Criminal Law (Vict.)—Sentence—Appeal—Conviction on two or more counts—Appeal allowed on one count—Power of appellate court to affirm sentence or pass such sentence as might be warranted by verdict on count on &hich appellant properly convicted—Whether power to increase sentence on count not subject to appeal—Joinder of charges—Improper joinder—Relevance to the power of appellate court to increase sentence on count on &hich appellant properly convicted—Crimes Act 1958 (Vict.), s. 569(1).
Decisions
May 11. The following written judgments were delivered: - GIBBS C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Wilson. I entirely agree with them and would accordingly grant special leave to appeal and allow the appeal. (at p3)
STEPHEN J. Section 569(1) of the Crimes Act 1958 (Vict.) has for many years been a part of the criminal law of Victoria and has its equivalents in the statute law of other Australian States and of England where it finds its origin in s. 5(1) of the Criminal Appeal Act 1907 (U.K.). Yet so seldom has this provision been applied that the experienced members of the Court below, the Victorian Court of Criminal Appeal, have described it as "rarely, if ever, invoked in this Court". Of its English equivalent Lord Goddard said in 1956 that, in his experience, it had never previously been sought to be applied: Reg. v. Lovelock (1956) 1 WLR 1217, at p 1218; (1956) 3 All ER 223, at p 223; 40 Cr App R 137, at p 139 . The provision does not appear to have been the subject of any Australian authority and although applied in Lovelock, and later in Reg. v. Craig(5), the question whether it was properly applied in such circumstances as existed in Lovelock was expressly left open by their Lordships in the later Privy Council appeal of Reg. v. Edirimanasingham (1961) AC 454 . (at p3)
2. Section 569(1) reads as follows: "If it appears to the Full Court that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in subsitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment on which the Court considers that the appellant has been properly convicted." (at p4)
3. The terms of the sub-section require the following elements before it can be applied: an appellant, an indictment containing several counts or parts, and a situation in which it appears to the Full Court both that there was no proper conviction on some count or part and that on some other count or part there was a proper conviction, one…
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.
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Details
AGLC
Ryan v the Queen [1982] HCA 30
Case
[1982] HCA 30
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Ryan against the conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant and the proper application of the law relating to self-defence.
The primary legal issues before the Court were whether the trial judge had erred in admitting evidence obtained by police from the appellant's premises without a warrant, and whether the jury had been adequately directed on the defence of self-defence, particularly in relation to the appellant's subjective belief as to the necessity of using force.
The Court, in a joint judgment, held that the evidence obtained without a warrant was admissible, as the circumstances justified the police entry and search. Regarding the self-defence direction, the majority found that the trial judge's charge to the jury was deficient. They emphasised that the jury must consider the circumstances as the accused honestly believed them to be, and that the question of whether the belief was reasonable was a matter for the jury to determine, not a prerequisite for the belief itself to be considered.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.