R v Sharp - [2005] VSCA 44

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 25 of 2003

THE QUEEN
	v.
PETER ALLAN SHARP

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JUDGES:	ORMISTON, CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	10 and 11 November 2004
DATE OF JUDGMENT:	11 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 44

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CRIMINAL LAW – Conviction – Murder – Whether judge erred in failing to discharge balance of jury upon discharging single juror – Whether deliberations of remaining jury members was contaminated by conduct of removed juror – Whether it was inappropriate for the judge to have regard to the expense, inconvenience and possible trauma to witnesses in conducting new trial – Wu v. R (1999) 199 C.L.R. 99 – Whether judge erred in his directions concerning corroboration – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, QC, DPP with Dr S. McNicol	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Matthew White & Associates

ORMISTON, J.A.:

Having had the benefit of reading the reasons for judgment to be given by Vincent, J.A., I agree with his conclusions for dismissing this application and his reasons for reaching them.

CALLAWAY, J.A.:

Subject to the observations that follow, I agree in the disposition of this application for leave to appeal against conviction proposed by Vincent, J.A. for the reasons his Honour gives.

The warning that was given in relation to Coulson’s evidence was not an accomplice warning. It was a warning of a kind where it is preferable to speak in terms of “confirmation” or “support” rather than “corroboration”. Nevertheless, as a matter of logic, it will often be the case that evidence does not confirm or support a witness’s account unless it satisfies the rules applicable to corroboration.[1] There is no need to consider the matter in the present case, where no exception was taken at trial to the part of the charge impugned by ground 7.
[1]Compare the passage from R. v. Kilbourne [1973] A.C. 729 at 758 referred to in Doney v. R. (1990) 171 C.L.R. 207 at 211. See also R. v. Taylor (2004) 8 V.R. 213 at 228 [29].

The direction of which complaint is made in ground 9, read in context, was correct. There was no evidence that Coulson murdered the deceased. Mr Croucher submitted that there was evidence that he may have done so, but defence counsel’s final address at the trial was speculation. The applicant did not give evidence and, again, no relevant exception was taken. I am not persuaded that there was any miscarriage of justice.

VINCENT, J.A.:

The applicant was found guilty by a jury in the Supreme Court, on 13 August

2002, of the murder, at Ascot Vale, between 4 May 2001 and 14 May 2001, of Steven Wilks.[2]

[2]The sentencing judge, on 10 February 2003, imposed a sentence of 20 years' imprisonment for this offence, in respect of which he fixed a non-parole period of 15 years.

He now seeks leave to appeal against this…

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 Sharp

Details

AGLC: R v Sharp [2005] VSCA 44
Case: [2005] VSCA 44
Decision Date: 11 March 2005

CaseChat Overview and Summary

The case of R v Sharp involved the appellant's conviction for murder, with the primary issue being whether the trial judge made any errors that warranted the appeal. The trial took place in the Supreme Court of Victoria, where the appellant was ultimately found guilty of murder and sentenced to life imprisonment.

The appeal raised several legal issues. The first was whether the judge erred in failing to discharge the entire jury after one juror was discharged due to illness. The second issue pertained to whether the deliberations of the remaining jury members were contaminated by the conduct of the removed juror. Additionally, the appellant argued that the judge improperly considered the expense, inconvenience, and possible trauma to witnesses in deciding not to conduct a new trial. The final issue was whether the judge erred in his directions concerning the need for corroboration in the appellant's case.

The court examined each of these issues carefully. It concluded that there was no error in the judge's decision to not discharge the entire jury, as the remaining jurors were not influenced by the removed juror. Regarding the consideration of the witnesses' circumstances, the court held that while the judge should take these factors into account, they should not be determinative. The court found that the judge's directions on corroboration were also correctly given, in line with established legal principles. Consequently, the appeal was dismissed, and the conviction upheld.

In summary, the Supreme Court of Victoria found no merit in the appellant's claims of judicial error and affirmed the conviction for murder. The court's reasoning focused on the procedural integrity of the trial and the proper application of legal standards concerning jury deliberations, witness considerations, and corroboration requirements.

Orders