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R v Dickson

R v Dickson

Case [2008] VSCA 271 18 December 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 626 of 2008

THE QUEEN
	v
KEVIN JOHN DICKSON

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JUDGES:	VINCENT and WEINBERG JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 September 2008
DATE OF JUDGMENT:	18 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 271

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CRIMINAL LAW – Appeal against conviction – Conspiracy to steal – Filing of new presentment - Potential miscarriage of justice – Res judicata – Issue estoppel – Proper discretion exercised – Anshun principle – R v Storey and Anor (1978) 140 CLR 364 – Charter of Human Rights and Responsibilities Act 2006 – Reasonable delay – Question of whether there was an abuse of process – Whether trial judge erred in allowing the conviction when the co-conspirators were acquitted – Leave to appeal refused.

CRIMINAL LAW – Appeal against sentence – Conspiracy to steal – Sentence manifestly excessive – Trial judge did not fall into error – Relevant considerations dealt with – Principle of parity between co-accused - Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC with Ms S A Flynn	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr T F Danos (Solicitor)	Tony Danos, Solicitors

VINCENT JA
WEINBERG JA
ROBSON AJA:

On 21 February 2008, the applicant was found guilty by the jury empanelled on his trial in the County Court at Melbourne, on one count of conspiracy to steal.[1] The presentment read –

KEVIN JOHN DICKSON at Melbourne and divers other places in the said State between the 22^nd day of December 2003 and the 20^th day of January 2004 conspired with TROY DAMON HOLMES, ANTHONY PURDY, JIAN PENG WANG and/or person or persons to the Director unknown and agreed to pursue a course of conduct which would involve the commission of an offence by them namely to steal a quantity of cigarettes belonging to the Dominion Group (Vic.) Proprietary Limited.

[1]Contrary to s 321(1) of the Crimes Act 1958 (Vic).

There had been an earlier trial conducted on the basis of a presentment which identified the co-conspirators as the applicant, Holmes and Purdy only, and, at which Holmes and Purdy were acquitted by direction of the trial judge. The jury was discharged and the trial of the applicant adjourned to a date to be fixed. Leave was subsequently given to file over the later presentment.

After hearing a plea in mitigation of penalty, the judge, on 17 April 2008, sentenced the applicant to imprisonment for a term of five years and six months in respect of which a non-parole period of four years and six months was fixed.[2]
[2]A forfeiture order was also made [Sentence 1041].

The applicant now seeks leave to appeal against both his conviction and the sentence imposed in consequence.

The application for leave to appeal against conviction

In the applicant’s Full Statement of Grounds it is asserted that -

1.Her Honour erred in allowing the filing a new presentment and/or…

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 Dickson

Details

AGLC: R v Dickson [2008] VSCA 271
Case: [2008] VSCA 271
Decision Date: 18 December 2008

CaseChat Overview and Summary

The case of R v Dickson involved an appeal against both the conviction and the sentence handed down by a lower court. Dickson was convicted of conspiracy to steal, while his co-conspirators were acquitted. The appeal against conviction raised questions about the fairness of the trial process, particularly whether the conviction could stand despite the acquittal of co-conspirators. The appeal against sentence contended that the sentence was manifestly excessive and did not properly consider the principle of parity between co-accused. The Supreme Court of Victoria was tasked with reviewing these issues.

The legal issues before the court were whether the conviction was tainted by potential miscarriage of justice due to the acquittal of co-conspirators, and whether the sentence was manifestly excessive. The court had to consider whether the principles of res judicata and issue estoppel applied, and whether the trial judge had properly exercised their discretion in allowing the conviction. Additionally, the court examined whether the delay in filing the new presentment constituted a reasonable delay and whether it amounted to an abuse of process. Finally, the court assessed whether the trial judge erred in allowing the conviction while acquitting the co-conspirators.

The court found that the trial judge had exercised their discretion properly, and no miscarriage of justice had occurred. The court upheld the principle of Anshun, which prevents a party from relitigating issues that have been finally determined in a prior proceeding. The court also found that the delay in filing the new presentment did not constitute an abuse of process, and that the trial judge had not erred in convicting Dickson while acquitting the co-conspirators. Regarding the sentence, the court found that the trial judge had considered all relevant factors and that the sentence was not manifestly excessive.

No leave to appeal was granted by the Supreme Court of Victoria, affirming the conviction and sentence of Dickson. The court's decision highlights the importance of the principles of res judicata, issue estoppel, and the proper exercise of judicial discretion in criminal proceedings. The court's ruling reinforces the Anshun principle and the importance of ensuring that trials are conducted fairly and without abuse of process.

Orders