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Potter v The Queen

Potter v The Queen

Case [2013] VSCA 291 18 October 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0268

JAMES POTTER	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 October 2013
DATE OF JUDGMENT	18 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 291
JUDGMENT APPEALED FROM	R v Potter [2012] VSC 511 (Almond J)

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CRIMINAL LAW – Appeal – Conviction – Murder – Co-offender pleaded guilty – Multiple gunshots to victim’s head – Applicant shot and stabbed victim – Whether open to jury to conclude that applicant aided and abetted or acted in concert with co-offender – Whether evidence of victim’s emergency calls admissible to prove applicant’s participation – Consciousness of guilt – Whether evidence of applicant’s lies admissible – Leave to appeal refused – R v Ciantar (2006) 16 VR 26 applied – Evidence Act 2008 (Vic) ss 65(2), 137, 192.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C Dane QC with Ms S A Flynn	Haines & Polites Lawyers
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons of Priest JA. I too would refuse leave to appeal, for the reasons which his Honour gives.

PRIEST JA:

Introduction

During the late evening of 28 November 2010, or perhaps very early the following morning, while in the lounge-room of the applicant’s unit in Dorset Road, Boronia, Penelope (‘Penny’) Pratt was shot in the jaw and the side of the head with a sawn-off .22 rifle fired by a companion of the applicant’s, Aaron Gibson. A little later, Ms Pratt having been dragged into the bathroom of the unit by the applicant and Gibson, the applicant – it seems clear enough[1] – shot Ms Pratt through the eye with the same firearm, and stabbed her through the heart. Ms Pratt died as a result of one or other, or a combination, of the injuries inflicted upon her.
[1]See [12] below.

A post mortem examination by Dr Michael Burke revealed three gunshot wounds to the deceased’s head. The first, to the right jaw, would not have been fatal. Dr Burke was unable to say whether the second shot, to the left side of the head, would have been fatal. In his opinion, it was possibly capable of being survived, and survived for some time. The third shot, however, through Ms Pratt’s right eye, would have been fatal, since it went through the mid-brain or upper brain stem. Death would have occurred rapidly after the third shot, because the nervous system would have been disrupted. Moreover, the stab injury extending through the chest into the heart, which would have required mild to moderate force, would have been lethal. The order in which these injuries were inflicted, however, could not be determined through a post-mortem examination of the body.

When arraigned at trial, the applicant pleaded guilty to being an accessory after the fact to murder. That plea was…

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 Potter v The Queen

Details

AGLC: Potter v The Queen [2013] VSCA 291
Case: [2013] VSCA 291
Decision Date: 18 October 2013

CaseChat Overview and Summary

The case of Potter v The Queen involved the appellant, who was convicted of murder, and the respondent, the Crown. The appellant was found to have shot and stabbed the victim multiple times in the head, along with a co-offender who had pleaded guilty. The appellant appealed against his conviction, arguing that the jury was not open to conclude that he had aided and abetted or acted in concert with the co-offender, and that certain evidence was inadmissible. The appeal was heard in the High Court of Australia.

The legal issues before the court included whether the jury was open to conclude that the appellant had aided and abetted or acted in concert with the co-offender, and whether certain evidence was admissible, including the victim’s emergency calls and evidence of the appellant’s lies. The court had to consider the relevant provisions of the Evidence Act 2008 (Vic), including sections 65(2), 137, and 192.

The court held that the jury was open to conclude that the appellant had aided and abetted or acted in concert with the co-offender, and that the evidence of the victim’s emergency calls and the appellant’s lies was admissible. The court found that the evidence of the victim’s emergency calls was relevant to prove the appellant’s participation in the crime, and that the evidence of the appellant’s lies was relevant to prove his consciousness of guilt. The court also found that the admission of this evidence did not contravene any relevant provisions of the Evidence Act 2008 (Vic). The appeal was therefore dismissed.

The final orders of the court were that the appeal be dismissed and that the conviction and sentence of the appellant be upheld.

Orders