R v Howard - [2005] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 49 of 2004

THE QUEEN
	v.
PETER JOHN HOWARD

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JUDGES:	CALLAWAY, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 August 2005
DATE OF JUDGMENT:	29 September 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 235

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Criminal Law – Murder – Elderly woman stabbed in her home – Change in Crown case at very late stage of the trial – Lie as evidencing consciousness of guilt raised as basis for conviction in Crown’s final address – Whether trial rendered unfair – Applicant denied opportunity to meet allegation through evidence or address to jury – Applications for re-direction or discharge of jury refused – Miscarriage of justice – Appeal against conviction allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Mr C.B. Boyce	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C. with Mr M.J. Croucher	Simon English

CALLAWAY, J.A.:

I agree with Chernov, J.A.

CHERNOV, J.A.:

The applicant, Peter John Howard, who is now aged 73 years, was convicted on 19 November 2003 by a jury, following a trial lasting twelve hearing days, of the murder of Olive Martha Maas at Boronia in the early hours of 12 June 2002. On 12 March 2004, after hearing a plea in mitigation made on the applicant’s behalf, the learned sentencing judge imposed a sentence of 20 years' imprisonment and directed that the applicant serve a minimum term of 15 years before becoming eligible for parole. The applicant admitted 14 convictions from two court appearances, one in 1976 and the other in 1998. In respect of the 1976 offences, namely, seven counts of kidnapping and one count of robbery, he was sentenced to a total effective sentence of seven years' imprisonment with a non-parole period of two years. The six offences of which the applicant was convicted in 1998 involved dishonesty charges in respect of which he was fined $750. By notice dated 22 March 2004, the applicant sought leave to appeal against his conviction for murder on ten grounds but Mr Holdenson, who appeared before us for the applicant, abandoned grounds 1, 5 to 8 and 9(c) to (e). Before turning to the submissions made in support of the remaining grounds, it is necessary to describe briefly the circumstances pertaining to the offending.

Circumstances of the offending

The Crown alleged that in the early hours of the morning of 12 June 2002 the applicant entered the deceased’s house through the laundry window, which he had smashed for the purpose of gaining entry. He carried a knife with a 21 centimetre blade, around the handle of which he had wrapped the sleeve of a yellow rubber glove. It was alleged that the applicant then attacked the deceased, brutally stabbing

her 57 times to the head, neck, chest and limbs. The deceased suffered, in addition to many terrible wounds, lacerations to her hands and forearms that were typical of “defence type” wounds. A neighbour…

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 Howard

Details

AGLC: R v Howard [2005] VSCA 235
Case: [2005] VSCA 235
Decision Date: 29 September 2005

CaseChat Overview and Summary

The case of R v Howard involved a dispute over the conviction of the applicant for the murder of an elderly woman. The incident occurred when the victim was stabbed in her home. The case came before the court where the applicant appealed against his conviction, arguing that the trial was rendered unfair due to a late change in the Crown’s case, which was not adequately addressed in the trial proceedings.

The primary legal issue before the court was whether the trial was unfair because the applicant was not given the opportunity to meet an allegation of lying as evidencing consciousness of guilt, which was raised by the Crown in its final address. The court had to consider whether the late introduction of this basis for conviction and the denial of the applicant's opportunity to provide evidence or address this allegation through his legal team resulted in a miscarriage of justice. Additionally, the court examined the applications for re-direction or discharge of the jury and whether these applications were handled appropriately.

The court found that the trial was indeed rendered unfair by the Crown's late introduction of the lie as a basis for conviction, which the applicant was unable to counter with evidence or argument. The court concluded that this procedural irregularity amounted to a miscarriage of justice. The court allowed the appeal against the conviction, setting aside the decision and ordering a new trial.

The final orders of the court were to allow the appeal against the applicant's conviction, set aside the conviction, and order a new trial. This decision emphasised the importance of procedural fairness in criminal trials and the necessity for the prosecution to maintain a consistent case throughout the proceedings.

Orders