R v Doherty - [2003] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 319 of 2001

THE QUEEN
	v.
ANDREW STEPHEN DOHERTY

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JUDGES:	WINNEKE, P., VINCENT, J.A. and ASHLEY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 2003
DATE OF JUDGMENT:	10 October 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 158

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Criminal law – Murder – Circumstantial evidence – Whether jury’s verdict unsafe and unsatisfactory – Evidence sufficient to entitle jury to convict and no error in judge’s directions – Significance of failure of accused to give evidence in a circumstantial case discussed.

Sentence – 21 years with minimum term of 16 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.J.C. Silbert	K. Robertson, Solicitor for Public Prosecutions
The Applicant in person.

WINNEKE, P.:

On 14 February 2000 the deceased, Vivienne Doherty, was bludgeoned to death with a steel bar in a bedroom of her house at 27 Larne Avenue, Donvale. There was no dispute that the deceased had been murdered; the issue for the police who investigated the crime was “who murdered her”? On 9 March 2000 the police arrested, and charged with the murder, her husband, Andrew Doherty (the applicant) who, at about 3.30 p.m. on 14 February 2000, had summoned them to the scene of the crime. At the time of his arrest the applicant was aged 50 years and had been married to the deceased for some 14 years.

It was apparent from investigations made on 14 February 2000 that the deceased had been killed by a series of blows to the back of her skull inflicted by a steel bar, which had been purchased, for a domestic purpose, some time before the incident by the applicant and kept in the bedroom of the house. Forensic examination revealed that the deceased had been struck about seven times, some of the blows being inflicted after she had fallen face first to the floor. Death was due to brain injury and appears to have been almost instantaneous. The time of death could not be ascertained with any accuracy. It certainly could not have been before 11 a.m. because that was the time when the deceased would, at the earliest, have returned to her home after taking her children to school, attending a parents’ meeting at the school, and leaving for home at approximately 10.50 a.m. Independent evidence revealed those facts. Nor could the murder have taken place after 3.25 p.m. on the day in question when the applicant rang the school to make arrangements for the care of the children, in the course of which he informed the school officer that he had found his wife dead in the bedroom. Immediately following this call, the applicant rang the police who arrived shortly afterwards. It thus became clear that the murder occurred between 11 a.m. at the earliest and 3.25 p.m. at the latest. Forensic evidence was unable to confirm when, within this four-and-a-half hour period, the deceased had died. The best that the pathologist could do was…

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 Doherty

Details

AGLC: R v Doherty [2003] VSCA 158
Case: [2003] VSCA 158
Decision Date: 10 October 2003

CaseChat Overview and Summary

The case of R v Doherty involved the respondent, Doherty, who was charged with the murder of a woman in Melbourne. The case came before the court on an appeal against conviction and sentence. The central issue was whether the jury’s verdict of guilt was safe and satisfactory, given the circumstantial nature of the evidence against Doherty. Additionally, the court examined whether the judge's directions to the jury were erroneous and whether Doherty's decision not to testify had any significant bearing on the case.

The court examined the sufficiency of the circumstantial evidence presented to the jury, which included the absence of the victim, the respondent’s relationship with the victim, and the timeline of events surrounding her disappearance. The court held that the jury was entitled to convict based on the evidence presented, which, while circumstantial, was sufficient to establish guilt beyond reasonable doubt. The court also found no error in the judge’s directions to the jury, as they were clear and accurately reflected the legal principles relevant to circumstantial evidence cases. The court noted that the failure of the accused to give evidence in a circumstantial case did not necessarily weaken the prosecution's case, as the burden of proof remained with the prosecution.

The court concluded that the evidence was sufficient for a reasonable jury to find Doherty guilty and that there was no error in the judge’s instructions. The sentence of 21 years imprisonment, with a minimum term of 16 years, was deemed not to be manifestly excessive given the gravity of the offence and the circumstances surrounding it. The appeal against conviction and sentence was therefore dismissed.

Orders