R v Davidson; R v Konestabo - [2008] VSCA 188

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 107 of 2007
THE QUEEN	v
MICHAEL HUGH DAVIDSON
No 112 of 2007
THE QUEEN
v
ERIC STEVEN KONESTABO

---

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

---

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.

---

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…

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.

Keep reading for free

Create a free CaseChat account to read R v Davidson; R v Konestabo and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] VSCA 188
Decision Date: 23 September 2008

CaseChat Overview and Summary

The case of R v Davidson; R v Konestabo involved two defendants who were convicted of aggravated burglary. The dispute reached the High Court of Australia, which had to determine whether the convictions were consistent and if the trial judge's directions to the jury were appropriate. The defendants were charged with aggravated burglary under section 11 of the Criminal Code, which includes a range of offences based on the presence of a person or the use of an offensive weapon. Davidson and Konestabo were found guilty of the alternative count of aggravated burglary involving a person being present, but not guilty of the count involving an offensive weapon.

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