Slades & Parsons Criminal Law

2009 

R v Gould [2009] VSCA 130 (11 June 2009)

CRIMINAL LAW – Conviction – Manslaughter by unlawful and dangerous act – Whether judge erred in directing jury that act dangerous if likely to expose victim to appreciable risk of serious injury – Whether error productive of miscarriage – Evidence – Telephone intercept recordings – Whether judge erred in exercise of discretion in refusing to exclude recordings – Consciousness of guilt – Whether judge erred in giving Edwards direction in circumstances where prosecutor did not refer specifically to consciousness of guilt – Whether verdict unsafe and unsatisfactory – Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313, followed; Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, referred to; R v Cuenco [2007] VSCA 41; (2007) 16 VR 118, applied – Application for leave to appeal dismissed.

R v Wei Tang [2007] VSCA 134 (27 June 2007)

CRIMINAL LAW – Conviction – Slavery – Possess a slave – Use a slave – Elements of offences – Direction to jury.

CRIMINAL LAW – Conduct of trial – Judicial intervention in cross-examination by defence counsel.

CRIMINAL LAW – Directions – Balance – Comments as to address by defence counsel.

CRIMINAL LAW – Conviction – Whether verdicts unreasonable and not supported by evidence – Convictions quashed – Proviso – Whether verdicts of acquittal or re-trial appropriate.

CONSTITUTIONAL LAW (C’th) – Powers of Commonwealth Parliament – External affairs – International Convention to Suppress the Slave Trade and Slavery (1926) – Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956) – Implementation of treaty by legislation regulating conduct in Australia – Criminal Code Act 1995, Chapter 8, Offences against Humanity, s 270 – Whether legislation within power – The Constitution s 51(xxix).

R v W B [2009] VSCA 173 (3 August 2009)

CRIMINAL LAW – Sexual Offences – Evidence of complaint – Complaint related to sexual misconduct – Complaint made two years and seven months after events the subject matter of the charges not capable of amounting to recent complaint – Forensic disadvantage to accused not removed by a complaint not brought to the attention of the accused – Memory recovered by hypnotherapy – Trial judge failed to warn the jury of the dangers inherent in testimony based upon memory recovered by hypnotherapy – Verdicts unsafe and unsatisfactory.

R v Bidmade [2009] VSCA 90 (14 May 2009)

CRIMINAL LAW – Conviction – Trafficking and possession of drug of dependence – Whether act of possession part and parcel of trafficking.

CRIMINAL LAW – Sentencing – Applicant sentenced to a total effective sentence of two years and 10 months’ imprisonment with a non-parole period of two years on one count of trafficking in methyl amphetamine, one count of possessing methyl amphetamine – Whether judge gave sufficient weight to applicant’s youth and plea of guilty – Manifest excessiveness – Appeal allowed in part – Applicant re-sentenced to a total effective sentence of two years and seven months with a non-parole period of 21 months.

R v Barbaro Ors [2007] VSCA 271 (4 December 2007)

CRIMINAL LAW – Sentence – First applicant serving NSW sentence transferred to Victoria – Prisoners (Interstate Transfer) Act 1983 – ss 25, 27, 28 – Error as to date of commencement of Victorian sentences – R v WMR [2005] VSCA 59; (2005) 11 VR 370 considered and distinguished – Principle in Mill v R [1988] HCA 70; (1988) 166 CLR 59 applied.

Counts of cultivation of narcotic plant – First applicant’s failure to discharge burden under s 72B(b) Drugs Poisons & Controlled Substances Act 1981 – Finding that cultivation for purposes related to trafficking – Aggravating factor.

First applicant re-sentenced on counts of trafficking in drugs of dependence in not less than a commercial quantity – Three counts of cultivating a narcotic plant – Two counts of dealing with proceeds of crime – Total effective sentence 7 years 6 months – Non-parole period 5 years.

Other applicants’ sentences re-opened – parity.

R v Taing [2009] VSCA 8 (3 February 2009)

CRIMINAL LAW – Sentencing – Robbery – Two victims - Trafficking in a drug of dependence – Substantial criminal history – Sentence of 18 months’ imprisonment not manifestly excessive.

