Goldsmith v The Queen - [2010] VSCA 99

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0862

ROBERT RAWIRI GOLDSMITH
	v
THE QUEEN

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JUDGES:	WEINBERG, MANDIE and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 April 2010
DATE OF JUDGMENT:	30 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 99
JUDGMENT APPEALED FROM:	R v Goldsmith (Unreported, County Court of Victoria, Judge Gullaci, 3 November 2008)

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CRIMINAL LAW – Applicant convicted of aggravated burglary and recklessly causing injury – Acquitted of armed robbery and theft – Whether verdicts are inconsistent – R v MacKenzie – Verdicts can be reconciled – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Doyle	Revill & Papa Lawyers
For the Crown	Mr C Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
MANDIE JA
BONGIORNO JA:

After a trial lasting several weeks, the applicant was convicted, on 23 September 2008, in the County Court at Melbourne, of one count of aggravated burglary (count 2), and one count of recklessly causing injury (count 5). He was acquitted of one count of armed robbery (count 1), one count of theft (count 3) and one count of intentionally causing injury (count 4). The count of recklessly causing injury was left to the jury as an alternative to the count of intentionally doing so.

On 3 October 2008, the applicant was sentenced to a term of four years’ imprisonment on count 2, and nine months’ imprisonment on count 5. He also pleaded guilty to a single count of possession of a small quantity of cannabis (count 6), for which he was fined $200. The trial judge ordered that two months of the sentence imposed on count 5 be served cumulatively on the sentence imposed upon count 2. The total effective sentence therefore was four years and two months’ imprisonment. His Honour fixed a non-parole period of two years.

The applicant now seeks leave to appeal against conviction. He relies upon one ground only, namely that the convictions on each of counts 2 and 5 are unsafe by reason of their inconsistency with the acquittals on counts 1 and 3.

Circumstances surrounding these offences

By early 2007, the applicant had been employed for some time as a Duty Manager at the Golden Nugget Hotel in Lonsdale Street, Melbourne. On the night of 27 January 2007, he was on duty, and finished work in the early hours of the following morning.

Shortly after 8am on 28 January 2007, a heavily disguised intruder, armed with a knife, entered the hotel premises through a hatch door leading into the cool room. The hatch door was normally kept locked, but for some reason, that morning, had been left unlocked.

Once the intruder gained entry to the hotel, he made his way to an area adjacent to what was described as the ‘strong room’. That room contained a safe in which the hotel takings were deposited. The strong room was normally kept locked. Just outside that room, the intruder confronted the day shift…

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 Goldsmith v The Queen

Details

AGLC: Goldsmith v The Queen [2010] VSCA 99
Case: [2010] VSCA 99
Decision Date: 30 April 2010

CaseChat Overview and Summary

The applicant, Goldsmith, was convicted by a jury of aggravated burglary and recklessly causing injury, but acquitted of armed robbery and theft. He applied to the court to set aside his convictions, arguing that they were inconsistent with his acquittal of armed robbery and theft. The court was required to determine whether the verdicts were inconsistent and, if so, whether they could be reconciled under the principles established in R v MacKenzie. The court considered whether the jury could have reasonably found that the applicant was guilty of aggravated burglary and recklessly causing injury without also finding that he was guilty of armed robbery and theft.

The court held that the verdicts were not necessarily inconsistent and could be reconciled. The court noted that the jury could have found that the applicant was guilty of aggravated burglary and recklessly causing injury based on the evidence presented, but did not believe beyond reasonable doubt that he was also guilty of armed robbery and theft. The court found that the verdicts were consistent with each other and could be reconciled in accordance with the principles established in R v MacKenzie. The court held that the applicant's convictions were safe and proper, and dismissed the application.

The court found that the verdicts of the jury were not inconsistent and could be reconciled in accordance with the principles established in R v MacKenzie. The applicant's convictions for aggravated burglary and recklessly causing injury were safe and proper, and the application to set aside the verdicts was dismissed. The court held that the verdicts were open to the jury on the evidence presented and that the jury was entitled to convict the applicant of the charges on which they did convict him, while acquitting him of the charges on which they did not convict him. The court found no error in the verdicts and dismissed the application.

Orders