Davies v The Queen

Case [2019] VSCA 66


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0188

BRENDAN DAVIES Applicant
v
THE QUEEN Respondent

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JUDGES: KAYE, McLEISH and T FORREST JJA
WHERE HELD: MELBOURNE
DATES OF HEARING: 4–5 February & 1 March 2019
DATE OF JUDGMENT: 28 March 2019
MEDIUM NEUTRAL CITATION: [2019] VSCA 66
JUDGMENT APPEALED FROM: [2017] VCC 1101 (10 April 2017) (Judge Mullaly)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of five charges of arson – Whether convictions were unsafe and unsatisfactory – Circumstantial case – Inferences.

EVIDENCE –Admissibility – Videos allegedly featuring accused justifying arson attacks on society – Whether state of mind or tendency evidence – Benbrika v The Queen (2010) 29 VR 593, Elomar v The Queen (2014) 316 ALR 206, Fattal v The Queen [2013] VSCA 276, Higgins (a pseudonym) v The Queen [2016] VSCA 47, Parachoniak v The Queen [2017] VSCA 347, considered – Whether videos inadmissible under Evidence Act 2008 s 137.

EVIDENCE – Admissibility – Hearsay – Admission under business records exception without exhibiting document – Witness not having seen document – Evidence Act 2008 ss 48, 69 – Evidence inadmissible without tender of document – No substantial miscarriage of justice.

EVIDENCE – Admissibility – Coincidence evidence – Whether striking similarity in modus operandi required – Evidence Act 2008 s 98 – Tognolini v The Queen (2011) 216 A Crim R 188, distinguished; IMM v The Queen (2016) 257 CLR 300, R v Bauer (2018) 92 ALJR 846, applied.

EVIDENCE – Admissibility – Opinion evidence as to burn pattern – Witness experienced detective with three days’ formal arson training – Evidence Act s 79 – Honeysett v The Queen (2014) 253 CLR 122, applied.

EVIDENCE – Admissibility – DNA evidence – No evidence of innocent transference – Fitzgerald v The Queen (2014) 88 ALJR 779, distinguished – Whether DNA evidence inadmissible due to failure to call every member of forensics team – R v Sing (2002) 54 NSWLR 31, distinguished.

JUDGE’S DIRECTIONS TO JURY – Whether judge adequately related evidence to charges – Whether judge adequately warned jury against tendency reasoning – Whether adequate warning of identification evidence – Jury Directions Act 2015 ss 36, 37 – Agkul v R (2002) 5 VR 537 distinguished – Whether charge to jury unbalanced against applicant – Whether charge unfair – Whether judge erred in not giving hearsay directions relating to police logs – R v Vincent (2002) 133 A Crim R 206, R v Flood [1999] NSWCCA 198, Allen v R (2013) 39 VR 329, Walker v R [2014] VSCA 177 considered – Whether directions on inferences reversed the onus of proof – Knight v R (1992) 175 CLR 495, Peacock v R (1911) 13 CLR 619, Barca v R (1975) 133 CLR 82, R v Baden-Clay (2016) 258 CLR 308, Mannella v R [2010] VSCA 357 considered.

VERDICTS – Whether judge erred in…

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Davies v The Queen [2019] VSCA 66
Case
[2019] VSCA 66
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CaseChat Overview and Summary

The case of Davies v The Queen involves the applicant, Davies, who was convicted on five counts of arson. The applicant sought leave to appeal against his conviction and sentence. The primary legal issues before the court were whether the convictions were unsafe and unsatisfactory, the admissibility of various pieces of evidence, the judge's directions to the jury, the propriety of the jury's verdicts, and the fairness of the trial and sentence.

The court examined the admissibility of videos allegedly featuring the accused justifying arson attacks on society, determining they were not inadmissible under the Evidence Act 2008 due to being state of mind or tendency evidence. The court also considered the admissibility of hearsay evidence under the business records exception, finding it inadmissible due to the failure to exhibit the document. Coincidence evidence was assessed, concluding that a striking similarity in modus operandi was not required. The court further addressed the admissibility of opinion evidence regarding burn patterns, DNA evidence, and the judge's directions to the jury. The court concluded that the judge adequately related evidence to the charges, warned the jury against improper reasoning, and provided appropriate directions on identification evidence and inferences. The court found no errors in the judge's handling of the jury's verdicts or the overall trial process.

The court concluded that the trial did not miscarry due to the applicant being unwell and unrepresented or any comments suggesting he was in custody. The judge was found not to be biased, with the court determining that a fair-minded lay observer would not apprehend the judge might not bring an impartial mind to the case. Regarding the sentence, the court found the original sentence to be manifestly excessive and resentenced the applicant to 12 years 3 months’ imprisonment with a non-parole period of 10 years 3 months, correcting the presentence detention figure provided to the judge.

Orders

Orders of the court

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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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