R v Richardson [2009] VSCA 4 (3 February 2009)

CRIMINAL LAW – Rape – Evidence of offender’s reputation for violence – Omission of balancing evidence – Failure of trial judge to direct the jury as to the proper use of the evidence – Miscarriage of justice – Convictions quashed.

R v Rout; DPP v Rout [2008] VSCA 87 (29 May 2008)

CRIMINAL LAW – Appeal against conviction – Identification evidence – Whether judge misstated evidence of identifying witness – Whether judge minimised differences between witness’s description of offender and the applicant – Whether judge failed to properly warn jury of potential for unreliability of witness’s identification of applicant – Application for leave to appeal refused.

CRIMINAL LAW – Sentence - Appeal by DPP - Whether total effective sentence of three years and six months’ imprisonment with non-parole period of 15 months’ imprisonment for offences of kidnapping, false imprisonment, threat to kill, robbery and theft manifestly inadequate - Whether aggregate sentence appropriate – Requirements of s 9(2) of the Sentencing Act 1991 (Vic) - Prospect of rehabilitation – Appeal dismissed.

R v Roussety [2008] VSCA 259 (17 December 2008)

CRIMINAL LAW - Sentencing - Obtaining property by deception and obtaining financial advantage by deception - Numerous counts - Whether judge erred in relying on offences committed prior to commencement of continuing criminal enterprise - Whether manifestly excessive and in breach of totality - Whether judge gave sufficient regard to plea of guilty and prospects of rehabilitation - Sentenced to a term of 11 years and two months’ imprisonment with a non-parole period of eight years - Appeal allowed - Appellant re-sentenced to 11 years and one months’ imprisonment with a non-parole period of seven years - Sentencing Act 1991 Part 2B, ss 6H(a), (b), (c), 21, 81(1) and 82(1) - R v Arundell [2003] VSCA 69 followed, R v Grossi [2008] VSCA 51, not followed.

General Television Corporation Pty Ltd v DPP Anor [2008] VSCA 49 (26 March 2008) – ‘Underbelly’ case

CRIMINAL LAW - Potential for publication of television series to prejudice a jury trial - Balancing right to a fair trial with freedom of expression - Supreme Court Act 1986, ss 17A(3) and 17A(4)

APPEAL – Civil orders – Jurisdiction – Jurisdiction of trial judge to make orders in the nature of suppression orders – Inherent jurisdiction to make orders necessary for the fair trial of an accused - Orders purporting to bind every person in the jurisdiction are too wide - injunctive relief to restrain an apprehended contempt

R v Bardsley [2008] VSCA 174 (12 September 2008)

CRIMINAL LAW – Sentence – Aggravated burglary – Robbery – Theft – Aggregate sentence imposed on all counts – Failure by sentencing judge to identify elements of sentence – Requirement of transparency of reasoning in sentencing process – Sentencing Act 1991 s 9(3) – Jurisdiction of Court of Appeal when sentencing judge fails to comply with s 9(3) – Crimes Act 1958 s 568(4) – Court concluded no different sentence should have been imposed – Appeal dismissed.

R v P A S [2008] VSCA 172 (11 September 2008)

CRIMINAL LAW – Conviction – Sexual offences – Whether verdicts unsafe and unsatisfactory – Quality of complainants’ evidence generally – Application for leave to appeal against conviction granted, appeal allowed, verdict and judgment of acquittal entered.

R v Crossley [2008] VSCA 134 (31 July 2008)

CRIMINAL LAW – Sentence – Armed robbery – Attempted armed robbery – Multiple offences – Total effective sentence of 6 years and 3 months imprisonment with non-parole period of 4 years – Whether total effective sentence manifestly excessive – Particular characteristics of offending – Matters in mitigation – Informer’s discount – Appeal allowed – Appellant re-sentenced to total effective sentence of 5 years imprisonment with non-parole period of 2 years and 6 months.

