R v Holmes - [2008] VSCA 128

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 68 of 2007

THE QUEEN
	v
TROY DAMON HOLMES

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JUDGES:	MAXWELL P, NEAVE JA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2008
DATE OF JUDGMENT:	23 July 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 128

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CRIMINAL LAW – Conviction – Perjury – Requirement of particularity – Whether Crown sufficiently identified evidence said to be false and how it was false – Mistake or possible explanation of false statement – Whether mistake raised as an issue – Whether jury properly directed – Whether verdict unsafe or unsatisfactory.

EVIDENCE – Opinion – Evidence of lay witness as to where she believed defendant was – Whether admissible.

EVIDENCE – Re-enactment – Whether conducted under ‘substantially similar conditions’ – R v Neilan [1992] 1 VR 57 applied.

EVIDENCE – Corroboration – Whether expert evidence about mobile telephony capable of corroborating Crown witness – Doney v R (1990) 171 CLR 207 applied.

CRIMINAL LAW – Sentence – Perjury – Whether subsequent offending properly taken into account in assessment of prospects of rehabilitation – Sentence of 12 months’ imprisonment – Whether error to suspend sentence only partially – Whether manifestly excessive.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr J D McArdle QC

Ms A Cannon, Solicitor for Public Prosecutions

For the Applicant

Mr S Gillespie-Jones
and Mr M Duckett

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Paul Vale Criminal Law

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Hansen AJA. I agree that both applications should be refused, for the reasons which his Honour gives.

I would add only this, in relation to ground 9. As discussed in The Queen v Vjestica, the “unsafe and unsatisfactory” ground will only be made out where the appeal court concludes that the jury was bound to have a reasonable doubt about the guilt of the accused. [1] In Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) said:

… [T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. [2]

[1][2008] VSCA 47 [59] – [63].

[2](2007) 230 CLR 559, 596-7 [113].

The evidence against the applicant was strong. As Hansen AJA has described, its key elements comprised: Mrs Maffei’s account of the length, frequency and content of the telephone calls from the applicant; the telephone records showing the times and (indicative) locations of the calls; the evidence of Mr Wilson as to the remoteness of the possibility that the applicant had (as he claimed) made the second lengthy call from the corner of Hoddle Street and the Eastern…

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 Holmes

Details

AGLC: R v Holmes [2008] VSCA 128
Case: [2008] VSCA 128
Decision Date: 23 July 2008

CaseChat Overview and Summary

The appellant was convicted by a jury in the Supreme Court of Victoria of perjury. The appellant's wife, who had been a witness in a trial for serious drug offences, gave evidence that the appellant had made a false statement to police. The appellant appealed against his conviction, arguing that the evidence of the false statement was not sufficiently particularised, that the jury had been improperly directed, that lay witness evidence was improperly admitted, that the re-enactment of events was not conducted under substantially similar conditions, and that the expert evidence was not capable of corroborating the witness's evidence. The Court of Appeal dismissed the appeal and upheld the conviction.

The court considered whether the Crown had sufficiently identified the evidence said to be false and how it was false. The court found that the Crown had particularised the evidence and the way in which it was false, and that any mistake or possible explanation was a matter for the jury. The court also considered whether the jury had been properly directed, and found that there was no error in the directions given. The court further considered the admissibility of the lay witness evidence, and found that it was properly admitted as it went to the appellant's state of mind. The court also considered whether the re-enactment was conducted under substantially similar conditions, and found that it was. Finally, the court considered whether the expert evidence was capable of corroborating the witness's evidence, and found that it was.

The Court of Appeal dismissed the appeal and upheld the conviction. The court found that the evidence was sufficient to support the conviction, and that any errors in the trial were not significant enough to warrant a new trial. The court also considered the sentence, and found that it was not manifestly excessive.

The Court of Appeal dismissed the appeal and upheld the conviction. The sentence of 12 months' imprisonment was affirmed.

Orders