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 1ST 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;…
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- AGLC
- McDonald v The Queen [2013] VSCA 128
- Case
- [2013] VSCA 128
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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