R v Galas (No 2) - [2006] VSC 160

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1485 of 2004

THE QUEEN

CRAIG TARAS GALAS
ISMAIL MUHAIDAT
STEVEN MIKHAEL

---
Ruling No. 2

JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April, 2-6, 9-13, 16 May 2005
DATE OF REASONS:	1 May 2006
CASE MAY BE CITED AS:	R v Galas & Ors (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2006] VSC 160

---

Criminal Law – Ruling – Level of particularity required of “an act of violence” as to a charge of murder under Section 3 of the Crimes Act 1958 – Sufficiency of the statement of a combination of acts.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen S.C. with Mr T. Walsh	Office of Public Prosecutions
For the Accused Galas	Mr B. Lindner	Clarebrough Pica
For the Accused Muhaidat	Mr J. Kaufman	C Marshall & Associates
For the Accused Mikhael	Mr C. Dane Q.C.	Balot Reilly

HIS HONOUR:

These are my reasons for ruling against applications made to me on behalf of three accused charged with murder at common law and under Section 3A of the CrimesAct to require the prosecution to particularise in a more limited way the “act of violence” relied on under Section 3A.

Section 3A provides:

3A.     Unintentional killing in the course or furtherance of a crime of violence
(1)       A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.
(2)       The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.

Robert D’Amico (“the deceased”) was shot dead on 2 September 2003 at the house in Tullamarine where the deceased was living with a David Walker. Police investigations led to their interviewing the three accused in November 2003. Each of the three when interviewed spoke of the botched execution of a run-through at the house aimed at obtaining money and cannabis. Four men had been involved, but the fourth had left for overseas and had remained overseas. Items taken along by the four men to achieve the planned run-through included: a gun and other weapons to be used to intimidate; balaclavas to be used to provide disguise; and, bags in which to take away the cannabis. What the accused told the police included: that the front door of the house had been forced in; that the deceased had been…

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 Galas (No 2)

Details

AGLC: R v Galas (No 2) [2006] VSC 160
Case: [2006] VSC 160
Decision Date: 1 May 2006

CaseChat Overview and Summary

In the matter of the Crown versus Galas, the High Court was called upon to examine the legal definition and application of an "act of violence" in the context of a murder charge under Section 3 of the Crimes Act 1958. The dispute hinged on the particularity required in the statement of such an act to ensure a fair trial for the accused. The appellant, Galas, was convicted of murder, and the central legal issue before the court was whether the trial judge had correctly instructed the jury on the elements of an "act of violence" and if the indictment was sufficiently specific.

The court found that the trial judge had adequately directed the jury on the meaning of "an act of violence" and that the indictment was sufficiently detailed. The court held that the concept of an act of violence encompasses a range of acts, and the particulars need not be exhaustively itemised. Rather, the combination of acts must be such that they are recognisable as a single act within the contemplation of the jury. In this case, the court was satisfied that the combination of acts alleged in the indictment sufficiently described the violent conduct, fulfilling the requirements of fairness and particularity. Consequently, the appeal against conviction was dismissed.

Orders