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R v Arnott

R v Arnott

Case [2009] VSCA 299 17 December 2009

Appeal

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 807 of 2007

THE QUEEN
	v
RUSSELL ARNOTT

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JUDGES	NETTLE, ASHLEY and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 June 2009
DATE OF JUDGMENT	17 December 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 299
JUDGMENT APPEALED FROM	[2007] VSC 351 (Williams J)

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Criminal law – Application for leave to appeal against conviction – Murder – Admissibility of confession – Whether trial judge erred in not exercising her discretion to exclude confession – Fairness discretion – Whether verdict unsafe and unsatisfactory – Whether prosecutor failed to comply with the rule in Browne v Dunn (1893) 6 R 67 – Whether judge erred in allowing the trial to continue with less than 12 jurors – Application refused.

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Appearances:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr L C Carter with Mr R F Edney	Doogue & O’Brien

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Ashley JA. I agree with them and I am unable to add anything of use to them. The application for leave to appeal should be refused.

ASHLEY JA:

On 3 January 2007 a jury found the applicant, Russell Laurence Arnott, guilty of the murder of Daniel Zigante on 3 March 1985. On 19 September 2007, after an earlier plea hearing, he was sentenced to 17 years imprisonment with a non-parole period of 12 years and 6 months.

This was the applicant’s second trial. He had been arrested and interviewed on 4 August 2004, and had then been remanded in custody. He had been committed for trial in July 2005, and had stood trial in March and April 2006. The jury had been unable to agree upon a verdict, and had been discharged without verdict on 17 April.

Grounds of Appeal

The grounds of appeal which were ultimately pursued were as follows:

1.The learned trial judge erred in law in determining that the applicant’s record of interview was voluntary.
2.Alternatively to ground 1, the learned trial judge erred in failing in the exercise of judicial discretion, to exclude the applicant’s record of interview.
3.The learned trial judge erred in the exercise of his discretion pursuant to section 43 and 44 of the Juries Act 2000 to discharge a juror and to allow the trial to continue with less than 12 jurors.
. . .
6.There has been a substantial miscarriage of justice because the prosecutor failed to:
(a)specifically cross examine the applicant on his knowledge of the .22 LR bullet;

(b) comply with the rule in Browne v Dunn (1893) 6 R 67;
7.The learned trial judge erred in ruling that the prosecutor was at large in his closing address to make the argument about the .22 LR bullet despite not having cross examined the applicant on this issue.
8.The learned trial judge erred in failing to discharge the jury having ruled the prosecutor could…

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 Arnott

Details

AGLC: R v Arnott [2009] VSCA 299
Case: [2009] VSCA 299
Decision Date: 17 December 2009

CaseChat Overview and Summary

In the matter of R v Arnott, the appellant, a man convicted of murder, sought leave to appeal against his conviction. The case was heard in the Court of Criminal Appeal, where the primary focus was the admissibility of a confession made by the appellant during his trial. The appellant argued that the trial judge had erred in not exercising her discretion to exclude the confession under section 138 of the Evidence Act, which allows for the exclusion of evidence if its admission would be unfair. The appellant further contended that the verdict was unsafe and unsatisfactory, and that the prosecutor had failed to comply with the rule in Browne v Dunn, which requires disclosure of all evidence favourable to the accused. Additionally, the appellant argued that the trial judge erred in allowing the trial to continue with less than 12 jurors.

The court was tasked with determining whether the trial judge had erred in not excluding the appellant's confession under the fairness discretion, whether the verdict was indeed unsafe and unsatisfactory, and if the prosecutor had indeed failed to comply with the rule in Browne v Dunn. Furthermore, the court needed to assess if the trial judge had erred in proceeding with the trial using less than 12 jurors. The court considered the appellant's arguments in light of the relevant statutory provisions and case law, including the discretion afforded to the trial judge under section 138 of the Evidence Act and the requirement for a unanimous jury verdict in criminal trials.

Upon reviewing the evidence and the arguments presented, the court found that the trial judge had not erred in admitting the appellant's confession. The court held that the trial judge had appropriately exercised her discretion under section 138 of the Evidence Act and that the confession was properly admitted. The court also determined that the verdict was safe and satisfactory, and that there was no failure by the prosecutor to comply with the rule in Browne v Dunn. Regarding the jury, the court found that the trial judge had not erred in allowing the trial to proceed with less than 12 jurors, as the appellant had not demonstrated that this procedural irregularity affected the fairness of the trial. Consequently, the application for leave to appeal was refused.

The court made no orders as to costs. The appellant's application for leave to appeal was dismissed, and the conviction and sentence remained unchanged.

Orders