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Wilson v The Queen

Wilson v The Queen

Case [2016] VSCA 62 6 April 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0262

DARREN WILSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG AP, PRIEST and BEACH JJA
WHERE HELD:	BALLARAT
DATE OF HEARING:	5 April 2016
DATE OF JUDGMENT:	6 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 62
JUDGMENT APPEALED FROM:	[2015] VSC 394 (King J)

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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Murder – Crown case put on two bases – Whether jury required to be unanimous in respect of basis for conviction – Jury directions – Whether judge required to charge jury that they must be unanimous as to the basis for conviction before finding accused guilty – R v Clarke and Johnstone [1986] VR 643 applied – Application for leave to appeal refused.

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Murder – Applicant sentenced to term of imprisonment of 27 years – Co-offender sentenced to term of imprisonment of 24 years – Parity – Justification for different sentences – Parity complaint not reasonably arguable – Application for leave to appeal refused’

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich QC with Mr P J Smallwood	Mr Greg Thomas
For the Respondent	Mr D A Trapnell QC with Ms K Argiropoulos	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG AP
PRIEST JA
BEACH JA:

Introduction

On 2 December 2014, the applicant was convicted of one charge of murder and two charges of incitement to murder.[1] On 17 July 2015, the applicant was sentenced as follows:
[1]The applicant was acquitted of two other charges of incitement to murder (charges 2 and 3 on the indictment).

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Murder [common law]	Life	27 years	Base
4	Incitement to murder [Crimes Act s 321G(1) and common law]	Life	7 years	2 years
5	Incitement to murder	Life	7 years	1 year 6 months
Total Effective Sentence:		30 years 6 months
Non-parole period:		26 years
Pre-sentence Detention Declared:		955 days

The victim in respect of charge 1, Timothy O’Brien (referred to at trial as ‘Timmy’), was a 14 year old boy with autism. On 7 August 2015, following a separate trial before a different judge and jury, the applicant’s co-accused, Joel Henderson, was also found guilty of the murder of Timmy. On 13 August 2015, Henderson was sentenced to a term of imprisonment of 24 years, with a non-parole period of 20 years, in respect of Timmy’s murder.

The applicant seeks leave to appeal against his conviction on the following ground:

There was a substantial miscarriage of justice caused by the failure of the learned trial judge to direct the jury that they had to be unanimous as to at least one of the alternative bases of guilt proposed by the Crown relating to the murder charge.

In addition, the applicant seeks leave to appeal against the sentence imposed on him on the following ground:

The sentence imposed on charge…

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 Wilson v The Queen

Details

AGLC: Darren Wilson v The Queen [2016] VSCA 62
Case: [2016] VSCA 62
Decision Date: 6 April 2016

CaseChat Overview and Summary

In the High Court of Australia, the case of Wilson v The Queen addressed an appeal against both conviction and sentence following a murder conviction. The appellant, Wilson, was convicted of murder and sentenced to 27 years of imprisonment, while his co-offender received a 24-year sentence. The appeal raised two primary issues: first, whether the jury was required to be unanimous regarding the basis for the conviction; and second, the parity between the sentences imposed on Wilson and his co-offender.

The court examined whether the jury needed to be unanimous on the basis for the conviction. This issue was tied to the directions given to the jury by the trial judge. The appellant argued that the jury must be unanimous as to the basis for conviction before finding him guilty, referencing the decision in R v Clarke and Johnstone. The court considered whether the trial judge was required to charge the jury on this point, and whether any error in the jury directions could lead to an unsafe and unsatisfactory conviction. The High Court found that the jury did not need to be unanimous on the basis for the conviction and that the trial judge's directions were sufficient.

The court also considered the disparity in the sentences between Wilson and his co-offender. The appellant argued that the difference in sentences was unjustifiable and amounted to a parity complaint. The High Court assessed whether this complaint was reasonably arguable, ultimately concluding that it was not. The court held that the trial judge had adequately considered the relevant factors in imposing the sentences and that the difference was justified based on the circumstances of the case. Consequently, the application for leave to appeal against both the conviction and the sentence was refused.

Orders