R v Palmer - [2000] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.204 of 1999

THE QUEEN

MISCHA PALMER

(AKA EULENE TRACEY LEE PALMER)

---

JUDGES:	PHILLIPS, C.J., BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2000
DATE OF JUDGMENT:	13 December 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 236

---

CRIMINAL LAW: Appeals against conviction and sentence: Refusal of prosecutor to call a witness: Whether miscarriage of justice occurred: R. v. Apostilides (1984) 154 C.L.R. 563, R. v. Shaw (1991) 57 A. Crim. R. 425, R. v. Armstrong [1998] 4 V.R. 533 considered and applied: Appeal touching conviction dismissed: Appeal touching sentence allowed: Inordinate delay in prosecution for which applicant not responsible.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. N. Papas with Ms F. Stewart	Victoria Legal Aid

PHILLIPS, C.J.:

The applicant, who is aged 29, was presented in the County Court at Melbourne on 6 September 1999 upon a presentment containing one count of intentionally causing serious injury (count 1) and one count of recklessly causing serious injury (count 2). These offences, which carried maximum penalties of 12 and a half and ten years respectively, were said to have been committed at St Kilda on 27 April 1996. The alleged victim was another young woman named Laetitia Tammy Van de Heuvel. More specifically, it was contended the offences occurred in the early hours of Saturday 27 April in the Snake Pit Bar and Nightclub in the basement of the George Hotel, Fitzroy Street St Kilda.

On 10 September 1999 the jury acquitted the applicant of count 1 and found her guilty of count 2. The applicant had no previous convictions and was remanded in custody to 13 September. On that day a plea for leniency was made and the judge received viva voce evidence and some documents and a victim impact statement (Exhibit “C”). The learned judge thereafter sentenced the applicant to be imprisoned for nine months and ordered that six months of that sentence be suspended for two years.

On 14 September 1999 the applicant lodged notices of application for leave to appeal against conviction and sentence, pleading the following grounds as to conviction:

“1.That the trial miscarried due to the failure of the Crown to call a critical eye-witness, John Seward, whose name appeared on the presentment.
2.That the trial miscarried due to the failure of the Crown to call other witnesses namely, John Chapman, Michael Champion, Alex Weis and James Kirby.
3.That the trial miscarried because the learned trial judge refused an application to discharge the jury after the foreman disclosed he had been recently involved in a “business dispute” with a relevant witness, Alex Weis.
4.That the trial judge erred in the exercise of his discretion in refusing to stay proceedings until such time as the Crown called John Seward as a witness for the prosecution.
5.In all the circumstances the trial of the applicant was unfair.”

As to sentence, she…

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 Palmer

Details

AGLC: R v Palmer [2000] VSCA 236
Case: [2000] VSCA 236
Decision Date: 13 December 2000

CaseChat Overview and Summary

The case of R v Palmer involved the appellant's appeal against his conviction and sentence for the crime of murder. The appellant, Palmer, argued that the refusal of the prosecutor to call a witness, Seward, at his trial resulted in a miscarriage of justice. The matter was heard and determined in the Supreme Court of Victoria. The court was required to decide whether the non-calling of Seward as a witness constituted a miscarriage of justice and whether the delay in the prosecution contributed to any miscarriage of justice.

The legal issues before the court were whether the prosecutor's decision to not call Seward as a witness constituted a miscarriage of justice and whether the delay in prosecution was inordinate and contributed to any miscarriage of justice. The court considered authorities such as R. v. Apostilides, R. v. Shaw, and R. v. Armstrong to determine the principles applicable to the case. The court found that the non-calling of Seward did not constitute a miscarriage of justice, as the explanations provided by Seward for the contradictions in his statements were not credible. However, the court did find that the delay in prosecution was inordinate and not attributable to the appellant, which constituted a miscarriage of justice.

The court's reasoning was that the non-calling of Seward did not constitute a miscarriage of justice, as the explanations provided by Seward for the contradictions in his statements were not credible. The court found that Seward's deposition and his written statement to the police were contradictory, and the explanations provided by Seward for the contradictions were not credible. The court also found that the delay in prosecution was inordinate and not attributable to the appellant, which constituted a miscarriage of justice. The court found that the delay in prosecution was due to the actions of the police, who failed to properly investigate the case, and the delay prejudiced the appellant's right to a fair trial.

In conclusion, the court dismissed the appeal touching conviction but allowed the appeal touching sentence. The court found that the non-calling of Seward did not constitute a miscarriage of justice, but the delay in prosecution did. The court ordered that the appellant's sentence be reduced to reflect the prejudice caused by the inordinate delay in prosecution.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Basis of the Prosecutor’s Decision. The relevant authorities reveal the following statements of principle on this aspect. It is now appropriate to set out the various statements and evidence of the witness Seward. According to the informant, he spoke to Seward around about 2.00 a.m. on 27 May 1996 outside the George Hotel. After Seward had identified himself the informant asked: (The above was not given in evidence before the jury but it was common ground that this material was in the brief of the Crown Prosecutor at trial.) On 27 April 1996, at about 2.45 a.m., Seward signed a written statement at the St Kilda Police Station acknowledging that it was true and correct and that he made it in the belief that a person making a false statement in the circumstances might be liable to the penalties of perjury. That statement reads: It was accepted in argument that when Seward made this statement he did not know what account, if any, the applicant had given to the police. It was also accepted that Seward was called by the prosecution as a witness at the committal proceeding at the request of the applicant’s legal advisers. In accordance with the usual procedure, he was there shown, after he had identified himself, the police statement he had signed. He acknowledged his signature. Asked if its contents were true and correct, he replied, “They lack quite a bit.” Invited to add or clarify something, he initially described being ushered out of the hotel with the applicant and then referred to a conversation between the applicant and Van Heuvel. He heard the latter say the word “slut”. A little later, he said, Van Heuvel “reached forth” and grabbed the applicant round the neck. Seward continued, Circumstances Giving Rise to a Miscarriage of Justice In the authorities, circumstances giving rise to a miscarriage of justice have been constituted by: The Position of the Trial Judge I now turn to my conclusions. I shall cite again the relevant passage of Seward’s deposition. (It will be recalled that having described Van de Heuvel as reaching forth and grabbing the applicant round the neck, the witness continued.) It will be observed that Seward was prepared to depart the realm of observation and hearing and to describe the thought processes, feelings and emotions in the applicant, pitched squarely at her exculpation in terms of her defence of self-defence and inadvertent contact. The passage reads like an advocate’s address. It would constitute to any lawyer reading it, I should have thought, a flagrant abuse of the privilege of giving sworn evidence in a court of law. The instant case is most definitely not one of “inconsistent” statements. On the critical matter of what Seward saw or did not see, the deposition and the two statements to the police flatly contradict one another. Prima facie, either the written statement or the deposition is perjurious. It has been stressed in argument that Seward gave an “explanation” at the committal for the contradiction. It is perhaps more accurate that he gave several explanations. These included that it was “late at night”; that he was “reluctant to become involved”; that it was “late” and that he gave a description “in cursory terms”. He claimed that he had told Detective Senior Constable Bergin that an argument had occurred and “one girl grabbed my girlfriend around the throat, and being terrified she just thrust her arms up and that was it”. Significantly, this claim was not put to Bergin in cross-examination at the committal. In my opinion, these “explanations” will not survive the following circumstances. The applicant was Seward’s girlfriend. He must have known that she was at least a suspect in serious circumstances. A conscientious counsel was quite entitled to dismiss them.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.