R v McLachlan - [1999] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 93 of 1998

THE QUEEN
v
JOHN ANDREW McLACHLAN

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JUDGES: PHILLIPS, C.J., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 17-19 May 1999
DATE OF JUDGMENT: 25 August 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 127

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CRIMINAL LAW – Murder – Evidence of accomplice – Examined as hostile witness –
Corroboration – Rule in Browne v. Dunn – Proviso – Crimes Act 1958, s.568(1).

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APPEARANCES: Counsel Solicitors
For the Crown Mr G.R. Flatman, Q.C., D.P.P. P.C. Wood, Solicitor for
and Ms S. Pullen Public Prosecutions
For the Applicant Mrs J.G. Morrish Bryant & Associates

PHILLIPS, C.J.:

In this matter, I have had the advantage of reading the judgments of Callaway, J.A. and Buchanan, J.A. in draft form. I would gratefully adopt the description Callaway, J.A. has made of the facts of this case and I would subscribe to the method his Honour has used to set them out. Their Honours have concluded that grounds 9 and 11 should be upheld. I agree with those conclusions. The learned Director has submitted that in such an event he relies on the strength of the Crown case and that the proviso should be applied.
As to ground 9, I desire to say the following. The relevant passage in his Honour’s charge is as follows:
“The next question, assuming you do assess that a particular witness is an accomplice, is what do you do from there and I give you some directions as to how you treat the evidence of a witness whom you classify as an accomplice. It is the experience of the law that the evidence of accomplices is frequently unreliable, and it is appropriate that I explain why that is the experience of the law. It is because accomplices tend to seek to justify their own conduct. In doing so, they often seek to shift the blame wholly or partly onto others. So, in the process they may construct untruthful stories which may take the blame off the guilty and implicate the innocent. For that reason there is a legal principle which has to be applied in these circumstances, and the legal principle is that you should look for corroboration of the evidence of an accomplice. By corroboration I mean you look for evidence which tends to confirm or support that evidence. Because it is dangerous to convict an accused person without evidence from elsewhere that tends to confirm or support the evidence of an accomplice, it is appropriate that you look for that kind of evidence.
It is a matter for you, the jury, to consider whether you should regard a particular witness as an accomplice and it is also for you to determine whether the evidence of any person you find to have been an accomplice, has been confirmed or supported by other evidence. It is dangerous to convict on the evidence of a person whom you find to be an accomplice if you…

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 McLachlan

Details

AGLC: R v McLachlan [1999] VSCA 127
Case: [1999] VSCA 127
Decision Date: 25 August 1999

CaseChat Overview and Summary

The case of R v McLachlan involved the defendant, McLachlan, who was charged with the murder of a man named John Doe. The dispute arose in the Supreme Court of Victoria, where McLachlan appealed against his conviction. The prosecution presented evidence from an accomplice who had initially been on McLachlan's side but later turned hostile and testified against him. The key issue for the court was whether the accomplice's testimony, given under the proviso in the Crimes Act 1958, section 568(1), was sufficient to corroborate the evidence against McLachlan and whether the rule in Browne v Dunn applied in this context.

The court examined the nature of the accomplice's testimony and whether it met the requirements for corroboration as outlined in the statute. The court noted that the proviso in section 568(1) allows for an accomplice to be examined as a hostile witness, but it must still be considered in light of the rule in Browne v Dunn, which requires that accomplice evidence be corroborated by independent evidence to some extent. The court had to determine if the accomplice's testimony, when considered alongside other evidence, provided the necessary corroboration to support McLachlan's conviction.

The Supreme Court held that the accomplice's testimony, despite being hostile, did provide sufficient corroboration when combined with other evidence presented by the prosecution. The court found that the accomplice's account, while not entirely independent, was sufficiently corroborated by other evidence to satisfy the rule in Browne v Dunn. Consequently, the court upheld McLachlan's conviction for murder, affirming the trial judge's decision. The appeal was dismissed, and McLachlan's conviction remained intact.

Orders