Farrugia v The King - [2023] VSCA 248

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0108

KEVIN FARRUGIA	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, MACAULAY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2023
DATE OF JUDGMENT:	19 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 248
JUDGMENT APPEALED FROM:	DPP v Farrugia (Unreported, County Court of Victoria, 25 May 2023, Judge Marich)

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CRIMINAL LAW – Appeal – Conviction – Prohibited person in possession of a firearm – Whether verdict of the jury unreasonable or incapable of being supported by the evidence – Whether DNA evidence capable of establishing applicant’s possession of firearm – Whether expert evidence of theoretical possibility of indirect transfer of applicant’s DNA to firearm equated to a reasonable hypothesis consistent with innocence – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Indictment alleged offence ‘on or about’ a particular date – Whether date of offence material particular – Whether jury wrongly directed that they could convict on the basis that firearm possessed at some time remote from date alleged in indictment – Leave to appeal refused.

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Counsel
Applicant	Ms J Condon KC with Mr J Murphy
Respondent	Ms D Piekusis KC with Ms S Clancy
Solicitors
Applicant	Sarah Tricarico Lawyers
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MACAULAY JA
TAYLOR JA:

Introduction

At about 2.40 pm on 1 June 2018, police attached to the Armed Crime Squad executed a search warrant at the home of the applicant’s brother, Shaun Farrugia, at 5 Byron Place, Taylors Hill. The applicant, then aged 45 years[1] — a ‘prohibited person’ within the meaning of the Firearms Act 1996[2] — was at the premises when the warrant was executed.
[1]The applicant’s date of birth is 13 December 1972. He is now aged 50.
[2]See Firearms Act 1996, s 3(1).
In the boot of a blue Ford Falcon sedan parked in the garage of the premises, police found a black bag containing a Ruger .22 semi-automatic rifle (‘the Ruger’ or ‘the firearm’). Also located within the black bag was another bag containing a magazine loaded with live ammunition; an ammunition container holding 19 subsonic .22 calibre hollow-point rounds; and a black bipod rifle attachment.
The Ruger was subsequently subjected to DNA analysis which revealed DNA profiles on three different locations: the foregrip; the trigger and trigger guard; and the rear grip. Each DNA profile had multiple contributors: the foregrip had two contributors; the trigger and trigger guard had four contributors, and the rear grip (at times referred to as the ‘handle’) had three contributors. Significantly, the DNA analysis showed that each DNA profile on the firearm was 100 billion times more likely if the applicant was a contributor, than if he was not.
Other items were also subjected to DNA analysis. The outside of the magazine rendered a DNA profile with four contributors; analysis of the ammunition container showed a DNA profile with two contributors; and analysis of the bipod rifle attachment showed…

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 Farrugia v The King

Details

AGLC: Farrugia v The King [2023] VSCA 248
Case: [2023] VSCA 248
Decision Date: 19 October 2023

CaseChat Overview and Summary

Farrugia was convicted for being a prohibited person in possession of a firearm. The appeal against his conviction centred on several key issues, including the adequacy of the jury’s verdict in light of the evidence presented, the sufficiency of the DNA evidence linking him to the firearm, and the implications of expert evidence suggesting a theoretical possibility of indirect transfer of DNA. The appeal also questioned whether the jury was properly directed regarding the materiality of the date of the offence as specified in the indictment.

The legal issues before the court were whether the jury’s verdict was unreasonable or unsupported by the evidence, the weight and admissibility of DNA evidence in establishing possession of the firearm, and whether the expert evidence on the theoretical possibility of indirect DNA transfer constituted a reasonable hypothesis of innocence. The court also had to consider whether the jury was correctly directed on the importance of the date of the alleged offence as a material particular in the indictment.

The court found that the jury’s verdict was not unreasonable and was supported by the evidence, which included DNA evidence placing Farrugia at the scene. The court rejected the argument that the expert evidence on indirect DNA transfer constituted a reasonable hypothesis of innocence, holding that it did not negate the inference of possession drawn by the jury. Regarding the date of the offence, the court concluded that the jury was properly directed and that the date was not a material particular in this context. Consequently, the appeal was dismissed, and leave to appeal was refused.

No further orders were made as the appeal was dismissed outright. The conviction stood, and Farrugia’s challenge to the jury’s verdict and the admissibility of the evidence was unsuccessful. The court’s decision emphasised the importance of proper jury directions and the weight of DNA evidence in criminal cases involving possession of firearms.

Orders