Giurina v McIlroy - [2024] VSCA 139

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2023 0064
ERMANNO GIURINA	Applicant
v
ANNA LOUISE MCILROY	First Respondent
AND
THE COUNTY COURT OF VICTORIA	Second Respondent

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JUDGES:	NIALL and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2024
DATE OF JUDGMENT:	19 June 2024 (published on 21 June 2024)
MEDIUM NEUTRAL CITATION:	[2024] VSCA 139
JUDGMENT APPEALED FROM:	[2023] VSC 236 (Tsalamandris J)

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ADMINISTRATIVE LAW – Judicial review – Applicant sought judicial review of decision of County Court on appeal from Magistrates’ Court – Applicant convicted of 63 charges of theft – Where judicial review application dismissed – Whether judge erred in misstating or applying law regarding intention to permanently deprive of property – No error established – Whether judge erred in identifying standard of proof applicable to evidence of incriminating conduct – Only elements of offence required to be proved beyond reasonable doubt – Whether judge erred in assessment of evidence relating to incriminating conduct – No error shown – Whether judge erred in failing to admit evidence not before County Court judge on appeal – No error in refusal to admit evidence – Leave to appeal refused.

Jury Directions Act 2015, ss 4A, 20, 61, 62.

DPP v Roder (2024) 98 ALJR 644, applied.

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Counsel
Applicant:		In person
First Respondent:		Mr L McAuliffe
Solicitors
Applicant:	--
First Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
LYONS JA:

Following an appeal from the Magistrates’ Court,[1] the applicant was convicted of 63 charges of theft by Judge Hannebery in the County Court after an 11‑day trial and sentenced to a community correction order. No appeal lay from the decision of the County Court. The applicant sought in the Trial Division of this Court an order in the nature of certiorari directed to the orders made in the County Court alleging errors of law on the face of the record. He failed. A judge of the Trial Division dismissed the proceeding. From that order, the applicant seeks leave to appeal on seven proposed grounds, which largely rehash some of the arguments rejected by the trial judge. At their heart, they seek to cavil with factual findings by Judge Hannebery in his ruling setting out his reasons for convicting the applicant.
[1]Criminal Procedure Act2009, s 254.

The prosecution case

The applicant was the manager of an owners corporation (‘OC’) relating to a small residential block of units in Coburg North. There were five members of the OC including the applicant, who held a unit as the executor of the estate of his late grandmother. As manager, the applicant had control of a bank account held by the OC.
Between 6 December 2010 and 25 December 2011, using ATMs, the applicant made 63 cash withdrawals from the OC bank account. The withdrawals were in relatively small sums of different amounts and totalled $13,416. The applicant did not dispute he made the withdrawals.
The applicant said that the payments were…

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 Giurina v McIlroy

Details

AGLC: Giurina v McIlroy [2024] VSCA 139
Case: [2024] VSCA 139
Decision Date: 19 June 2024 (published on 21 June 2024)

CaseChat Overview and Summary

In Giurina v McIlroy, the applicant sought judicial review of the County Court's decision on appeal from the Magistrates’ Court, where the applicant was convicted of 63 charges of theft. The primary legal issues addressed by the court were whether the judge had erred in misapplying the law regarding the intention to permanently deprive of property, the standard of proof applicable to evidence of incriminating conduct, the assessment of the evidence, and the refusal to admit evidence not presented to the County Court judge on appeal.

The court found that the judge had not erred in misapplying the law concerning the intention to permanently deprive of property. The court clarified that the elements of the offence, not the evidence supporting them, must be proved beyond reasonable doubt. This interpretation was consistent with the Judicial Directions Act 2015, particularly sections 4A, 61, and 62, which the court applied. The court also held that the judge correctly assessed the evidence of incriminating conduct, as it did not need to be proved beyond reasonable doubt. The court rejected the applicant's contention that the judge erred in not admitting certain evidence, finding that there was no error in the refusal to admit such evidence.

The court dismissed the application for judicial review, finding no errors in the County Court judge’s handling of the case. The applicant's leave to appeal was subsequently refused. This decision underscored the importance of correctly applying the statutory provisions regarding the standard of proof in criminal cases and highlighted the limits of judicial review in such contexts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The facts that prove incriminating conduct do not have to be proved beyond reasonable doubt. Section 20 of the JDA, which applied to the hearing in the County Court,[19] is applicable to this proposed ground and it relevantly provides: [19]JDA, s 4A.20 Evidence of incriminating conduct(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—… (b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.… Section 61 of the JDA is also applicable and it relevantly provides: 61 What must be proved beyond reasonable doubtUnless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are—(a)the elements of the offence charged or an alternative offence; and… Crucially, s 62 of the JDA provides: 62 Abolition of common law obligation to give certain directionsAny rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.Notes1 This provision abolishes—•the rule attributed to Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 that in appropriate cases a jury must be directed that it must be satisfied beyond reasonable doubt of an indispensable intermediate fact; and•the rule attributed to R v Sadler [2008] VSCA 198 that a jury must be directed that it must be satisfied beyond reasonable doubt of uncharged acts that the jury would use as a step in their process of reasoning towards guilt; and•any other rule that requires a jury to be directed that it must be satisfied beyond reasonable doubt of any matter other than a matter referred to in section 61.2Section 4 applies generally to override any rule of law or practice to the contrary of this Act. The High Court has recently affirmed in DPP v Roder that it is only the ‘elements of the offence’ that must be proved beyond reasonable doubt, and not the evidence that supports the proof of such elements.[20] This distinction, as the High Court states, is at the heart of ss 61 and 62 of the JDA.[21][20](2024) 98 ALJR 644, 649 [19]; [2024] HCA 15.[21]Ibid. In light of the above, it therefore follows that the judge was correct to conclude that Judge Hannebery was not required to be satisfied beyond reasonable doubt as to the occurrence of the three incriminating actions. Judge Hannebery was only required to be satisfied beyond a reasonable doubt as to the elements of the crime of theft. As noted, the third proposition relied on by the applicant is that Judge Hannebery applied the criminal standard of proof to the incriminating conduct. The applicant is perhaps somewhat inconsistent in making this submission in that other arguments appear to be predicated on Judge Hannebery failing to apply the criminal standard. Putting that to one side, it appears from his reasons that Judge Hannebery found that the three incriminating actions had occurred beyond a reasonable doubt. That is to say, he was satisfied beyond reasonable doubt that the applicant had lied about the amount of money in the OC account, that he had told other people about the loan and that he was unaware of the JLG letter of demand. For this reason, the applicant’s third proposition, namely that the judge approached the items of incriminating conduct on the basis that they could only be used if they were established to the criminal standard, may be accepted.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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