R v Agius

Case [2015] QCA 277

SUPREME COURT OF QUEENSLAND

CITATION:

R v Agius [2015] QCA 277

PARTIES:

R
v
AGIUS, Vincent Lawrence
(appellant/applicant)

FILE NO/S:

CA No 139 of 2015
DC No 408 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:


District Court at Maroochydore – Unreported, 3 June 2015

DELIVERED ON:

Orders delivered ex tempore 4 December 2015
Reasons delivered 18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2015

JUDGES:

Fraser and Philippides JJA and Bond J
Judgment of the Court

ORDER:

Orders delivered ex tempore on 4 December 2015:

1.   The appeal against conviction is allowed.

2.   The verdict of conviction is set aside and instead a verdict of acquittal is entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted by a jury of attempted robbery – where the appellant handed the complainant a note containing an implied threat – whether the handing over of the note when in close proximity to the complainant was sufficient to prove the assault element of the offence – whether the verdict is unreasonable or insupportable having regard to the evidence

Criminal Code (Qld), s 245, s 409, s 412, s 414, s 535

Dearnley v The King [1947] St R Qd 51, cited
Fogden v Wade [1945] NZLR 724; [1945] NZPoliceLawRp 13, considered
R v Bayliss[1996] QCA 32, cited
R v Brown[2003] QCA 372, cited
R v Brown; Ex parte Attorney-General (Qld)[1995] QCA 347, cited
R v Dale [1969] QWN 30, considered
R v RAU[2015] QCA 217, cited
R v Smith[1999] QCA 250, cited
Stephens v Myers (1830) 172 ER 735; [1830] EngR 750, considered

COUNSEL:

J J Allen QC for the appellant (conviction)
The applicant appeared on his own behalf (sentence)
S J Farnden for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant (conviction)
The applicant appeared on his own behalf (sentence)
Director of Public Prosecutions (Queensland) for the respondent

  1. THE COURT: The appellant was tried upon an indictment charging one offence of attempted robbery pursuant to s 412 of the Criminal CodeAct 1899 (Qld) (the Code) in the following terms:

    “[T]hat on the twenty-first day of May, 2013 at Noosa Heads in the State of Queensland, VINCENT LAWRENCE AGIUS assaulted ANDREW FEICHTER with intent to steal, and at the time of the assault, threatened to use actual violence to ANDREW FEICHTER to obtain the thing that he intended to steal.”

  2. The appellant’s trial commenced on 2 June 2015.  On 3 June 2015 the jury returned a verdict of guilty and he was on the same day sentenced to 18 months’ imprisonment with a parole release date of 3 March 2016.

  3. The appellant appealed against his conviction on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence.

  4. On 4 December 2015 the Court pronounced the following orders[1] with reasons…

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Details
AGLC
R v Agius [2015] QCA 277
Case
[2015] QCA 277
Decision Date

CaseChat Overview and Summary

The appellant, Agius, was convicted by a jury of attempted robbery and brought an appeal against the conviction to the Court of Appeal. The conviction stemmed from an incident in which the appellant handed the complainant, Andrew Feichter, a note containing an implied threat while in close proximity to him. The appellant argued that the handing over of the note was not sufficient to prove the assault element of the offence. The Court of Appeal was required to decide whether the verdict was unreasonable or insupportable having regard to the evidence.

The Court of Appeal considered the principles governing an appeal on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence. The Court reviewed the appeal record and determined whether it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. The Court noted that a review of this kind involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials. The Court also noted that if the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

In this case, the Court of Appeal determined that the evidence did not establish the assault element of the offence beyond reasonable doubt. The Court held that the handing over of the note when in close proximity to the complainant was not sufficient to prove the assault element of the offence. The Court concluded that the verdict was unreasonable or insupportable having regard to the evidence.

Accordingly, the Court of Appeal allowed the appeal against conviction and set aside the verdict of conviction, entering a verdict of acquittal in its place.

Orders

Orders of the court

Orders delivered ex tempore on 4 December 2015:

1. The appeal against conviction is allowed.

2. The verdict of conviction is set aside and instead a verdict of acquittal is entered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The principles governing consideration of the ground of appeal raised, that the verdict is unreasonable or cannot be supported having regard to the evidence, were summarised in R v RAU:[2]“The ground of appeal against conviction is to be regarded as a contention pursuant to s 668E(1) of the Criminal Code that the jury’s verdicts were ‘unreasonable, or cannot be supported having regard to the evidence’. It is, therefore, necessary for this Court to review the appeal record and determine whether it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. In MFA v The Queen,[3] McHugh, Gummow and Kirby JJ noted that a review of this kind:‘... involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.’In R v SCH,[4] the relevant principles were summarised as follows:‘In such a case, the question which an appellate court must ask itself is whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty.[5] In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. In such a case of doubt, it is only where a jury’s advantage in seeing and hearing the evidence can explain the difference in conclusion as to guilt that the appellate court may conclude that no miscarriage of justice occurred.[6] However, if the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[7]This Court must, therefore, undertake “an independent assessment of the evidence, both as to its sufficiency and its quality”[8] in accordance with the principles to which I have referred.’”[2][2015] QCA 217 at [5]-[6].[3](2002) 213 CLR 606 at 624.[4][2015] QCA 38 at [7]-[8].[5]M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen (2002) 213 CLR 606 at 615.[6]MFA v The Queen (2002) 213 CLR 606 at 623.[7]M v The Queen (1994) 181 CLR 487 at 494-495; MFA v The Queen (2002) 213 CLR 606 at 623.[8]See Morris v The Queen (1987) 163 CLR 454 at 473; SKA v The Queen (2011) 243 CLR 400 at 406.The evidence at trial On 21 May 2013, the complainant, Andrew Feichter, was working at a pharmacy in Noosa Fair Shopping Centre. At around 11.30 am that day the appellant entered the shop and asked to speak to a pharmacist. Shortly after, the complainant met the appellant at the prescription counter. The complainant spoke to the appellant across a waist high counter, asking how he could help the appellant. The appellant turned to face the complainant and handed him a torn piece of cardboard of the type used in packaging medication on which was written:“IMEDIATELY (sic)2 X 80 MG OXYCONTIN2 X 40 MG IIPLEASE MATTEROF LIFE ANDDEATH AND NOONE GETS HURT”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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