Paisley v The Queen - [2012] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0042
CHRISTOPHER JOHN PAISLEY	Applicant
v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, NETTLE and NEAVE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 April 2012
DATE OF JUDGMENT	4 May 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 79
JUDGMENT APPEALED FROM	R v Paisley (Unreported, County Court of Victoria, Judge Bourke, 17 November 2011)

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CRIMINAL LAW – Conviction – Recklessly causing serious injury – Verdict – Whether unsafe and unsatisfactory – Whether inconsistent with acquittal of affray – Whether state of evidence such as to preclude jury being satisfied of guilt to requisite standard – R v Klamo (2008) 18 VR 644; Baker v R [2010] VSCA 226, referred to.

CRIMINAL LAW – Practice and procedure – Application for leave to appeal against conviction out of time – Duration and cause of delay – Baltas v R [2011] VSCA 169, followed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Chris McLennan & Co
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Nettle and Neave JJA. For the reasons which their Honours give, I too would refuse the application for leave to appeal against conviction.

NETTLE JA

NEAVE JA:

This is an application for leave to appeal against conviction of a charge of recklessly causing serious injury. The application was filed out of time, but only slightly late, and the applicant cannot be blamed for the delay. It was caused by his legal advisers. In the circumstances, we think it is appropriate to deal with the application as if it had been made in time.[1]
[1]See and compare R v Darby (Unreported, Supreme Court of Victoria, 2 May 1975); R v O’Keefe (1979) VR 1, 5; R v Davis (2003) 6 VR 538, 539 [5] (Winneke ACJ); Baltas v R [2011] VSCA 169, [35] (Redlich JA).

The Crown case at trial

The Crown case at trial was that, on 23 September 2007, the applicant and Colin Harrison travelled as passengers in a red Toyota Corolla driven by Jai Shore to 15 Achilles Court Lilydale where they planned to meet their friend, Amie West. Colin Harrison lay on the back seat and the applicant sat in the front passenger seat. All three men were affected by alcohol.

When they arrived at 15 Achilles Court, Lilydale, Shore parked the Corolla on the nature strip outside the premises. There followed a verbal confrontation between the men and Amie West, after which her father, Graeme West, approached the car and told the three men to leave. With that, Harrison leaned out of the rear passenger window and grabbed Graeme West by the shirt, pulling him partially into the back seat compartment through the window. He then kicked Mr West several times before getting out of the car and punching him in the face.

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 Paisley v The Queen

Details

AGLC: Paisley v The Queen [2012] VSCA 79
Case: [2012] VSCA 79
Decision Date: 4 May 2012

CaseChat Overview and Summary

The appellant, Paisley, appealed against his conviction for recklessly causing serious injury, as well as the application for leave to appeal out of time. The matter was heard by the Victorian Court of Appeal. The central dispute was whether the jury's verdict was so unsafe and unsatisfactory that it should be quashed, particularly in light of the appellant's acquittal of affray. The appellant argued that the evidence did not allow the jury to be satisfied of his guilt to the requisite standard.

The court was tasked with determining whether the jury's verdict was indeed unsafe and unsatisfactory and whether it conflicted with the acquittal of the appellant on the charge of affray. Furthermore, the court had to assess if the state of the evidence was such that it precluded the jury from being satisfied of the appellant's guilt to the requisite standard. The court referenced R v Klamo and Baker v R to evaluate the safety and satisfaction of the verdict. The court also considered Baltas v R to assess the application for leave to appeal out of time, examining the duration and cause of the delay.

The Court of Appeal found that the jury's verdict was not unsafe and unsatisfactory, and it did not conflict with the acquittal on the affray charge. The evidence, though circumstantial, was sufficient for a reasonable jury to be satisfied of the appellant's guilt to the requisite standard. The court further determined that the application for leave to appeal out of time was not justified, as the delay and its cause did not meet the criteria set out in Baltas v R. Consequently, the appeal was dismissed.

No additional orders were made by the court beyond the dismissal of the appeal and the denial of leave to appeal out of time.

Orders