General Television Corporation Pty Ltd v DPP Anor (No 2) [2008] VSCA 103 (11 June 2008) – ‘Underbelly’ Case

1 This is an application for costs resulting from an appeal against orders of a judge of the Trial Division of this Court made on 15 February 2008 prohibiting the publication, broadcasting or exhibition of a television programme entitled ‘Underbelly’ until after the trial of ‘A’ has been completed.[1]

2 The appeal was allowed in part and then only to a limited extent. Orders 1 and 2 were varied so as to direct the orders to the appellant only. However, this narrowing of the breadth of orders 1 and 2 was technical, not substantive in nature as this Court made clear:

the fact that...order [1] is directed against the [appellant] only should not be misunderstood. It should not be treated by persons other than the named applicant as giving them carte blanche to publish any part of Underbelly howsoever the same may have been obtained by them. Obviously, any person with knowledge of the order who saw fit to publish Underbelly in Victoria prior to the verdict in the matter of R v [A] would run a grave risk of being found to have committed a contempt of court.[2]

3 The appeal was otherwise dismissed. Judgment in the matter of costs was reserved and additional submissions were received from the appellant and first and second respondents.

4 The appellant submitted that there should be no order as to costs because the Court has no power or jurisdiction to make such an order in the exercise of criminal jurisdiction. However, this submission is not to the point. It addresses circumstances emanating directly from a criminal trial. The present matter is a civil appeal and was, at all times, treated as such. The parties were subject to the Supreme Court Rules, Practice Notes and procedures applicable to civil appeals. The proviso to the right of appeal contained in s 17A(3) of the Supreme Court Act 1986 did not apply and the order made by the learned trial judge was not an order made ‘on or in relation to the trial’ of A, as we made plain in the judgment.[3]

5 The appellant’s submissions merely serve to highlight the potential for confusion between the civil matter regarding a fictional television series, which was the subject of her Honour’s orders, and the criminal trial of the accused.

6 As this is a civil matter, costs should follow the event. There is no sound reason to depart from the usual approach. Notwithstanding the learned trial judge’s orders were varied, the orders remain substantively intact and the appellant was unsuccessful. The application for costs by the first and second respondents should succeed.

R v Strezovski [2007] VSCA 260 (21 November 2007)

CRIMINAL LAW – Sentencing – False imprisonment – Attempted thefts – Thefts – Parity – Whether Tsiaras principles applied – Whether ill health taken into account sufficiently – Whether insufficient allowance for Renzella pre-sentence detention – Application to rely upon fresh evidence refused – Manifest excess – Appeal dismissed.

R v Norris [2007] VSCA 241 (1 November 2007)

CRIMINAL LAW – Sentence – Manslaughter, aggravated burglary and theft – Whether sentencing judge failed to consider offender’s intellectual disability in assessing moral culpability – Whether impermissibly small difference between total effective sentence and non-parole period – Whether excessive cumulation of individual sentences – Whether total effective sentence breached totality principle – Whether sentence manifestly excessive – Whether excessive disparity between sentences passed on applicant and co-offenders – No error demonstrated – Application refused.

DPP v Mirik Mirik [2007] VSCA 150 (6 August 2007)

CRIMINAL LAW – Sentence – Crown appeal – First and second respondents plea of guilty to one count of intentionally causing serious injury – First respondent plea of guilty to count of rape – Second respondent plea made on agreed basis that serious internal injuries sustained by victim as a consequence of the rape constituted part of the serious injury for which second respondent responsible – Such basis untenable at law – On appeal sentences assessed on basis that internal injuries sustained by victim were the consequence of the rape – Sentences on both respondents for intentionally causing serious injury held not manifestly inadequate – Sentence of four years’ imprisonment on first respondent for rape held manifestly inadequate – First respondent re-sentenced.

R v Wei Tang [2007] VSCA 144 (29 June 2007)

CRIMINAL LAW – Appeal – Orders following judgment in [2007] VSCA 134 – Consequence of allowing appeal against conviction – Whether interests of justice require the order of a retrial or an acquittal – Consequence of conclusion that it was open to a reasonable jury to have convicted the appellant on the counts on the presentment – Consideration of appellant having already faced two trials – Consideration of seriousness of offences charged – Convictions quashed and re-trial ordered

DPP v Arney [2007] VSCA 126 (12 June 2007)

CRIMINAL LAW – Sentencing – Crown appeal – Manslaughter (one count) – Recklessly causing serious injury (one count) – Five month-old daughter subject of punching – Whether sentence of nine years’ imprisonment with a non-parole period of five years manifestly inadequate – Relevance of current sentencing practices – Need for both specific and general deterrence – Requirements of double jeopardy – Appeal allowed – Respondent re-sentenced to eleven years’ imprisonment with a non-parole period of eight years

R v Miller [2006] VSCA 140 (29 June 2006)

