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 111Court 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…
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- R v Lovegrove [2011] SASCFC 111
- Case
- [2011] SASCFC 111
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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