R v Osborne - [2002] VSCA 156

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.405 of 2000

THE QUEEN
	v.
CLINTON JAMES OSBORNE

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JUDGES:	PHILLIPS, C.J., CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 and 30 July 2002
DATE OF JUDGMENT:	3 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 156

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Criminal Law – Appeals against conviction and sentence - Termination of counsel’s retainer – Application by unrepresented accused for further adjournment of trial – Principles relevant to consideration of adjournment application – Meaning of right to a fair trial - Whether trial unfair to accused – Whether trial resulted in miscarriage of justice – Test applicable to determine whether miscarriage of justice occurred - Whether accused deprived of real chance of acquittal - Leave to appeal refused.

Criminal Law - Sentencing – Sentencing error – Sentencing judge taking into account matter adverse to applicant not necessarily determined by jury.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. G.J. Lyon	Hallet West Johnston

PHILLIPS, C.J.:

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

CHERNOV, J.A.:

The applicant, Clinton James Osborne, who is now aged 33, seeks leave to appeal against his conviction in the County Court at Melbourne on 23 November 2000 on two counts[1] of recklessly causing injury to Mark Wayman (“the victim”). He also seeks leave to appeal against the sentence that was imposed on him on 8 December 2000 in respect of those convictions, namely, a total effective sentence of 12 months’ imprisonment. Before considering the grounds of the applications, it is necessary to set out the relevant circumstances leading to the convictions and sentence.
[1]Counts 15 and 19.

Circumstances of Alleged Offending

In late 1995, when the applicant was aged 26, he became involved in a relationship with a 14 year old girl whom I shall call “Melissa”. They started living together in Shepparton some time in early 1996 and this situation continued until about mid 1998 when Melissa left the applicant’s premises in the circumstances described later. The applicant did not deny that he and Melissa had a relationship during this period, but he denied that they were involved in a sexual relationship.

In early June 1998 the applicant left Shepparton for Western Australia and returned a few weeks later, on 7 July. During this period, Melissa developed a relationship with the victim. While the applicant was away interstate, she left the premises in which she and the applicant had resided, took her belongings as well as

some items that belonged to the applicant and went to stay with the victim at his mother’s house. Fearing repercussions from the applicant upon his return to Shepparton, Melissa, the victim and Melissa’s brother, Joseph (“Joseph”), acquired bus tickets to Mackay in Queensland, intending to travel there on the evening of 7 July.

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 Osborne

Details

AGLC: R v Osborne [2002] VSCA 156
Case: [2002] VSCA 156
Decision Date: 3 October 2002

CaseChat Overview and Summary

In the case of R v Osborne, the appellant sought to appeal against both his conviction and the sentence imposed. The dispute arose from the termination of the appellant's counsel's retainer, which occurred just before the scheduled trial date. The appellant, now unrepresented, applied for a further adjournment of the trial, arguing that his right to a fair trial had been compromised. The matter was brought before the court to determine whether the trial was unfair and whether a miscarriage of justice had occurred. Additionally, the court had to address whether the appellant was deprived of a real chance of acquittal.

The court examined the principles relevant to the consideration of an adjournment application in light of the appellant's termination of counsel's retainer. The court considered the meaning of the right to a fair trial, assessing whether the trial was unfair to the appellant and if it resulted in a miscarriage of justice. The court applied the test to determine whether a miscarriage of justice had occurred, focusing on whether the appellant was deprived of a real chance of acquittal. The court found that the termination of counsel's retainer did not necessarily lead to an unfair trial or a miscarriage of justice, and the appellant's right to a fair trial was not compromised.

The court concluded that the sentencing judge taking into account a matter adverse to the appellant, which was not necessarily determined by the jury, did not constitute a sentencing error. The court found that the appellant had not demonstrated a miscarriage of justice or that he was deprived of a real chance of acquittal. Therefore, the appeal against both conviction and sentence was dismissed. The court's final orders were that leave to appeal was refused, and the original conviction and sentence remained in place.

Orders