CRIMINAL LAW- Sentence – Factual error in exhibit before trial judge – Risk that erroneous document affected sentence – Other grounds dismissed – Appeal upheld - Prisoner re-sentenced

R v D'Aloia [2006] VSCA 237 (13 November 2006)
CRIMINAL LAW – Sentencing – Trafficking in a large commercial quantity of a drug of dependence – Trafficking in a drug of dependence – Possession of a drug of dependence –Cultivating a commercial quantity of a narcotic plant – Whether judge took into account age and health of applicant – Whether judge erred in treating MDMA as a more serious drug than Cannabis – R. v. Pidoto and O’Dea [2006] VSCA 185 considered – Matters of delay, manifest excess and cumulation – Sentencing discretion re-opened, but applicant re-sentenced to the same total effective sentence of 13 years with a non-parole period of nine years confirmed as was imposed below.

R v Sirillas [2006] VSCA 234 (2 November 2006)

CRIMINAL LAW – Appeal against conviction – One count of armed robbery, one count of obtaining property by deception – Consciousness of guilt - Whether applicant’s story of coming into possession of stolen property capable of demonstrating a consciousness of guilt – Whether "bootstraps" reasoning – whether identification evidence safe – No error in directions to the jury - Application dismissed.

R v Tran; R v Tran [2006] VSCA 222 (19 October 2006)

CRIMINAL LAW – Sentencing – Appellants pleaded guilty to trafficking in a drug of dependence – Parity – Respective roles of appellants in trafficking network – Whether mitigating factors of delay, guilty pleas and ill health adequately taken into account – Whether non-parole periods for drug trafficking offences unusual or excessive – Whether undue delay – Complexity of investigation – Whether principle of totality given effect where second appellant committed further offences whilst on bail – Appeals dismissed.

R v Stavreski [2006] VSCA 157 (1 August 2006)

CRIMINAL LAW – Sentencing – Theft, handling stolen property and obtaining property by deception – Total value of property $10,846 – Individual sentences of four years and six months and four years and total effective sentence of five years’ imprisonment with a minimum term of three years’ imprisonment manifestly excessive.

R v Belhaj [2006] VSCA 153 (7 April 2006)

CRIMINAL LAW – Sentencing – Burglary and theft – Application for leave to appeal heard by single judge pursuant to s.582 of the Crimes Act 1958 – Same sentence on all counts despite substantial difference in amounts stolen – Broad-brush approach permissible – Mistake of fact in sentencing remarks – Not material – Severe sentence by comparison with sentences in other cases – Not manifestly excessive – R. v. Raad [2006] VSCA 67 applied - Leave to appeal refused.

R v Munro [2006] VSCA 94 (1 May 2006)

CRIMINAL LAW – Conviction – Applicant found guilty on one count of aggravated burglary (count 1) and not guilty on two counts of indecent assault (count 2 and 3) – Applicant a former teacher at the victim’s school – Judge’s charge deficient – Directions with respect to aggravated burglary inconsistent – Possibility that jury misunderstood applicable law – Crimes Act 1958 (Vic) ss. 76 and 77(b) – Consideration of the term "enters as a trespasser" – Barker v. R. [1983] HCA 18; (1983) 153 C.L.R. 338 – Task of trial judge in delivering charge – Miscarriage of justice – Application for leave to appeal against conviction granted – Verdict of acquittal entered.

R v Duong [2005] VSCA 71 (7 March 2005)

CRIMINAL LAW - Sentence - Trafficking in heroin and ecstasy (MDMA) – Co-offenders - Grounds of manifest excess and lack of parity - Application dismissed

R v Wu [2005] VSCA 18 (9 February 2005)

CRIMINAL LAW - Sentencing - Judge imposing "straight sentence" because of assumed executive action - Error - Re-sentenced to term with fixing of non-parole period.

R v Conci; R v Kane [2005] VSCA 173 (27 July 2005)

CRIMINAL LAW – Armed robbery - Intentionally cause injury – Theft - Joint trial - Common purpose – Aiding and abetting –- Whether armed robbery verdicts unsafe and unsatisfactory – Whether verdict on intentionally cause injury count unreasonable and not supported by evidence – Identification – Whether directions adequate as to identification – Offender known to witness - Evidence of recognition, not identification.

