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Power v The Queen

Power v The Queen

Case [2014] VSCA 146 4 July 2014

Criminal Liability

Admissibility of Evidence

Plea of Guilty

Cross-Examination

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2012 0195

MICHAEL ARTHUR POWER	Appellant
v
THE QUEEN	Respondent

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JUDGES	REDLICH and PRIEST JJA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 September 2013
DATE OF JUDGMENT	4 July 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 146
JUDGMENT APPEALED FROM	R v Power (Unreported, County Court of Victoria, Judge Gucciardo, 28 May 2012)

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CRIMINAL LAW – Whether co-offender’s bare plea of guilty admissible – Whether direction required as to use of the bare plea of guilty – Andelman v The Queen [2013] VSCA 25; Bou-Elias v The Queen (No 1) [2012] VSCA 61, considered.

EVIDENCE – Unfavourable witness – Evidence Act 2008 (Vic) s 38 – Leave to cross-examine generally – Evidence affecting witness credibility – Prior inconsistent statements – Evidence of facts asserted – Evidence Act 2008 (Vic) ss 43, 60 – Adam v The Queen (2001) 207 CLR 98; R v Le (2002) 54 NSWLR 474, considered.

CRIMINAL LAW – Evidence – Plea of guilty by co-offender and prosecutor’s summary of facts – Whether a course of conduct on plea constitutes an implied representation as to facts in summary – Whether prior inconsistent statement – Evidence of accused’s guilt – Direction not required – Forensic decision not to seek direction – No substantial miscarriage of justice.

EVIDENCE – Whether evidence of co-offender’s plea of guilty an ‘admission’ – Evidence Act 2008 (Vic) ss 60(3), 83.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G Connelly	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
ROBSON AJA

This is yet another appeal which concerns issues not raised at trial and which are now agitated for the first time on appeal. The appellant seeks to set aside his conviction on charges of aggravated burglary, armed robbery, false imprisonment, recklessly causing injury and possessing an unregistered general category handgun on two grounds. First, that the trial judge erred in admitting into evidence the plea of guilty, and the course followed on the plea, by a co-offender, one Salisbury, who was called as a prosecution witness. Second, that the trial judge failed to direct the jury that they could not use such evidence as evidence of the appellant’s guilt.

Factual summary

The Crown case may be summarised as follows. Salisbury, together with one Brendan Kirkwood and the appellant, broke into the victim’s home and committed all of the offences with which he was charged. The appellant, who was a ‘good mate’ of Salisbury, had introduced Salisbury to Kirkwood. The three of them planned the break-in, and had driven over to look at the victim’s house two days before the robbery. On the night of the break-in, the appellant, together with Kirkwood and Salisbury, gathered at Salisbury’s home. The appellant and Salisbury left their wallets at Salisbury’s home. Kirkwood also left some personal papers. The three of them drove in the appellant’s car to a reserve…

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 Power v The Queen

Details

AGLC: Michael Arthur Power v The Queen [2014] VSCA 146
Case: [2014] VSCA 146
Decision Date: 4 July 2014

CaseChat Overview and Summary

The appellant, Power, was charged with various offences related to a drug trafficking operation. The case was heard by the Court of Appeal in Victoria. The central issue in this appeal was whether the trial judge should have directed the jury to consider the bare plea of guilty entered by the appellant's co-offender, as well as the admissibility and impact of this plea on the trial. Additionally, the appeal questioned whether the trial judge should have allowed the prosecution to cross-examine the appellant on prior inconsistent statements and whether the plea of the co-offender could be considered as an admission under the Evidence Act 2008 (Vic).

The court considered whether the bare plea of the co-offender was admissible and whether the trial judge should have directed the jury regarding its use. The court examined the cases of Andelman v The Queen and Bou-Elias v The Queen, which established that a co-offender's bare plea of guilty is not admissible to prove guilt. However, the court found that the trial judge did not err in allowing the prosecution to cross-examine the appellant about prior inconsistent statements, as this was permissible under the Evidence Act 2008 (Vic). The court also held that the co-offender's plea did not constitute an admission and did not require a specific direction to the jury, as it did not represent an implied representation by the prosecution as to the facts.

The court found that the trial judge's decision not to direct the jury regarding the co-offender's plea was a forensic decision and did not result in a substantial miscarriage of justice. The court concluded that the evidence of the co-offender's plea of guilty was not an admission and did not require a specific direction to the jury. The court upheld the conviction, finding that the trial judge's decision did not prejudice the appellant's case.

The final orders of the court were to dismiss the appeal and affirm the conviction of the appellant. The court found that the trial judge's decision not to direct the jury regarding the co-offender's plea of guilty did not result in a substantial miscarriage of justice and that the admission of the co-offender's plea did not prejudice the appellant's case. The conviction was upheld, and the appeal was dismissed.

Orders