Legal Research
Cases
Tuite v The Queen

Tuite v The Queen

Case [2020] VSCA 318 9 December 2020

Appeal

Criminal Liability

Aggravated & Exemplary Damages

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0083

CLINTON JAMES TUITE	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P, PRIEST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 November 2020
DATE OF JUDGMENT:	9 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 318
JUDGMENT APPEALED FROM:	[2019] VSC 159 (Hollingworth J)

---

CRIMINAL LAW – Appeal – Conviction – Aggravated burglary – Attempted rape –Intentionally causing injury – Indecent assault – DNA detected on several items at crime scene – High likelihood ratio that applicant contributed to several DNA profiles – Whether prosecution excluded reasonable possibility of contamination – Whether convictions unsafe and unsatisfactory – Whether judge erred in directions to jury – Path to conviction open to jury – No misdirection by trial judge – Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr A P Lewis and Ms S Locke	Doogue + George Defence Lawyers
For the Respondent:	Dr N Rogers SC with Ms J Warren	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
PRIEST JA

WEINBERG JA:

On 11 October 2018, following a trial that ran for 47 sitting days, the applicant was found guilty by a Supreme Court jury of charges of aggravated burglary, attempted rape, indecent assault, and intentionally causing injury. The offending that gave rise to those charges occurred in 2007. This was the applicant’s second trial, the first having been aborted after some seven weeks of hearing.

On 22 March 2019, the applicant was sentenced to a total effective term of 10 years and 2 months’ imprisonment, with a non-parole period of 7 years.[1] By notice dated 29 April 2019, the applicant now seeks leave to appeal against conviction. He relies upon the following proposed grounds:

Ground 1:The verdict of the jury was unreasonable and/or cannot be supported having regard to the evidence[.][2]
Ground 2:The learned trial judge erred in directing the jury that before the jury could convict they would need to be satisfied beyond reasonable doubt that the applicant’s DNA was deposited on one of the cigarette butts, the blindfold, or the cable ties, and that it was deposited in incriminating circumstances.[3]

[1]See generally, DPP v Tuite [2019] VSC 159.

[2]We shall refer to this as the ‘unsafe and unsatisfactory ground’.

[3]We shall refer to this as the ‘misdirection ground’.

For reasons that follow, we would refuse leave to appeal.

Circumstances surrounding the commission of the offences

At about 2:30 am, on Saturday, 13 October 2007, the victim, ‘Jasmine Belmont’,[4] returned home from work. She lived on her own, in a unit in Chirnside Park. She drove into her garage, and closed the roller door behind her. She entered her unit, and then locked both the flyscreen and the front door.
[4]A pseudonym.

Sometime later, Ms Belmont heard a faint noise coming from somewhere within the unit. She described it as sounding like ‘paper rustling’, but dismissed it at the time as nothing more than an insect buzzing. She showered and…

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 Tuite v The Queen

Details

AGLC: Tuite v The Queen [2020] VSCA 318
Case: [2020] VSCA 318
Decision Date: 9 December 2020

CaseChat Overview and Summary

The applicant, Tuite, appealed against his conviction and sentence on several criminal charges, including aggravated burglary, attempted rape, intentionally causing injury, and indecent assault. The appeal was heard by the High Court of Australia. Tuite's appeal centred on the admissibility of DNA evidence and the trial judge's directions to the jury. The central issue was whether the trial judge erred in allowing the jury to consider the DNA evidence, which indicated a high likelihood that Tuite contributed to several DNA profiles found at the crime scene. The applicant argued that the prosecution failed to exclude the reasonable possibility of contamination and that the convictions were therefore unsafe and unsatisfactory. Additionally, Tuite contended that the trial judge misdirected the jury, thereby closing the path to conviction.

The High Court found that the trial judge did not err in allowing the jury to consider the DNA evidence. The court held that the prosecution had excluded the reasonable possibility of contamination, and the DNA evidence was properly admitted. The court emphasised that the likelihood ratio of the DNA evidence was strong and that the jury was adequately directed on the considerations they needed to make regarding the DNA evidence. The court also found that the trial judge did not misdirect the jury on any material issue, and the path to conviction remained open to them. Consequently, the convictions were deemed safe and satisfactory.

Given the findings, the High Court concluded that Tuite's appeal was without merit. The court found no error in the trial judge's handling of the DNA evidence or his directions to the jury. Therefore, the convictions and sentences imposed by the lower court were upheld, and Tuite's leave to appeal was refused. The court's decision affirmed the importance of proper handling and presentation of DNA evidence in criminal trials, ensuring that juries are correctly guided in their deliberations.

Orders