Miller v Be - [2017] ACTMC 12

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Miller v BE
Citation:	[2017] ACTMC 12
Hearing Date(s):	8 November 2016, 1 February 2017
DecisionDate:	23 June 2017
Before:	Magistrate Campbell
Decision:	See [104] – [111]
Catchwords:	CRIMINAL LAW – burglary – contravene domestic violence order – contravene family violence order - act endangering health - tendency and coincidence evidence – DNA evidence – circumstantial evidence
Legislation Cited:	Evidence Act 2011 (ACT) ss 55, 65, 97, 98, 101 Domestic Violence and Protection Orders Act 2008 (ACT) Magistrates Court Act1930 (ACT) Crimes Act 1900 (NSW)
Cases Cited:	Fitzgerald v The Queen (2014) 88 ALJR 779 R v Baden-Clay [2016] HCA 25 R v DM [2016] ACTSC 179 R v King (No 2) [2016] ACTSC 121 R v Lam [2014] ACTSC 49 R v QI [2016] ACTSC 21
Parties:	ACT Director of Public Prosecutions (Prosecution) Daniel Miller (Informant) BE (Defendant)
Representation:	Mr D Swan (Prosecution) Mr P Edmonds (Defendant)
File Number(s):	CC 2559 of 2015 CC 2560 of 2015 CC 2561 of 2015

MAGISTRATE CAMPBELL:

BE (the defendant) has pleaded not guilty to three charges all of which relate to events dating back to 27 August 2013. The charges are:

1.that he on 27 August 2013 entered a building in Charnwood as a trespasser with the intent to commit an offence that involved causing harm (the harm in this charge relates to the facts relevant to the act endangering life charge although from the evidence before me a finding of an alternative intent namely “to commit theft of any property in the building” would be equally appropriate) to anyone in the building (Burglary)
2.that he on 27 August 2013 placed a corrosive substance in circumstances dangerous to the physical well-being of another person namely KB (Act endangering health); and
3.that he being subject to a protection order under the provisions of the Domestic Violence and Protection Orders Act 2008 (ACT) who had been personally served with a copy of the order did on 27 August 2013 contravene the order (Contravene protection order).

The primary issue in dispute is whether the defendant was the trespasser on 27 August 2013. The complainant in relation to all charges is KB. The fault and physical elements of each of the offences have been set out by the prosecution in paragraphs 5-16 of its detailed written submissions prepared by Mr Swan and dated 24 February 2017. I adopt the DPP’s formulation and discussion in those paragraphs with the appropriate amendments in relation to the act endangering health charge set out in the written submissions in reply at paragraph 26.

There were significant delays between the date of the offences and their first mention in court on 17 April 2015 (in particular the police experienced some difficulty in locating the defendant and then in obtaining a DNA sample from him for comparison with items found at the scene), and also from that date to the last day of the hearing before me on 1 February 2017.…

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 Miller v Be

Details

AGLC: Miller v Be [2017] ACTMC 12
Case: [2017] ACTMC 12
Decision Date: 23 June 2017

CaseChat Overview and Summary

In Miller v Be, the respondent was charged with burglary and contravening domestic violence and family violence orders. The proceedings took place in the County Court of Victoria. The respondent was accused of entering the complainant’s home, engaging in threatening and violent conduct, and contravening domestic violence and family violence orders that had been issued against him. The case hinged on a combination of circumstantial evidence, DNA evidence, and the respondent's tendency to engage in such behaviour.

The court needed to determine whether the prosecution had proven the charges beyond reasonable doubt, considering the nature and reliability of the evidence presented. The respondent contested the admissibility and weight of the DNA evidence, arguing that it was circumstantial and not conclusive. The court also had to consider the relevance of the respondent's past conduct under the tendency rules, as well as the coincidence of the DNA evidence with the respondent's known propensity for violence.

The court held that the prosecution had successfully demonstrated the charges against the respondent. It found that the DNA evidence, when considered alongside the respondent’s past history of violence and the circumstances of the entry into the complainant's home, provided a compelling case against him. The court ruled that the evidence was not only admissible but also sufficient to establish the respondent's guilt beyond reasonable doubt. The coincidence of the DNA evidence with the respondent's known tendency to engage in violent behaviour against the complainant further supported the verdict.

The respondent was found guilty of burglary and contravening both domestic violence and family violence orders. The court ordered the respondent to serve a custodial sentence, reflecting the severity of the offences and the need for deterrence and protection of the complainant.

Orders

Orders of the court

See [104] – [111]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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