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Patton (a pseudonym) v The Queen

Patton (a pseudonym) v The Queen

Case [2021] VSCA 104 26 April 2021

Interlocutory Appeal

Limitation Periods

Admissibility of Evidence

Criminal Law

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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…

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 Patton (a pseudonym) v The Queen

Details

AGLC: Patton (a pseudonym) v The Queen [2021] VSCA 104
Case: [2021] VSCA 104
Decision Date: 26 April 2021

CaseChat Overview and Summary

The respondent, Patton, was charged with causing a bushfire under section 486CA of the Criminal Code Act 1995 (Cth). The respondent appealed to the High Court to seek an extension of time to challenge the decision of the Court of Appeal of the Supreme Court of Victoria. The Court of Appeal had affirmed the conviction of the respondent and dismissed his appeal. The primary legal issue before the High Court was whether the evidence of other fires should be admitted as coincidence evidence, under section 98 of the Evidence Act 2008 (Vic), and whether the trial judge should have excluded the evidence as unreliable and prejudicial. The Court also had to decide whether the evidence was sufficiently similar to the fire in question to justify admitting it, and whether the trial judge had erred in admitting the evidence. The High Court found that the evidence of the other fires was admissible as coincidence evidence, as it was relevant to the respondent’s intention to cause the fire. The Court also found that the evidence was sufficiently similar to the fire in question to justify admitting it, and that the trial judge had not erred in admitting the evidence. The Court held that the coincidence evidence was relevant to the respondent’s intention to cause the fire, and that the similarity between the fires was sufficient to justify admitting the evidence. The Court also found that the trial judge had not erred in admitting the evidence, as the probative value of the evidence outweighed any prejudicial effect it may have had. The Court refused the respondent’s application for an extension of time, finding that the appeal was not an appropriate case for an extension of time.

Orders