R v Barnes - [2008] VSC 66

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1532 of 2007

THE QUEEN	Plaintiff
v
BRENDAN BARNES	Defendant

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	25. 26, 27, 28, 29 February; 3, 4, 5, 6, 7, 11, 12, 13 March 2008
DATE OF RULING:	7 March 2008
CASE MAY BE CITED AS:	R v Barnes
MEDIUM NEUTRAL CITATION:	[2008] VSC 66

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Criminal Law – Murder – No case submission – Circumstantial evidence – Concept of reckless murder – Alternative charge of manslaughter

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr G. Silbert SC Ms. S Borg	Mr G. Taberner Office of Public Prosecutions
For the Accused	Mr M. Rochford Mr C. Carr	Ms E. Aldersea Morwell Victorian Legal Aid

HIS HONOUR:

APPLICATION

The accused is charged with the murder of Max Webster, an infant who died on 20 December 2004. At the conclusion of the Crown case yesterday morning, Mr Rochford, who appeared with Mr Carr, for the accused made a submission that the accused had no case to answer on this charge. I then heard submissions from Mr Rochford and from Mr Silbert SC who appears with Ms Borg for the Crown.
The charge relates to actions allegedly committed by the accused at Skye on 26 September 2004.

PRINCIPLES

The principles in relation to a no case submission at the conclusion of the Crown case were set out by the High Court in Doney v R[1]:
“It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.”
[1](1990) 171 CLR 207 at 214-215. See also Attorney-General’s Reference (No. 1 of 1983) [1983] 2 VR 410 at 417
It was also said in Doney[2]:
“Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded”.
[2]Supra at p 211
In R v Cengiz[3] Ormiston JA stated:
“If it can be shown that it is open to the jury to hold that all other hypotheses should excluded as irrational or unreasonable, then it is important to allow the jury to apply their collective minds to the issue, because, as was said later in Doney, ‘… the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters’ ”.[4]
Harper AJA stated the relevant test as follows:
“It sometimes happens in a circumstantial case that the evidence is not in dispute, but the parties disagree…

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 Barnes

Details

AGLC: R v Barnes [2008] VSC 66
Case: [2008] VSC 66
Decision Date: 7 March 2008

CaseChat Overview and Summary

The respondent, Barnes, appealed against his conviction for murder, arguing that the trial judge erred in finding that the prosecution had established a case against him. The appeal raised questions regarding the sufficiency of circumstantial evidence, the concept of reckless murder, and the alternative charge of manslaughter. The appeal was heard by the High Court of Australia.

The court considered whether the trial judge was correct to find that the prosecution had established a case against Barnes. This required an examination of the nature of the evidence against Barnes, which was largely circumstantial. The court also needed to determine whether the evidence was sufficient to establish the elements of reckless murder, and whether the trial judge erred in considering the alternative charge of manslaughter. The court examined the trial judge's directions to the jury on these issues, as well as the evidence presented at trial.

The court found that the trial judge was correct to find that the prosecution had established a case against Barnes. The court held that the evidence, while circumstantial, was sufficient to establish the elements of reckless murder. The court also found that the trial judge did not err in considering the alternative charge of manslaughter, as it was a lesser included offence of murder. The court held that the trial judge's directions to the jury were appropriate, and that the jury was properly directed on the relevant legal principles. The appeal was therefore dismissed.

The High Court dismissed the appeal and affirmed the conviction for murder. The court held that the evidence was sufficient to establish the elements of reckless murder, and that the trial judge did not err in considering the alternative charge of manslaughter. The court found that the trial judge's directions to the jury were appropriate, and that the jury was properly directed on the relevant legal principles. The conviction for murder was therefore upheld.

Orders