Vo v The Queen - [2013] VSCA 225

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0026

MICHAEL VO	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, COGHLAN JJA AND DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 August 2013
DATE OF JUDGMENT	30 August 2013 (1^st Revision, 3 September 2013, footnote 23 and paragraph 44)
MEDIUM NEUTRAL CITATION	[2013] VSCA 225
JUDGMENT APPEALED FROM	DPP v Michael Vo (Unreported, County Court of Victoria, Judge Chettle, 5 October 2012)

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CRIMINAL LAW — Application for leave to appeal against conviction — Applicant convicted of aggravated burglary and intentionally causing serious injury — Direction given for alternative charges to the charge of intentionally causing serious injury — Whether the judge erred by impermissibly dictating the sequence of the jury’s deliberations — Leave to appeal dismissed.

CRIMINAL LAW — Application for leave to appeal against conviction — Application of Criminal Procedure Act 2009 s 276(1) — Whether substantial miscarriage of justice in the applicant’s trial as a result of error or irregularity — On the issues contested at trial and the evidence, jury’s finding of guilt on intentionally causing serious injury was inevitable — Baini v The Queen (2012) 293 ALR 472 applied — Leave to appeal dismissed.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr T Kassimatis	Pica Lawyers
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading the draft reasons of Dixon AJA and agree with him that leave to appeal should be refused.

COGHLAN JA:

I also have had the advantage of reading the draft of reasons of Dixon AJA and agree that leave to appeal should be refused.

DIXON AJA:

On 5 October 2012 the applicant was convicted of aggravated burglary (charge 1) and intentionally causing serious injury (charge 2) to Clifford Ralston following an 8 day trial by jury in the County Court. He was sentenced to 5 years’ imprisonment on charge 2 in a total effective sentence of 6 years and 6 months with a non-parole period of 4 years and 4 months. A co-offender, Jordan Vo, was convicted on one charge of aggravated burglary. Another co-offender was acquitted on all charges.

The application is for leave to appeal and the applicant relies on a sole ground of appeal. This was that a substantial miscarriage of justice occurred in the trial of charge 2 as a result of the judge’s directions to the jury that they must deliberate sequentially from the most serious offence charge through to the least serious offence left to them to consider. In particular, the judge erred by directing that:

(a)when the jury considered their verdicts they should first consider the principal charge of intentionally causing serious injury as against the accused; and
(b)it is only if the jury’s verdict is not guilty with respect to that principal charge or any part of it that the jury should next consider charge 3 and then the lesser alternatives of causing injury intentionally 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 Vo v The Queen

Details

AGLC: Vo v The Queen [2013] VSCA 225
Case: [2013] VSCA 225
Decision Date: 30 August 2013 (1st Revision, 3 September 2013, footnote 23 and paragraph 44)

CaseChat Overview and Summary

The applicant, Vo, sought leave to appeal against his conviction for aggravated burglary and intentionally causing serious injury, with the case being heard in the High Court. The court was asked to determine whether the trial judge's direction to the jury regarding the sequence of their deliberations constituted an error that warranted leave to appeal. Additionally, the court considered whether there was a substantial miscarriage of justice due to an error or irregularity during the trial, warranting leave to appeal under the Criminal Procedure Act 2009.

The court considered the nature of the direction given by the judge, which required the jury to deliberate on the charge of intentionally causing serious injury before the charge of aggravated burglary. The applicant argued that this direction was improper as it may have influenced the jury's decision. The court noted that while the direction was unusual, it did not necessarily lead to an error that warranted an appeal. The court also examined whether the error or irregularity in the trial resulted in a substantial miscarriage of justice. Given the evidence presented and the issues contested at trial, the jury's finding of guilt on the charge of intentionally causing serious injury was deemed inevitable.

The court found that the trial judge's direction, although unconventional, did not result in a substantial miscarriage of justice. The jury's verdict was consistent with the evidence and the contested issues, leading the court to conclude that there was no substantial miscarriage of justice. Applying the principles from Baini v The Queen, the court determined that the applicant's case did not meet the threshold for leave to appeal. Consequently, the application for leave to appeal was dismissed.

Orders