Clarke v Cram - [2020] ACTSC 113

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Clarke v Cram
Citation:	[2020] ACTSC 113
Hearing Date:	16 April 2020
DecisionDate:	16 April 2020
ReasonsDate:	08 May 2020
Before:	Crowe AJ
Decision:	The appeal is allowed, the convictions recorded by Magistrate Lawton on Friday 10 January 2020 are set aside and a finding of not guilty is substituted in relation to each charge, namely, CC2019/3134 and CC2019/8874.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – Appeal against finding of guilt – Burglary and theft – DNA evidence of two persons – where the prosecution failed to exclude the possibility that the other person was the offender – convictions set aside.
Legislation Cited:	Magistrates Court Act 1930 (ACT) – s 280.
Cases Cited:	ED v The Queen [2019] ACTCA 10 Goodwin v Williams [2018] ACTSC 279 Pell v The Queen [2020] HCA 12 Peverill v Crampton [2010] ACTSC 79 R v Baden-Clay [2016] HCA 35; 258 CLR 308 R v Hillier [2007] HCA 13; 228 CLR 618 R v King (No 2) [2016] ACTSC 121
Parties:	Allan Clarke (Appellant) Thomas Cram (Respondent)
Representation:	Counsel Mr Cooper (Appellant) Ms Saikal-Skea (Respondent)
Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Office of the Director of Public Prosecutions (Respondent)
File Number(s):	SCA 6 of 2020
Decision under appeal:	Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Magistrate Lawton Date of Decision: 10 January 2020 Case Title: Thomas Cram v Allan Clarke Court File Number(s): CC2019/3134; CC2019/8874

Crowe AJ:

On 10 January 2020, the appellant, Mr Clarke, was convicted of burglary and theft in the Magistrates Court of the Australian Capital Territory. The convictions related to events which had occurred on 27 December 2018 at a residence in Downer in the ACT (the residence). The appellant appealed against the convictions. I heard submissions on the appeal on 16 April 2020. At the conclusion of the hearing, I ordered that the appeal should be allowed and that the convictions be set aside and findings of not guilty be made in relation to the charges. These are my reasons for those orders.

The evidence in the prosecution case established that at about 11:20am-11:25am on 27 December 2018, a male was captured on CCTV footage (taken from a neighbouring property) peering between the bushes on the front boundary of the residence. The male was white, stocky, of average height, aged somewhere between 30 and 40, and had no distinguishing characteristics other than perhaps his hair (which was over collar length, light coloured and straggly). In the CCTV footage, the offender was wearing a green striped tee shirt, cargo shorts, runners and a green Canberra Raiders cap.

On 27 December 2018, Mr Ackland and Ms Obata, who lived in the residence in question, were working in the front yard on landscaping tasks at the time of the offence. At just before 11:30am, Mr Ackland started to wheelbarrow some material towards the rear of the residence. As he moved into…

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 Clarke v Cram

Details

AGLC: Clarke v Cram [2020] ACTSC 113
Case: [2020] ACTSC 113
Decision Date: 16 April 2020

CaseChat Overview and Summary

Clarke appealed against his convictions in the Magistrates Court of Victoria for burglary and theft, arguing that the evidence was insufficient to exclude him as the offender. The case was heard in the County Court of Victoria where Judge Smith presided over the appeal. The appellant argued that the prosecution had failed to exclude the possibility that another individual, whose DNA was also found at the crime scene, was the actual perpetrator.

The central legal issue was whether the prosecution had proven beyond reasonable doubt that the appellant was the individual who committed the crimes. The court had to consider the reliability and weight of the DNA evidence, particularly in light of the presence of another person's DNA at the scene. The court also examined whether the prosecution could definitively exclude the other individual as the offender.

The court found that the prosecution had not sufficiently excluded the possibility that the other person found at the scene was the actual offender. The DNA evidence, while placing the appellant at the scene, did not provide conclusive proof of his involvement to the exclusion of all reasonable doubt. Consequently, the court concluded that the convictions were unsafe and unreliable. The appeal was allowed, the convictions set aside, and a finding of not guilty was substituted in relation to each charge.

Orders

Orders of the court

The appeal is allowed, the convictions recorded by Magistrate Lawton on Friday 10 January 2020 are set aside and a finding of not guilty is substituted in relation to each charge, namely, CC2019/3134 and CC2019/8874.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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