SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 107 of 2007 |
| v | |
| MICHAEL HUGH DAVIDSON | |
| No 112 of 2007 | |
| THE QUEEN | |
| v | |
| ERIC STEVEN KONESTABO |
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JUDGES: | NETTLE and WEINBERG JJA and MANDIE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 September 2008 | |
DATE OF JUDGMENT: | 23 September 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 188 | |
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CRIMINAL LAW – Conviction – Aggravated burglary – Home invasion – Verdict – Inconsistent verdicts – Whether verdict of not guilty of one count of aggravated burglary (offensive weapon) inconsistent with verdict of guilty of alternative count of aggravated burglary (person present) – Directions to jury – Whether judge erred in failing to identify basis on which Crown sought to prove element of intent informing aggravated burglary – Application for leave to appeal against conviction refused.
CRIMINAL LAW – Sentencing – Findings of fact – Whether open to judge to find disputed fact beyond reasonable doubt – Hardship – Fresh evidence – Mercy – Manifest excessiveness – Applications for leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Mr S Ward, Solicitor for Public Prosecutions |
| For the Applicant Davidson | Mr L C Carter | Robert Stary & Associates |
| For the Applicant Konestabo | Mr D Just | Rainer Martini & Associates |
NETTLE JA:
On 27 March 2007, each of the applicants Michael Hugh Davidson (Davidson) and Eric Steven Konestabo (Konestabo) was arraigned before the County Court at Melbourne on one count of aggravated burglary (offensive weapon) (Count 1), an alternative count of aggravated burglary (person present) (Count 2), one count of intentionally causing serious injury (Count 3) and an alternative count of recklessly causing serious injury (Count 4), to each of which they pleaded not guilty.
The Crown case at trial
The Crown case was that at approximately 11.30pm on 19 January 2006 Davidson and Konestabo attended at the home of Denny Ziogas at 17 Bent Street, Caulfield South with the intention of collecting a debt thought to be due to Konestabo. Davidson was armed with a knife and Konestabo was wearing a balaclava and the Crown contended that Konestabo was also armed with a steering lock. They knocked on the front door and, when Ziogas answered, Davidson barged into the premises (Count 1) and accused Ziogas of stealing money from him. Ziogas responded by pulling off Konestabo’s balaclava and calling out to one of his housemates, Liam Keenan, for help. When Keenan appeared, Konestabo commenced fighting with Keenan inside the house while Ziogas fought with Davidson outside. During the fight, Ziogas ripped Davidson’s jumper and Davidson stabbed Ziogas three times, once in the back and once in the chest, puncturing his lung, and once in the elbow (Counts 3 and 4). Ziogas, however, fought on bravely and, picking up the steering lock which had fallen to the floor, struck Konestabo to the head. Both Davidson and Konestabo then left the premises with Konestabo apologising for having picked the wrong house. Ziogas collapsed on the front…
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- Case
- [2008] VSCA 188
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the verdict of not guilty on one count was inconsistent with the guilty verdict on the alternative count, and whether the trial judge erred in not clarifying the basis on which the Crown sought to prove the element of intent in the aggravated burglary charge. The defendants argued that the jury's verdicts were inconsistent because the presence of a person and the use of an offensive weapon were mutually exclusive. They further contended that the trial judge should have directed the jury on the necessity of proving intent to commit an offence as part of the aggravated burglary charge.
The court held that the verdicts were not inconsistent because the jury could have found that an offensive weapon was not used, but that a person was present during the burglary. The court found no error in the trial judge's directions to the jury, as the judge had correctly outlined the elements of aggravated burglary, including the requirement of intent to commit an indictable offence. The court emphasised that the jury's task was to determine the facts based on the evidence presented, and that inconsistencies in verdicts did not necessarily indicate a failure to understand the legal requirements. The applications for leave to appeal against conviction and sentence were both refused by the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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