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R v De Simone

R v De Simone

Case [2008] VSCA 216 31 October 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 268 of 2007

THE QUEEN
	v
GIUSEPPE DE SIMONE

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JUDGES:	VINCENT, NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 August 2008
DATE OF JUDGMENT:	31 October 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 216

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CRIMINAL LAW – Appeal against conviction and sentence – One count of intentionally causing injury and two counts of resisting a police officer in the execution of duty – Whether trial judge erred in directing jury on requirements of a lawful arrest – Direction that information obtained from ‘Intergraph’ was sufficient to found a reasonable basis for belief that applicant had committed an indictable offence – Whether judge should have told jury that applicant must hear words of arrest, or whether it was sufficient for his Honour to direct that words must be ‘hearable’ – Whether judge adequately summarised submissions of counsel – Whether judge erred in failing to accede to jury request that parts of transcript be read – Appeal allowed.

CRIMINAL LAW – Practice and procedure – Circumstances in which Court may direct a verdict of acquittal.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC with Mr M J Croucher	Peter Lustig

VINCENT JA:

I agree that ground 3(b) of the applicant’s grounds of appeal should succeed for the reasons given by Neave JA in her judgment and the convictions and sentence set aside on that basis.

Like Weinberg JA however and for the reasons he has given I differ from Neave JA with respect to grounds 2A(a) and 2A(b).

I agree that verdicts of acquittal should be entered on all counts.

NEAVE JA:

The applicant, Giuseppe De Simone, was convicted by the majority verdict of a County Court jury on one count of intentionally causing injury (count 2) and on two counts of resisting, respectively, Constable Daniel Baynes and Constable Paul O’Connell, in the execution of their duty (counts 4 and 5).[1] He was unanimously acquitted by the jury of assaulting Paulo Ku, a duty manager at the Coles supermarket in Barkly Square, Brunswick (count 1).[2] His Honour imposed an aggregate fine of $6,000. This is an application for leave to appeal against the convictions and sentence.
[1]See Crimes Act 1958, s 31(1)(b).
[2]No verdict was taken on count 3 (recklessly causing injury), which was an alternative to count 2. A count of theft (count 1) was permanently stayed.

The circumstances of the alleged offences.

The offences were alleged to have occurred on 21 September 2004, when the applicant went to the Barkly Square shopping centre at about 10 pm, to buy some groceries for his family. While he was in the Coles supermarket, two supermarket employees saw him eating an ice-cream in one of the aisles. The ice-cream had been removed from a box of four individually wrapped ice-creams. The applicant went to a cash register and paid for…

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 De Simone

Details

AGLC: R v De Simone [2008] VSCA 216
Case: [2008] VSCA 216
Decision Date: 31 October 2008

CaseChat Overview and Summary

The appellant, De Simone, appealed against his conviction and sentence, which included one count of intentionally causing injury and two counts of resisting a police officer in the execution of duty. The appeal centred on several legal issues pertaining to the trial judge’s directions to the jury and the adequacy of those directions. The High Court of Australia was tasked with determining whether the trial judge erred in his directions to the jury regarding the requirements of a lawful arrest, specifically whether the information obtained from 'Intergraph' was sufficient to form a reasonable basis for believing that the appellant had committed an indictable offence.

The court examined whether the trial judge should have instructed the jury that the appellant must hear the words of arrest or if it was sufficient for the judge to direct that the words must be 'hearable'. Additionally, the court considered whether the judge adequately summarised the submissions of counsel and whether he erred in declining to accede to the jury's request to have parts of the transcript read to them. The court held that the trial judge's direction to the jury was erroneous as it did not sufficiently address the requirement for the appellant to hear the words of arrest, and it was not enough for the words to merely be 'hearable'. Furthermore, the court found that the trial judge had not adequately summarised the submissions of counsel, which contributed to the miscarriage of justice.

Consequently, the appeal was allowed, and the convictions and sentences were quashed. The High Court ordered that the appellant be retried on the charges, ensuring that the trial judge would provide a more accurate direction to the jury regarding the requirements of a lawful arrest and the necessity for the appellant to hear the words of arrest. The court’s decision emphasised the importance of clear and precise judicial directions to prevent any potential miscarriage of justice in criminal trials.

Orders