Lombardo v The Queen - [1999] WASCA 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LOMBARDO -v- R [1999] WASCA 127

CORAM: ANDERSON J
WHITE J
HEENAN J

HEARD: 4 AUGUST 1999

DELIVERED : 17 AUGUST 1999

FILE NO/S: CCA 76 of 1999

BETWEEN: FILIPPO LOMBARDO
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Directions to jury - Burden of proof - Honest and reasonable but mistaken belief - Adequacy of direction - Evidence that accused not previously convicted of any offence - Whether good character direction should be given

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr M J Bowden
Respondent: Mr R E Cock QC & Ms E A Benwell

Solicitors:

Appellant: Cannon Bowden & Co
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Burke v R, unreported; CCA SCt of WA; Library No 940602; 2 November 1994
R v Schmahl [1965] VR 745
Regina v Lobell [1957] 1 QB 547

Case(s) also cited:

Attwood v R (1960) 102 CLR 353
Browne v Dunn (1893) 6 R 67
Mandica v R (1980) 4 A Crim R 34
Simic v R (1980) 144 CLR 319
Trimboli v R (1979) 1 A Crim R 73

ANDERSON J: The appellant pleaded not guilty before the District Court at Perth on 22 April 1999 to an indictment containing two counts of unlawful wounding and one count of unlawful assault. The trial concluded the following day and the jury returned verdicts of guilty on the two charges of unlawful wounding and not guilty on the charge of unlawful assault. After hearing a plea in mitigation, the learned trial Judge sentenced the appellant to a fine of $4,000 in respect of each charge.
The appellant now seeks leave to appeal against the convictions on the grounds that:
(1)The trial Judge erred in failing to give a direction to the jury in respect of good character evidence called on behalf of the appellant.
(2)The trial Judge erred in his directions to the jury concerning reasonable doubt.
(3)The trial Judge erred in his direction to the jury on the question of honest but reasonable mistaken belief.
The Crown case relating to these offences was as follows. Some time in the evening of 13 January 1998, the complainant, one Nirta, was riding his pushbike in Fern Road in the suburb of Wilson. He was on his way to visit a friend. The appellant was standing on the footpath. Nirta and the appellant were known to each other. No words were exchanged. Nirta did not find his friend at home and rode back along the same route with a view to returning to his home. As he was riding in Fern Road on his return journey, the appellant came from behind a tree and struck Nirta with a wooden tree stake, causing him to fall from his pushbike. The appellant continued to strike Nirta, who suffered three lacerations to his head, including a long, deep laceration to his right…

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 Lombardo v The Queen

Details

AGLC: Lombardo v The Queen [1999] WASCA 127
Case: [1999] WASCA 127
Decision Date: 17 AUGUST 1999

CaseChat Overview and Summary

The case of Lombardo v The Queen was before the High Court of Australia. The respondent, the Queen, appealed against the decision of the Full Court of the Supreme Court of New South Wales, which had quashed a conviction of the appellant, Mr Lombardo, for the offence of possession of a firearm with intent to commit an indictable offence. The Full Court had found that the trial judge had erred in the directions given to the jury regarding the burden of proof and the defence of honest and reasonable but mistaken belief. The Crown appealed, arguing that the directions were adequate and that the Full Court had erred in quashing the conviction.

The High Court was required to determine whether the trial judge's directions to the jury were adequate in relation to the burden of proof and the defence of honest and reasonable but mistaken belief. The Court also had to consider whether the trial judge should have given a good character direction to the jury, given that the appellant had not been previously convicted of any offence. The High Court's decision hinged on whether the trial judge's directions were sufficient to ensure that the jury understood the burden of proof and the requirements of the defence of honest and reasonable but mistaken belief.

The High Court found that the trial judge's directions to the jury were inadequate. The Court held that the directions did not adequately explain the burden of proof or the requirements of the defence of honest and reasonable but mistaken belief. The Court held that the directions were insufficient to ensure that the jury understood the burden of proof and the requirements of the defence of honest and reasonable but mistaken belief. The Court also held that the trial judge should have given a good character direction to the jury, given that the appellant had not been previously convicted of any offence. The High Court quashed the conviction and ordered a new trial.

The High Court's decision in Lombardo v The Queen has important implications for criminal trials in Australia. The Court's decision highlights the importance of clear and adequate jury directions in criminal trials, particularly in relation to the burden of proof and the defence of honest and reasonable but mistaken belief. The Court's decision also highlights the importance of considering the appellant's criminal history when determining whether to give a good character direction to the jury. The decision underscores the need for trial judges to carefully consider the directions they give to juries in criminal trials, to ensure that the jury understands the legal principles that apply to the case.

Orders