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Byrne v The Queen

Byrne v The Queen

Case [2020] NSWCCA 218 28 August 2020

Circumstantial Evidence

DNA Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Byrne v R [2020] NSWCCA 218
Hearing dates: 16 June 2020
Decision date: 28 August 2020
Before: Johnson J at [1]
Wright J at [161]
Wilson J at [166]
Decision:
1. Grant leave to appeal against conviction.
2. Appeal against conviction dismissed.

Catchwords:
APPEAL – application for leave to appeal against conviction – Judge-alone trial – whether verdicts are unreasonable and/or cannot be supported having regard to the evidence – offences of aggravated break and enter and commit serious indictable offence (armed robbery) and detaining a person with intent to obtain an advantage whilst in company – group of five offenders forced entry into the Casino Golf Club with weapons and detained two employees – offenders wore gloves and various forms of clothing to cover their heads and faces – stolen phone and discarded items of clothing and shoes later found in a nearby paddock – sole issue at trial whether applicant was one of the robbers – applicant’s DNA found on nine items of discarded clothing – expert evidence regarding DNA given at trial – where Crown case against the applicant at trial was circumstantial – whether there was reasonable hypothesis consistent with innocence concerning presence of applicant’s DNA on nine items of clothing – held that alternative hypotheses did not rise above speculation or conjecture – held it was open to trial Judge to find that the only reasonable explanation for the presence of the applicant’s DNA on the nine items of clothing was that he was one of the robbers – leave to appeal against conviction granted – appeal against conviction dismissed

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986

Cases Cited:
Aytugrul v R (2010) 205 A Crim R 157; [2010] NSWCCA 272
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Bell v R [2017] NSWCCA 207
Decision Restricted [2018] NSWCCA 217
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fitzgerald v The Queen (2014) 88 ALJR 779; [2014] HCA 28
Hopgood v R [2019] NSWCCA 246
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Sloan v R [2015] NSWCCA 279
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

Texts Cited:
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Category: Principal judgment
Parties: Frederick Darryl John Byrne (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Fraser (Applicant)
Ms E Wilkins SC (Respondent)
Solicitors:
Aboriginal Legal Service (NSW/ACT)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byrne v The Queen

Details

AGLC: Byrne v The Queen [2020] NSWCCA 218
Case: [2020] NSWCCA 218
Decision Date: 28 August 2020

CaseChat Overview and Summary

The matter before the court was an application for leave to appeal against a conviction in a case where the applicant was found guilty of aggravated break and enter, committing a serious indictable offence (armed robbery), and detaining a person with intent to obtain an advantage whilst in company. The case was heard by a single Judge in the Supreme Court of Victoria. The applicant was one of a group of five who forced entry into the Casino Golf Club armed with weapons and detained two employees. The group wore gloves and various forms of clothing to cover their heads and faces. Stolen property and discarded items of clothing and shoes were later found in a nearby paddock. The sole issue at trial was whether the applicant was one of the robbers. The applicant's DNA was found on nine items of discarded clothing, and expert evidence regarding DNA was given at trial.

The primary legal issue before the court was whether the verdicts were unreasonable or could not be supported having regard to the evidence. The court had to determine if there was a reasonable hypothesis consistent with innocence concerning the presence of the applicant's DNA on the nine items of clothing. The applicant argued that alternative hypotheses did not rise above speculation or conjecture. The court examined whether it was open to the trial Judge to find that the only reasonable explanation for the presence of the applicant's DNA on the nine items of clothing was that he was one of the robbers. The court concluded that the alternative hypotheses did not rise above speculation or conjecture, and it was open to the trial Judge to find that the only reasonable explanation for the presence of the applicant's DNA on the nine items of clothing was that he was one of the robbers.

The court held that the verdicts were not unreasonable or incapable of being supported by the evidence. The applicant's DNA evidence, combined with the circumstances of the crime and the presence of the discarded clothing and shoes, provided a sufficient basis for the trial Judge's findings. The court granted the applicant leave to appeal against the conviction but dismissed the appeal against the conviction. The court found that the trial Judge's findings were open to him and that there was no error in the Judge's approach to the evidence. The appeal was dismissed, and the convictions were upheld.

Orders