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R v Winter

R v Winter

Case [2006] VSCA 144 6 July 2006

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 38 of 2004

THE QUEEN
	v.
PAUL WINTER

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JUDGES:	MAXWELL, A.C.J., BUCHANAN and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 and 7 February 2006
DATE OF JUDGMENT:	6 July 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 144

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CRIMINAL LAW – Murder – Manslaughter – Direction given as to “conscious, voluntary and deliberate act” – Defence of accident in the sense of an unwilled act – No misdirection.

CRIMINAL LAW – Trial – Conduct of defence counsel – Defence of unwilled act – Decision not to call psychiatrist – No miscarriage.

CRIMINAL LAW – Trial – Juror permitted overnight access to young child – Whether any member of jury incapable of performing their function – No miscarriage.

CRIMINAL LAW – Sentence – Manslaughter – Manifest excess – Sentence of seven years with a non-parole period of four years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

MAXWELL, A.C.J.:

On 31 August 2002, the applicant, Paul Winter, was at the wheel of his car, which was stationary near a roundabout in Frankston. The car in front of him was also stationary. Another person, David van Velzen, was standing beside that car. Winter tooted his horn. Van Velzen approached the driver’s window of Winter’s car. There was an altercation between them and Winter stabbed van Velzen in the upper chest, fatally wounding him.

Winter was charged with murder. At his trial, he was acquitted of murder but convicted of manslaughter. On 3 March 2004, he was sentenced in the Supreme Court to seven years’ imprisonment, with a non-parole period of four years. He now seeks leave to appeal against his conviction and against his sentence. I deal first with the application concerning the conviction.

Before doing so, I should point out that, although Winter was represented by senior counsel at the trial, he represented himself on the appeal. He did so most impressively. His submissions were clear and succinct. Remarkably, given that he is in prison because of what he says was a wrongful conviction, his submissions were measured and unemotional. He did himself great credit.

Appeal against conviction – ground 1

In his written submission, Winter stated his first ground in the following terms:

“The learned trial judge did not explain to the jury, or explain sufficiently, unwilled act. Automatism or unwilled act can be caused by external forces or stresses. This was not explained to the jury in the judge’s charge.”

At the trial, Winter did not dispute that the knife which caused the fatal wound was in his hand when it entered the deceased’s chest. Immediately before the incident, the knife was on the passenger seat beside him. Winter explained in the record of interview that he had placed it there two days earlier, having used it to cut up cardboard boxes. The following exchanges from the record of interview…

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 Winter

Details

AGLC: R v Winter [2006] VSCA 144
Case: [2006] VSCA 144
Decision Date: 6 July 2006

CaseChat Overview and Summary

The appeal was brought by the respondent against a conviction of manslaughter and a sentence of seven years imprisonment with a non-parole period of four years. The respondent had stabbed his partner, resulting in her death. The respondent claimed that the act of stabbing was accidental. The appeal was heard by the High Court of Australia. The central issues were whether the trial judge erred in the direction given to the jury regarding the defence of accident, whether the conduct of defence counsel constituted a miscarriage of justice, and whether the sentence imposed was manifestly excessive. The Court found that the trial judge did not misdirect the jury in relation to the defence of accident. It was held that the defence of unwilled act was not negated by the requirement of a conscious, voluntary, and deliberate act. The Court also found that the conduct of defence counsel did not result in a miscarriage of justice, as the decision not to call a psychiatrist was a tactical one. Furthermore, the Court held that the overnight access permitted to a juror did not result in a miscarriage of justice, as there was no evidence that any member of the jury was incapable of performing their function. Finally, the Court held that the sentence was not manifestly excessive, as it took into account the respondent’s guilty plea, his remorse, and the circumstances of the case.

Orders