Criminal law – Sentence – Offender serving two other discrete sentences – Declaration of pre-sentence detention previously made by another judge but repeated by sentencing judge – New non-parole period fixed – Commencing date of new non-parole period – Sentencing Act 1991, s.14.

R v Kalajdic; R v Italiano [2005] VSCA 160 (24 June 2005)

CRIMINAL LAW – Blackmail – Statements by another inadmissible against the accused – No reasonable evidence of combination – Verdicts of guilty on each of alternative counts of theft and unlawful imprisonment irreconcilable – Lies by the accused – Consciousness of guilt – Trial judge failed to put to jury the accused’s explanation for lies – Trial judge failed to relate each lie to an appropriate count – Recklessness – Attempt to obtain property by deception may be constituted by recklessly false statement – Verdicts set aside.

R v Kaplan [2005] VSCA 316 (22 December 2005)

CRIMINAL LAW – Theft – Admissibility of statements in documents pursuant to s.55 of the Evidence Act 1958 – Documents related to a business – Documents made in the course of a business – Similar fact evidence – Amount and frequency of transactions relevant to mens rea.

R v Thai [2005] VSCA 283 (29 November 2005)

CRIMINAL LAW - SENTENCE - Importation of heroin - Hardship on family members - Both parents imprisoned - Young children suffering psychological stress - Whether exceptional circumstances - Impact on children taken into account in exercise of mercy upon re-sentencing - Customs Act 1901 (C'th) s.233B(i)(b) - Criminal Code (C'th) s.11.1(1) - Crimes Act 1914 (C'th) s.16A(2)(p).

R v McEwen; R v McMillan [2005] VSCA 202 (16 August 2005)

CRIMINAL LAW – Appeal – Drug offences – Applications for leave to appeal from sentences imposed – Multiple applicants – Totality – Parity – Manifest excess – Formal error on presentment – Applications dismissed.

R v Dao [2005] VSCA 196 (12 August 2005)

CRIMINAL LAW – Conviction – Procedure – Trial – Charge to jury – Duty of trial judge – Failure to summarize the evidence – Failure to summarize arguments of counsel – Whether trial miscarried. Criminal law – Sentence – Parity.

R v Bosio; R v Clarke; R v Zogheib [2005] VSCA 209 (18 August 2005)

CRIMINAL LAW – Sentencing – Trafficking and possession of drugs of dependence – Judge mistaking the facts in relation to two applicants and imposing manifestly excessive sentence on one of the counts affecting the other applicant – Sentencing discretion reopened – Differences in personal circumstances of applicants – Whether operational period of partially suspended sentence should include time spent in custody – Proportionality - Precision not required – Observations on structural arguments – Whether application for leave to appeal should be refused or application granted and appeal dismissed.

DPP v Phillips [2005] VSCA 112 (2 May 2005)

CRIMINAL LAW – Sentencing - Director's appeal - Trafficking in drugs - Whether sentence manifestly inadequate - Unusual features in case "likely to excite judge's sympathies" - Appeal dismissed.

R v Quinn [2005] VSCA 100 (14 April 2005)

CRIMINAL LAW – Sentencing - 15 counts including theft and obtaining property by deception - Elderly and vulnerable victims - Sentenced for like offences committed during substantially same period in New South Wales and Queensland - Due recognition not given by previous sentencing courts to appellant's significant assistance to Queensland authorities regarding unrelated matter - Significant sentencing discount entitlement for such assistance - Sentence of 30 months' imprisonment with 18 months suspended for three years manifestly excessive when notionally combined with sentences imposed for New South Wales and Queensland offending - Appellant re-sentenced to 20 months' imprisonment with 14 months suspended for period of two years - Mill v. The Queen [1988] HCA 70; (1988) 166 C.L.R. 59 applied.

R v Chiacchietta [2004] VSCA 21 (2 March 2004)

CRIMINAL LAW – Conviction - Concession by Director of Public Prosecutions of serious issues with respect to identification evidence adduced at trial - Appeal allowed - Re-trial ordered.

