R v Lovegrove - [2011] SASCFC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LOVEGROVE
[2011] SASCFC 111
Judgment of The Court of Criminal Appeal
(The Honourable Justice David, The Honourable Justice Blue and The Honourable Justice Stanley)
14 October 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
The appellant was charged with aggravated serious criminal trespass and assault in a house – a jury found the appellant guilty of the first charge but not the second – the appellant contends the findings are inconsistent and therefore the guilty verdict on the first charge is unreasonable – whether there is factual or logical inconsistency.
Held: appeal dismissed – the prosecution evidence identified the appellant in the house and suggested the possibility of a second person in the house, leading to a reasonable hypothesis that a second person committed the assault – no inconsistency between the verdicts.
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 170(1), referred to.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v R (2002) 213 CLR 606; Phillips v The Queen (2006) 225 CLR 303, applied.
R v Gbojueh (2009) 103 SASR 545, distinguished.
R v Wilkinson [1970] Crim LR 176; R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31; Hayes v The Queen (1973) 47 ALJR 603; R v Kirkman (1987) 44 SASR 591, considered.

R v LOVEGROVE
[2011] SASCFC 111
Court of Criminal Appeal: David, Blue and Stanley JJ

DAVID J: I would dismiss the appeal. I agree with the reasons of Blue J.
BLUE J:   The appellant, Mr Lovegrove, was charged with:
1.aggravated serious criminal trespass;[1] and
2.assault.[2]
[1]    Criminal Law Consolidation Act1935 (SA) s 170(1).
[2]    Criminal Law Consolidation Act1935 (SA) s 20(3).
A jury returned a verdict of guilty on the first count and not guilty on the second count.
Mr Lovegrove appeals from the conviction of aggravated serious criminal trespass on the ground that the verdict of guilty on that count is inconsistent with the verdict of not guilty on the second count and cannot reasonably be reconciled with it and, because of that inconsistency, the verdict of guilty is unreasonable.
The Facts
The incidents the subject of the charges occurred on the night of 14‑15 December 2009 (“the night”) at a house in suburban Adelaide.
Present in the house on the night were Mr Matthews, his then girlfriend Ms Cirjak and Mr Cutler. Ms Cirjak was previously Mr Lovegrove’s girlfriend.
At trial, it was not in contest that a person broke the glass panel to the side of the front door of the house and entered with the intent of assaulting Mr Matthews. It was also not in contest that a person assaulted Mr Cutler while in the house. The live issue on each count was whether Mr Lovegrove was the person who broke and entered the house and the person who assaulted Mr Cutler.
Mr Cutler gave evidence that, on the…

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 Lovegrove

Details

AGLC: R v Lovegrove [2011] SASCFC 111
Case: [2011] SASCFC 111
Decision Date: 14 October 2011

CaseChat Overview and Summary

In *R v Lovegrove*, the Court of Appeal of South Australia considered an appeal by Mr Lovegrove against his conviction for aggravated serious criminal trespass. The appellant had been acquitted of a charge of assault in a house, and he contended that the jury's verdicts were inconsistent and that the guilty verdict on the trespass charge was therefore unreasonable. The dispute centred on whether Mr Lovegrove was the person who broke into the house and assaulted Mr Cutler.

The central legal issue before the court was whether the jury's finding of guilt for aggravated serious criminal trespass, when coupled with a finding of not guilty for assault, demonstrated an inconsistency that rendered the guilty verdict unreasonable. This required the court to determine if there was a factual or logical inconsistency between the two verdicts, given the evidence presented at trial.

The Court of Appeal dismissed the appeal, finding no inconsistency between the verdicts. The prosecution's evidence suggested that while Mr Lovegrove was identified as being in the house, there was also a possibility of a second person being present. This allowed for a reasonable hypothesis that a second, unidentified person committed the assault, while Mr Lovegrove was responsible for the trespass. Therefore, the jury could have rationally concluded that Mr Lovegrove committed the trespass but not the assault, without their verdicts being contradictory or unreasonable.

