SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0038
| ALEX DI GIORGIO | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| 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) |
---
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.
---
| 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…
Continue reading Di Giorgio v The Queen
Sign in free to access the full text
- AGLC
- Di Giorgio v The Queen [2016] VSCA 335
- Case
- [2016] VSCA 335
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.