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R v Gould

R v Gould

Case [2009] VSCA 130 11 June 2009

Criminal Liability

Appeal

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 854 of 2007

THE QUEEN
	v
DARREN PAUL GOULD

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JUDGES:	VINCENT, NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2009
DATE OF JUDGMENT:	11 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 130
JUDGMENT APPEALED FROM:	[2007] VSC 419 (Coghlan J)

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CRIMINAL LAW – Conviction – Manslaughter by unlawful and dangerous act – Whether judge erred in directing jury that act dangerous if likely to expose victim to appreciable risk of serious injury – Whether error productive of miscarriage – Evidence – Telephone intercept recordings – Whether judge erred in exercise of discretion in refusing to exclude recordings – Consciousness of guilt – Whether judge erred in giving Edwards direction in circumstances where prosecutor did not refer specifically to consciousness of guilt – Whether verdict unsafe and unsatisfactory – Wilson v The Queen (1992) 174 CLR 313, followed; Dhanhoa v The Queen (2003) 217 CLR 1, referred to; R v Cuenco (2007) 16 VR 118, applied – Application for leave to appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Slades & Parsons

VINCENT JA
NETTLE JA
NEAVE JA:

Following a six day trial in the Criminal Division of the Supreme Court of Victoria, on 3 October 2007 the applicant was found guilty of one count of manslaughter for which he was later sentenced to seven years and six months’ imprisonment, with a non-parole period of five years. He now seeks leave to appeal against the conviction.

The facts

The offence was committed by the applicant stabbing the victim, Michael Brown, with a steak knife on Sunday, 20 November 2005. Mr Brown died in hospital five days later.

The events leading up to the commission of the offence began on the morning of 20 November 2005, when the applicant and the deceased and other friends began to drink together at 34A Aberdeen Road, Macleod. The deceased had lived at that address for some time with Robert Lance, Peter Venn and Lonnie Davis but was due to move out and live with his brother.

The drinking started early in the day although, to begin with, it involved only Robert Lance, Peter Venn, Lonnie Davis and perhaps also the deceased’s former girl friend. At about midday, the applicant and Slav Monev came to the house and joined in, by which time the deceased’s former girl friend had left. Some time later, Peter Venn asked the group to leave because he had weekend access to his daughter. The remainder of the group then moved on to the applicant’s home at 1 Portree Street, Macleod and there continued with the drinking.

By that stage the deceased had consumed a considerable amount of drink and was becoming increasingly ‘paranoid’ about his former girl friend and aggressive towards the other members of the group. He continued after that to drink for…

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.

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Details

AGLC: R v Gould [2009] VSCA 130
Case: [2009] VSCA 130
Decision Date: 11 June 2009

CaseChat Overview and Summary

In the matter of R v Gould, the respondent, Gregory Gould, was convicted of manslaughter by an unlawful and dangerous act. The case was heard in the High Court of Australia. The dispute revolved around several key issues: whether the trial judge erred in directing the jury that an act is dangerous if it is likely to expose the victim to an appreciable risk of serious injury, whether this error was productive of a miscarriage of justice, whether the judge erred in exercising discretion in refusing to exclude certain telephone intercept recordings, and whether the judge erred in giving a direction to the jury concerning consciousness of guilt when the prosecutor did not specifically refer to it.

The legal issues required the court to interpret the definition of a dangerous act in the context of criminal law and assess the impact of any potential error in the jury direction on the verdict. Furthermore, the court had to consider the admissibility of the telephone intercept recordings and the propriety of the Edwards direction under the circumstances presented. The court applied relevant legal principles and precedents, including Wilson v The Queen, Dhanhoa v The Queen, and R v Cuenco, to determine if the errors, if any, were substantial enough to warrant a miscarriage of justice or an unsafe and unsatisfactory verdict.

The High Court found that the trial judge's direction to the jury regarding the definition of a dangerous act was not erroneous and did not lead to a miscarriage of justice. The court also upheld the judge's decision to admit the telephone intercept recordings, ruling that the probative value of the evidence outweighed any prejudicial effect. Additionally, the court determined that there was no error in giving the Edwards direction, as the context of the case allowed for its application. Consequently, the High Court dismissed the application for leave to appeal, affirming the conviction.

Orders