JUDGES:	REDLICH, PRIEST and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 April 2016
DATE OF JUDGMENT:	19 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 113
JUDGMENT APPEALED FROM:	DPP v Spence (Unreported, Supreme Court of Victoria, Croucher J, 25 March 2015 (Conviction))

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CRIMINAL LAW – Appeal – Conviction – Murder – Prosecutor’s address – Whether repeated resort to rhetorical questions aimed at dismantling defence case had the capacity to reverse the onus of proof – Whether Palmer v The Queen (1998) 193 CLR 1 infringed – Whether language employed by prosecutor was intemperate or inflammatory – Robust nature of trial process – Prosecutor’s address proper.

CRIMINAL LAW – Appeal – Conviction – Murder – Privilege against self-incrimination –Prosecution witness granted a certificate under s 128 of the Evidence Act 2008 – Credibility rule – Prosecutor’s address –Whether credit of witness unfairly buttressed – Prosecutor’s address proper – Evidence Act 2008 ss 55, 56, 101A and 128.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Turnbull Lawyers
For the Crown	Mr P J Doyle	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
PRIEST JA
FERGUSON JA:

Introduction

A jury empanelled in the Supreme Court convicted the appellant of murder on 25 March 2015. The trial judge sentenced him to be imprisoned for 27 years, with a non-parole period of 22 years, on 13 July 2015.

On 10 December 2015, a judge of this Court granted the appellant leave to appeal against his conviction on two grounds:

1. A substantial miscarriage of justice occurred in that the onus of proof was reversed because of prejudicial closing arguments made by the prosecutor.
2. A substantial miscarriage of justice occurred because the prosecutor in his closing address sought to impermissibly buttress the credit of the witness, Dong Di Dai Nguyen, by relying on the fact that he had received a ‘certificate’ pursuant to s 128 of the Evidence Act 2008.

For the reasons that follow, we would dismiss the appeal.

Overview

Harvey Spence, the appellant, was a small-time drug dealer. He came to believe that an associate, Nhan Ngoc (‘Kevin’) Doan, may have informed police about his illegal drug activities.

It seems that, on 20 December 2012, the appellant was pulled over and his car was searched. An ‘ice’ pipe, and some powder believed to be methamphetamine was found. The appellant formed the belief that Mr Doan — who was sharing an apartment with Todi (Tom) Muja — had informed on him to the police.

On 6 January 2013, on a pretext, the appellant, together with Peter Mitchell and Tom Muja, drove Kevin Doan from Melbourne to a property in Johnsonville (near Bairnsdale) belonging to another associate, ‘WR’. During the trip, which took several hours, the appellant called Mr Doan a ‘dog’, and, at an early stage of the trip, made Mr Doan travel in the boot…

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 Spence v The Queen

Details

AGLC: Spence v The Queen [2016] VSCA 113
Case: [2016] VSCA 113
Decision Date: 19 May 2016

CaseChat Overview and Summary

The appellant was convicted of murder in the Supreme Court of Victoria and appealed to the Court of Appeal. The appeal raised several issues concerning the conduct of the prosecutor during the trial and the credibility of a key prosecution witness. The respondent, the Crown, argued that the trial judge had correctly allowed the prosecutor's address to the jury and that the provisions of the Evidence Act 2008 had not been breached.

The central issues for the court were whether the prosecutor's repeated use of rhetorical questions in their address had the capacity to reverse the onus of proof, whether the language employed was intemperate or inflammatory, and whether the prosecutor's address improperly bolstered the credit of a prosecution witness granted immunity under s 128 of the Evidence Act 2008. The court considered these questions in light of established legal principles and relevant case law, particularly the decision in Palmer v The Queen.

The court held that the prosecutor's address, while robust, was within the bounds of propriety and did not infringe upon the principles set out in Palmer v The Queen. The rhetorical questions were found to be a legitimate part of advocacy, aimed at dismantling the defence case rather than reversing the onus of proof. The language used was not deemed intemperate or inflammatory, and the court recognised the robust nature inherent in the trial process. Furthermore, the granting of immunity to the prosecution witness under s 128 of the Evidence Act 2008 meant that the prosecutor's address did not unfairly bolster the witness's credibility, as per ss 55, 56, 101A and 128 of the Evidence Act 2008. The appeal was dismissed, and the conviction upheld.

The court made no orders regarding costs.

Orders