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R v Mitchell

R v Mitchell

Case [2006] VSCA 289 18 December 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 196 of 2005

THE QUEEN
	V
JEFFREY KEVIN MITCHELL

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JUDGES:	ASHLEY JA, SMITH and KING AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2006
DATE OF JUDGMENT:	18 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 289

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Criminal law – Accomplice warning – Whether accomplice or “Faure” (DPP v Faure [1993] 2 VR 497) warning should have been given – Warning operative only once certain facts found adversely to accused – Warning conditional upon jury’s rejection of aspects of witness’s evidence – Whether judge erred in failing to give a “Burns” (Burns v The Queen (1975) 132 CLR 257) direction – Whether judge erred in leaving case to jury on alternative basis of acting in concert – Whether judge erred in not giving an “Edwards” (Edwards v The Queen (1993) 178 CLR 193) or “Zoneff” (Zoneff v The Queen (2000) 200 CLR 234) direction – Whether judge should have left alternative verdict of manslaughter to the jury – Misdirection in respect of accomplice warning but not otherwise.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr JD McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr CB Boyce	Victoria Legal Aid

ASHLEY JA:

Jeffrey Mitchell was found guilty of the murder of Andrew Preston at Powelltown on 29 April 2002. He was sentenced, on 21 June 2005, to be imprisoned for 18 years with a non parole period of 14 years. A declaration was made in respect of pre-sentence detention. Now he seeks leave to appeal against his conviction.

The circumstances of the matter

The applicant, a man born 26 March 1962, maintained a domestic relationship with Leanne Maree Brown for a period of eight years or so up until 22 March 2002. There were two children of the relationship. On 22 March Ms Brown moved out of the premises in which she, the applicant and their children were living. She did so because she had formed a relationship with Andrew Preston. The relationship had developed out of Ms Brown and Preston being workmates at a building supply company in late 2001. Having disclosed the relationship to the applicant, he told her to leave immediately.[1] When Ms Brown left, the children remained with the applicant. It was clear that he loved them dearly, and that he did not want Ms Brown to have their custody.
[1]The applicant gave an account, in February 2003, that he made Ms Brown leave their home because she was using drugs. That version of events, as I understand it, did not get into evidence.

Preston had come to Victoria from New South Wales in mid 2001. He had followed his then girlfriend, a Ms Ludlow. That relationship had continued, though intermittently only, until Preston commenced his substantial relationship with Ms Brown.

After Ms Brown left the applicant and her children, she and Preston resided for short periods at a motel, at the home of a…

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 Mitchell

Details

AGLC: R v Mitchell [2006] VSCA 289
Case: [2006] VSCA 289
Decision Date: 18 December 2006

CaseChat Overview and Summary

In the matter of R v Mitchell, the respondent was charged with murder, and the case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the trial judge should have provided an accomplice warning, akin to the warning outlined in DPP v Faure, and if the judge erred in not giving alternative directions to the jury, such as an Edwards or Zoneff direction, or leaving the option of an alternative verdict of manslaughter.

The court had to determine if the warning should have been given based on the jury potentially rejecting certain aspects of a key witness's evidence. It was further required to assess whether the judge should have directed the jury in accordance with the Burns case or if there was any error in leaving the case to the jury on the basis of acting in concert. The respondent argued that the judge should have provided an Edwards or Zoneff direction, but these contentions were not upheld.

The court concluded that while there was a misdirection in relation to the accomplice warning, no other errors were found in the judge’s directions to the jury. The misdirection did not prejudice the respondent’s case, as the jury was adequately guided on the necessary legal principles. The appeal was therefore dismissed. The court did not order any retrial or further directions to be given, as it was satisfied that the jury had been properly instructed on the relevant issues.

Orders