Thatiya Terdputham v The Queen - [2017] VSCA 123

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0125

THATIYA TERDPUTHAM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, FERGUSON and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 May 2017
DATE OF JUDGMENT:	29 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 123
JUDGMENT APPEALED FROM:	R v Terdputham and Seehaverachart [2015] VSC 740 (Beale J)

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CRIMINAL LAW – Application for leave to appeal – Conviction – Murder – Joint criminal enterprise – Deceased attacked for coming to aid of another – Start of prosecutor’s opening address focused on deceased’s actions as ‘Good Samaritan’ and co-accused’s guilty plea – Refusal by trial judge to discharge jury following prosecutor’s opening address – High degree of necessity test – Whether substantial miscarriage of justice – No miscarriage – Leave refused

CRIMINAL LAW – Application for leave to appeal – Sentence – Murder – Joint criminal enterprise – Sentence 24y – Non-parole period 18y – Parity – Same sentence imposed on co-offender – Whether sentencing judge properly distinguished personal circumstances of applicant and co-offender – No error by sentencing judge – Leave refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Ann Valos Criminal Law
For the Respondent	Mr G J C Silbert QC with Ms S A Flynn	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA:
FERGUSON JA:
KAYE JA:

On 9 September 2015, a jury in the Supreme Court found Thatiya Terdputham and Sarud Seehaverachart (‘SS‘) guilty of the murder of Luke Mitchell at Brunswick on 24 May 2009. A third man, Teparat Tepsut (‘TT’) had pleaded guilty to Mr Mitchell’s murder before the trial of Terdputham and SS commenced.

On 17 December 2015, after a plea hearing, each of Terdputham and SS was sentenced to 24 years’ imprisonment. The judge fixed, in each case, a non-parole period of 18 years’ imprisonment.

Now, Terdputham applies for leave to appeal against both conviction and sentence.

Proposed ground of appeal – conviction

The applicant relies upon this proposed ground:

1.A substantial miscarriage of justice has occurred because of intemperate, inflammatory and prejudicial comments by the trial prosecutor during the opening address.

Circumstances generally described

According to the Crown case, in the early hours of 24 May 2009, a Mr Bartlett, walking along Sydney Road, Brunswick, observed the applicant and SS arguing with a woman. He told them to leave her alone. He was punched and chased by the applicant and SS, with TT in close attendance.

At the time, Luke Mitchell, his sister-in-law and other friends were in the vicinity. Mr Mitchell (sometimes we will refer to him as ‘the deceased’) and his sister-in-law observed what was happening. They attempted to assist Mr Bartlett. In consequence of this intervention, Mr Mitchell became involved in an altercation with the applicant and SS. TT was nearby. Punches were thrown. Mr Mitchell gave as good as he got. The other men left the scene, whilst Mr Mitchell, his sister-in-law and others in their group drove a short distance…

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

Case: [2017] VSCA 123
Decision Date: 29 May 2017

CaseChat Overview and Summary

In the matter of Thatiya Terdputham versus The Queen, the High Court of Australia was asked to consider an appeal against conviction and sentence in relation to a murder committed as part of a joint criminal enterprise. The deceased had been attacked while coming to the aid of another individual, and the appellant was convicted of murder. The appeal raised two primary issues: whether there was a substantial miscarriage of justice due to comments made in the prosecutor’s opening address and whether the sentence imposed was appropriate given the circumstances.

The court examined whether the comments made by the prosecutor in their opening address constituted a substantial miscarriage of justice. The comments referred to the deceased's actions as those of a 'Good Samaritan' and mentioned a co-accused's guilty plea. The appellant argued that these comments unfairly influenced the jury. However, the court found that there was no substantial miscarriage of justice. It concluded that the trial judge did not err in refusing to discharge the jury and that the comments did not prejudice the appellant’s right to a fair trial.

Additionally, the appeal challenged the appropriateness of the sentence. The appellant received a sentence of 24 years with a non-parole period of 18 years. The appellant argued that the sentencing judge did not properly distinguish between their personal circumstances and those of their co-offender, who received the same sentence. The court found that the sentencing judge had adequately considered the personal circumstances and that there was no error in the sentencing process. The appeal against sentence was also dismissed.

Consequently, the High Court refused the appellant leave to appeal both the conviction and sentence, affirming the decisions made by the lower courts. The court determined that there was no substantial miscarriage of justice and that the sentence was appropriately imposed.

Orders