R v Wilson - [2004] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 176 of 2002

THE QUEEN
	v.
ROBERT LAWRENCE WILSON

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2004
DATE OF JUDGMENT:	2 July 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 120

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Criminal Law – Arson – Verdict not unreasonable – Trial judge only obliged to tell the jury so much of the law as they needed to resolve the issues – Alford v. Magee (1952) 85 C.L.R. 437 applied – Directions to jury adequate in the circumstances of the case – Ignition of gas not an “element of the offence” within the meaning of s.321N(2)(b) of the Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr T. Kassimatis	Robert Stary & Associates

WINNEKE, P.:

I agree with Buchanan, J.A., for the reasons which he gives, that leave to substitute grounds 1 and 2 should be granted, but that leave to add grounds 3 and 4 should be refused. For the reasons given by his Honour, and those of Callaway, J.A., I agree that the application for leave to appeal against conviction should be refused.

CALLAWAY, J.A.:

I agree with Buchanan, J.A., for the reasons his Honour gives, that leave to substitute grounds 1 and 2 should be granted, that leave to add ground 4 should be refused and that grounds 1 and 2(a) fail. I would also refuse leave to add ground 3, but simply on the basis that it has insufficient prospects of success having regard to the terms of the exception taken below and its importance in the scheme of things. Mr Kassimatis did not much press ground 2(a), conscious no doubt that, if it were made out, the proviso to s.568(1) of the Crimes Act 1958 would be applied. The applicant would not thereby have lost a chance which was fairly open to him of being acquitted.[1]
[1]Mraz v. R. (1955) 93 C.L.R. 493 at 514 per Fullagar, J.; R. v. Weiss [2004] VSCA 73 at [70].

I should like to say something on my own account in relation to grounds 2(b) and (c). As Buchanan, J.A. explains, this was a clear case for the application of Sir Leo Cussen’s great guiding rule.[2] By the time of the charge, by reason of defence counsel’s final address, it was common ground that there had been an attempt to commit arson.[3] The defence was that the applicant was not the culprit. It may be that, even if the judge’s directions on the elements of attempt had been incomplete or

erroneous, that would not have mattered.[4] As it happens, his Honour did direct the jury on all the elements of attempt pertinent to the facts. A complaint that he failed sufficiently to relate the law to the evidence does not sit well with the concession in defence counsel’s final address. To do so in detail would have…

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 Wilson

Details

AGLC: R v Wilson [2004] VSCA 120
Case: [2004] VSCA 120
Decision Date: 2 July 2004

CaseChat Overview and Summary

In this case, the appellant, Wilson, was convicted of arson by the County Court of Victoria. The primary issue in this appeal was the adequacy of the trial judge's directions to the jury regarding the elements of the offence of arson under section 321N(2)(b) of the Crimes Act 1958. The appellant contended that the trial judge failed to adequately direct the jury on the requirement that the ignition of gas must be an element of the offence.

The court considered whether the trial judge was required to provide specific instructions regarding the ignition of gas as an element of the offence. The court held that the trial judge was only obliged to inform the jury of the law to the extent necessary for them to resolve the issues before them, as established in the case of Alford v. Magee. The court found that the directions given by the trial judge were adequate in the circumstances of the case, and that the ignition of gas was not an essential element of the offence of arson as defined by section 321N(2)(b) of the Crimes Act 1958.

As a result of the court's reasoning, the appeal was dismissed, and the conviction of the appellant was upheld. The court determined that the trial judge's directions to the jury were sufficient, and that the verdict was not unreasonable given the evidence presented. The court found that the trial judge's approach was in line with the principles established in Alford v. Magee, and that the appellant's contention regarding the ignition of gas as an essential element of the offence was not supported by the law.

Orders