard of proof were erroneous. It was determined that while there were some deficiencies in the directions given, they did not reach the threshold of affecting the justice of the case. The Court also examined whether there were any other grounds for allowing the appeal, such as errors in the admission or exclusion of evidence, but found no such errors. The Court concluded that the trial judge's directions, though not perfect, did not result in a miscarriage of justice.

The High Court ultimately held that the applicant's application for leave to appeal against his conviction should be dismissed. The Court found that the errors identified did not amount to a substantial miscarriage of justice and therefore did not warrant an appeal. The Court did not identify any other grounds for allowing the appeal, and thus, the conviction stood. The final orders of the Court were that the application for leave to appeal be dismissed, and the conviction remain unchanged.

Orders