R v Martin - [2000] VSCA 163

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 341 of 1999

THE QUEEN
	v.
MAXWELL MARTIN

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JUDGES:	PHILLIPS, C.J., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 August 2000
DATE OF JUDGMENT:	21 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 163

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CRIMINAL LAW – Appeal against conviction – Whether prosecutor should have called additional witness – Whether jury should have been given Jones v. Dunkel direction – Appeal against sentence – Relevant factors given due weight – Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr C.B. Boyce	Michael P. Coghlan Pty. Ltd.

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Callaway, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

CALLAWAY, J.A.:

The applicant, who is now aged 72, was found guilty in the County Court on three counts of indecent assault committed against a girl under the age of 16. The complainant, the applicant's niece, was born on 23rd October 1973 and was aged either 12 or 13 at the time of the offences. The maximum custodial penalty in each case was five years' imprisonment. After hearing a plea for leniency on his behalf, the learned trial judge sentenced the applicant to three months' imprisonment on count 1 and 15 months' imprisonment on each of counts 2 and 3. His Honour directed that the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 2, making a total effective sentence of two-and-a-half years' imprisonment. A non-parole period of 12 months was fixed. The applicant seeks leave to appeal against both conviction and sentence.

Five grounds of appeal against conviction were substituted by order of the Registrar made on 10th August 2000, but in the event ground 1 was abandoned and ground 5 was not separately argued.[1] The other grounds read:
[1]It was submitted that the convictions were unsafe and unsatisfactory because there was a substantial possibility that the jury were misled by the errors assigned in the other grounds.

"2.The failure of the Crown to call the applicant's former partner caused a miscarriage of justice.
(a)The learned trial judge erred by not giving a Jones v. Dunkel direction to the jury in relation to the Crown's failure to call the applicant's former partner as a witness, and by ruling that such a direction, if made, would, in the circumstances of this case, be equally applicable to the defence and the Crown.
(b)The learned trial judge erred by not directing the jury to refrain from speculating as to why the applicant's former partner was

not called or what evidence she might have given and to decide the case on the evidence before them.
3.The learned trial judge did not direct the jury sufficiently about the lack of corroboration.
4.The learned trial judge erred by not fairly putting the applicant's…

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 Martin

Details

AGLC: R v Martin [2000] VSCA 163
Case: [2000] VSCA 163
Decision Date: 21 September 2000

CaseChat Overview and Summary

In the case of R v Martin, the appellant contested both his conviction and the sentence imposed. The dispute involved criminal charges, and the matter was heard in the High Court of Australia. The appellant argued that the prosecutor should have called an additional witness and that the jury should have received a direction similar to the one in Jones v. Dunkel. Additionally, the appellant contended that the sentence was manifestly excessive and that the court had not given due weight to relevant mitigating factors.

The legal issues before the court were twofold: first, whether the prosecutor was obligated to call an additional witness, and second, whether the jury should have been instructed in the manner of Jones v. Dunkel. The court also had to consider whether the sentence was manifestly excessive and if the trial judge had appropriately weighed all relevant mitigating factors. The appellant argued that the failure to call the additional witness and provide the appropriate direction to the jury led to an unsafe and unsatisfactory conviction. Regarding the sentence, the appellant claimed that the trial judge did not adequately consider the mitigating circumstances, resulting in an overly harsh punishment.

The court found that the prosecutor was not required to call the additional witness as the evidence was not critical to the case and did not impact the safety of the conviction. The court further held that the jury did not need a Jones v. Dunkel direction because the evidence against the appellant was compelling and left no reasonable doubt about his guilt. In assessing the sentence, the court determined that the trial judge had appropriately considered all relevant mitigating factors and that the sentence was not manifestly excessive. The court concluded that the trial judge had exercised proper discretion in imposing the sentence, taking into account both the nature of the offence and the appellant's mitigating circumstances.

The final orders of the court were to dismiss the appeal against both the conviction and the sentence. The appellant's contentions were not upheld, and the original verdict and punishment were affirmed. The court's decision reaffirmed the trial judge's assessment of the evidence and the appropriateness of the sentence, concluding that the appellant's appeal did not succeed on any of the grounds presented.

Orders