R v Shiers - [2003] VSCA 179

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 228 of 2001

THE QUEEN
	v.
DANIEL LEIGH SHIERS

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JUDGES:	VINCENT and EAMES, JJ.A. and ASHLEY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2003
DATE OF JUDGMENT:	18 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 179

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CRIMINAL LAW – Conviction – Murder – Arson – Whether trial judge’s use of words “might” and “would” in defining provocation created a risk of misunderstanding by the jury – Parameters of the law of provocation – Whether trial judge erred in failing to give jury an “Edwards” type direction – No miscarriage of justice of the kind addressed in Edwards v. R (1993) 178 C.L.R. 193 said to arise – Application dismissed.

CRIMINAL LAW – Sentence – Whether sentence within available range – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr A. Shwartz	Victoria Legal Aid

VINCENT, J.A.:

On 31 July 2001 the applicant pleaded not guilty, before the Supreme Court sitting at Wangaratta, of the murder of Shane Burdon and the arson of the premises in which Mr Burdon was residing at the time of his death. A trial was then conducted at the conclusion of which, on 16 August 2001, the jury returned verdicts of guilty of each of these offences.

After hearing a plea in mitigation of penalty, on 20 August 2001 the learned sentencing judge imposed:

On the count of murder (count 1), imprisonment for 17 years
On the count of arson (count 2), imprisonment for five years.

His Honour directed that two years of the sentence on count 2 were to be served cumulatively upon that imposed on count 1. This created a total effective sentence of 19 years' imprisonment in respect of which a non-parole period of 15 years was fixed.[1]

[1]The crime of murder is punishable by an imposition of a maximum term of imprisonment for life. Arson is punishable by a maximum term of imprisonment of 15 years.

The applicant now seeks leave to appeal against the convictions and sentences imposed upon him, on the following grounds:

Grounds of Appeal against Conviction
(1)that in all the circumstances of this case the learned trial judge erred in defining provocation to the jury;
(2)that by reason of the nature of the prosecution case made against the applicant the learned trial judge erred in failing to give the jury an "Edwards"[2] type direction.

Ground of Application for Leave to Appeal against Sentence
That in all the circumstances of this case the sentence was manifestly excessive in that the learned trial judge should have made the sentence on count 2 wholly concurrent with the sentence on count 1.
[2]This refers to the judgment of the High Court in Edwards v. R. (1993) 178 C.L.R. 193 in which the manner in which a trial judge should address the issue of lies as demonstrating consciousness of guilt was considered.

The Background

The…

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 Shiers

Details

AGLC: R v Shiers [2003] VSCA 179
Case: [2003] VSCA 179
Decision Date: 18 November 2003

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent against both his conviction and sentence. The respondent had been convicted of murder and arson, and the appeal challenged both the conviction and the sentence on various grounds. The appeal was dismissed by the court.

The primary legal issue before the court was whether the trial judge's use of the words "might" and "would" in defining the concept of provocation to the jury created a risk of misunderstanding and whether the trial judge erred in not giving an "Edwards" type direction to the jury. The court considered the parameters of the law of provocation and whether any error by the trial judge was such that it constituted a miscarriage of justice. Additionally, the court examined whether the sentence imposed was within the range available under the law.

The court found that the trial judge's use of the words "might" and "would" did not create a risk of misunderstanding by the jury, and there was no error in failing to give an "Edwards" type direction. The court held that no miscarriage of justice of the kind addressed in Edwards v. R had occurred. In terms of the sentence, the court determined that it was within the available range and thus did not constitute an error. Consequently, the appeal was dismissed.

Orders