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[2003] VSC 323
Supreme Court of Victoria
2003-09-04
REDLICH J
Original judgment source is linked above.
[2003] VSC 323
CRIMINAL LAW - Sentence - Attempted murder - Pre-concert - Aiding and abetting -Proof of adverse facts - Whether lesser penalty for aider and abettor.
"This man reported that any suggestion of participation in the offences for which he appeared before court is based on his awareness that he was in some difficulty because he believed that the others were violent and aggressive and that he believed that they knew that Mr Watt had knowledge of what they were going to do. As a result, he believed that he could easily be harmed. Under those conditions, he reported a significant degree of coercion, or at least psychological coercion." (my emphasis)
Mr Kayser submitted that this paragraph was inadmissible and he described it as "self-serving hearsay". He also submitted that the assertions were inconsistent with the jury's verdict. Far from damaging the Crown's position, the passage objected to revealed, if it was true, that Mr Watt knew of the plan. Be that as it may, once objection is taken by the learned prosecutor to a fact asserted in such a report, the court cannot act upon such a fact unless it is established in accordance with the rules of evidence.
Must an aider and abettor receive a lesser sentence
[1] See Trial Transcript, page 86, line 22.
[2] See Trial Transcript, page 93, lines 2-5 and 8-11.
[3] See Trial Transcript, page 97, line 10.
[4] See Trial Transcript, page 100, lines 14-15.
[5] See Trial Transcript, page 103, lines 14-15.
[6] See Trial Transcript, page 105, lines 8-9.
[7] See Trial Transcript, page 108 lines 14-18.
[9] [1999] HCA 54; (1999) 199 CLR 270 at 280 - 281.
[10] [1998] 1 VR 359 at 369.
[12] R v Williams [1998] 4 VR 301.
[13] See Trial Transcript, pages 909-910.
[14] [1933] VicLawRp 7; [1933] VLR 59 at 67 per Cussen ACJ.
[16] (1882) 8 QBD 534 per Cave J. at 539and per Hawkins J. at 557 - 8.
[17] [1965] 1 QB 130; [1963] 3 WLR 677 per Edmund Davies J. at 683.
[18] [1971] 3 All ER 344; [1971] 1 WLR 1402 per Megaw LJ. at 1405.
[19] [1995] TASSC 14; (1995) 5 Tas R 8; (1995) 78 A Crim R 160 per Cox J. at 162.
[20] [1985] HCA 29; (1985) 156 CLR 473 per Mason J at 493.
[21] [2002] VSCA 131 paragraph 47.
R
Guthrie & Watt [2003] VSC 323
(2003) 196 ALR 451
(2003) 77 ALJR 872
(1999) 199 CLR 270
(1995) 5 Tas R 8
(1985) 156 CLR 473