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Walker v The Queen

Walker v The Queen

Case [2014] VSCA 177 18 August 2014

Appeal

Jurisdiction

Admissibility of Evidence

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0014

JULIE THERESA WALKER	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, OSBORN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2014
DATE OF JUDGMENT:	18 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 177
JUDGMENT APPEALED FROM:	DPP v Walker (Unreported, County Court of Victoria, Judge Cohen, 15 August 2013 (date of conviction), 30 August 2013 (date of sentence))

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CRIMINAL LAW – Conviction – Appeal – Refusal to discharge jury following evidence of bad character – Substantial miscarriage of justice – Refusal to give unreliable witness warning under s 165 of the Evidence Act 2008 – Warning not required – Appeal allowed – Question of appropriate relief – Retrial ordered – Observations as to Director’s discretion.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M H Thomas	Ann Valos Criminal Law
For the Crown	Ms S Borg	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I have had the advantage of reading, in draft, the reasons prepared by Osborn JA. I agree with those reasons and with the orders proposed.

OSBORN JA:

Introduction

Following a trial in the County Court at Geelong, on 15 August 2013 the appellant was found guilty by a jury of two charges of recklessly causing injury[1] (charge 2 and charge 7, being a statutory alternative to charge 4). The victims respectively were two women, Dale Maryann Watson (‘Watson’) and Vera Nicki Grozdanovski (‘Grozdanovski’). Charge 2 was an alternative to a charge of intentionally causing injury[2] (charge 1) and charge 4 was an alternative to a charge of intentionally causing serious injury[3] (charge 3). The appellant was acquitted of charges 2, 3 and 4. The appellant was also acquitted of making a threat to kill (charge 5).[4]
[1]Crimes Act 1958 s 17.
[2]Ibid s 18.
[3]Ibid s 16.
[4]Ibid s 20.

On 30 August 2013 the appellant was sentenced to be imprisoned for three months and a community corrections order (‘CCO’) of 18 months’ duration was imposed.

The CCO was cancelled on 6 November 2013 following an application made pursuant to s 48N(1)(a) of the Sentencing Act 1991.

The appellant appeals on two grounds:

1.There was a miscarriage of justice arising from the wrongful admission of [evidence of] the accused’s bad character and the learned trial judge’s failure to discharge the jury following that disclosure.

2.The learned trial judge failed to give a direction pursuant to s 165 of the Uniform Evidence Act [sic] or at common law in relation to the unreliability of the witnesses Dale Watson and Vera Grozdanovski.

The offending

Watson and Grozdanovski were in a relationship together. Both knew the appellant. Indeed, Watson had been in a relationship with the appellant some 15 years previously. About two weeks prior to the offences Watson had confronted the appellant in the street over rumours the appellant had allegedly been spreading about her. They had a fist fight and Watson bested the appellant.

The Crown case was that…

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 Walker v The Queen

Details

AGLC: Walker v The Queen [2014] VSCA 177
Case: [2014] VSCA 177
Decision Date: 18 August 2014

CaseChat Overview and Summary

In the case of Walker v The Queen, the appellant sought to appeal his conviction on the basis that the trial judge had failed to discharge the jury after hearing evidence of the appellant's bad character and had not issued a warning about the reliability of a witness under section 165 of the Evidence Act 2008. The court of appeal was tasked with determining whether the trial judge's decisions had resulted in a substantial miscarriage of justice and whether the failure to give a warning under section 165 constituted a significant error.

The primary legal issues the court addressed were whether the trial judge's refusal to discharge the jury and to issue a warning under section 165 constituted a substantial miscarriage of justice and whether the failure to issue the warning was a significant error. The court examined the trial judge's reasoning and the potential impact of the evidence on the jury's decision-making process. The court also considered the circumstances under which a warning under section 165 should be given and whether the failure to do so in this case warranted a retrial.

The court found that the trial judge's decisions did not result in a substantial miscarriage of justice, but that the failure to issue a warning under section 165 was a significant error. The court noted that while the evidence of the appellant's bad character and the witness's unreliability were important, they did not undermine the overall fairness of the trial. However, the court concluded that the failure to give a warning under section 165 was a significant error that required a retrial. The court also made observations about the Director’s discretion in deciding whether to issue such a warning, emphasising the importance of considering the specific circumstances of each case.

The court allowed the appeal and ordered a retrial, noting that while the failure to issue a warning under section 165 was a significant error, it did not necessarily mean that the conviction was unsafe and unsatisfactory. The court highlighted the importance of ensuring that the trial process is conducted fairly and that all relevant factors are considered by the jury. The court did not specify any particular orders beyond ordering a retrial, leaving the details of the retrial to be determined by the trial court.

Orders