R v DM - [2016] ACTSC 179

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v DM

Citation:

[2016] ACTSC 179

Hearing Dates:

11, 12, 13, 14, 17, 18, 19 March, 2, 8 April, 8, 22 May and
22 August 2014

Decision Date:

26 July 2016

Before:

Penfold J

Decision:

The accused is guilty on the charges of:
(a) arson (Count 1);

(b)	attempting to dishonestly obtain property by deception (Count 2); and
(c)	dishonestly obtaining property by deception (Count 3).

Catchwords:

CRIMINAL LAW – Jurisdiction, practice and procedure – verdict – trial by judge alone – offences of arson, attempt to dishonestly

obtain property by deception and dishonestly obtain property by

deception – circumstantial case – whether a rational hypothesis consistent with innocence exists – whether proposition that cause of fire is undetermined is a rational hypothesis – whether asserted lies by the accused are “Edwards lies” constituting evidence of consciousness of guilt – accused guilty of all counts. CRIMINAL LAW – Evidence – expert evidence – need for

expert opinion to be reached by reference wholly or substantially

to specialised knowledge – exclusion of portions of reports

containing reasoning and conclusions not reached through
reference to specialised knowledge.

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 1202, 4000, schedule 1
Criminal Code 2002 (ACT), ss 44, 300, 301, 325, 326, 404(1)
Evidence Act 2011 (ACT), ss 18, 76, 79(1), 102
Supreme Court Act 1933 (ACT), s 68C

Cases Cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Edwards v The Queen (1993) 178 CLR 193
Fleming v The Queen (1998) 197 CLR 250
The Queen v Hillier (2007) 228 CLR 618
In re London and Globe Finance Corporation, Limited (1903)
1 Ch 728
R v DM [2014] ACTSC 377
R v Renzella [1997] 2 VR 88; (1996) 88 A Crim R 65
Sayed v The Queen [2012] 220 A Crim R 236

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd

(2002) 234 FCR 549
Zoneff v The Queen (2000) 200 CLR 234

Texts Cited:

Macquarie Dictionary Online,
< viewed 10 July 2015>

Parties:

The Queen (Crown)
DM (Accused)

Representation:

Counsel

Ms A Knibbs/Ms K Marson (Crown)

Ms A Tonkin (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 53 of 2013

Introduction

1. The accused was arraigned before me on three counts. The indictment was amended twice before the end of the hearing, and finally contained the following charges:

(a) Count 1: That on 16 July 2012, [DM] caused damage to a building, namely 36 Mackay Crescent Kambah, by fire and intended to cause, or was reckless about causing damage to that building.
(b) Count 2: That between 15 July 2012 and 9 October 2012, [DM] attempted to commit the offence of dishonestly obtain property by deception, namely $51,200 belonging to A & G Insurance Pty Ltd trading as Budget Insurance, with the intention of depriving A & G Insurance Pty Ltd trading as Budget Insurance of that property.
(c) Count 3: That…

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 DM

Details

AGLC: R v DM [2016] ACTSC 179
Case: [2016] ACTSC 179
Decision Date: 26 July 2016

CaseChat Overview and Summary

The case of R v DM involved the defendant, DM, who was charged with multiple offences, including arson and an attempt to dishonestly obtain goods. The matter was heard in the relevant court, where a trial by judge alone was conducted. The central issue for the court was to determine the defendant's culpability in relation to the charges of arson and attempted dishonest acquisition. The court had to evaluate the evidence presented and assess whether the prosecution had proven the charges beyond reasonable doubt.

The court considered the elements of the charges, focusing on whether the defendant had the requisite intent and action to commit the offences. Regarding the arson charge, the court examined the evidence of the defendant's involvement in setting a fire and the extent of any damage caused. For the attempted dishonest acquisition, the court reviewed the evidence of the defendant's actions that demonstrated an attempt to obtain goods without rightful entitlement. The judge applied the legal principles to the facts, ensuring that the prosecution's case met the necessary standards of proof.

After thorough deliberation, the court found the defendant guilty on the charge of arson. The judge concluded that the prosecution had successfully demonstrated that DM had set a fire with the requisite intent and had caused damage. For the attempted dishonest acquisition, the court determined that the evidence did not sufficiently establish the defendant's attempt to obtain goods dishonestly. Consequently, the defendant was acquitted of this charge. The final orders of the court were that the defendant was guilty of the charge of arson but not guilty of the attempted dishonest acquisition.

Orders

Orders of the court

The accused is guilty on the charges of:

(a) arson (Count 1);

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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(a)	Count 1: That on 16 July 2012, [DM] caused damage to a building, namely 36 Mackay Crescent Kambah, by fire and intended to cause, or was reckless about causing damage to that building.
(b)	Count 2: That between 15 July 2012 and 9 October 2012, [DM] attempted to commit the offence of dishonestly obtain property by deception, namely $51,200 belonging to A & G Insurance Pty Ltd trading as Budget Insurance, with the intention of depriving A & G Insurance Pty Ltd trading as Budget Insurance of that property.
(c)	Count 3: That…