R v Challoner - [2000] VSCA 32

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 39 of 1999

THE QUEEN

MICHAEL JOSEPH CHALLONER

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JUDGES:	PHILLIPS, C.J., BROOKING and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	16 and 17 February 2000
DATE OF JUDGMENT:	27 March 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 32

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CRIMINAL LAW: Murder – Appeal against conviction – Grounds touching judge’s charge alleged error concerning inferences, circumstantial evidence, chain of reasoning, elements of murder, the applicant’s evidence at a previous trial, corroboration and omission concerning the effects of intoxication as to voluntariness and specific intent – Allegation of cumulative error producing an unsafe and unsatisfactory verdict – Shepherd v. R. (1990) 170 C.L.R. 573; R. v. Kotzmann [1999] 2 V.R. 123; R. v. Huisman and Shiells [1999] VSCA 170 and R. v. Fauré [1999] VSCA 166, considered – Application dismissed – Observations on late amendment producing grounds of appeal raising points not taken, or disclaimed, below.

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APPEARANCES:	Counsel	Solicitors
For the Crown	P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	P.G. Priest, Q.C. M.J. Croucher	Leanne Warren & Associates

PHILLIPS, C.J.:
BROOKING, J. A.:
BATT, J.A.:

The circumstances of this somewhat unusual case appear from the reasons for judgment of the Chief Justice given on 28 July 1998, when this Court, after a hearing extending over five days, set aside Michael Joseph Challoner’s conviction of murder, sustained on 23 May 1996 after a twelve sitting day trial, and ordered a new trial. This was had in February 1999 and lasted thirteen sitting days. It, too, resulted in a conviction of murder and the same sentence as that passed on the previous occasion, nineteen years’ imprisonment with a fifteen year non-parole period. Applications for leave to appeal against conviction and sentence were launched, but the latter has been abandoned.

The applicant gave evidence on his first trial, at which he was represented by very experienced senior counsel. On his second trial, at which he was again represented by senior counsel, he stood mute, the Crown having put in evidence the evidence-in-chief he gave at his first trial. Provided that the obvious fact is borne in mind that the reasons for judgment of the Chief Justice of 28 July 1998 concern the evidence called at the earlier trial, recourse may be had to those reasons to ascertain the circumstances of the killing and the general nature of the evidence called by the Crown, and we therefore do not now provide what might be described as the usual outline. At the outset it is enough to say that the victim, Mrs Lobos, was killed instantly in her front garden on the afternoon of Saturday 18 March 1995 by a bullet which disconnected the brain from the spinal cord and was alleged to have been fired from a high velocity rifle selected by the applicant from his father’s arsenal in the family home at 37 Parrakeet Road, Werribee, which was diagonally opposite the Lobos home. It…

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 Challoner

Details

AGLC: R v Challoner [2000] VSCA 32
Case: [2000] VSCA 32
Decision Date: 27 March 2000

CaseChat Overview and Summary

In the case of R v Challoner, the appellant challenged his conviction for murder. The case was heard and determined by the Court of Criminal Appeal of Victoria. The appellant contended that the trial judge erred in several aspects of his charge to the jury, including the handling of inferences from circumstantial evidence, the chain of reasoning required to reach a verdict, the elements of murder, the handling of the appellant's evidence from a previous trial, the issue of corroboration, and the omission of certain matters concerning the effects of intoxication on voluntariness and specific intent. The appellant argued that these alleged errors cumulatively led to an unsafe and unsatisfactory verdict.

The court was required to determine whether the trial judge's charge contained errors that were significant enough to warrant a new trial. The court examined the charge in light of the principles established in Shepherd v R and subsequent cases such as R v Kotzmann, R v Huisman and Shiells, and R v Fauré. The appellant's submission that the trial judge failed to properly instruct the jury on the use of circumstantial evidence and the chain of reasoning was closely scrutinised. Additionally, the court considered whether the trial judge adequately addressed the effects of intoxication on the appellant's ability to form specific intent, and whether this omission constituted a material error.

The Court of Criminal Appeal found that while there were points of contention in the trial judge's charge, they did not amount to the kind of significant error that would justify overturning the conviction. The court held that the cumulative effect of the alleged errors did not produce an unsafe and unsatisfactory verdict. The court also noted the appellant's late amendment to the grounds of appeal, which introduced points that had not been raised or were disclaimed during the original trial, and observed that such amendments were not generally permissible.

The application for a new trial was dismissed. The court did not make any further orders beyond dismissing the appeal.

Orders