R v Holmes - [2006] VSCA 73

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 151 of 2004

THE QUEEN
	v.
TROY DAMON HOLMES

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JUDGES:	BUCHANAN, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2006
DATE OF JUDGMENT:	5 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 73

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Criminal Law – Making False document – Perjury – Attempting to obtain financial advantage by deception – Whether prosecution split its case –Prosecutor cross-examining accused on a document not forming part of depositions – Whether count of attempting to obtain financial advantage by deception bad for duplicity or conviction uncertain – Count containing three particulars of false representations – Directions as to jury being unanimous as to one at least of the particulars – Whether summary of evidence adequate – Crimes Act 1958 ss.82A(1), 314(1), 321M.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quinn	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr A.D. Halse	Paul Vale Criminal Law

BUCHANAN, J.A.:

I agree with Eames, J.A. that the application for leave to amend the grounds of the application and the application for leave to appeal against conviction should be refused.

VINCENT, J.A.:

I agree that the application for leave to amend the grounds of appeal should be refused and the application for leave to appeal against conviction should be dismissed. I do so for the reasons advanced by Eames, J.A. in his judgment.

EAMES, J.A.:

The applicant was convicted by a jury in the County Court on 4 June 2004 on one count of making a false document contrary to s.82A(1) of the Crimes Act 1958 (count 1), and one count of perjury contrary to s.314(1) (count 2), and one count of attempting to obtain financial advantage by deception contrary to s.321M of the Crimes Act (count 3). He now applies for leave to appeal against those convictions.

The convictions arose out of an attempt by the applicant to persuade officers of the City of Melbourne to waive a $50 penalty imposed with respect to a parking infringement notice issued on 14 December 2001. In support of that application the applicant, a police officer at the time, swore and presented a statutory declaration, which the Crown alleged contained many false statements, and a supporting document, which was contended to be a fabrication.

The applicant also stood trial on two other offences, on the same presentment, which arose out of his swearing a second statutory declaration, this time one made concerning a parking infringement notice issued on 17 December 2001 with respect to the same vehicle. The jury acquitted him on those counts, being one count of perjury (count 4) and one count of attempting to obtain a financial

advantage by deception (count 5).
The grounds of appeal

On 21 June 2004 the applicant, through his then solicitor, gave notice of application for leave to appeal against conviction on two grounds, first that the verdicts were unsafe and unsatisfactory and secondly, that the weight of evidence did not support the…

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 [2006] VSCA 73
Case: [2006] VSCA 73
Decision Date: 5 April 2006

CaseChat Overview and Summary

In the case of R v Holmes, the defendant was charged with making a false document, perjury, and attempting to obtain a financial advantage by deception. The matter was heard in the court of appeal in Victoria. The primary dispute centred around whether the prosecution's case was split, and if so, whether this affected the validity of the charges. The defendant was also accused of attempting to obtain a financial advantage by deception, which included three particulars of false representations. The court had to determine if this count was bad for duplicity or if the conviction was uncertain.

The legal issues before the court were multifaceted. Firstly, it was necessary to decide if the prosecution's case was split by cross-examining the accused on a document that was not part of the depositions. Secondly, the court had to consider whether the count of attempting to obtain a financial advantage by deception was flawed due to the inclusion of three particulars of false representations, and if the jury's unanimity on at least one particular was sufficient. Additionally, the adequacy of the summary of evidence was scrutinised to ensure that it met the statutory requirements under the Crimes Act 1958.

The court found that the prosecution's case was not split, as the cross-examination did not introduce new evidence that was not already part of the depositions. The court also held that the count of attempting to obtain a financial advantage by deception was not inherently flawed by containing multiple particulars of false representations, provided the jury was unanimous on at least one of the particulars. The court held that the summary of evidence was adequate as it included all the essential facts and circumstances of the case. Consequently, the appeal was dismissed, and the convictions were upheld.

No additional orders were made beyond the dismissal of the appeal and the upholding of the convictions.

Orders