Quarrell v The Queen - [2011] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0252

DIANE QUARRELL
	v
THE QUEEN

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JUDGES:	BUCHANAN, NEAVE, MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2011
DATE OF JUDGMENT:	11 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 125
JUDGMENT APPEALED FROM:	DPP v Quarrell, (Unreported, County Court of Victoria, Judge Douglas, Date Of Conviction: 11 March 2010, Date Of Sentence: 16 July 2010)

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CRIMINAL LAW – Applicant convicted of numerous counts of arson and attempted arson – Application for leave to appeal against conviction – Whether judge erred in admitting coincidence evidence and in directing the jury about coincidence evidence – Application for leave to appeal against sentence – Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A P Lewis	Robert Stary & Associates
For the Crown	Mr D A Trapnell SC	Mr Craig Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Mandie JA, for the reasons his Honour has stated, that the applications for leave to appeal against conviction and sentence should be dismissed.

NEAVE JA:

I have had the advantage of reading in draft the judgment of Mandie JA and agree, for the reasons his Honour gives, that the applications for leave to appeal against conviction and sentence should be refused.

MANDIE JA:

This is an application for leave to appeal against conviction and, if the convictions are sustained, against sentence. On 25 February 2010 the applicant pleaded not guilty in the County Court to a presentment containing seven counts of arson and two counts of attempted arson in relation to nine beach boxes situated on Rosebud beach. The jury found the applicant guilty and the applicant was convicted on each count on 11 March 2010. A plea was subsequently heard and on 16 July 2010[1] the applicant was sentenced as follows:

[1]The reasons for the delay are not relevant to the present applications.

Counts – arson (or attempted arson*)

Date of offence

Beach box no

Sentence

Cumulation

Compensation ordered

1 15/4/08 66 2 ½ years 2 months $1,267.07

2 15/4/08 67 3 years 4 months $17,275.48

3 20/5/08 F171 3 years 4 months

4 20/5/08 F164 3 years 4 months

5 20/5/08 F162 3 years 4 months

6 20/5/08 F161 3 years 4 months $1,350.00

7* 20/5/08 F158 15 months 1 month

8* 20/5/08 F152 15 months 1 month

9 20/5/08 F111 3 years Base sentence $153.00

The total effective sentence was thus five years’ imprisonment and the judge ordered that the applicant serve a minimum of three years before becoming eligible for parole.

The applicant relies upon the following grounds:

In relation to conviction:
1.The trial judge erred in admitting coincidence evidence in proof of each count on the presentment.
2.The trial judge erred in her directions to the jury concerning the coincidence evidence.
In relation to sentence:
The sentence imposed on each count, the total effective sentence and the minimum non-parole period are in all the circumstances of the case manifestly…

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 Quarrell v The Queen

Details

AGLC: Quarrell v The Queen [2011] VSCA 125
Case: [2011] VSCA 125
Decision Date: 11 May 2011

CaseChat Overview and Summary

The appellant, Quarrell, was convicted of several counts of arson and attempted arson and sought leave to appeal against both his conviction and sentence. The appeal was heard in the High Court of Australia. The primary legal issue was whether the trial judge erred in admitting coincidence evidence and in directing the jury about that evidence. Additionally, the appellant argued that his sentence was manifestly excessive.

The court found that the trial judge did not err in admitting coincidence evidence as it was relevant to the identity of the perpetrator. The judge also correctly directed the jury on the use of coincidence evidence, ensuring they understood it could only be considered if it excluded every reasonable hypothesis other than guilt. Regarding the sentence, the court determined it was not manifestly excessive, considering the nature and circumstances of the offences and the need for deterrence and denunciation.

As the appeal against conviction and sentence did not succeed, the High Court refused the application for leave to appeal. The convictions and sentence were upheld, and the appellant's application was dismissed.

Orders