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Stone v The Queen

Stone v The Queen

Case [2021] VSCA 186 24 June 2021

Appeal

Aggravated & Exemplary Damages

Criminal Liability

Manifest Excess

Characterisation of Lies as Incriminating Conduct

Prosecution’s Duty of Disclosure

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0245

KATE STONE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BEACH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 April 2021
DATE OF JUDGMENT:	24 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 186
JUDGMENT APPEALED FROM:	[2019] VSC 452 (Taylor J)

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CRIMINAL LAW – Appeal – Appeal against conviction – Murder – Whether verdict of guilt reasonably open to jury – Whether open to judge to find statements by accused were lies – Characterisation of lies as incriminating conduct – Whether finding false accusation of others was incriminating conduct involved bootstraps reasoning – Prosecution’s duty of disclosure – Requirement to disclose relevant evidence not intended to be relied upon – Evidence not required to be disclosed until relevant – Criminal Procedure Act 2009 ss 110, 276(1), Jury Directions Act 2015 ss 19(1), 20(b); M v The Queen (1994) 181 CLR 487, R v Jan Ha Le [1998] VSCA 137, Roberts v The Queen (2020) 60 VR 431 considered – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Appeal against sentence – Manifest excess – Murder by burning at top end of range of seriousness – Whether excessive weight given to method of murder – Aggravating factors – Applicant falsely blamed named individuals for offending – Objective gravity extremely high – Moral culpability extremely high – Lack of mitigating factors – No evidence of remorse – No psychological explanation for offending – Strong condemnation required for domestic murder – Clarkson v The Queen (2011) 32 VR 361, Atem v The Queen [2020] VSCA 35 applied – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Robert Davis Barrister & Solicitor
For the Respondent	Mr C B Boyce QC, with Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA
T FORREST JA:

On 20 November 2018 after a four-week trial the applicant was found guilty of the murder of Darren Reid, her husband. After a plea in mitigation the applicant was sentenced to 34 years’ imprisonment with a non-parole period of 28 years.

The applicant now seeks leave to appeal against her conviction and sentence. For the reasons which follow, leave to appeal must be refused.

Factual summary

On 18 December 2016, shortly after 11:20 pm, police, fire brigade personnel and ambulance paramedics attended at 42 Derwent Drive, Long Gully in response to a report of a fire at those premises. They observed several small fires in the rear outdoor area of the property, and found Darren Reid, an occupant of the house, lying partially submerged in a bathtub. He had sustained burns to 95% of his body.

Present at the Long Gully house was his wife Kate Stone (the applicant) and two of their five children, DA and SA. Darren Reid was removed from the bathtub by paramedics and transported initially to the Bendigo Hospital and…

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 Stone v The Queen

Details

AGLC: Stone v The Queen [2021] VSCA 186
Case: [2021] VSCA 186
Decision Date: 24 June 2021

CaseChat Overview and Summary

Stone appealed against his conviction and sentence for the murder of his partner by burning. The jury had convicted him of murder, and the trial judge sentenced him to life imprisonment with a non-parole period of 25 years. The appeal against conviction argued that the jury's verdict was not reasonably open to them, and that it was improper for the judge to find that certain statements made by Stone were lies. The appeal against sentence argued that the sentence was manifestly excessive, and that the trial judge had given excessive weight to the method of murder as an aggravating factor.

The court considered the appeal against conviction, focusing on whether the jury's verdict was reasonably open to them, and whether it was open to the judge to find that certain statements were lies. The court found that the jury's verdict was reasonably open to them, and that it was open to the judge to find that certain statements were lies. However, the court found that the judge had erred in characterising certain lies as incriminating conduct, and that this involved bootstraps reasoning. The court also considered the prosecution's duty of disclosure, and found that the prosecution had not breached this duty.

The court considered the appeal against sentence, focusing on whether the sentence was manifestly excessive. The court found that the trial judge had correctly assessed the objective gravity and moral culpability of the offending, and had not given excessive weight to the method of murder as an aggravating factor. The court found that the sentence was appropriate, and that there were no mitigating factors, no evidence of remorse, and no psychological explanation for the offending. The court found that a strong condemnation was required for domestic murder, and that the sentence was not manifestly excessive.

The court refused both the application for leave to appeal against conviction and the application for leave to appeal against sentence.

Orders