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R v Boyle

R v Boyle

Case [2009] VSCA 289 11 December 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 580 of 2008

THE QUEEN
	v
FREDERICK BOYLE

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JUDGES:	WEINBERG JA, WILLIAMS and COGHLAN AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 November 2009
DATE OF JUDGMENT:	11 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 289
JUDGMENT APPEALED FROM:	R v Boyle [2008] VSC 71 (Forrest J)

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CRIMINAL LAW – Murder – Applicant’s wife shot and killed in 1983 – Applicant kept remains in 44 gallon drum – Remains found by son-in-law in 2006 – Applicant claimed he discovered wife’s body in bedroom and panicked – Appeal against conviction and sentence – Whether judge erred in closing off defence hypothesis – Whether judge erred in directions to jury on lies as consciousness of guilt – Whether sentence of 21 years with non-parole period of 17 years manifestly excessive – Whether applicant’s concealment and dissembling constituted aggravating factors – Whether judge sufficiently took into account applicant’s age and health – Each application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Michael De Young of Victoria Legal Aid

WEINBERG JA
WILLIAMS AJA
COGHLAN AJA:

After a trial which lasted some eight days, the applicant was convicted in the Supreme Court, at Melbourne, of the murder in October 1983, of his wife, Edwina Boyle. He was sentenced to a term of 21 years’ imprisonment. A non-parole period of 17 years was fixed. He now seeks leave to appeal against both conviction and sentence.

Background

The applicant and his wife emigrated to Australia from Wales, arriving in this country on 3 June 1972. She was, at that time, pregnant with their first daughter, Careesa, who was born in August of that year. Their second daughter, Sharon, was born in 1975. After their arrival, the applicant worked for a carpet manufacturer, and his wife worked on a poultry farm.

In about 1979, Careesa and Sharon took up competitive ice skating at the Frankston Ice Skating Rink. The evidence disclosed that, until about 1982, the applicant and his wife had an apparently harmonious relationship. However, from about October of that year, it deteriorated. At around that time, the applicant became a member of the ice-skating committee. It was there that he met Virginia Gissara and they began an intimate relationship. The evidence showed that the applicant’s wife knew of the affair and that it was a source of much tension between her and the applicant.

On the night of 6 October 1983, as the applicant’s wife lay in bed, she was shot in the head with a .22 calibre gun. It was the prosecution case that the applicant fired the fatal shot. The applicant’s case was that he came home late on the night in question. He claimed that he got into bed and nudged the deceased. She did not respond. He then got out of bed, switched on the light, and saw that she had been shot in…

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 R v Boyle

Details

AGLC: R v Boyle [2009] VSCA 289
Case: [2009] VSCA 289
Decision Date: 11 December 2009

CaseChat Overview and Summary

In the case of R v Boyle, the applicant appealed against his conviction for the murder of his wife, who was shot and killed in 1983. The remains were found by the applicant's son-in-law in 2006, concealed in a 44-gallon drum. The applicant claimed he discovered his wife's body in the bedroom and panicked, resulting in the concealment. The appeal contested several aspects of the trial, including whether the trial judge erred in closing off a defence hypothesis, the directions given to the jury regarding lies as consciousness of guilt, the sentence's manifest excessiveness, and whether the concealment and dissembling constituted aggravating factors. Additionally, the appeal questioned whether the judge adequately considered the applicant's age and health.

The legal issues before the court involved the sufficiency of the judge's directions to the jury regarding the applicant's defence hypothesis and the credibility of his claims. The court examined whether the judge erred in not allowing the jury to consider the hypothesis that the applicant's wife died accidentally. Another issue was whether the judge correctly directed the jury on the significance of lies as indicators of consciousness of guilt. The appeal also considered whether the sentence of 21 years imprisonment with a non-parole period of 17 years was manifestly excessive, particularly in light of the applicant's age and health, and whether the concealment and dissembling should be viewed as aggravating factors.

The court found that the trial judge did not err in closing off the defence hypothesis, as it was not supported by the evidence. The judge's directions to the jury on lies as indicators of consciousness of guilt were deemed appropriate. The court held that the sentence was not manifestly excessive, taking into account the gravity of the offence and the mitigating factors presented. The concealment and dissembling were considered relevant in assessing the severity of the sentence, and the judge had adequately weighed the applicant's age and health in determining the sentence. Each of the applicant's grounds of appeal was dismissed.

The final orders of the court upheld the conviction and sentence. The applicant's appeal was dismissed in its entirety, affirming the trial judge's decision and the sentence imposed. The court found no basis to interfere with the trial judge's assessment of the evidence, directions to the jury, or sentencing considerations. The applicant's conviction and sentence remained intact.

Orders