R v Allen - [2007] VSCA 97

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 79 of 2006

THE QUEEN
	v
PETER JOHN ALLEN

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JUDGES:	MAXWELL P and BUCHANAN and EAMES JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 April 2007
DATE OF JUDGMENT:	23 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 97

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Criminal law – Burglary – Circumstantial Crown case – No explanation advanced by accused – Open to jury to conclude that an inference consistent with innocence was not reasonably open – Acquittal on count of theft not inconsistent with verdict of guilty on count of burglary.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Victoria Legal Aid

MAXWELL P:

I agree with Buchanan, JA that both applications should be dismissed, for the reasons which his Honour gives.

BUCHANAN JA:

The applicant was arraigned in the County Court and pleaded not guilty to a presentment containing one count of burglary and one count of theft. The jury found the applicant guilty on the count of burglary, but acquitted him of the charge of theft. After a plea, the applicant was sentenced to be imprisoned for a term of 15 months with a minimum term of nine months’ imprisonment before he was to be eligible for parole. The sentence was ordered to be served concurrently with an existing State sentence, which exceeded the length of the sentence imposed for the offence of burglary.

It was alleged that the applicant, between 13 October 2002 and 5 November 2002, had entered as a trespasser a dwelling house at 34 Hotham Street, East Melbourne, with intent to steal, and had stolen a large number of items comprising the contents of the house.

The Crown case was entirely circumstantial. The occupant of the house gave evidence that she returned to the house on 5 November 2002 after being away for four or five days. She had left the house locked. On her return, she surprised two men and a woman in their twenties, who ran out of the rear of the house and into a lane. Most of the furniture and other contents of the house had been taken. A rear window was smashed and bars covering it prised open. The back doors had been removed.

The only evidence implicating the applicant was supplied by DNA analysis and fingerprint evidence. DNA evidence linked a cigarette butt found near the smashed window to the applicant. The fingerprint on the door of a cabinet in the house matched the fingerprint of the applicant.

The applicant did not give evidence, and no evidence was led on his behalf.

The applicant seeks leave to appeal against the conviction and the sentence.

There are two grounds of the application for leave to appeal against conviction. The first is that the verdict is unsafe and unsatisfactory, in that no reasonable jury properly instructed could be satisfied beyond reasonable doubt that the applicant had an intention to steal…

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 R v Allen

Details

AGLC: R v Allen [2007] VSCA 97
Case: [2007] VSCA 97
Decision Date: 23 May 2007

CaseChat Overview and Summary

The appellant was charged with burglary and theft. The court heard that the appellant was found by the owner of a residence in the early hours of the morning. The appellant was seen to flee the scene when confronted by the owner. The appellant was arrested at the scene and charged with burglary and theft. At trial, the Crown presented a circumstantial case, relying on the fact that the appellant was found in the premises at an unusual time and was seen to flee when confronted. The appellant did not advance any explanation for their presence or actions. The jury acquitted the appellant of the charge of theft but found them guilty of burglary. The appellant appealed against the conviction on the grounds that the jury should not have been left with the option of convicting on the charge of burglary while acquitting on the charge of theft. The court found that the jury was properly directed and that the acquittal on the charge of theft did not necessarily mean that the inference of innocence on the charge of burglary was reasonably open. The court found that the jury was entitled to convict on the charge of burglary based on the circumstantial evidence presented by the Crown. The court dismissed the appeal and upheld the conviction. The court found that the acquittal on the charge of theft did not necessarily mean that the inference of innocence on the charge of burglary was reasonably open. The jury was entitled to convict on the charge of burglary based on the circumstantial evidence presented by the Crown. The court found that the jury was properly directed and that the acquittal on the charge of theft did not necessarily mean that the inference of innocence on the charge of burglary was reasonably open. The court dismissed the appeal and upheld the conviction.

Orders