R v Velasquez - [2004] VSCA 106

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 322 of 2002

THE QUEEN
	v.
MARCO VELASQUEZ

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JUDGES:	BATT, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 May 2004
DATE OF JUDGMENT:	31 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 106

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Criminal law - Good character of accused put in issue by accused's counsel - Evidence led of prior convictions of accused - Counsel's conduct could have resulted in a forensic advantage - Accused not deprived of a fair trial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr N. Papas	Schembri & Co.

BATT, J.A.:

I will invite Buchanan, J.A. to give the first judgment in this matter.

BUCHANAN, J.A.:

On 26 November 2002, a jury, after a trial in the County Court, found the applicant guilty of one count of false imprisonment, two counts of causing injury intentionally, eight counts of rape, one count of indecent assault and one count of robbery. After a plea, a total effective sentence of seven years and eleven months was imposed and a non-parole period of four years and nine months was fixed.

The applicant seeks leave to appeal against his conviction on the following grounds:

"2.That the introduction of the bad character of the applicant by his own counsel led to an unfair trial and accordingly the convictions constitute a miscarriage of justice.
3.The learned trial judge erred in allowing the prosecutor to lead in evidence the prior convictions of the applicant.
4.The learned trial judge erred in allowing the prosecutor to cross-examine the accused as to his prior convictions."

Having regard to the grounds of the application, the facts may be stated in a short compass.

The applicant is aged 33 years. The offences arose from the events of the early hours of 8 June 2001 when the applicant picked up a 20-year-old prostitute in St Kilda. The complainant gave the applicant directions to a car park where she was in the habit of rendering services to her customers. Instead, the applicant drove her to the beach. He refused her request to drop her off, and restrained her. At the beach he assaulted her physically and committed a series of rapes and indecent assaults upon her. He kept her restrained for a period of several hours, before departing in his car, taking with him her mobile phone and a locket. Shortly

afterwards the complainant in a distressed state flagged down a passing truck driver.

The complainant was examined by forensic medical officers and samples were taken from her person. Examination confirmed recent vaginal and anal trauma. She also had a large bruise or an abraded area on her left buttock and other minor injuries about her mouth. The source of some of the semen found in her vagina and anus was the applicant.

The applicant was arrested later that morning. After his arrest, the applicant initially denied being in St Kilda that morning…

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 Velasquez

Details

AGLC: R v Velasquez [2004] VSCA 106
Case: [2004] VSCA 106
Decision Date: 31 May 2004

CaseChat Overview and Summary

The case of R v Velasquez was heard before the court where the defendant, Velasquez, faced charges that brought into question his good character. The crux of the dispute revolved around the admissibility of prior convictions that were introduced into evidence by the defendant's own counsel. This introduction of evidence was not only pertinent to the character of the accused but also to the potential forensic advantage it might have afforded during the trial. The defendant's counsel's conduct in bringing these prior convictions to the forefront of the proceedings was scrutinised to determine whether it had deprived Velasquez of a fair trial.

The legal issues before the court were twofold. Firstly, whether the introduction of the defendant's prior convictions by his own counsel constituted an error that prejudiced the fairness of the trial. Secondly, the court had to assess whether such conduct could be considered a strategic choice that might have provided a forensic advantage to the defendant. The court was required to balance the principles of fairness in a trial against the tactical decisions made by defence counsel.

The court found that the introduction of the prior convictions by the defendant's counsel was a calculated move, which could have been intended to neutralise the prosecution's attempts to portray the defendant in a negative light. The court held that there was no evidence to suggest that Velasquez was deprived of a fair trial as a result of this conduct. The strategic decision made by counsel was deemed to be a legitimate part of the defence strategy and did not compromise the integrity of the trial process. The court concluded that the defendant's good character was sufficiently addressed within the context of the trial, and the outcome was not tainted by the manner in which the prior convictions were presented.

No further orders were made by the court beyond its findings and conclusions regarding the fairness of the trial and the admissibility of the evidence presented. The court's ruling confirmed that the defendant's rights were upheld and that the trial proceeded in a manner consistent with legal standards.

Orders