SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0010
| THOMAS PATTON (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To avoid the possibility of prejudice in the applicant’s trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGE: | PRIEST, BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 April 2021 |
| DATE OF JUDGMENT: | 26 April 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 104 |
| JUDGMENT APPEALED FROM: | DPP v [Patton] (Unreported, County Court of Victoria, Judge Mullaly, 10 November 2020) |
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CRIMINAL LAW — Interlocutory Appeal — Extension of time — Causing a bushfire — Coincidence evidence — Whether sufficient similarity between fires to justify admitting evidence — Extension of time refused — Evidence Act 2008 s 98(1)(b), s 101.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms C Randazzo SC | Stephen Peterson |
| For the Respondent: | Mr C Boyce QC with Mr M Fisher | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
KYROU JA:
Introduction
An indictment filed in the County Court charges the applicant with intentionally causing a bushfire[2] (five charges — charges 1 to 5). He intends to plead not guilty at trial.
[2]Section 201A(1) of the Crimes Act 1958, which provides:
201A Intentionally or recklessly causing a bushfire
(1) A person who—
(a) intentionally or recklessly causes a fire; and
(b) is reckless as to the spread of the fire to vegetation on property belonging to another—
is guilty of an offence and liable to level 4 imprisonment (15 years maximum).
On 10 November 2020, the judge ruled that the prosecution could, pursuant to s 98 of the Evidence Act 2008 (‘the Act’), rely on coincidence evidence with respect to the five fires embraced by the five charges on the indictment (‘the interlocutory decision’ or ‘the ruling’).
Pursuant to certification granted by the trial judge under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), the applicant wishes to seek leave to appeal against the judge’s ruling. Given that the applicant did not file the necessary notice of application for leave to appeal against the interlocutory decision within the prescribed time,[3] the applicant must first persuade the Court to grant him an extension of time within which to do so.[4]
[3]See CPA, s 298(1).
[4]See CPA, s 313.
The proposed grounds upon which the applicant seeks to rely are as follows:
1. The learned judge erred in admitting the coincidence evidence pursuant to section 98 of the Evidence Act.
2. The sole issue being the identity of the offender in each of the [five] charged bushfires the judge erred in ruling:
a.the evidence in respect of each charged bushfire (5 charges) the degree of similarity of the evidence for each bushfire required for admissibility was met [sic.];
b.the evidence for each of the 5 charges was so similar between the 5 charges [scil, charged] offences that the accused was linked to each of the charged fires and coincidence was improbable…
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- Patton (a pseudonym) v The Queen [2021] VSCA 104
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- [2021] VSCA 104
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