R v Sloan [2001] VSCA 185

Court of Appeal (Vic)|2001-10-22|Before: PHILLIPS, CALLAWAY and BUCHANAN, JJ.A.

Criminal law - Application for leave to appeal against conviction by reference to fresh evidence - Application granted and appeal allowed - New trial ordered.

PHILLIPS, J.A.(delivering the judgment of the Court):

In the circumstances I need mention only the application for leave to appeal against conviction, and then only grounds 1 and 3 of that application. Those grounds are supported by the affidavit of Mr Michael Patrick Coghlan sworn on 15 October 2001, in which reference is made to earlier affidavits of 18 June and 28 August. In brief, the applicant relies upon fresh evidence - evidence which, we should say in view of the submission to the contrary, does not go only to credit.

In our opinion, given the course of the trial and the nature of the defence taken, the application should be granted and a new trial had. In the circumstances it is not appropriate to explore in any detail the facts asserted in support of the application. Indeed, much of it was supplied by the Crown to the legal advisers of the applicant in confidence. We have this morning explored with Mr McArdle what we considered to be germane to grounds 1 and 3, and it is in the light of that discussion that we make our orders.

1. Application for leave to appeal against conviction granted.

2. The appeal is to be treated as instituted and heard instanter.

3. The appeal is allowed. The verdicts on counts 1 and 2 are quashed and the convictions on those counts set aside. A new trial on counts 1, 2 and 3 is ordered.

That the applicant be admitted to bail on his own undertaking with one surety in the sum of $5,000 conditioned in the proper form for his appearance as required by law at the new trial directed by this Court and on the following special conditions:

1. That the applicant reside at 137 Kilgour Street, Geelong in the State of Victoria or any such other address of which he shall give notice pursuant to condition 2.

2. That the applicant give 24 hours' notice to Detective Sergeant McIntyre or his nominee of any proposed change of address.

3. That the applicant report each Tuesday to the officer in charge of the police station at Geelong or his or her nominee between the hours of 6 a.m. and 9 p.m.

4. That the applicant not apply for a passport or attend at any point of international departure.

5. That the applicant not contact any witness for the prosecution other than the informant.

6. That the applicant appear before the County Court at the direction of that court or its registrar.

That order is made subject to any further or other order of the County Court.

Mr Sloan, do you understand the conditions which we have just attached to your bail?

Are you prepared to abide by those conditions?

An indemnity certificate is granted under s.14 of the Appeal Costs Act 1998 in respect of costs, including any additional costs that the applicant will pay or be ordered to pay as a consequence of the order for a new trial.

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties