R v Conci - [2005] VSCA 173

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 180 of 2003

THE QUEEN

MICHAEL STUART CONCI

No. 176 of 2003

THE QUEEN

PATRICK NOEL KANE

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JUDGES:	VINCENT, EAMES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 June 2005
DATE OF JUDGMENT:	27 July 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 173

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Criminal law – Armed robbery - Intentionally cause injury – Theft - Joint trial - Common purpose – Aiding and abetting –- Whether armed robbery verdicts unsafe and unsatisfactory – Whether verdict on intentionally cause injury count unreasonable and not supported by evidence – Identification – Whether directions adequate as to identification – Offender known to witness - Evidence of recognition, not identification.

Criminal law – Sentence – Offender serving two other discrete sentences – Declaration of pre-sentence detention previously made by another judge but repeated by sentencing judge – New non-parole period fixed – Commencing date of new non-parole period – Sentencing Act 1991, s.14.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R. Carlin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant Conci	Mr G.M. Hughan	Victoria Legal Aid
For the Applicant Kane	Mr M. Kowalski	Slades & Parsons

VINCENT, J.A.:

I agree in the disposition of these matters as proposed by Eames, J.A. and I do so for the reasons advanced by him in his judgment.

EAMES, J.A.:

The applicants were both convicted by verdicts of a jury on one count of theft, one count of armed robbery and one count of intentionally causing injury. Conci now makes application for leave to appeal with respect to both conviction and sentence and Kane makes application for leave to appeal against conviction only.

The offences arose out of a robbery which occurred at about 4 a.m on 14 July 2001 at a Caltex service station in Brunswick. The service station attendant, Mr Adchalingam, was working at the rear of the store when two men entered, one of whom was wearing a beanie and the other a baseball cap. Whilst one man went to the till the other moved to the back of the store where Adchalingam was standing. The employee moved towards the counter, intending to stop the men, and as he did so he was pushed by the man who had walked towards him at the rear of the store. The man behind the counter had been using a knife in an attempt to open the till and he stabbed the employee to the chest with the knife, causing a small injury. Adchalingam picked up a bin and faced the two men, who were then behind the counter. He threw it at the men and then ran from the store, after first activating a silent alarm.

Adchalingam told the jury that when he was stabbed he had a clear view of his attacker’s face, and he described the knife which had struck him as being very sharp and having a length approximating two-thirds of the palm of his hand.

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 R v Conci

Details

AGLC: R v Conci; R v Kane [2005] VSCA 173
Case: [2005] VSCA 173
Decision Date: 27 July 2005

CaseChat Overview and Summary

The case of R v Conci involved the appellant, who was convicted of armed robbery and intentionally causing injury during a convenience store robbery in Melbourne. The appellant and his co-offenders were tried jointly. The primary legal issues before the court were the safety and correctness of the armed robbery and intentionally causing injury verdicts, the adequacy of the identification directions given to the jury, and the appropriate sentencing for the appellant, who was already serving two other sentences.

The court examined whether the verdicts were unsafe and unsatisfactory, particularly in light of the identification evidence provided. It was noted that the witness who identified the appellant knew him prior to the incident and provided evidence of recognition rather than positive identification. The court assessed whether the directions provided to the jury were adequate concerning the identification evidence. In addition, the court considered the appropriate sentencing, specifically the new non-parole period, for the appellant who was already serving two other sentences.

The court concluded that the verdicts were safe and satisfactory, despite some concerns about the identification evidence. The court found that the directions given to the jury were adequate and did not misdirect them. Regarding sentencing, the court considered the appellant's pre-existing sentences and fixed a new non-parole period, taking into account the Sentencing Act 1991. The court ordered that the new non-parole period commence from the date of the appellant's apprehension.

Orders