R v Gee - [2007] VSCA 273

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 202 of 2006

THE QUEEN
	v
BRADLEY JAMES GEE

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JUDGES:	VINCENT and NEAVE JJA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 October 2007
DATE OF ORDER:	1 October 2007
REASONS FOR JUDGMENT:	5 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 273

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Criminal Law – Conviction – Murder – Provocation – Applicant’s evidence that he witnessed the deceased injecting his girlfriend through window – Prosecution allegation that applicant fabricated his testimony left open to the jury – Whether miscarriage of justice resulted – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr D G Just	Victoria Legal Aid

VINCENT JA
NEAVE JA
CAVANOUGH AJA:

The applicant was, on 3 May 2006, found guilty by the jury empanelled in his trial in the Supreme Court at Melbourne of the murder of Angelo Koupanis (the deceased) at Colac on 7 November 2004.[1]
[1]After hearing a plea in mitigation of penalty, the sentencing judge, on 28 June 2006, imposed a term of imprisonment of 17 years in respect of which a non-parole period of 12 years was fixed.

He subsequently lodged an application for leave to appeal against his conviction asserting that:

1.The learned judge erred by leaving it open to the jury to accept the prosecution allegation that the applicant had fabricated his testimony that he saw the deceased injecting Belinda Wallace, and a miscarriage of justice has resulted.
2.Alternatively, the learned judge erred by failing adequately to direct the jury as to the manner it should consider and might use the prosecution allegation that the applicant had fabricated his testimony that he saw the deceased injecting Belinda Wallace, and a miscarriage of justice has resulted.

The Court, on 1 October 2007, refused this application, indicating, in the course of discussion, its reasons for so doing and stating that it would set them out formally at a later date. The following are those reasons.

We turn first to the circumstances of the offence.

The background

The applicant, an interstate truck driver, was, until the death of the deceased, engaged in a demanding driving cycle travelling between New South Wales, Victoria and South Australia.

In 2003, he met and formed a relationship with Belinda Wallace. She was then a 17 year old girl living in Newcastle and led the applicant to believe that she was somewhat older. From time to time during the course of their relationship she accompanied him on work trips and, when he was able to arrange to do so, he saw her on a regular basis in her home town.

In October 2004, Ms Wallace moved to Melbourne with the applicant. Initially, she stayed with a family friend of his, but after a short time moved to the house of another friend, Donna Cann, in Werribee, where the applicant would also stay when work permitted. This arrangement commenced in late October…

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 Gee

Details

AGLC: R v Gee [2007] VSCA 273
Case: [2007] VSCA 273
Decision Date: 5 December 2007

CaseChat Overview and Summary

The case of R v Gee involved the applicant appealing against his conviction for murder. The applicant claimed that he had witnessed the deceased inject his girlfriend through a window. However, the prosecution argued that the applicant had fabricated his testimony, leaving this matter open to the jury. The applicant sought relief under the miscarriage of justice jurisdiction, arguing that the jury's decision could not be sustained. The court was required to determine whether the jury could reasonably have found the applicant guilty based on the evidence presented.

The legal issues in this case revolved around the sufficiency of the evidence to support the jury's decision and whether the applicant's evidence was credible. The court considered the applicant's testimony, the prosecution's arguments, and the jury's role in assessing witness credibility. The court also examined whether the applicant's evidence, if accepted, would have led to a different outcome. The central issue was whether the jury could reasonably have rejected the applicant's evidence and convicted him based on the alternative scenario presented by the prosecution.

The court concluded that the jury could reasonably have rejected the applicant's evidence and convicted him based on the prosecution's case. The court emphasised that the jury was entitled to assess the credibility of the witnesses and that the applicant's evidence was left open to them. The court found no miscarriage of justice in the jury's decision, as it was open to them to conclude that the applicant had committed the murder. The application for relief was therefore refused.

The court did not make any further orders beyond the refusal of the application for relief. The applicant's conviction for murder remained in place, and the appeal was dismissed. The court's decision highlighted the importance of the jury's role in assessing witness credibility and the weight of the evidence presented.

Orders