Po'oi v The Queen

[2019] ACTCA 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Po’oi v The Queen

Citation:

[2019] ACTCA 13

Hearing Date:

6 May 2019

DecisionDate:

6 May 2019

ReasonsDate:

17 May 2019

Before:

Murrell CJ, Mossop and Bromwich JJ

Decision:

Appeal dismissed. See [38].

Catchwords:

APPEAL – CRIMINAL LAW – Conviction appeal from ACT Supreme Court – whether guilty verdict was unreasonable because it was founded on same evidence and joint liability case as counts in which defendant found not guilty –  whether primary judge erred in directing jury as to recklessness – whether primary judge erred in not giving Markuleski and Murray directions

Legislation Cited:

Court Procedure Rules 2006 (ACT) r 5531

Criminal Code 2002 (ACT) ss 20(1), 45A

Cases Cited:

ED v The Queen [2019] ACTCA 10

R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Murray (1987) 11 NSWLR 12

R v Po’oi [2018] ACTSC 364

Parties:

Daniel Po’oi (Appellant)

The Queen (Respondent)

Representation:

Counsel

K Ginges (Appellant)

T Hickey (Respondent)

Solicitors

Boxall Legal (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 48 of 2018

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Wigney J

Date of Decision:         27 July 2018

Case Title:  R v Po’oi

Citation: [2018] ACTSC 364

THE COURT:

Introduction

1. These are reasons for dismissing an appeal against conviction by Mr Daniel Po’oi on the day of the appeal hearing on 6 May 2019. 

1. Mr Po’oi was convicted of three offences committed during the course of a home invasion, and acquitted on four other offences alleged to have taken place during the same incident.  There was no issue at trial or on appeal that the home invasion took place. 

1. The primary plank of the defence case at trial was that Mr Po’oi was not present at all, and therefore not a participant.  That stance is not maintained on appeal as he does not challenge convictions for aggravated burglary and for aggravated robbery that took place as part of the home invasion.  Rather, his appeal concerns his conviction on one offence of violence, in the context of his acquittal on four other offences of violence.  The acts of violence were carried out by Mr Po’oi’s co-offender, Mr Manoa Chevalier.  He challenges his conviction upon the basis of a joint criminal liability in relation to violent conduct that took place in his absence.  

1. Mr Po’oi was tried before the primary judge and a jury on seven counts.  Each of the seven counts alleged an offence against Mr Adrian Johnson at his residential premises in the early hours of 26 September 2016.  The charges were:

1.Aggravated burglary

2.Aggravated robbery

3.Assault occasioning actual bodily harm

4.Threat to inflict grievous bodily harm

5.Inflicting actual bodily harm

6.Assault occasioning actual bodily harm

7.Intentionally inflicting grievous bodily harm

1. Mr Po’oi was convicted of counts 1, 2 and 7 and acquitted of the remaining four counts.  The basis of liability on counts 1 and 2 was as a principal offender with Mr…