R v Kotzmann (No 2) - [2002] VSCA 21

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 327 of 2000

THE QUEEN
	v.
THOMAS SAMUEL KOTZMANN (NO.2)

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JUDGES:	WINNEKE, P., ORMISTON and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22-24 October 2001
DATE OF JUDGMENT:	15 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 21

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Criminal law – Armed robbery – Circumstantial evidence – Whether trial judge required to direct jury that certain factual circumstances relied upon by Crown should be proved to criminal or civil standard before being used by jury in proof of guilt – No reason to depart from Court’s decision in R. v. Kotzmann (No.1) [1999] 2 V.R. 123.

Pre-offence conduct – Lies told by accused in renting property – Whether judge required to give direction in accordance with Edwards v. R.(1993) 178 C.L.R. 193.

Expert evidence – Evidence of comparison between clothing worn by robber and exhibits tendered – Whether a matter for expert evidence.

Jury – Discharge – Whether judge in error in failing to discharge following “unresponsive and prejudicial” answers – Principles discussed.

Sentence – Applicant remaining in custody for prior offences beyond the date of eligibility for parole – Whether appropriate for judge to declare, pursuant to s.18 of Sentencing Act 1991, days in custody beyond “eligibility date” on basis that applicant was being detained for re-trial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	Ms. K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. C.B. Boyce	Leanne Warren & Associates

WINNEKE, P.:

On 29 July 1995 at approximately 9.15 a.m. a lone male offender entered the Bank of Melbourne in Whitehorse Road, Balwyn, wearing a black balaclava and gloves and carrying a loaded sawn-off automatic Winchester rifle. He confronted seven female employees of the Bank and demanded money. Present at the time were a number of customers. $20,000 was stolen when the employees of the bank were asked to put such money as they possessed into a bag produced by the robber. Two of the bank employees, who were ordered to fill the bag with money, also placed into the bag two Skorpion “dye bombs” which, if activated, would spread dye over the contents of the bag. The bombs were manufactured to release their contents some minutes after they had been removed from the “cradles” in which they were set. One of the employees, no doubt due to fright, did not remove one of the bombs from its cradle. It was the Crown’s case at the applicant’s trial that the other bomb malfunctioned and, thus, the dye was not released over the contents of the bag. Bank security cameras captured photographs of the robbery whilst it was in progress and depicted the robber confronting the bank’s staff. The photographs showed that the robber was wearing a dark coloured balaclava with two “eye holes” and carrying a “sawn-off” Winchester rifle. It is also apparent from the photograph that the robber was wearing dark coloured track suit pants with “triple stripes” in the lower part of…

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 Kotzmann (No 2)

Details

AGLC: R v Kotzmann (No 2) [2002] VSCA 21
Case: [2002] VSCA 21
Decision Date: 15 March 2002

CaseChat Overview and Summary

The case of R v Kotzmann (No 2) involved the appellant, Kotzmann, who was convicted of armed robbery. The Supreme Court of Victoria heard the appeal against his conviction and sentence. The case focused on several legal issues including the standard of proof for circumstantial evidence, the admissibility of certain facts related to pre-offence conduct, the requirement for expert evidence for clothing comparison, and the appropriate handling of jury responses and sentencing considerations. The court was tasked with determining whether the trial judge erred in various respects, including the direction given to the jury and the sentencing process.

The court examined whether the trial judge was required to direct the jury that certain factual circumstances relied upon by the Crown should be proved to a criminal or civil standard before being used in proof of guilt. It also considered if the judge was required to give a direction in accordance with the decision in Edwards v R regarding lies told by the accused in renting a property. Furthermore, the court assessed whether evidence of a comparison between clothing worn by the robber and exhibits tendered required expert evidence. Additionally, the court considered whether the judge erred in failing to discharge the jury following their “unresponsive and prejudicial” answers.

In its reasoning, the court concluded that there was no reason to depart from its previous decision in R v Kotzmann (No 1), which held that no specific direction was necessary regarding the standard of proof for circumstantial evidence. The court also found that the trial judge did not err in failing to give a direction in accordance with Edwards v R as the circumstances did not warrant such a direction. The court determined that the comparison of clothing did not require expert evidence. Regarding the jury, the court held that the judge did not err in not discharging the jury, as their answers were not so unresponsive and prejudicial as to warrant a discharge. Finally, the court considered the sentencing issue and concluded that it was appropriate for the judge to declare days in custody beyond the eligibility date under s.18 of the Sentencing Act 1991.

The court upheld the conviction and sentence, affirming the decisions of the trial judge. No further orders were made by the court.

Orders