Orders

Orders of the court

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Background

Background to the litigation

Mr Lovegrove appeals from the conviction of aggravated serious criminal trespass on the ground that the verdict of guilty on that count is inconsistent with the verdict of not guilty on the second count and cannot reasonably be reconciled with it and, because of that inconsistency, the verdict of guilty is unreasonable.The Facts The incidents the subject of the charges occurred on the night of 14‑15 December 2009 (“the night”) at a house in suburban Adelaide. Present in the house on the night were Mr Matthews, his then girlfriend Ms Cirjak and Mr Cutler. Ms Cirjak was previously Mr Lovegrove’s girlfriend. At trial, it was not in contest that a person broke the glass panel to the side of the front door of the house and entered with the intent of assaulting Mr Matthews. It was also not in contest that a person assaulted Mr Cutler while in the house. The live issue on each count was whether Mr Lovegrove was the person who broke and entered the house and the person who assaulted Mr Cutler. Mr Cutler gave evidence that, on the night:1.he was watching television;2.he heard someone booting on the front door;3.he walked towards the front door and saw the shadow of a person through the opaque glass;4.he ran to Mr Matthews’ bedroom to warn him;5.Mr Matthews ran away;6.Mr Cutler ran back to the kitchen and, as he was rounding the corner by the fridge, he was punched in the face by a person whom he did not have time to see clearly but of whom he gave a generalised description;7.he did not recognise that person;8.when he was punched, he thought he saw a glimpse of a second person, but he was not completely sure;9.he ran into his bedroom and put his back to the door;10.he thought he heard conversation between two persons, but again he was not completely sure;11.he heard a car starting, saw out the front a person running to a car, also saw a shadow out the front (but he was again not completely sure), and saw a person jump in the car which took off the moment that person jumped in. Mr Matthews gave evidence that:1.he was awoken by Mr Cutler; 2.he heard someone repeatedly calling his name and saying that he was going to be harmed;3.he recognised that person’s voice as that of Mr Lovegrove;4.he responded by running through the dining room, through the kitchen and into the laundry, in the course of which he heard the glass panel to the side of the front door smash and saw a person squeezing through the panel;5.he recognised that person as Mr Lovegrove;6.at that point Mr Cutler was between Mr Lovegrove and himself;7.he continued through the laundry and out through the back door;8.he did not witness Mr Cutler being assaulted. Ms Cirjak gave evidence that:1.she was awoken by the sound of banging and smashing;2.she saw Mr Matthews go through the dining room, through the kitchen and into the laundry;3.she followed him into the dining room and then the kitchen;4.she heard two voices, each of which said “who are you?”;5.she recognised one voice as that of Mr Lovegrove, and the other voice as that of Mr Cutler;6.she later saw a person outside Mr Cutler’s bedroom attempting to smash his way through the door;7.she recognised that person as Mr Lovegrove;8.she later heard someone say words to the effect, “Come on [Mr Lovegrove], hurry up man”;9.she did not recognise the voice, and it did not belong to any of Mr Lovegrove, Mr Matthews or Mr Cutler;10.she later saw a person exit the house through the broken panel next to the front door, whom she recognised as Mr Lovegrove;11.she did not witness Mr Cutler being assaulted.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the present case, it was the entitlement, and indeed constitutional role, of the jury to decide for themselves (regardless of the manner in which the prosecution and the defence conducted their cases) whether they were satisfied beyond reasonable doubt that Mr Lovegrove was guilty of neither offence, the criminal trespass offence only, or both offences.Conclusion There is no basis on which to conclude that the jury’s verdicts were inconsistent, irreconcilable or unreasonable. I would dismiss the appeal. STANLEY J: I have had the advantage of reading the reasons of Blue J. For the reasons given by his Honour I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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