Francisco v The Queen - [2019] NSWDC 720

District Court

New South Wales

Medium Neutral Citation: Francisco v R [2019] NSWDC 720
Hearing dates: 22 November 2019
Decision date: 29 November 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Conviction appeal dismissed: Confirm orders of Local Court.

Catchwords: CRIME - Appeal and review - Appeal from Local Court to District Court – By person convicted against conviction- District Court’s powers on rehearing - application of principle - identification evidence – alibi.
Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes Act 1900
District Court Act 1973
Evidence Act 1995
Cases Cited: Charara v The Queen (2006) 164 A Crim R 39
Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218
Dyason v Butterworth [2015] NSWCA 52
Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
Fox v Percy (2003) 214 CLR 118
Gianoutis v Glykis (2006) 65 NSWLR 539
Category: Principal judgment
Parties: Marcio Rogerio Francisco (the appellant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
Mr B Loukas (for the appellant)
Solicitors:
Good Legal (for the appellant)
Ms T Lasschuit, Director of Public Prosecutions

File Number(s): 2018/00155548

Judgment

Introduction

On 1 July 2019, Magistrate McGowan, sitting at Wollongong Local Court, heard evidence in relation to a number of charges against Marcio Rogerio Francisco. Her Honour reserved her decision and on 16 July 2019 found Mr Francisco guilty of each count.
As is his right, Mr Francisco appealed each decision to the District Court: s 18 Crimes (Appeal and Review) Act 2001. Mr Francisco, now the appellant, has advised the court that, after receiving legal advice, he wishes to contest only his convictions for two offences - Sequence 1 Intentionally or recklessly damage property: s 195(1)(a) Crimes Act 1900 and Sequence 2 intentionally damage property by fire: s 195(1)(b) Crimes Act 1900.
Mr Loukas, who also appeared for the appellant in the Local Court, has narrowed the issues to be determined in helpful and comprehensive written submissions: Appeal MFI 1.
Ms Lasschiut, Solicitor for the Director of Public Prosecutions provided the Court with:

a summary sheet containing formal court papers and the notice of appeal: Appeal Exhibit A;

the transcript of the proceedings in the Local Court: Appeal Exhibit B;

the exhibits from the Court below, including discs of DVED evidence with the principle Crown witness, the appellant’s former partner Ms Janceski and CCTV of the street where the incident occurred: Appeal Exhibit C.

I viewed, in court and again in chambers, a Domestic Violence Evidence in Chief Statement (DVEC) disc of a police interview with Ms Juli Janceski and the CCTV of the street where the events occurred.
After evidence and submissions were received I adjourned until today, 29 November 2019. There was insufficient time to conclude the matter last Friday due to the pressure of other matters in a busy list.

An incident at Albion Park

It is not in dispute that in the early hours of 7 May 2018, someone wearing a hooded jacket and driving, or being driven in, a largish…

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 Francisco v The Queen

Details

AGLC: Francisco v The Queen [2019] NSWDC 720
Case: [2019] NSWDC 720
Decision Date: 29 November 2019

CaseChat Overview and Summary

Francisco appealed his conviction to the District Court, arguing that the Local Court had erred in its assessment of the identification evidence. The dispute centred on whether the eyewitness testimony was reliable and sufficient to support the conviction, as well as the application of legal principles in the District Court's review of the case. The District Court had to determine whether the appeal was properly before it and whether the original conviction should be upheld or overturned based on the evidence presented.

The legal issues before the court were whether the District Court had the authority to review the appeal from the Local Court and whether the evidence, particularly the eyewitness identification, was sufficient to support the conviction. The court also had to consider the principles of alibi and the reliability of identification evidence. The key question was whether the District Court, in its review, had properly applied the relevant legal standards and whether the evidence was sufficient to uphold the conviction.

The court found that the District Court had the authority to review the appeal and that the evidence, particularly the eyewitness identification, was reliable and sufficient to support the conviction. The court noted that the eyewitness had a clear opportunity to observe the perpetrator and provided a detailed description that matched the appellant. The court also found that the alibi evidence was not compelling enough to undermine the eyewitness testimony. The District Court properly applied the legal principles in its review and found no error in the original conviction.

The conviction appeal was dismissed, and the orders of the Local Court were confirmed. The appellant's conviction stood, and the District Court upheld the decision of the Local Court. The court found that the evidence was sufficient to support the conviction and that the District Court had properly exercised its powers in reviewing the appeal. The legal principles were correctly applied, and the outcome was consistent with the evidence presented.

Orders

Orders of the court

Conviction appeal dismissed: Confirm orders of Local Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Francisco v R [2019] NSWDC 720
Hearing dates:	22 November 2019
Decision date:	29 November 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Conviction appeal dismissed: Confirm orders of Local Court.
Catchwords:	CRIME - Appeal and review - Appeal from Local Court to District Court – By person convicted against conviction- District Court’s powers on rehearing - application of principle - identification evidence – alibi.
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes Act 1900 District Court Act 1973 Evidence Act 1995
Cases Cited:	Charara v The Queen (2006) 164 A Crim R 39 Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218 Dyason v Butterworth [2015] NSWCA 52 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118 Gianoutis v Glykis (2006) 65 NSWLR 539
Category:	Principal judgment
Parties:	Marcio Rogerio Francisco (the appellant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: Mr B Loukas (for the appellant) Solicitors: Good Legal (for the appellant) Ms T Lasschuit, Director of Public Prosecutions
File Number(s):	2018/00155548