R v Szitovszky - [2009] VSCA 50

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 685 of 2007

THE QUEEN
	v
CHRISTOPHER LESLIE SZITOVSZKY

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JUDGES:	VINCENT, NETTLE JJA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2009
DATE OF JUDGMENT:	20 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 50

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CRIMINAL LAW – Conviction – Murder – Whether verdict unsafe and unsatisfactory – Whether crown had proven applicant was the murderer beyond reasonable doubt – No forensic evidence – Covert police operation inconclusive – Similarities between person seen by witnesses and applicant insufficient to identify applicant as the perpetrator – Verdict set aside – Applicant acquitted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P G Priest QC with Mr T Kassimatis	Galbally & O’Bryan Lawyers

VINCENT JA
NETTLE JA
VICKERY AJA:

On 3 April 2007, the applicant was found guilty by the jury empanelled on his trial in the Supreme Court at Melbourne of the murder of his father, Peter Szitovszky, outside his home at Wheelers Hill, on 1 July 2004.

He has sought leave to appeal against that conviction.

The application

Although the application was based upon a number of grounds, as a result of the conclusion we have reached there is, in the circumstances, need to address only one of them, namely –

That the verdict was unsafe and unsatisfactory.

Counsel, who appears on behalf of the Crown accepted, with commendable directness, that the jury verdict in this case was indeed troublesome, and that there was a serious question to be determined in this regard. Accordingly, it has been necessary for the Court to review carefully the evidence adduced in the applicant’s trial and the case that the prosecution presented against him. Applying the test set out by the High Court in M v R[1] –

The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.
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Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
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In most cases a doubt experienced by an…

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 Szitovszky

Details

AGLC: R v Szitovszky [2009] VSCA 50
Case: [2009] VSCA 50
Decision Date: 20 March 2009

CaseChat Overview and Summary

The case of R v Szitovszky involved the respondent, Szitovszky, who had been convicted of murder and was appealing the conviction on the grounds that it was unsafe and unsatisfactory. The appeal was heard in the High Court of Australia. The core issue before the court was whether the crown had successfully demonstrated beyond reasonable doubt that Szitovszky was the murderer. The appeal hinged on the lack of forensic evidence and the inconclusive results of a covert police operation. Additionally, the court had to consider whether the similarities between the person seen by witnesses and Szitovszky were sufficient to identify him as the perpetrator.

The High Court determined that the evidence presented by the crown was insufficient to prove Szitovszky's guilt beyond reasonable doubt. There was no forensic evidence linking him to the crime, and the covert police operation did not yield conclusive results. Furthermore, the court found that the similarities between the person seen by witnesses and Szitovszky were not sufficient to definitively identify him as the murderer. Given these factors, the court concluded that the verdict was unsafe and unsatisfactory, and the appeal was allowed.

The reasoning of the court was that the burden of proof lies with the crown to establish the guilt of the accused beyond reasonable doubt. In this case, the absence of forensic evidence and the inconclusive nature of the covert operation meant that the crown had not met its burden. The court emphasised that the similarities between the person seen by witnesses and Szitovszky, while suggestive, were not enough to overcome the reasonable doubt that remained. Consequently, the court set aside the verdict and acquitted Szitovszky of the murder charge.

Orders