McKinnin v The Queen - [2019] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0128

HARLEY MICHAEL JAMES McKINNIN	Applicant
v
THE QUEEN	Respondent

S APCR 2018 0142

MICHAEL JAMES McKINNIN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 April 2019
DATE OF JUDGMENT:	28 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 114
JUDGMENT APPEALED FROM:	DPP v McKinnin (Unreported, County Court of Victoria, Judge Chettle, 4 May 2018 (Conviction), 1 June 2018 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Recklessly causing serious injury – Co-accused father and son – Victim assaulted with baseball bat or bats – Whether judge erred in refusing application by applicant’s mother to be excused from giving evidence pursuant to s 18 of Evidence Act 2008 – Whether question trail given by judge to jury inaccurately set out factual matters in issue and compromised applicants’ right to separate consideration of cases against them – Whether judge’s directions to jury regarding questioning witnesses occasioned a fundamental breach in integrity of trial and a miscarriage of justice – Applications for leave to appeal against conviction refused.

CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Co-accused father and son – Victim assaulted with baseball bat or bats – Father sentenced to 7 years and 6 months’ imprisonment – Son sentenced to 8 years’ imprisonment – Whether judge sentenced son on factual basis inconsistent with jury’s verdict – Whether sentences manifestly excessive – Applications for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Harley McKinnin	Ms S E Lacy	Stary Norton Halphen
For the Applicant Michael McKinnin	Mr R Nathwani	Criminal Lawyers Geelong
For the Crown	Mr J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

NIALL JA
T FORREST JA
WEINBERG JA:

Introduction

The applicants for leave to appeal against conviction and sentence are father and son, whose given names are Michael and Harley respectively. On 4 May 2018, a jury found them guilty of recklessly causing serious injury to Gavan Broad.[1] They were acquitted of charges of causing injury to Emma Ryan.
[1]They were acquitted of the alternative charge of intentionally causing serious injury.

The applicants were sentenced on 1 June 2018. The maximum sentence for the offence was 15 years’ imprisonment. Harley was sentenced to a term of eight years’ imprisonment with a non-parole period of five years and six months. Michael was sentenced to a term of seven years and six months’ imprisonment with a non-parole period of five years.

Circumstances of the offending

Late on the evening of 24 March 2017, as a result of being repeatedly struck by the applicants, Gavan Broad sustained serious injury outside of his place of business, the Pindarri Poultry factory (‘the poultry factory’). The extent of the injury and the fact that it was inflicted by the applicants were not in dispute.[2] They claimed, in detailed records of interview on which they based their defence, that they were acting…

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 McKinnin v The Queen

Details

AGLC: McKinnin v The Queen [2019] VSCA 114
Case: [2019] VSCA 114
Decision Date: 28 May 2019

CaseChat Overview and Summary

McKinnin and his father were convicted of recklessly causing serious injury to a victim who was assaulted with a baseball bat or bats. The applicants appealed against both their convictions and sentences, as well as the trial judge's handling of evidence and jury directions. The applicants argued that the judge erred in refusing an application by the mother of one of the applicants to be excused from giving evidence, and that the judge's questioning of the jury inaccurately set out the factual matters in issue, compromising their right to separate consideration of the cases against them. They further contended that the judge's directions to the jury regarding questioning witnesses occasioned a fundamental breach in the integrity of the trial and a miscarriage of justice.

The court considered whether the judge had erred in refusing the application by the mother to be excused from giving evidence, whether the questions asked by the judge to the jury inaccurately set out the factual matters in issue, and whether the judge's directions to the jury regarding questioning witnesses occasioned a fundamental breach in the integrity of the trial and a miscarriage of justice. The court held that the judge did not err in refusing the application by the mother to be excused from giving evidence, that the questions asked by the judge to the jury did not inaccurately set out the factual matters in issue, and that the judge's directions to the jury regarding questioning witnesses did not occasion a fundamental breach in the integrity of the trial or a miscarriage of justice. The court also held that the son's sentence was not manifestly excessive and that the judge had not sentenced him on a factual basis inconsistent with the jury's verdict.

The applicants' applications for leave to appeal against their convictions and sentences were refused. The court held that the evidence was sufficient to support the applicants' convictions, that the sentences imposed were not manifestly excessive, and that the judge had not erred in his handling of evidence or jury directions. The applicants' appeals against their convictions and sentences were dismissed.

Orders