R v Fountain - [2001] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 216 of 2001
No. 217 of 2001

THE QUEEN

LAURA JUNE FOUNTAIN and

ANDREW ROBERT TOOTELL

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JUDGES:	CHARLES, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2001
DATE OF JUDGMENT:	30 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 200

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Criminal law - Conviction - Recklessly causing serious injury - Attempting to pervert course of justice - Evidence of co-offenders - No accomplice warning - Whether necessity to give accomplice warnings absolute - Evidence of guilty pleas by accomplices to same offences - No directions to jury as to use of guilty pleas by accomplices - Failure to take exception - Lies as evidence of offenders' guilt - Whether convictions unsafe or unsatisfactory - R v He and Bun [2001] VSCA 58 - R v Gallagher [1986] VR 219.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant Fountain	Mr O.P. Holdenson, Q.C. with Mr R. Melasecca	R. Melasecca
For the Applicant Tootell	Mr O.P. Holdenson, Q.C.	R. Melasecca

CHARLES, J.A.:

The applicants, who are mother and son, were presented for trial in the County Court at Shepparton on a presentment charging each of them with one count of recklessly causing serious injury (count 1), false imprisonment (count 2) and attempting to pervert the course of justice (count 3). Two co-offenders, Stewart Luckman and Joseph Ryan, had previously pleaded guilty before other judges of the County Court, in Ryan's case to the same three counts, and in Luckman's to charges of recklessly causing serious injury and attempting to pervert the course of justice. Luckman was sentenced on 24 February 2000 to a total effective sentence of five months, wholly suspended for two years, and Ryan had been sentenced on 2 December 1999 to be imprisoned for two months, wholly suspended for six months.

After a trial lasting four days, the applicants were both found guilty on each count. Neither of them had any prior convictions. On 10 August 2001, the judge imposed sentences on each applicant leading to a total effective sentence of 14 months, and in each case a non-parole period of four months was fixed. Each applicant now seeks leave to appeal against conviction and sentence, the same eight grounds being taken in relation to conviction.

The grounds taken make it necessary to set out in considerable detail the Crown case, which was as follows. The complainant, then a gaming inspector at Crown Casino, on 19 September 1998 travelled to Eildon to stay at a friend's house. At 6.30 p.m. that day he walked to the Golden Trout Hotel for dinner. By that time he had already drunk a considerable quantity of beer. He went into the bistro and ordered a meal, together with a half bottle of red wine. He remained in the hotel, playing pool and drinking beer, until approximately 10.30 p.m., nearly closing time. The evidence suggests that the complainant…

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 Fountain

Details

AGLC: R v Fountain [2001] VSCA 200
Case: [2001] VSCA 200
Decision Date: 30 October 2001

CaseChat Overview and Summary

The appellant was convicted by a jury of recklessly causing serious injury, and of attempting to pervert the course of justice by making a false statement to police. The appellant sought to appeal against his convictions, arguing that the trial judge failed to give an accomplice warning in relation to certain evidence, and that the jury was not directed as to how to consider the guilty pleas entered by two co-offenders. The Court of Appeal held that the failure to give an accomplice warning was not fatal to the conviction, as it did not render the conviction unsafe or unsatisfactory. The Court held that the trial judge was not obliged to give an accomplice warning in every case, and that the failure to give one in this case did not prejudice the appellant. The Court also held that the failure to give directions to the jury as to how to consider the guilty pleas of the co-offenders was not grounds for appeal, as the appellant had not objected to the lack of direction at trial. The appellant's convictions were therefore upheld.

The legal issues before the court were whether the failure to give an accomplice warning rendered the convictions unsafe or unsatisfactory, and whether the failure to give directions to the jury as to how to consider the guilty pleas of the co-offenders was grounds for appeal. The court held that the failure to give an accomplice warning did not render the convictions unsafe or unsatisfactory, as the evidence was not so unreliable that it could not be considered by the jury. The court also held that the failure to give directions to the jury as to how to consider the guilty pleas of the co-offenders was not grounds for appeal, as the appellant had not objected to the lack of direction at trial. The court therefore upheld the appellant's convictions.

Orders