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Werden v The Queen

Werden v The Queen

Case [2015] VSCA 72 23 April 2015

Appeal

Criminal Liability

Admissibility of Evidence

Substantial Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0023

GABRIEL WERDEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, OSBORN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 March 2015
DATE OF JUDGMENT:	23 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 72
JUDGMENT APPEALED FROM:	DPP v Werden (Unreported, County Court of Victoria, Judge Mason, 22 October 2013 (date of conviction), 20 December 2013 (date of sentence))

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant found guilty of nine charges of obtaining financial advantage by deception and 14 charges of attempting to obtain financial advantage by deception – Whether judge erred by admitting evidence of the use of gloves by the accused for the purpose of posting an envelope when it was not established that the mail contained fraudulent material – Whether prosecutor’s cross-examination as to the applicant’s failure to take the oath as opposed to an affirmation gave rise to a substantial miscarriage of justice – Whether questions asked by the trial judge during cross-examination of the applicant gave rise to a substantial miscarriage of justice – Whether photogrammetric evidence ‘fresh evidence’ – Whether competent counsel should have called photogrammetric evidence at trial – Whether verdicts unsafe and unsatisfactory – No substantial miscarriage of justice arose – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	The applicant appeared in person
For the Respondent	Ms F L Dalziel with Mr D P Hannan	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA:

I agree in the reasons of Osborn JA, and with the order which his Honour proposes.

OSBORN JA:

On 22 October 2013, following a seven week trial, the applicant was found guilty by a jury of nine charges of obtaining financial advantage by deception and 14 charges of attempting to obtain financial advantage by deception. He now seeks leave to appeal his conviction on a series of grounds. The Court has directed that the matter be heard on the basis that if leave is granted the hearing be treated as the hearing of the appeal.

The alleged offending occurred over two periods the first during 2010 between July and December (charges 1 to 17) and then after a gap of some six months the balance of the offending in 2011.

The circumstances of the alleged offending were summarised by the trial judge in an annexure to his sentencing remarks and it is convenient to adopt that summary for present purposes.

Charge 1 Attempt to obtain financial advantage by deception— ME Bank $230,000
1)On the 27th June 2010 the accused contacted MM by phone regarding vacant land in Manns Beach which he and his wife owned and had advertised for sale on internet site DIY (Do It Yourself) property sales. The property was advertised for $95,000.
2)The accused purported to be Tony Tont and told MM he wished to purchase the property on behalf of Mark DeSilva, an overseas purchaser.
3)On the 15th July 2010 the…

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 Werden v The Queen

Details

AGLC: Werden v The Queen [2015] VSCA 72
Case: [2015] VSCA 72
Decision Date: 23 April 2015

CaseChat Overview and Summary

The case of Werden v The Queen involves the applicant, Werden, who was found guilty on nine charges of obtaining financial advantage by deception and 14 charges of attempting to obtain financial advantage by deception. Werden sought leave to appeal against his conviction, arguing that the trial judge had erred in various respects, which cumulatively gave rise to a substantial miscarriage of justice. The High Court was tasked with determining whether the trial judge's decisions and the prosecutor's cross-examination constituted errors warranting an appeal, as well as examining the admissibility and presentation of certain evidence.

The central legal issues revolved around the admissibility of evidence regarding the use of gloves by the accused during the posting of an envelope, which the applicant contended was not established to contain fraudulent material. Additionally, the applicant argued that the prosecutor's cross-examination about his failure to take the oath, rather than an affirmation, and questions posed by the trial judge during cross-examination, potentially led to a substantial miscarriage of justice. The applicant also contended that photogrammetric evidence should have been considered as fresh evidence and that competent counsel should have called this evidence during the trial. Furthermore, Werden argued that the verdicts were unsafe and unsatisfactory, necessitating an appeal.

The Court found that no substantial miscarriage of justice had occurred. The evidence of the use of gloves was deemed relevant and properly admitted, as it pertained to the accused's conduct and not the content of the mail. The Court also ruled that the prosecutor's cross-examination and the trial judge's questions did not prejudice the applicant to the extent required for a miscarriage of justice. Regarding the photogrammetric evidence, the Court held that it was not fresh evidence and that there was no basis to conclude that competent counsel should have presented it at the trial. Consequently, the Court concluded that the verdicts were not unsafe and unsatisfactory, and therefore denied Werden leave to appeal.

The final orders of the Court were that Werden's application for leave to appeal against his conviction was refused. The Court found no substantial miscarriage of justice in the trial process and upheld the original verdicts.

Orders