JUDGES	WARREN CJ, NETTLE and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 and 2 June 2009
DATE OF JUDGMENT	17 December 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 307
JUDGMENT APPEALED FROM	[2007] VSC 469 (Cummins J)

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CRIMINAL LAW – Conviction – Murder – Applicant alleged to have murdered three children, by drowning, by driving car into dam – Evidence – Expert evidence – Medical opinion – Whether opinion of specialist thoracic physician admissible to prove applicant not likely to have suffered cough syncope before driving car off road into dam – Engineering opinion – Whether opinion of expert accident reconstruction engineer admissible to prove car ‘under control’ and subject to ‘three steering movements’ before entry into dam – Whether accident re-enactment evidence and computer simulations admissible to establish likely path of vehicle from road into dam – Whether judge erred in refusing to exclude evidence in exercise of discretion – Directions to jury – Whether permissible to summarise expert evidence by reference to counsel’s arguments – Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Festa v The Queen (2001) 208 CLR 593, applied; R v Andrakakos [2003] VSCA 170, R v VN (2006) 15 VR 113, referred to.

Consciousness of guilt – Post offence conduct – Conversations between applicant and friend after drowning of children – Whether requests that friend not mention parts of pre-incident conversations admissible as evidence of consciousness of guilt - Directions to jury – Failure to direct jury of need to be satisfied of contents of pre-incident conversations – Failure to direct jury of need to be satisfied of those parts of pre-incident conversations applicant sought to conceal – Need to direct jury that, unless prepared to convict in absence of evidence of consciousness of guilt, jury must be satisfied of that evidence beyond reasonable doubt – Need to give jury Edwards direction in respect of denials – R v Ciantar (2006) 16 VR 26, R v Cuenco (2007) 16 VR 118, applied; R v Laz [1998] 1 VR 453, R v Franklin (2001) 3 VR 9, followed; Edwards v The Queen (1992) 173 CLR 653, considered.

Procedure – Crown’s duty of full disclosure and fairness – Failure of Crown to inform applicant that witness for Crown faced pending indictable offences – Whether productive of miscarriage of justice – R v Spiteri (2004) 61 NSWLR 369, applied; Cannon v Tahche (2002) 5 VR 317, Mallard v The Queen (2005) 224 CLR 125, referred to.

Trial – Final address of Crown prosecutor – Impermissibility of posing question as to why witness for Crown would lie – Palmer v The Queen (1998) 193 CLR 1, applied.

Verdict – Whether unsafe and unsatisfactory – Conflicting expert opinions – Whether sufficient evidence to sustain conviction – M v The Queen (1994) 181 CLR…

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 Farquharson

Details

AGLC: R v Farquharson [2009] VSCA 307
Case: [2009] VSCA 307
Decision Date: 17 December 2009

CaseChat Overview and Summary

In the case of R v Farquharson, the applicant stood accused of murdering three children by driving a car into a dam, resulting in their drowning. The case was heard in the Court of Appeal, which was tasked with determining several critical issues regarding the admissibility of expert evidence, the directions given to the jury, and the Crown's duty of disclosure. The central legal questions revolved around the admissibility of expert opinions and re-enactment evidence, the propriety of jury directions concerning consciousness of guilt, and the impact of non-disclosure by the Crown.

The court examined whether the judge correctly admitted the evidence of a specialist thoracic physician to negate the possibility of the applicant suffering from cough syncope before the incident, as well as an engineering opinion about the car's control and movements. The admissibility of accident re-enactment evidence and computer simulations to illustrate the vehicle's path into the dam was also scrutinized. The Court of Appeal held that the judge did not err in admitting this evidence, finding no abuse of discretion and confirming its relevance to the case.

The court further assessed the judge's directions to the jury regarding the expert evidence and the applicant's post-incident conversations, which were offered as evidence of consciousness of guilt. The Court of Appeal found that the judge should have provided more explicit instructions to the jury about the necessity to be satisfied of the content of the pre-incident conversations and the parts the applicant sought to conceal. Additionally, the court considered the Crown's failure to disclose that a key witness faced pending charges, finding it did not result in a miscarriage of justice. Ultimately, the Court of Appeal concluded that the evidence was sufficient to sustain the conviction, and the verdict remained safe and satisfactory despite conflicting expert opinions.

Orders