JUDGES	MAXWELL P, BUCHANAN and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 May 2012
DATE OF JUDGMENT	7 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 296
JUDGMENT APPEALED FROM	R v Farquharson [2010] VSC 462

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CRIMINAL LAW – Appeal – Conviction – Murder – Applicant’s children drowned when applicant drove car into dam – Circumstantial evidence – Whether jury required to be satisfied of particular facts beyond reasonable doubt – Whether defence of accident excluded – Whether verdict unsafe and unsatisfactory – Whether alternative verdict of manslaughter by criminal negligence open – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Morrissey SC with Mr C Mylonas and Mr T Kassimatis	Victoria Legal Aid
For the Crown	Mr D Trapnell SC with Ms K Argiropoulos	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BUCHANAN JA
HARPER JA:

Introduction

On Fathers’ Day, 4 September 2005, the applicant had the care of his three children; boys aged 2, 7 and 10 years. The applicant was separated from Cindy Gambino, the mother of the children.

At about 7.00pm, when the applicant was driving along the Princes Highway to Winchelsea to return the children to their mother, his car left the highway as it came off a railway overpass. The car diverged to the right, left the bitumen, crossed the aggregate shoulder, descended an embankment covered with rough grass, broke through a fence, crossed another grassed area, struck the foliage of a tree and entered a dam, floating for some 28 metres before it sank in water seven metres deep. The applicant managed to get out of the car before it sank but the children did not. They drowned.

The applicant was charged with the murder of his children. After a trial in the Supreme Court, the applicant was found guilty. He successfully appealed against the conviction. The conviction was set aside and it was ordered that the applicant be retried.[1] At the conclusion of the retrial the applicant was again found guilty.
[1]Farquharson v The Queen (2009) 26 VR 410.

The applicant seeks leave to appeal against the conviction. For reasons which follow, we would grant leave to appeal on grounds 1 and 2 (but not 3), and dismiss the appeal.

Ground 1: unsafe and unsatisfactory

The first ground of the application is that the verdict is unreasonable or cannot be supported having regard to the evidence. The task of an appeal court when this ground is raised was summarised in R v Klamo[2] as follows:
[2](2008) 18 VR 644.

The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that…

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 Farquharson v The Queen

Details

AGLC: Farquharson v The Queen [2012] VSCA 296
Case: [2012] VSCA 296
Decision Date: 7 December 2012

CaseChat Overview and Summary

In the High Court of Australia, the matter of Farquharson v The Queen involved the appellant, who had been convicted of murder following the deaths of his two young children when he drove his car into a dam. The appellant was the sole occupant of the vehicle, and the children were in the back seat. The circumstances surrounding the incident were such that the jury had to rely on circumstantial evidence to determine the appellant's culpability. The appellant appealed against his conviction, raising several grounds, including the contention that the jury should have been satisfied of specific facts beyond reasonable doubt, the applicability of the defence of accident, the safety and satisfactoriness of the verdict, and the availability of an alternative verdict of manslaughter by criminal negligence.

The primary legal issue before the court was whether the evidence warranted the jury to be satisfied of certain facts beyond reasonable doubt. The court had to consider whether the defence of accident was precluded and whether the verdict was safe and satisfactory. Additionally, the court examined whether an alternative verdict of manslaughter by criminal negligence was available to the jury. The appellant argued that the prosecution failed to exclude the possibility of an accident, and that the verdict was unsafe and unsatisfactory. The court's task was to assess the sufficiency of the evidence, the applicability of the defence of accident, and the availability of an alternative verdict.

The court found that the evidence was sufficient to support the conviction for murder, and that the defence of accident was not applicable in the circumstances. The court concluded that the verdict was safe and satisfactory, and that there was no basis for an alternative verdict of manslaughter by criminal negligence. The appeal was dismissed, and the conviction for murder was upheld. The court held that the evidence was clear and compelling, and that the jury was entitled to reject the defence of accident and convict the appellant of murder.

No further orders were made by the court in this matter. The conviction for murder was upheld, and the appeal was dismissed.

Orders