Wilson v The Queen - [2015] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0237

MICHAEL DAVID WILSON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and KYROU JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 July 2015
DATE OF JUDGMENT:	11 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 211
JUDGMENT APPEALED FROM:	DPP v Wilson (Unreported, County Court of Victoria, Judge Grant, 8 August 2014)

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CRIMINAL LAW – Conviction – Appellant convicted of one charge of armed robbery and pleaded guilty to one charge of possession of small quantity (6 tablets) of a drug of dependence (OxyContin) – Offender stole OxyContin from pharmacy – Appellant taken into police custody following day – Whilst in police cells appellant observed using syringe to inject himself with OxyContin solution made from broken down tablet – Crown case relied upon recognition evidence from staff members at pharmacy and fact of appellant having been subsequently found in possession of OxyContin – Crown did not lead any evidence at trial as to appellant having used syringe to inject himself with drug – Defence counsel referred to that fact in closing address – Whether error by defence counsel led to substantial miscarriage of justice – Reference to use of syringe highly prejudicial necessitating discharge of jury – Appeal allowed – New trial ordered on charge of armed robbery.

CRIMINAL LAW – Conviction – Appellant pleaded guilty to possession charge and not guilty to armed robbery charge in presence of jury panel – Jury returned verdict on armed robbery charge only – Whether judge erred by failing to take a verdict from jury on the possession charge and thereby failed to have the jury clear the indictment – Whether conviction on possession charge should be quashed – Appeal against conviction dismissed – Criminal Procedure Act ss 210, 215, 217, 241 and 253B considered.

CRIMINAL LAW – Sentence – Judge sentenced appellant in mistaken belief that maximum sentence for possession charge was 5 years’ imprisonment – Applicable maximum sentence was in fact 12 months – Material error – Sentence of 4 months’ imprisonment set aside – Appellant convicted and discharged.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	James Dowsley & Associates
For the Crown	Ms F Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA
KYROU JA
CROUCHER AJA:

This is an appeal, pursuant to leave granted by Priest JA, against both conviction and sentence.

The appellant, now aged 31, was arraigned in the County Court at Warrnambool on an indictment containing one charge of armed robbery and one charge of possessing a drug of dependence. He pleaded not guilty to the charge of armed robbery, but guilty, in the presence of the jury, to the charge of possession of a drug of dependence. After a trial lasting four days, he was convicted of the charge of armed robbery.

In his preliminary remarks to the jury, the judge said this:

In this case it’s alleged by the prosecution that the accused man,…

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: Michael David Wilson v The Queen [2015] VSCA 211
Case: [2015] VSCA 211
Decision Date: 11 August 2015

CaseChat Overview and Summary

In Wilson v The Queen, the appellant was convicted of armed robbery and pleaded guilty to a charge of possessing a small quantity of OxyContin, a drug of dependence. The appellant stole the drug from a pharmacy, and while in police custody, he was observed injecting himself with a solution made from the broken down tablet. The jury was not led any evidence regarding the injection in police custody, but the defence counsel referred to it in their closing address. The appellant appealed the conviction on the grounds that the reference to the injection was highly prejudicial and resulted in a substantial miscarriage of justice. The court found that the judge should have discharged the jury and ordered a new trial on the charge of armed robbery.

The appellant also appealed against his conviction for possessing OxyContin, arguing that the trial judge should have taken a verdict from the jury on this charge as well. The appellant submitted that the failure to do so meant that the jury did not clear the indictment, and the conviction should be quashed. However, the court held that the trial judge had not erred in this regard, and the appeal against the conviction for possession was dismissed. The court considered sections 210, 215, 217, 241, and 253B of the Criminal Procedure Act in its deliberations.

Lastly, the appellant appealed against his sentence, arguing that the trial judge had mistakenly believed that the maximum sentence for the possession charge was five years’ imprisonment, when in fact it was twelve months. The court held that this was a material error and set aside the sentence of four months’ imprisonment. The appellant was convicted and discharged.

Orders