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Di Giorgio v The Queen

Di Giorgio v The Queen

Case [2016] VSCA 335 20 December 2016

Appeal

Jury Directions Act 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0038

ALEX DI GIORGIO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and TATE JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2016
DATE OF JUDGMENT:	20 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 335
JUDGMENT APPEALED FROM:	[2015] VCC 1365 (Judge Punshon)

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CRIMINAL LAW – Appeal – Conviction – Incriminating conduct – Jury Directions Act 2015 pt 6 – Lie told in response to general allegation of misconduct – Whether lie capable of being seen as implied admission – Applicant’s knowledge of offence provides foundation for inference of guilt – JuryDirections Act 2015 s 20(1)(b), s 32 – Edwards v The Queen (1993) 178 CLR 193, considered.

CRIMINAL LAW – Jury directions – Jury Directions Act 2015 s 21 – Direction by judge that implied admission was as to inappropriate touching – Whether misdirection as to lesser serious offence than that charged – Ciantar v The Queen (2006) 16 VR 26, Baini v The Queen (2012) 246 CLR 46, Hothnyang v The Queen [2014] VSCA 64, Crocker v The Queen (2013) 39 VR 668, discussed – No substantial miscarriage of justice – Leave granted – Appeal dismissed.

CRIMINAL LAW – Sentence – Rape – Indecent Assault – Sentence of 7 years and 2 months’ imprisonment, 4 years and 9 months’ non-parole period – DPP v Werry [2012] VSCA 208, Ali v The Queen [2013] VSCA 294, Singh v The Queen [2014] VSCA 250, discussed – Sentence not beyond sound exercise of sentencing discretion – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T E Wraight QC with Mr J G Westmore	Grigor Lawyers
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

REDLICH
TATE JA
BEALE AJA

Overview

Following a 13-day trial in the County Court, the applicant was convicted of indecent assault (one charge) and rape (three charges). The applicant was sentenced to a total effective sentence of 7 years and 2 months’ imprisonment, with a non-parole period of 4 years and 9 months’ imprisonment.

The applicant seeks leave to appeal against his conviction on two grounds concerning evidence of incriminating conduct which the prosecution relied upon during the trial. The trial judge allowed evidence of a lie told to the applicant’s employer and investigating police to be treated as an implied admission. The appeal concerns the questions whether the admission constituted incriminating conduct within the meaning of the Jury Directions Act 2015 (‘JDA’) and whether the direction given to the jury concerning the implied admission was erroneous and gave rise to a substantial miscarriage of justice.

The applicant also seeks leave to appeal against his sentence on the ground that the individual sentences, total effective sentence and non-parole period are each manifestly excessive.

For the reasons that follow we would grant leave to appeal against conviction on the second ground, but dismiss the appeal…

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 Di Giorgio v The Queen

Details

AGLC: Di Giorgio v The Queen [2016] VSCA 335
Case: [2016] VSCA 335
Decision Date: 20 December 2016

CaseChat Overview and Summary

The appeal before the court was brought by the applicant, Di Giorgio, against the decision of the County Court of Victoria, which found him guilty of rape and indecent assault. The appeal raised issues concerning the adequacy of jury directions, the sufficiency of the evidence, and the appropriateness of the sentence. The central issue was whether the trial judge's directions to the jury regarding an implied admission of guilt were misdirections that resulted in a substantial miscarriage of justice. Additionally, the appeal questioned whether the sentence imposed was excessive.

The court considered the legal framework provided by the Jury Directions Act 2015, particularly sections 20(1)(b) and 32, and examined whether the lie told by the applicant in response to a general allegation of misconduct could be seen as an implied admission of guilt. The court referenced the precedent set in Edwards v The Queen, finding that the applicant's knowledge of the offence provided a foundation for the inference of guilt. The court also assessed whether the trial judge's direction regarding an implied admission of inappropriate touching constituted a misdirection by potentially directing the jury towards a lesser serious offence than that charged. The court referred to several previous cases, including Ciantar v The Queen, Baini v The Queen, Hothnyang v The Queen, and Crocker v The Queen, concluding that no substantial miscarriage of justice had occurred.

In addressing the sentence, the court found that the 7 years and 2 months' imprisonment, with a non-parole period of 4 years and 9 months, was within the sound exercise of the sentencing discretion. The court drew on the authorities of DPP v Werry, Ali v The Queen, and Singh v The Queen to support this finding. Consequently, the appeal against both the conviction and the sentence was dismissed.

Orders