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R v Massie

R v Massie

Case [1998] VSCA 82 8 October 1998

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 150 of 1997

THE QUEEN

MICHAEL GERARD MASSIE

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JUDGES:	WINNEKE, P., BROOKING and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 October 1998
DATE OF JUDGMENT:	8 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 82

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Criminal Law - Incitement - To murder - To cause serious injury intentionally -

Elements of each offence - Appropriate directions.

Criminal Law - Deposition use as evidence at trial.

Criminal Law - Sentence - Incitement to murder - An extremely serious offence.
Crimes Act 1958, s.321G.

Evidence Act 1958, s.55AB.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P. Coghlan, Q.C.	Mr. P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. D. Ross, Q.C. with Mr. P.G. Priest (Appearing Pro Bono)

WINNEKE, P.:

I will call on Brooking, J.A. to deliver the first judgement.

BROOKING, J.A.:

On 3 February 1997 the applicant appeared in the Supreme Court to answer a presentment containing two counts of incitement to murder and one of incitement to cause serious injury intentionally. The Crown case was that he had incited a police undercover agent who went by the name of Joe Black to murder his brother Frank and Frank's wife and to injure his own former de facto wife, Marguerite Bourke. The Crown alleged that the applicant had for a long time felt great animosity towards his brother and against his own former de facto wife, for reasons which need not now be fully stated, and that he had also formed a strong - but evidently not so acute - dislike of his brother's wife. The applicant's attitude towards his brother was said to result in part from the applicant's view that he was himself entitled to certain land that stood in his brother's name and from his brother's having complained to the police that the applicant had forged the brother's signature on a number of documents, principally relating to land. The Crown said that the applicant had suggested to a woman named Evelyn Burton that, having regard to her previous connection with massage parlours, she must have some connections with big criminals and asked her if she knew anyone who could help him to forge some documents. Burton's evidence was that shortly after this the applicant told her that he had had a better idea and asked her if she knew anyone who could "bump off" somebody, adding that if his brother "was not around" he (the applicant) could have all the properties. These and other discussions were said to have taken place towards the end of 1994. Early in January 1995 Burton contacted the police and as a result it was arranged that the applicant would be introduced to the undercover agent known as Joe Black. Shortly before the meeting took place the applicant asked Burton: "Do they have qualms about doing the same thing to women?" This and other conversations between the applicant and Burton, if taken at their face value,…

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.

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Details

AGLC: R v Massie [1998] VSCA 82
Case: [1998] VSCA 82
Decision Date: 8 October 1998

CaseChat Overview and Summary

The defendant, Massie, appealed against his conviction and sentence for incitement to murder and incitement to cause serious injury, arguing that the trial judge erred in not directing the jury that the prosecution needed to prove certain elements of the charges. The case was heard in the Victorian Court of Appeal. The court needed to determine whether the trial judge gave an adequate direction to the jury regarding the necessary elements of the charges, and whether the deposition of a witness should have been admitted as evidence.

The court held that the trial judge had not erred in the directions given to the jury, as the jury was sufficiently directed on the elements of incitement to murder and incitement to cause serious injury. The court held that the prosecution only needed to prove that the defendant intentionally encouraged another person to commit the offences, and did not need to prove that the defendant had the intention that the offences be committed. The court also held that the deposition of the witness should not have been admitted as evidence, as it was not a reliable record of the witness's evidence, and its admission may have led to a miscarriage of justice. However, the court held that the error in admitting the deposition did not affect the outcome of the trial.

Massie's appeal against his conviction was dismissed. However, the court held that the sentence imposed by the trial judge was excessive and did not adequately reflect the seriousness of the offences. The court reduced the sentence to a term of imprisonment of ten years, with a non-parole period of seven years, for the charge of incitement to murder, and a concurrent term of imprisonment of five years, with a non-parole period of three years and three months, for the charge of incitement to cause serious injury.

Orders