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Freeburn v The Queen

Freeburn v The Queen

Case [2020] VSCA 155 17 June 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0044

ALEXANDER FREEBURN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 June 2020
DATE OF JUDGMENT:	17 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 155
JUDGMENT APPEALED FROM:	[2018] VSC 616 (Hollingworth J)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of murder – Victim suffered mild intellectual disability – Victim was applicant’s girlfriend – Applicant prone to violence and aggression towards victim – Applicant inflicted multiple soft tissue injuries to victim during assault – Evidence of GHB in victim’s blood – Applicant left victim when she was still alive but in debilitated state – Evidence that applicant admitted to having lost control and seriously injured victim – Expert witnesses expressed different views whether assault a cause of victim’s death – Whether verdict unreasonable and not supported by evidence – Whether open to jury to conclude that the assault was a substantial and operative cause of victim’s death – Whether open to jury to conclude that applicant intended to cause victim really serious injury – Appeal allowed – Conviction of murder quashed – Substituted with conviction of manslaughter – Whether substantial miscarriage of justice due to admission of inadmissible evidence of disabling of CCTV system – Evidence not admissible as evidence of incriminating conduct – Trial judge gave clear and specific direction to jury not to rely on evidence – No substantial miscarriage of justice – Pell v The Queen [2020] HCA 12 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC with Dr M FitzGerald	Doogue & George Pty Ltd
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA

KAYE JA
EMERTON JA:

The applicant was convicted, by the jury empanelled on his trial, for the murder of Elizabeth Wilms in Kew between 30 June 2016 and 2 July 2016. He was sentenced to 25 years’ imprisonment, with a non-parole period of 20 years.

The applicant seeks leave to appeal his conviction on two grounds, namely:

Ground 1 — The jury’s verdict of guilt is unreasonable and cannot be supported having regard to the evidence.
Particulars:
(a)The evidence failed to prove beyond reasonable doubt that the applicant had caused the death of the deceased.
(b)The evidence failed to prove beyond reasonable doubt that the applicant had intended to cause grievous bodily harm to the deceased.

Ground 2 — The trial miscarried due to the admission of prejudicial evidence that a closed circuit television system had been deactivated prior to the death of the deceased.

Background

Elizabeth Wilms was born in May 1987, and at the time of her death she was 29 years of age. She was mildly intellectually disabled. After she became involved in an abusive relationship with another man in 2014, her parents obtained a guardianship order in respect of her from the Victorian Civil and Administrative Tribunal. In the following years, they…

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 Freeburn v The Queen

Details

AGLC: Alexander Freeburn v The Queen [2020] VSCA 155
Case: [2020] VSCA 155
Decision Date: 17 June 2020

CaseChat Overview and Summary

The appellant, Freeburn, appealed against his conviction for murder and the sentence imposed by the Supreme Court of Victoria. The victim, who had a mild intellectual disability, was the appellant's girlfriend at the time of her death. The appellant was prone to violence and aggression towards the victim and had inflicted multiple soft tissue injuries upon her during an assault. The victim was found dead, with evidence of GHB in her blood. The appellant left the victim when she was still alive but in a debilitated state. The appellant admitted to having lost control and seriously injuring the victim, and expert witnesses expressed differing views on whether the assault was the cause of the victim's death.

The legal issues before the court were whether the verdict was unreasonable and not supported by evidence, whether it was open to the jury to conclude that the assault was a substantial and operative cause of the victim's death, and whether it was open to the jury to conclude that the appellant intended to cause the victim really serious injury. The court also considered whether a substantial miscarriage of justice had occurred due to the admission of inadmissible evidence of the disabling of a CCTV system. The court found that the verdict of murder was unreasonable and not supported by evidence and that it was open to the jury to conclude that the assault was a substantial and operative cause of the victim's death and that the appellant intended to cause the victim really serious injury. The court quashed the conviction of murder and substituted it with a conviction of manslaughter.

The court also considered whether a substantial miscarriage of justice had occurred due to the admission of inadmissible evidence of the disabling of a CCTV system. The evidence was not admissible as evidence of incriminating conduct, but the trial judge gave a clear and specific direction to the jury not to rely on the evidence. The court found that there was no substantial miscarriage of justice. The court applied the principles set out in Pell v The Queen [2020] HCA 12 and concluded that the error did not affect the outcome of the trial. The appeal was allowed, and the conviction of murder was quashed and substituted with a conviction of manslaughter. The sentence was also varied to reflect the new conviction.

Orders