DPP (Vic) v Curran; Curran v The Queen - [2012] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0244

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)

DAVID ALLAN CURRAN

S APCR 2011 0275

DAVID ALLAN CURRAN

THE QUEEN

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JUDGES:	BUCHANAN, NETTLE and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2012
DATE OF JUDGMENT:	3 October 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 244
JUDGMENT APPEALED FROM:	[2011] VSC 444 (Kaye J)

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CRIMINAL LAW – Conviction – Murder – Verdict – Whether unsafe and unsatisfactory – Whether weapon discharged accidentally during course of struggle – Evidence – Fresh evidence as to provenance of weapon – R v AHK [2001] VSCA 220, Coleman v R [2011] VSCA 301, Lawless v The Queen (1979) 142 CLR 659, applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent/Applicant	Mr J P Dickinson SC with Mr M D Stanton	Robert Stary Lawyers

BUCHANAN JA:

NETTLE JA:
HARPER JA:

Following a 22 day trial in the Criminal Division, the applicant was convicted of the murder of Vinicio Cervi (the deceased) and, after a plea in mitigation of penalty, he was sentenced to 19 years’ imprisonment with a non-parole period of 15 years. He now seeks leave to appeal against conviction. The Crown appeals against sentence on the ground of manifest inadequacy.

The Crown’s case at trial

The Crown’s case at trial was that on 9 March 2009 the applicant was moving his belongings from a house in Preston which he had been renting from the deceased. At the same time the deceased was moving his belongings out of a factory property in Coburg which he had been renting from the applicant. During the course of the day, relations between the applicant and the deceased became tense. At the Preston property the deceased became upset at the state in which he perceived the applicant to have left the property and about the little amount of progress which he regarded the deceased as having made in moving his belongings. The applicant was also upset because of the filthy state in which he perceived the deceased to have left the Coburg property.

In the late afternoon the deceased arrived at the Coburg property when potential purchasers were undertaking an inspection. The applicant had moved the deceased’s trailer into the street to facilitate the inspection. The deceased became agitated when he saw that some damage had been done to the trailer. The applicant on the other hand remained calm and assured the deceased that he would have the damage repaired.

After the inspection had concluded, the applicant left the Coburg property and drove towards the Preston property to complete the removal of his possessions.

At 6.42 pm he sent a text message to a friend, Timothy Bell, saying:

Hi mate. I might have a full on blue with Vinnie and a would be mate me his tonight. There been treating me like a goose. I will go them…

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: [2012] VSCA 244
Decision Date: 3 October 2012

CaseChat Overview and Summary

In the case of DPP (Vic) v Curran; Curran v The Queen, the appellant, Curran, was convicted of murder by a jury in the Supreme Court of Victoria. The respondent, the Director of Public Prosecutions, appealed against the safety of the conviction, while Curran appealed against the conviction itself. The core of the dispute centred around the circumstances surrounding the death of the victim and the weapon used in the alleged crime. The Supreme Court of Victoria was tasked with assessing the validity of the conviction and the evidence presented during the trial.

The primary legal issues the court had to address involved determining whether the conviction was safe and satisfactory, considering the possibility that the weapon may have been discharged accidentally during a struggle. The court had to scrutinise the evidence presented at the trial, particularly the fresh evidence regarding the provenance of the weapon. This included evaluating the weight of the new evidence and its impact on the overall safety of the conviction, in light of the precedents set by cases such as R v AHK, Coleman v R, and Lawless v The Queen.

The court concluded that the conviction was safe and satisfactory. It found that the fresh evidence concerning the weapon's provenance did not sufficiently undermine the original verdict. The court carefully considered the circumstances of the case, the reliability of the evidence, and the established legal principles. The appeal was dismissed, and the conviction was upheld. The court determined that the evidence supported the jury's conclusion that the weapon was not discharged accidentally, and that Curran was responsible for the victim's death.

Orders