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Middendorp v The Queen

Middendorp v The Queen

Case [2012] VSCA 47 22 March 2012

Criminal Liability

Sentencing

Appeal

Admissibility of Evidence

Jurisdiction

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0162
LUKE JOHN MIDDENDORP	Applicant /Appellant
v
THE QUEEN	Respondent

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JUDGES	REDLICH, MANDIE JJA and WHELAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 September 2011
DATE OF JUDGMENT	22 March 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 47
JUDGMENT APPEALED FROM	Director of Public Prosecutions v Luke John Middendorp (Unreported, Supreme Court of Victoria, Byrne J, 5, 9, 10, 11, 12, 15, 16 and 17 March 2010 (verdict)); R v Middendorp [2010] VSC 202 (Byrne J) (sentence)

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CRIMINAL LAW – Conviction – Defensive homicide – Whether tendency evidence probative on count of murder and lesser alternative of defensive homicide – Probative value of tendency evidence to objective dimension of self-defence belief – Extent to which similarity between tendency evidence and offending conduct is necessary – Tendency evidence and credibility of applicant – Directions to jury on permissible use of tendency evidence – (VIC) Crimes Act 1958 ss 9AC, 9AD – (VIC) Evidence Act 2008 ss 97, 101 – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – 12 years head sentence and eight years non-parole period – Specific errors arising from factual findings and approach to Victim Impact Statement – Manifest excess – DPP v Edwards [2009] VSCA 232 considered – Court not persuaded different sentences should be imposed despite specific errors – (VIC) Criminal Procedure Act 2009 s 281(1)(b) – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann with Ms J Fallar	Ms Melinda Walker Criminal Law Solicitor
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

Following a trial the applicant was acquitted of murder and convicted of defensive homicide. He was sentenced to 12 years’ imprisonment with a non-parole period of eight years. He seeks leave to appeal against his conviction and sentence.

Factual background

The circumstances of the case can be briefly set out as follows. From late 2007 the applicant was involved in a de facto relationship with Ms Jade Bownds. Their relationship was characterised by recurring episodes of violence. It was the defence case at trial that these instances of violence were often instigated by the deceased, but the prosecution led evidence suggesting the outbreaks of violence were initiated by the applicant in circumstances where the deceased posed no threat to his safety. Perhaps the worst instance of this was borne out by contested versions of evidence at trial regarding the applicant slashing Ms Bownds’ and his own throat with a razor or bottle. These altercations generally occurred in the context of drug-fuelled arguments.

Unsurprisingly, when the Salvation Army made arrangements with the applicant for housing in Rosser Street, Brunswick, it did so on the basis that Ms Bownds should not share the same accommodation. Despite this pre-condition, Ms Bownds often lived at the same residence with the applicant.

On the day of the impugned conduct in September 2008, the applicant was spending time at his Brunswick…

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 Middendorp v The Queen

Details

AGLC: Middendorp v The Queen [2012] VSCA 47
Case: [2012] VSCA 47
Decision Date: 22 March 2012

CaseChat Overview and Summary

In the matter of Middendorp v The Queen, the appellant sought leave to appeal against his conviction and sentence. The central dispute involved the probative value of tendency evidence presented in the context of a murder charge and the lesser alternative of defensive homicide. The Supreme Court of Victoria was tasked with determining the admissibility and impact of this evidence, as well as the appropriateness of the sentence imposed.

The primary legal issues addressed by the court included the extent to which tendency evidence could inform the jury's understanding of the objective dimension of the appellant's belief in self-defence, and the necessity for a high degree of similarity between the tendency evidence and the alleged offending conduct. Furthermore, the court examined whether the tendency evidence had any bearing on the credibility of the appellant and whether the jury was properly directed on the permissible use of such evidence. The court considered statutory provisions from the Crimes Act 1958 and the Evidence Act 2008 to assess these matters.

The Supreme Court found that the tendency evidence was sufficiently probative to assist the jury in evaluating the appellant's claim of self-defence and did not necessitate an exceptionally high degree of similarity with the alleged offence. The court also held that the evidence did not undermine the appellant's credibility and that the jury directions adequately guided the jury on the use of tendency evidence. Consequently, the application for leave to appeal against the conviction was refused. In relation to the sentence, the court determined that despite specific errors in the sentencing process, the overall sentence did not represent a manifest excess. The appeal against the sentence was also dismissed.

Orders