David Vincent Sheehy and v The Queen and - [2014] VSCA 281

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0024

DAVID VINCENT SHEEHY

Applicant

THE QUEEN

Respondent

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JUDGES:	WEINBERG, WHELAN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2014
DATE OF JUDGMENT:	10 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 281
JUDGMENT APPEALED FROM:	DPP v Sheehy (Unreported, County Court of Victoria, Judge Coish, 29 November 2013)

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CRIMINAL LAW – Conviction – Applicant convicted of intentionally causing serious injury and acquitted on charge of aggravated burglary – Crown case put on basis of joint criminal enterprise – Whether verdicts inconsistent – Jury’s verdicts logically compatible – Whether conviction on charge of intentionally causing serious injury bad for uncertainty – No latent ambiguity – R v Heaney (2009) 22 VR 164 applied – Leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Whether sentencing judge made findings of fact inconsistent with verdict of not guilty on aggravated burglary charge – Findings not inconsistent – Leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Wheelahan	Robert Stary & Associates
For the Crown	Mr D A Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
WHELAN JA

SANTAMARIA JA:

The applicant stood trial in the County Court at Melbourne, charged with one count of aggravated burglary (charge 1) and one count of intentionally causing serious injury (charge 2). He was acquitted on charge 1, but convicted on charge 2. He was sentenced to a term of four years and six months’ imprisonment, with a non-parole period of three years. He now seeks leave to appeal against both conviction and sentence.
Circumstances surrounding the alleged offending
The applicant and one Mark Lazarus, the victim of the attack, had been involved in a dispute over car parts. At about 10.00am on the morning of 26 March 2012 the applicant and his co-accused, Mina Abraham, drove to Lazarus’ home. They walked up to the front door. According to the prosecution, Abraham had a knife in his possession and the applicant was unarmed.
There was another man present in the house. His name was David Whatley. He was a friend of Lazarus.
As Lazarus went to answer the front door, he had a cricket bat resting on his shoulder. The evidence was unclear as to precisely what occurred thereafter, there being different accounts from the various witnesses who gave evidence. On any view, Lazarus said something to the applicant which Whatley overheard.
Lazarus’ evidence was that although the front door was unlocked, the screen door had been closed when the applicant arrived. He said that he armed himself with a cricket bat because he was anticipating trouble, the applicant having previously threatened him over the telephone. According to Lazarus, Abraham told him to put the bat down or he would be shot. At that point, Lazarus went to open the door, but the applicant ‘ripped it open’. The applicant then threw a punch at Lazarus, before Abraham came up…

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.

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Details

Case: [2014] VSCA 281
Decision Date: 10 November 2014

CaseChat Overview and Summary

David Vincent Sheehy appealed against his conviction and sentence for causing serious injury and against his sentence for aggravated burglary. The Crown had argued that Sheehy and another individual had jointly committed the offences. The jury found Sheehy guilty of intentionally causing serious injury but acquitted him of aggravated burglary. The central legal issues were whether the jury's verdicts were logically compatible, if the conviction for causing serious injury was vitiated by uncertainty due to the acquittal on the aggravated burglary charge, and whether the sentencing judge's findings were inconsistent with the verdict of not guilty on the aggravated burglary charge. The court held that the jury's verdicts were logically compatible, as they did not necessarily find Sheehy not guilty of aggravated burglary because he was not present during the commission of the burglary. The court also ruled that the conviction for causing serious injury was not bad for uncertainty and that the sentencing judge's findings were not inconsistent with the verdict of not guilty on the aggravated burglary charge. Consequently, the appeal against both conviction and sentence was dismissed.

Orders