R v Mathebula [2004] VSCA 74 (5 May 2004)

CRIMINAL LAW – Drug offences - Knowingly concerned in importation of narcotic goods and attempted possession of prohibited import - Directions to jury on elements of knowledge and belief adequate given factual circumstances of offences - Judge's charge

R v Parsons; R v Stocker [2004] VSCA 92 (26 May 2004)

CRIMINAL LAW – Murder - Trial judge not required to leave to jury manslaughter as an alternative - Evidence of accomplices - Accused required to establish a witness was an accomplice on balance of probabilities - Accomplice warning not required in the case of an accessory after the fact - Existence of corroboration does not remove an accomplice's motive to lie - Prosecutor's opening address introduced facts of which no evidence was led - Judge's directions prevented miscarriage of justice - Hearsay evidence - Appropriate directions given to jury - Evidence of earlier attempts on life of deceased not propensity evidence - Statements by accused to police - Police did not suspect and ought not to have reasonably suspected accused of having committed an offence.

Sentence - Sentence of 23 years' with a non-parole period of 18 years' not manifestly excessive - Earlier attempts on life of deceased not treated as aggravating circumstances -

R v Calcedo [2004] VSCA 80 (5 May 2004)

CRIMINAL LAW – Sentence - Attempted armed robbery - Recklessly causing serious injury - Use of knife to rob newsagency - Good samaritan stabbed after intervening to prevent robbery - Total effective sentence of 15 years with 10 years non-parole period held manifestly excessive - Sentences of 6 years and 8 years respectively with TES 11 years with 8 years NPP substituted.

DPP v Ralph [2004] VSCA 158 (25 August 2004)

CRIMINAL LAW – Sentence - Crown appeal - Arson - Respondent having long criminal history including conviction for attempted arson - Appeal allowed - Sentence of two years with non-parole period of nine months increased to three years six months with minimum of two years three months.

R v Beary [2004] VSCA 229 (15 December 2004)

CRIMINAL LAW – Money laundering - Whether s.122 of the Confiscation Act 1997 (No. 108) creates one offence or two separate offences - Rolled up count - Representative or Giretti count - Sentence - Whether judge sentencing for one offence may take account of acts which constitute a separate offence - Mistake as to maximum sentence - Not immaterial - Sentence of three years' imprisonment for representative count of money laundering constituted by the sale of proceeds of thefts manifestly excessive.

R v TDJ [2003] VSCA 151 (11 September 2003)

CRIMINAL LAW – Sentence - Burglary and theft - Manifest excess - Sentence imposed failing to reflect the valuable assistance given by appellant to authorities - Appeal allowed.

R v Phung [2003] VSCA 32 (15 April 2003)

CRIMINAL LAW – Conviction - Applicant convicted of trafficking in a commercial quantity of a drug of dependence (heroin) - Meaning of "possession", "occupied" and "control" for the purposes of s.5 of the Drugs, Poisons and Controlled Substances Act 1981 - Proviso - Conviction affirmed.

CRIMINAL LAW – Sentence - Youth - Prospects of rehabilitation - Manifest excess - Total effective sentence of ten years with a non-parole period of seven years decreased to eight years with a non-parole period of six years.

R v Teh [2003] VSCA 169 (7 November 2003)

CRIMINAL LAW – Sentence - Culpable driving causing death and serious injury negligently - Applicant with poor driving record - Whether making orders for substantial cumulation resulted in a manifestly excessive sentence - Significance of offender's personal consequences where their criminal conduct has occasioned death of a loved one - Application allowed.

R v Munday [2003] VSCA 189 (26 November 2003)

CRIMINAL LAW - Rape - Evidence of "recent complaint" - Sufficiency of directions as to complaint immediately after rape - Whether judge should describe reason for rule - Need to explain limited basis for reception of complaint evidence - Consent - Onus of proof - Issue as to belief - Proper directions to jury in light of ss.36 and 37 of Crimes Act 1958.

DPP v Stewart [2003] VSCA 197 (21 November 2003)

CRIMINAL LAW – Sentence - Rape and nine counts of indecent assault - Crown appeal - Sentence of two years' imprisonment wholly suspended - Whether suspension of whole term led to manifest inadequacy - Exceptional circumstances - Appellate court's discretion on Crown appeal - Appeal dismissed.

R v Alexander and McKenzie [2002] VSCA 183 (20 November 2002)

CRIMINAL LAW – Separate trials - Distinction to be drawn between exercise of trial judge's discretion and the function of the appellate court in determining whether miscarriage has occurred as a consequence of joint trial.

