R v Rudd

Case [2009] VSCA 213 25 September 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 765 of 2007
No 797 of 2007

THE QUEEN
	v
ALLAN RUDD

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JUDGES	MAXWELL P and REDLICH JA and VICKERY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 January 2009
DATE OF JUDGMENT	25 September 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 213
JUDGMENT APPEALED FROM	R v Allan Rudd (Unreported, County Court of Victoria, Judge Nixon, 23 October 2007 and R v Allan Rudd (Unreported, County Court of Victoria, Judge Nixon 19 September 2007

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CRIMINAL LAW – evidence - mixed statement exception to hearsay rule – telephone conversations between applicant and his wife containing implied admissions or revealing knowledge of crime – admissibility – direction as to admissions against interest –

CRIMINAL LAW – post offence conduct – conversations of applicant and wife designed to conceal guilt – adequacy of direction – R v Ciantar (2006) 16 VR 26, R v Berry & Wenitong (2007) 17 VR 153 applied

CRIMINAL LAW – exculpatory passages from other telephone calls wrongly excluded – misdirection as to use of inculpatory passages – no substantial miscarriage of justice – proviso to s 586 applied.

SENTENCE – possession of unregistered firearm – integral part of commission of a crime – relevance of prior convictions

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Appearances:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Leanne Warren & Associates

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Redlich JA. I agree, for the reasons which his Honour gives, that error of law has been established, the proviso should be applied and both applications should be refused.

REDLICH JA:

Following a seven day trial before a judge and jury, the applicant was convicted on one count of reckless conduct endangering life and was sentenced to five years and six months’ imprisonment with a minimum term of four years before he was eligible for parole. The Crown case was that the applicant discharged a shotgun through the front bedroom window of a house at 78 Victoria Road Northcote whilst one of its occupants was present in the bedroom.

Following a further four day trial, the applicant was convicted on a further count, that of being a prohibited person in possession of an unregistered firearm, it being the shotgun which he had used to commit the offence the subject of the first trial. He was sentenced to three years’ imprisonment. It was ordered that six months of that sentence be served cumulatively upon the sentence fixed following the first trial, making a total effective sentence of six years. A new non-parole period of four years and six months was fixed.[1] The applicant now appeals against the convictions on each trial and the sentences imposed.
[1]Sentencing Act 1991 (Vic) s 14(1).

In both trials the prosecution was permitted to lead evidence of numerous phone calls made by…

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 Rudd

Details

AGLC: R v Rudd [2009] VSCA 213
Case: [2009] VSCA 213
Decision Date: 25 September 2009

CaseChat Overview and Summary

In this case, Rudd was convicted of multiple criminal offences, including possession of an unregistered firearm, contrary to s 4C(1) of the Firearms Act 1996 (Vic). The appeal centred on the admissibility of certain evidence, specifically, a mixed statement made by Rudd during telephone conversations with his wife, and the adequacy of the directions given to the jury regarding this evidence. The Court of Appeal was tasked with determining whether the lower court erred in admitting certain portions of the mixed statement and whether the jury was adequately directed on the use of this evidence.

The legal issues before the court included whether the mixed statement exception to the hearsay rule applied to the telephone conversations between Rudd and his wife, and if so, whether these statements could be considered admissions against interest or revelations of knowledge of the crime. Additionally, the court had to consider whether the lower court adequately directed the jury on the use of exculpatory and inculpatory passages from the mixed statement, and whether the exclusion of certain exculpatory passages led to a substantial miscarriage of justice.

The Court of Appeal found that the lower court had erred in its direction to the jury concerning the use of the inculpatory passages of the mixed statement. However, the court held that this error did not lead to a substantial miscarriage of justice. The court also noted that the exclusion of certain exculpatory passages was a misdirection, but again concluded that this did not result in a substantial miscarriage of justice. The court held that the proviso to s 586 of the Crimes Act 1958 (Vic) applied, and that the convictions should be upheld. The court also considered the relevance of Rudd's prior convictions in determining his sentence for possession of the unregistered firearm, finding that it was an integral part of the commission of a crime.

Rudd's appeal was dismissed, and the convictions and sentences imposed by the lower court were affirmed.

Orders