Networked Knowledge - Law Report

[This edited version of the report has been prepared by Dr Robert N Moles]

Victoria homepage
Article: Australian law on miscarriages of justice
Article: UK law on miscarriages of justice
Article: USA law on miscarriages of justice

IN THE SUPREME COURT

OF VICTORIA

COURT OF APPEAL

(CRIMINAL DIVISION)

THE QUEEN and ROBERT FARQUHARSON

FULL STATEMENT OF GROUNDS OF APPEAL

Date of document: 20 April 2008 Our ref.

Prepared by Sol code:

Tel:

APPEAL AGAINST CONVICTION

Unsafe and unsatisfactory grounds

- The verdict was unsafe and unsatisfactory because there was insufficient evidence to sustain a conviction on any count.

- Alternatively, the verdict was unsafe and unsatisfactory because the jury ought not to have been satisfied of the guilt of Mr Farquharson on any count.

Grounds concerning disclosure of evidence

- The Learned Trial Judge erred in failing to permit the Defence to pursue a Basha-type enquiry of several witnesses before empanelment.

- The trial miscarried because of the many failures of timely disclosure by the prosecution, as to

(a) the basis of the prosecution case; and

(b) significant items of evidence.

Grounds concerning the opinion evidence of Dr Matthew Naughton

- The Learned Trial Judge erred in failing to apply the correct test to the admissibility of the opinion evidence of Dr Naughton.

- The Learned Trial Judge erred in admitting the opinion evidence of Dr Matthew Naughton that it was “extremely unlikely” that Mr Farquharson suffered a bout of cough syncope

- The trial miscarried because of the directions given by the Learned Trial Judge concerning

(a) the effect of the medical evidence, and

(b) the summary of evidence and submissions about it.

Grounds concerning the evidence about the path of the vehicle

- The trial miscarried as a result of serial and significant failures of timely disclosure by the prosecution concerning the path of the vehicle.

- The Learned Trial Judge erred in failing to apply the correct test to the admissibility of the opinion evidence of Messrs Urquhart and Exton.

- The Learned Trial Judge erred in admitting the opinion evidence of Mr Urquhart on several topics:

(a) Evidence that Mr Farquharson’s vehicle was “under control”;

(b) Evidence concerning three steering movements, including one involving a steering-wheel turn of 220 degrees;

(c) Evidence concerning the “re-enactment” evidence behaviour of dissimilar vehicle

(d) Evidence of a computer “simulation”

- The Learned Trial Judge erred in admitting the opinion evidence of Serjeant  Exton of the inference to be drawn from the course followed by Mr Farquharson’s vehicle.

- Alternatively, the Learned Trial Judge failed to discharge the jury following this evidence.

- The Learned Trial Judge misdirected the jury with respect to the use which could be made of the reconstruction evidence.

- The Learned Trial Judge failed adequately to summarise the cross-examination of the reconstruction witnesses, or adequately to put the defence case with respect to the reconstruction evidence.

Grounds concerning the witness Greg King

- The Learned Trial Judge erred in directing the jury that King’s “reply” to defence criticism was “why would I lie?”

- The Learned Trial Judge erred in failing to put fully the defence criticism of Mr King’s evidence.

- The trial miscarried because of the prosecution’s failure to disclose, prior to verdict, that Mr King was guilty of an indictable offence, and that police were prepared to (and ultimately did) provide a letter of support upon his sentence.. 

Grounds concerning consciousness of guilt

- The Learned Trial Judge erred in allowing the recorded words of Mr Farquharson to be used by the jury as consciousness of guilt.

- The Learned Trial Judge erred in his directions to the jury on consciousness of guilt.

- The Learned Trial Judge erred in declining to admit evidence relevant to the jury’s consideration of the alleged consciousness of guilt of Mr Farquharson.  

- Regarding the evidence of the “dam-side” conduct of Mr Farquharson, the Learned Trial Judge erred by failing to give adequate directions to guard against the danger that the jury might misuse this evidence as admissions by conduct.

Grounds concerning the witness Greg Roberts

- The Learned Trial Judge erred in excluding opinion evidence of Mr Roberts

- The Learned trial judge erred in his directions concerning the relevance and effect of the evidence of Mr Roberts

Grounds concerning the charge

- The trial miscarried because of numerous errors in the form and content of His Honours charge

(a) the charge distorted the issues

(b) the charge ignored or underplayed matters of importance in the defence case

(c) the charge marred by evident displays of emotion

Kotzmann Ground

- The trial miscarried because of an aggregation of errors.

APPEAL AGAINST SENTENCE

Top of Page