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R v Hettiarachchi

R v Hettiarachchi

Case [2009] VSCA 270 27 November 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 515 of 2008
THE QUEEN	v
SARATH HETTIARACHCHI
No 516 of 2008
DIRECTOR OF PUBLIC PROSECUTIONS
v
SARATH HETTIARACHCHI

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JUDGES	NETTLE and WEINBERG JJA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 October 2009
DATE OF JUDGMENT	27 November 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 270
JUDGMENT APPEALED FROM	[2007] VSC 541 (King J)

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CRIMINAL LAW – Conviction – Murder – Evidence – Relationship evidence – Whether judge erred by allowing Crown to adduce evidence of the applicant’s bad character – Directions to jury – Meaning of reasonable doubt – Whether direction that ‘beyond reasonable doubt does not mean fanciful’ was productive of injustice – Appeal dismissed.

CRIMINAL LAW – Sentencing – Crown appeal – Cumulation – Murder of elderly couple by son-in-law – Whether five years’ cumulation when victims were elderly and defenceless manifestly inadequate – No error demonstrated – Appeal dismissed.

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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/ Respondent	Mr P F Tehan QC with Mr C B Boyce	Slades & Parsons

NETTLE JA
WEINBERG JA
HOLLINGWORTH AJA:

Following a trial in the Criminal Division of the Supreme Court of Victoria, on 5 November 2007 the applicant was convicted of two counts of murder and later sentenced to a total effective sentence of 27 years’ imprisonment with a non-parole period of 22 years. He now applies for leave to appeal against conviction. There is also an appeal by the Director of Public Prosecutions against sentence on the ground of manifest inadequacy.

The Crown case at trial

The applicant was born in Sri Lanka on 30 January 1960 where he later qualified as an electronics technician. He emigrated to this country in 1988 and worked here as a taxi driver. In 1989, his family made arrangements for him to marry Badrakanthi Geethika (‘Badra’). She was 28 years old and still in the process of completing a Bachelor of Arts degree, specialising in sociology, at the University of Colombo. She had begun the course in 1984 but the university had closed for a number of years due to civil war and that had extended the length of her course. The applicant met her for the first time in Sri Lanka on 10 February 1990 and they were married two weeks later, on 22 February 1990, with a further wedding ceremony on 24 February.

On 25 February 1990, the applicant returned to Australia without his wife. At that stage, the parties were still in discussions over Badra’s dowry - a block of land held in her name in Sri Lanka – and for the next three years she remained in Sri Lanka employed in the Sri Lankan civil service without contact with the applicant. In that time she was free to do and spend her money as she chose, without control or direction by the applicant.

In October 1994, Badra joined the applicant in…

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.

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Details

AGLC: R v Hettiarachchi [2009] VSCA 270
Case: [2009] VSCA 270
Decision Date: 27 November 2009

CaseChat Overview and Summary

The appeal was brought by the applicant against his conviction and sentence for the murders of an elderly couple. The case was heard in the High Court of Australia. The applicant was convicted of murdering his elderly in-laws. The legal issues before the court were whether the trial judge erred by allowing the Crown to present evidence of the applicant's bad character, and whether the judge's directions to the jury about the meaning of reasonable doubt were productive of injustice. Additionally, the court considered whether the sentence of five years' cumulation for the murders of the elderly and defenceless victims was manifestly inadequate.

The court examined the trial judge's decision to permit evidence of the applicant's bad character, concluding that there was no error in this regard. The court found that the judge's directions to the jury about the meaning of reasonable doubt, specifically the statement that "beyond reasonable doubt does not mean fanciful," were not productive of injustice. The court held that these directions were appropriate and did not prejudice the applicant's right to a fair trial. Regarding the sentence, the court found that there was no demonstrated error in the five-year cumulation sentence for the murders, considering the circumstances of the case.

The appeal was dismissed by the High Court, upholding the conviction and sentence of the applicant. The court found no merit in the arguments presented regarding the admissibility of the bad character evidence, the direction to the jury about reasonable doubt, or the adequacy of the sentence. The applicant's conviction for the murders of his elderly in-laws and the sentence imposed were therefore affirmed.

Orders