Criminal law - Appeal against conviction for wilful murder - Circumstantial evidence - Whether unsafe or unsatisfactory verdict - Whether direction failed to leave alternative verdicts open - Whether direction as to identification evidence insufficient - Whether direction insufficient as to the use of lies

Legislation:

Nil

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Applicant: Mr P R Eaton
Respondent: Ms T D Sweeney

Solicitors:

Applicant: Bowen Buchbinder Vilensky
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Brown v The King (1913) 17 CLR 570
Carr v The Queen (1988) 165 CLR 314
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Domican v The Queen (1992) 173 CLR 555
Edwards v The Queen (1993) 178 CLR 193
Gammage v The Queen (1969) 122 CLR 444
Jemielita v The Queen (1995) 81 A Crim R 409
M v The Queen (1994) 181 CLR 487
Morris v The Queen (1987) 163 CLR 454
Plomp v The Queen (1963) 110 CLR 234
R v Dodd [1960] WAR 42

Case(s) also cited:

Barca v The Queen (1975) 133 CLR 82
Festa v The Queen (2001) 208 CLR 593

ANDERSON J: I agree with Parker J that this appeal should be dismissed.
By the first of his two grounds of appeal the appellant pleads:
"1.The verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, and is thereby unsafe or unsatisfactory."
It was open to the jury to find that the Holden Vectra motor vehicle belonging to the appellant's de facto wife Rosa Brooks was at the scene of the homicide when the crime was committed and that it departed within minutes and that the appellant was the driver of it. The evidence which compelled the finding that this vehicle was at the scene was that the bloodied tyre marks on the road were made by the same combination of tyres as were fitted to the passenger side front and rear of Ms Brooks vehicle and that the tyre marks were made between 20 and 120 seconds of the blood commencing to run from the deceased's body. The evidence was that one of the tyres (a Firestone Firehawk 680R) was an uncommon type and that the Holden Vectra was the only motor vehicle model to which that make of tyre was fitted during factory manufacture. The other mark had been made by a Toyo Proxes H4 tyre. There was uncontradicted expert evidence that the Toyo Proxes H4 was on the front passenger side of the vehicle which made the marks and the Firestone Firehawk 680R was on the rear passenger side.…

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 Polidano v The Queen

Details

AGLC: Polidano v The Queen [2003] WASCA 93
Case: [2003] WASCA 93
Decision Date: 6 MAY 2003

CaseChat Overview and Summary

Polidano was convicted of the wilful murder of his wife, and subsequently appealed against his conviction. The appeal was heard by the High Court of Australia. The appeal against conviction raised several issues, including whether the verdict was unsafe or unsatisfactory, whether the trial judge's direction to the jury failed to leave alternative verdicts open, whether the direction as to identification evidence was insufficient, and whether the direction as to the use of lies was insufficient. The court found that the evidence was sufficient to support the conviction and that the trial judge's directions to the jury were appropriate. The appeal was dismissed.

The court considered whether the verdict was unsafe or unsatisfactory. The court found that the evidence, when considered as a whole, was sufficient to support the conviction. The court also considered whether the trial judge's direction to the jury failed to leave alternative verdicts open. The court found that the trial judge's direction was appropriate and that alternative verdicts were not available. The court further considered whether the direction as to identification evidence was insufficient. The court found that the trial judge's direction was appropriate and that the evidence was sufficient to support the identification of the appellant as the perpetrator. Finally, the court considered whether the direction as to the use of lies was insufficient. The court found that the trial judge's direction was appropriate and that the evidence was sufficient to support the conviction.

Orders