JUDGES:	CHARLES, CHERNOV and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23-25 November and 10 December 2004
DATE OF JUDGMENT:	18 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 264	First Revision: 7 December 2005

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CRIMINAL LAW – Murder – Complicity – Common purpose - Extended common purpose – Aiding and abetting – Whether judge erred in directions as to common purpose, extended common purpose or aiding and abetting – Manslaughter – Manslaughter by extended common purpose – Whether judge erred by failing to leave manslaughter by extended common purpose as an available alternative verdict – Markby manslaughter – Whether Markby manslaughter different to manslaughter by extended common purpose – Whether judge erred by failing to leave Markby manslaughter as a separate available alternative verdict – Provocation – Whether judge erred by failing to leave provocation as an available partial defence – Trial – Whether judge erred by failing to order separate trials for co-accused – Discharge of jury – Whether disclosure of evidence of bad character necessitated discharge of jury – Evidence – Consciousness of guilt – Lies – Need to identify lies said to evidence consciousness of guilt – Whether judge erred by failing sufficiently to identify lies said to evidence consciousness of guilt – Prior inconsistent statements – Adequacy of directions as to prior inconsistent statements – Propensity – Whether judge erred by failing to give propensity direction – Causing serious injury intentionally – Commission of offence by extended common purpose – Whether judge erred in failing to direct on need for accessory to foresee intentional causing of serious injury by co-offender - Appeal against conviction allowed in part – Sentencing – Re-sentencing substantially in accordance with trial judge’s sentencing disposition.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, SC with Mrs C.M. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the applicant Lisa Jane Hartwick	Mr M.J. Croucher	Robert Stary & Associates
For the applicant Celia Kathleen Clayton	Mr C.B. Boyce	Patrick W. Dwyer
For the applicant John Douglas Hartwick	Mr P.F. Tehan, QC with Mr L.C. Carter	McNamaras

CHARLES, J.A.:
CHERNOV, J.A.:
NETTLE, J.A.:

After a trial in the Supreme Court that lasted 46 sitting days, on 29 November 2002, the jury found each of John Douglas Hartwick (“John Hartwick” or “Hartwick” or “John”), Lisa Jane Hartwick (“Lisa Hartwick” or “Lisa”) and Celia Kathleen Clayton (“Clayton”) guilty of one count of murdering Stephen Borg (“Borg” or “the deceased”) (count 1) and one count of intentionally causing serious injury to Paula Rodwell (“Rodwell”) (count 2). After hearing a plea in mitigation made on behalf of each applicant, on 13 March 2003, the learned trial judge imposed a sentence of 18 years’ imprisonment on each of the applicants in respect of the count of murder.…

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 Hartwick

Details

AGLC: R v Hartwick [2005] VSCA 264
Case: [2005] VSCA 264
Decision Date: 18 November 2005

CaseChat Overview and Summary

In the case of R v Hartwick, the appellant was convicted of murder and appealed against his conviction and sentence. The appeal focused on various legal issues related to the trial, including the directions given by the trial judge regarding common purpose, extended common purpose, and aiding and abetting. The appellant also challenged the trial judge's failure to leave manslaughter by extended common purpose, Markby manslaughter, and provocation as alternative verdicts or partial defences. Additionally, the appellant argued that the trial judge should have ordered separate trials for the co-accused and that the jury should have been discharged due to the disclosure of evidence of bad character. The appellant further contended that the judge did not sufficiently identify lies that evidenced consciousness of guilt and failed to give an adequate direction regarding propensity evidence.

The court examined whether the trial judge erred in his directions to the jury on the principles of common purpose, extended common purpose, and aiding and abetting. The court found that the judge did not err in his instructions, as the directions were consistent with established legal principles and appropriately tailored to the facts of the case. The court also considered whether the trial judge should have left manslaughter by extended common purpose, Markby manslaughter, and provocation as alternative verdicts or partial defences. The court held that the trial judge did not err in failing to leave manslaughter by extended common purpose and Markby manslaughter as alternative verdicts, as these concepts are not distinct from each other. However, the court found that the trial judge should have left provocation as a partial defence, as it was a viable defence based on the evidence presented.

The court further addressed whether the trial judge should have ordered separate trials for the co-accused and whether the disclosure of evidence of bad character necessitated the discharge of the jury. The court found that there was no error in the trial judge's decision not to order separate trials, as there was no prejudice to the appellant. Regarding the disclosure of evidence of bad character, the court held that the jury should not have been discharged, as the evidence was relevant and admissible. The court also examined whether the trial judge sufficiently identified lies said to evidence consciousness of guilt and whether the judge gave an adequate direction regarding propensity evidence. The court found no error in the judge's handling of these issues. Finally, the court considered whether the trial judge should have directed the jury on the need for an accessory to foresee the intentional causing of serious injury by a co-offender, concluding that the judge did not err in this regard.

The appeal against conviction was allowed in part, and the case was remitted for re-sentencing. The court found that the trial judge had not erred in his sentencing disposition and that the re-sentencing should be substantially in accordance with the trial judge's original sentence.

Orders