R v Daing - [2015] VSC 307

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0112

THE QUEEN

ISAC AYOUL DAING

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22 May 2015
DATE OF JUDGMENT:	24 June 2015
CASE MAY BE CITED AS:	R v Daing
MEDIUM NEUTRAL CITATION:	[2015] VSC 307

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CRIMINAL LAW – Murder – Application to change guilty plea to plea of not guilty – Accused to show a miscarriage of justice would occur were the change of plea not allowed – Accused failed to demonstrate a realistic possibility that he did not understand the nature of the charge or that he did not intend to plead guilty – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney SC	OPP
For the Accused	Ms S. Keating	Revill & Papa Lawyers

HIS HONOUR:

Isac Daing is a 36 year old man of Sudanese descent. He is charged with the murder of his former partner, Maryanne Sikai, on 18 March 2014. It is alleged that he struck her over the head with a wooden chair, causing it to break, and then beat her to the head and body using pieces of the broken chair. She died shortly thereafter.

At the committal Mr Daing pleaded guilty to murder before Hardy M. He retracted that plea and pleaded not guilty in this court. The matter was listed for trial. During pre-trial argument on 5 February he changed his plea again and pleaded guilty to murder before Lasry J. He now applies for leave to change his plea a third time.

Background

It is not in dispute that Mr Daing caused his partner’s death. He wishes to contend that he did not intend to kill her or cause her really serious injury at the time that he carried out the causative acts.

One witness (Yimklan) described Mr Daing forcing Ms Sikai to the floor, picking up a wooden chair, raising it over his head and slamming it down onto her body, causing the chair to break. That witness describes the accused then picking up a piece of the broken chair and striking the deceased multiple times all over her body. The accused was said to have raised piece of wood over his head and swung it down repeatedly until Ms Sikai ceased movement. Another witness (Nguyen) gives a slightly different account, but describes the accused “smash(ing) the stool down with a lot of anger into Maryanne’s body”.

At autopsy, numerous blunt force injuries were observed to the head, neck, torso and limbs. The deceased sustained multiple skull and face fractures, including a fracture to the base of the skull. She sustained brain contusions, a subarachnoid haemorrhage and traumatic axonal injury, indicative of rotational movements of the head at the time of that injury. The basal skull fracture would have required severe impact. The deceased’s larynx was fractured and there were multiple bruises and lacerations to various parts of her body. Dr Glengarry (the…

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 Daing

Details

AGLC: R v Daing [2015] VSC 307
Case: [2015] VSC 307
Decision Date: 24 June 2015

CaseChat Overview and Summary

In the case of R v Daing, the appellant, Mr Daing, sought to alter his earlier plea of guilty to a charge of murder. The case was heard in the Supreme Court of Victoria. The issue before the court was whether the appellant could change his plea to one of not guilty, given that he had already entered a plea of guilty. This necessitated an assessment of whether a miscarriage of justice would occur if the plea change was not allowed.

The appellant argued that he did not understand the nature of the charge and did not intend to plead guilty. The court examined the circumstances under which the plea was entered, including the advice given to the appellant by his legal representative and the appellant's comprehension of the charge. The court found that the appellant had been adequately informed of the nature and consequences of the charge, and that he had voluntarily and knowingly entered the plea of guilty. The court was satisfied that there was no realistic possibility that the appellant did not understand the charge or that he did not intend to plead guilty.

Consequently, the application to change the plea was refused. The court determined that there was no miscarriage of justice that would occur if the change of plea was not permitted, as the appellant had not demonstrated a sufficient basis to warrant such a change. The court's decision was based on the evidence presented and the appellant's prior acknowledgment of the facts and his understanding of the consequences of his plea. The final order was that the plea of guilty would stand.

Orders