R v Hill - [2007] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 136 of 2006

THE QUEEN
	v
MARK JAMES HILL

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JUDGES:	VINCENT, NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 August 2007
DATE OF JUDGMENT:	21 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 261

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CRIMINAL LAW – Conviction – Murder – Whether trial miscarried as a result of judge’s comments concerning a number of inconsistencies between applicant’s evidence at trial and his record of interview – Applicant’s level of intoxication disputed at trial – Whether trial judge inadequately dealt with issue of intoxication – Provocation – Whether trial judge’s references to ‘proportionality’ may have misled the jury as to the proper test to apply – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle, QC with Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	C Marshall & Associates

VINCENT JA:

This applicant was found guilty by the jury empanelled in his trial of the murder (on 27 May 2004) of Adrian James Scholes.[1]
[1]After hearing a plea in mitigation of penalty, the sentencing judge, on 2 May 2006, imposed a term of imprisonment of 17 years in respect of which a non-parole period of 12 years was fixed.

He now seeks leave to appeal against his conviction.[2]
[2]It is necessary, in view of the grounds upon which reliance has been placed to support these applications, to set out a substantial part, but by no means all, of the evidence adduced at the applicant’s trial and to indicate the thrust of the contentions advanced by the prosecution and defence respectively.

The background

The application arose against the following general background which, for the most part, was not the subject of controversy.

During the night of 26 May 2004, Julie May Francis, the former girlfriend of the applicant, celebrated her 23^rd birthday with Mr Scholes (the deceased) and her family at her home in McCrae. At approximately 3.15am, Mr Scholes’ left and travelled to his own home at Somerville. Upon his arrival at the front gate of his property, he was confronted by the applicant who he had not previously met. An altercation ensued in the course of which the applicant punched him more than once with his fist and, using a stick, administered a number of blows to his head. Shortly after 6.30am, the father of Mr Scholes located his son a short distance away in a dam to which he had apparently staggered in a dazed state at the front of a neighbouring property. He was alive, but died soon afterwards from extensive blunt trauma injuries to the head and face.

An examination of the scene revealed two areas of blood staining at the entry to the deceased’s property, and a blood trail from the front gate to the dam.

The applicant was arrested at 4.00pm on Thursday, 27 May.

When interviewed by police, he admitted following the deceased home and assaulting him…

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 Hill

Details

AGLC: R v Hill [2007] VSCA 261
Case: [2007] VSCA 261
Decision Date: 21 November 2007

CaseChat Overview and Summary

In the case of R v Hill, the applicant was convicted of murder and appealed against his conviction. The applicant argued that the trial miscarried due to comments made by the trial judge regarding inconsistencies between his evidence at trial and his record of interview. Additionally, the applicant contended that the trial judge inadequately addressed the issue of his level of intoxication, which was disputed during the trial. Furthermore, the applicant claimed that the trial judge’s references to the concept of ‘proportionality’ may have misled the jury regarding the correct legal test for provocation.

The court was required to determine whether the trial judge's comments concerning the inconsistencies and the handling of the intoxication issue were sufficient to result in a miscarriage of justice. The court also needed to assess whether the references to ‘proportionality’ constituted an error in the direction to the jury regarding the provocation defence. The court considered whether these factors were material enough to warrant a new trial.

The court found that the trial judge's comments did not undermine the fairness of the trial process or the reliability of the jury's verdict. The court concluded that the trial judge had adequately addressed the issue of intoxication and provided appropriate directions to the jury on this matter. Regarding the concept of ‘proportionality’, the court held that any potential misunderstanding by the jury did not affect the outcome of the trial. Therefore, the court dismissed the applicant's appeal.

The court upheld the conviction and sentence, finding no merit in the applicant’s grounds of appeal.

Orders