Burkwood v The Queen
[2013] VSCA 173
•28 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0045 | |
| SAMUEL JAMES BURKWOOD | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN and ASHLEY JJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 28 June 2013 | |
DATE OF JUDGMENT/ORDER: | 28 June 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 173 | |
JUDGMENT APPEALED FROM: | Unreported County Court of Victoria, Judge Howard, Date of Sentence 1 March 2013 | |
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CRIMINAL LAW – Arson – Crown evidence established only that the accused was in the vicinity when the offence was committed – Crown failed to exclude hypotheses consistent with innocence – Verdict unsafe and unsatisfactory.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L C Carter | Robert Stary Lawyers, Geelong |
| For the Crown | Mr GJC Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
After a trial in the County Court, the applicant was found guilty on a charge of arson. He was acquitted on two charges of armed robbery. The jury were unable to agree on a verdict on a charge of theft of a motor car and two days later the Crown filed a notice of discontinuance in respect of that charge.
A plea was conducted and the applicant was sentenced to be imprisoned for 16 months with a minimum term of 10 months’ imprisonment.
The applicant seeks leave to appeal against the conviction.
On 19 October 2010, the owner of a Holden motor car parked it outside his house in Hawthorn. When he looked the next morning, the car had disappeared. The police found the car the following morning in Mt Waverley. The driver’s seat had been set alight. The police found a Carlton Draught stubbie on the nature strip next to the car and another four Carlton Draught stubbies metres from the car. Samples of DNA material from the stubbies were analysed and compared to samples taken from the applicant and one Daniel Connerbare.
In a record of interview, the applicant admitted that he attended with
Mr Connerbare and two other persons at a liquor store to purchase Carlton Draught stubbies which they drank at Mr Connerbare’s residence. It is important to note that that house was about 200 metres from the place at which the car was found.
The applicant could not be excluded as the source of the DNA material on two of the stubbies. Mr Connerbare could not be excluded as the source of the DNA material on one of the stubbies. Another stubbie had DNA material from two or more persons. The applicant and Mr Connerbare were excluded as possible sources of that material. Yet another stubby had DNA material from another person. The applicant and Mr Connerbare were excluded as the sources of that material.
The ground of the application is that the verdict is unreasonable or cannot be supported having regard to the evidence. In that hypothesis, it is consistent with the innocence of the applicant could not be excluded.
The Crown case consisted of the DNA evidence and the applicant’s admission that he drank Carlton Draught stubbies on the night the car was stolen.
Counsel for the applicant advanced a number of hypotheses to account for the DNA evidence. Among these were that the applicant left Mr Connerbare’s house during the evening to purchase cigarettes and may have left stubbies in the area, and another was that the applicant became aware of the burning of the car and went to the scene after the fire commenced.
Counsel for the respondent conceded that the Crown did not lead evidence to exclude the two hypotheses I have mentioned and accordingly the jury should have had a reasonable doubt as the applicant’s guilt.
I consider that the Crown’s concession is well founded. At its highest, the evidence established no more than that the applicant was in the vicinity of the motor car on the night it was set alight. Upon the whole of the evidence, I think it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.
For the foregoing reasons I would grant the application for leave to appeal against conviction, allow the appeal, quash the conviction sustained by the appellant in the court below and set aside the sentence passed thereon and direct that a verdict of acquittal be entered.
There is one further matter. On 2 May 2013, the appellant was sentenced in the Dandenong Magistrates’ Court to a term of two months’ imprisonment. It was ordered that the sentence be served cumulatively upon the sentence the subject matter of this appeal.
As the base sentence has now been quashed, it is appropriate to order, pursuant to s 277(3) of the Criminal Procedure Act2009 that the sentence imposed in the Magistrates’ Court be varied by directing that the order for cumulation be
deleted and the sentence was commenced on 2 May 2013.
ASHLEY JA:
I agree.
BUCHANAN JA:
The orders of the Court are as follows:
1. The application for leave to appeal against conviction is granted.
2. The appeal is treated as instituted and heard instanter and is allowed.
3.The conviction sustained by the appellant in the court below is quashed and the sentence passed thereon is set aside.
4. The Court directs a judgment and verdict of acquittal to be entered.
5.The sentence imposed upon the appellant in the Dandenong Magistrates’ Court on 2 May 2013 is varied by deleting the order for cumulation and directing that the sentence commenced on 2 May 2013.
In other matters it is noted that the Court grants the appellant an indemnity certificate pursuant to s 14 of the Appeal Costs Act 1998.
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