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Carrott v The Queen

Carrott v The Queen

Case [2013] VSCA 90 26 April 2013

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SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0009

DONALD CARROTT	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY, WEINBERG and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 April 2013
DATE OF JUDGMENT	26 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 90
JUDGMENT APPEALED FROM	DPP v Carrott (Unreported, County Court of Victoria, Judge Wischusen, 19 December 2012)

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CRIMINAL LAW — Appeal against conviction — Appellant charged with 67 counts of theft — Acquitted on counts 1-28 and 64-67 — Convictions on counts 29-63 — Sentenced to one (1) year and ten (10) months’ imprisonment with one (1) year to be served and ten (10) months’ suspended — Whether verdicts are inconsistent and therefore unsafe and unsatisfactory — Appeal allowed — Acquittals entered on counts 29-63.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr B Walmsley SC with Ms M E Casey	Victoria Legal Aid
For the Crown	Mr B F Kissane with Mr Y K Hardjadibrata	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

For the reasons explained by Priest JA, I agreed in the orders made by the Court on 17 April and I further agree that the appellant should now be acquitted on Charges 29‑63.

WEINBERG JA:

I joined in the orders made on 17 April 2013, and I now join in the order that acquittals be entered on charges 29 to 63, for the reasons expressed in the judgment of Priest JA.

I add only that the Crown’s initial position that a retrial should be ordered posed some difficulty in light of the authorities. In cases of this kind, where an appeal is allowed solely on the basis of an ‘inconsistent verdicts’ ground, the order most often made is the entry of a verdict or verdicts of acquittal.[1] Rarely is a retrial ordered.[2]
[1]See, eg, in this Court, R v JGVR [2001] VSCA 8; MAR v The Queen [2001] VSCA 165; R v Allen [2006] VSCA 3; R v J A [2008] VSCA 169; R v Benis [2010] VSCA 62; B W A v The Queen [2012] VSCA 218; C J J v The Queen [2012] VSCA 196. See also the cases set out in the judgment of Spigelman CJ in R v Markuleski (2001) 52 NSWLR 82, 90.
[2]See, eg, R v Crisologo (1997) 99 A Crim R 178; R v Robinson (2000) 111 A Crim R 388.

Whether the Crown’s initial stance was open, either conceptually or as a matter of law, need not, in light of the Crown’s current position, be explored in any depth. I note simply that if the Crown is to argue, in a case such as this, that a retrial is the appropriate order, it should be in a position to deal fully with that issue, and any relevant authorities, during the course of the appeal.[3]
[3]MacKenzie v The Queen (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ); R v P

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 Carrott v The Queen

Details

AGLC: Donald Carrott v The Queen [2013] VSCA 90
Case: [2013] VSCA 90
Decision Date: 26 April 2013

CaseChat Overview and Summary

Carrott was convicted on 35 counts of theft, while being acquitted on the remaining 32 counts. He appealed against his conviction, arguing that the verdicts were inconsistent and therefore unsafe and unsatisfactory. The appeal was heard in the High Court of Australia. The central legal issue before the court was whether the verdicts were inconsistent and, if so, whether this inconsistency rendered the verdicts unsafe and unsatisfactory. The court needed to determine if the acquittal on the earlier counts, coupled with the conviction on the later counts, suggested an inconsistency in the jury's reasoning or application of the evidence.

The court found that there was indeed an inconsistency in the verdicts. The acquittal on counts 1-28 and 64-67, while convicting on counts 29-63, indicated a lack of coherence in the jury's application of the evidence. The court held that an acquittal on an earlier count of theft, which was part of a continuous series of offences, and a conviction on later counts, without any significant change in circumstances or evidence, suggested an arbitrary application of the evidence. This inconsistency rendered the verdicts unsafe and unsatisfactory. Consequently, the court ordered that the acquittals on counts 1-28 and 64-67 be entered on counts 29-63 as well.

In light of the inconsistency found in the verdicts, the court allowed the appeal and ordered that the appellant be acquitted on all 67 counts of theft. This decision underscores the importance of consistency in jury verdicts, particularly in cases involving a series of offences that are closely related in time and circumstances. The court’s ruling ensures that the appellant’s convictions are aligned with the principles of fairness and legal coherence, ultimately leading to his complete acquittal.

Orders