Dwayne Michael Byrne v The Queen - [2017] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0003

DWAYNE MICHAEL BYRNE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 September 2017
DATE OF ORDER:	12 September 2017
DATE OF REASONS:	15 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 253
JUDGMENT APPEALED FROM:	[2016] VSC 580 (John Dixon J)

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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Attempted murder – Applicant stabbed victim 6 times – Whether conviction was unreasonable or could not be supported on the evidence – Intent – Whether jury could exclude beyond reasonable doubt the possibility that the applicant attacked the victim with an intent only to cause serious injury – Jury not bound to have a reasonable doubt about applicant’s guilt – Application for leave to appeal against conviction refused – Criminal Procedure Act 2009, s 276(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich QC with Mr P J Smallwood	Patrick W Dwyer
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA
HANSEN JA:

On 22 June 2016, following a seven-day trial, the applicant was convicted of one charge of attempted murder. Following a plea hearing, on 28 September 2016, the applicant was sentenced to a term of imprisonment of 12 years, with a non-parole period of nine years.[1]
[1]R v Byrne [2016] VSC 580. After being found guilty of attempted murder, the applicant pleaded guilty to an unrelated charge of being a prohibited person in possession of a firearm. For this unrelated offence, the judge sentenced the applicant to a term of imprisonment of 9 months and ordered that sentence to be served wholly concurrently with the sentence he imposed for the attempted murder.

The applicant sought leave to appeal against his conviction on the sole ground that the verdict ‘is unreasonable or cannot be supported having regard to the evidence’. At the conclusion of the hearing of the application for leave, we refused the application and said we would publish our reasons today. These are those reasons.

The Crown case at trial

The Crown case at trial was that on the evening of 7 February 2015, the applicant stabbed Mr Steen Locke six times in the following circumstances.

At about 11:30 pm on 7 February 2015, Mr Locke was sitting with his friend, Ms Rochelle Jerard, on Brooks Jetty on the St Kilda foreshore. They were sitting on the edge of the jetty, feet dangling over the side, resting their arms on a lower horizontal railing. While Mr Locke and Ms Jerard were sitting on the jetty, they heard raised voices coming from a couple walking along the pier. The Crown case was that the couple arguing were the applicant and his then girlfriend, Ms Kaisha Mitchell.

Having heard the raised voices, Mr Locke turned around and then turned back. Very shortly after this, Mr Locke turned around…

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 Dwayne Michael Byrne v The Queen

Details

AGLC: Dwayne Michael Byrne v The Queen [2017] VSCA 253
Case: [2017] VSCA 253
Decision Date: 15 September 2017

CaseChat Overview and Summary

Dwayne Michael Byrne sought leave to appeal against his conviction for attempted murder, arguing that the conviction was unreasonable or could not be supported on the evidence. The applicant had stabbed the victim six times, and the case revolved around whether the jury could exclude beyond reasonable doubt the possibility that the applicant attacked the victim with an intent only to cause serious injury. The court was tasked with determining the sufficiency of the evidence to support the conviction and the jury's ability to make such a determination.

The court examined the evidence presented during the trial and the jury's role in assessing the intent of the applicant. It was established that the jury was not bound to have a reasonable doubt about the applicant’s guilt if the evidence supported the conclusion that the applicant intended to cause death. The court found that the evidence, including the number of stab wounds and the nature of the attack, was sufficient to support the jury's conclusion that the applicant intended to cause death. The court held that the jury was entitled to infer intent to kill from the totality of the circumstances and that the conviction was properly based on the evidence.

Given the court's findings, it concluded that the conviction was reasonable and supported by the evidence. The court held that the applicant's application for leave to appeal against his conviction for attempted murder was without merit and dismissed the application. The court noted that the jury had properly considered the evidence and made a decision that was supported by the law. As a result, the applicant's conviction stood, and the application for leave to appeal was refused under the provisions of the Criminal Procedure Act 2009.

Orders