CRIMINAL LAW – Admission of "similar fact" evidence - Test of admissibility - Whether evidence has sufficient probative value - Depends upon purpose for which evidence is to be admitted - Effect of s.398A Crimes Act 1958 (Vic.) discussed.

CRIMINAL LAW – Use of excluded record of interview in cross-examination of accused - Whether such use compromised fair trial.

CRIMINAL LAW – Directions of trial judge - "Jones v. Dunkel" direction; "Kilby" direction, and directions as to use of "admission" - Principles discussed.

CRIMINAL LAW – Re-trials or verdicts of acquittal - Whether verdicts "unsafe or unsatisfactory" - Principles discussed - Re-trials ordered.

R v Cambareri Ors [2001] VSCA 39 (3 April 2001)

CRIMINAL LAW - Sentence - Trafficking in heroin and amphetamines - Drug-dealing business - Sentencing considerations - Police interview of co-offender - Permissible use - Weight accorded to mitigating factors - Parity among co-offenders - Sentences (up to 9 years with minimum of 7) not manifestly excessive.

R v Menzies [2001] VSCA 22 (15 March 2001)

CRIMINAL LAW - Sentencing - Culpable driving causing death - Negligently causing serious injury - Injection of heroin together with use of prescribed drugs - Plea of guilty - Rehabilitation achieved and in prospect - Delay - Sentence of 7 years' imprisonment with non-parole period of 3½ years reduced (by majority) to 4½ years' imprisonment with non-parole period of 2 years.

R v Truelove [2001] VSCA 78 (10 May 2001)

CRIMINAL LAW – Sentencing - Negligently causing serious injury - Collision with oncoming car - Elderly victim quadriplegic - Unclear whether collision caused by driver fatigue, alcohol or heart condition - Finding that offender drove when he knew he ought not to - Sentence of 2 years' imprisonment with 9 months minimum, not manifestly excessive - Licence cancellation and need to fix period of disqualification

R v Felsinger [2001] VSCA 154 (3 September 2001)

CRIMINAL Law – Sentencing - Multiple offences of fraud committed over 2½-year period - Applicant suffering from chronic schizophrenia - Whether judge in error in failing to moderate principle of general deterrence - Application for leave refused.

DPP v Burgess [2001] VSCA 135 (27 August 2001)

CRIMINAL LAW - Sentencing - Director's appeal - Intentionally causing serious injury - Wholly suspended sentence - Sentencing judge misled by respondent as to her circumstances - Evidence admissible to prove that - Respondent ordered into custody - Crimes Act 1958, s.567A(5) and s.574 and proviso.

R v Djukic [2001] VSCA 226 (13 December 2001)

CRIMINAL LAW – Sentence - Trafficking in drug of dependence (heroin) - Principle of parity - Mitigatory factors explain distinction between appellant and his co-offenders - Individual sentence manifestly excessive - Re-sentence - Total effective sentence not reduced - Wong v. R. [2001] HCA 64 - R. v. Tien & Ors. [1998] VSCA 6 - Lowe v. The Queen [1984] HCA 46; [1984] 154 C.L.R. 606.

Mere possession of drug of dependence (cannabis) - Very small quantity - Three months' imprisonment manifestly excessive.

R v Czarny [1999] VSCA 192 (15 November 1999)

CRIMINAL LAW – Appeal against sentence for culpable driving - Offence committed when applicant's licence had been recently cancelled for alcohol-related driving offence - Appeal dismissed.

R v Leoni [1999] VSCA 218 (20 December 1999)

CRIMINAL LAW – Sentencing - Attempted armed robbery - Intentionally causing serious injury - Recklessly causing injury - Middle-aged man of good character in poor health - Aberrant behaviour - Whether head sentence warranting appellate intervention - Principles applicable to non-parole period.

DPP v England [1999] VSCA 95 (25 June 1999)

Criminal Law - Sentence - Murder - Appeal by D.P.P. - Post-mortem sexual intercourse and incineration of body as aggravating circumstances.

R v Hnativ [1998] VSCA 113 (3 August 1998)

CRIMINAL LAW – Appeal against sentence for trafficking in heroin - Complaint of disparity of sentence vis a vis co-offenders sentenced after the applicant - Appeal dismissed. Not to be read as a legal document.