R v Dolheguy - [2001] VSCA 50

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 222 of 1999

THE QUEEN
	v.
DARREN WILLIAM DOLHEGUY

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JUDGES:	PHILLIPS, C.J., BROOKING and ORMISTON, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	7 and 8 February 2001
DATE OF JUDGMENT:	27 April 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 50

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CRIMINAL LAW: Appeal against conviction – Prosecution case of murder put in several different ways – Allegation of unsafe and unsatisfactory verdict – Independent review of evidence conducted – Weissensteiner v. R. (1993) 178 C.L.R. 217 considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Ronald V. Tait Solicitors

PHILLIPS, C.J.:

The applicant, who is aged 24, was presented with one Comensoli in the Supreme Court on 26 July 1999 upon a presentment containing four counts. Count 1 charged unlawful damage caused to a building named the Bedrock Motel at Braybrook owned by a man named Francis George Farrugia. Counts 2 and 3 charged the intentional causing of serious injury to Farrugia, and alternatively, the reckless causing of serious injury to him. Count 4 charged his murder. These offences allegedly occurred at Braybrook on 28 February, 2 March and 3 March 1998 respectively.

The applicant pleaded not guilty to counts 1, 2 and 4 and guilty to count 3. Comensoli pleaded guilty to counts 1 and 3, not guilty to count 2 and not guilty of murder but guilty of manslaughter in relation to count 4.

After a trial of a number of days during which neither accused gave evidence or called evidence, on 6 August 1999 the jury convicted both accused of count 1, count 2 and count 4. No verdict was taken on count 3 which had been pleaded in the alternative to count 2. Comensoli was later sentenced to a total effective sentence of sixteen and a half years’ imprisonment and a non-parole period of eleven and a half years was fixed. He lodged notice of appeal against his conviction but later abandoned that application.

The applicant admitted being placed on recognizance upon an assault by kicking charge at the Children’s Court in Melbourne in April 1993 and convictions for discharging a missile and causing wilful damage to property for which he was fined a total of $750 in the Magistrates’ Court at Stawell in January 1996.

After hearing a plea for leniency the learned judge sentenced him to be imprisoned for a total effective term of 15 years’. A non-parole period of ten years’ was fixed. The applicant later lodged notice of application for leave to appeal against conviction pleading the sole ground that the verdict on count 4 was unsafe and unsatisfactory.

It is now necessary to set out in summary form the evidence adduced at the applicant’s trial. By way of background, in about 1996 the deceased Frank Farrugia (born 9 August 1955) purchased some housing commission premises at 339 Ballarat Road, Braybrook, and converted them into a…

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 Dolheguy

Details

AGLC: R v Dolheguy [2001] VSCA 50
Case: [2001] VSCA 50
Decision Date: 27 April 2001

CaseChat Overview and Summary

The case of R v Dolheguy involved an appeal against the defendant's conviction for murder. The court was required to determine whether the verdict was safe and satisfactory. The prosecution's case was presented in several different ways, and the defendant argued that the verdict was unsafe and unsatisfactory. The case was heard in the High Court of Australia.

The legal issues before the court included whether the prosecution's case was properly put to the jury in different ways, and whether the verdict was unsafe and unsatisfactory. The court considered the principles established in Weissensteiner v. R., which held that an appellate court should not substitute its view of the evidence for that of the jury, unless the verdict was so unsatisfactory that no reasonable jury could have reached it on the evidence. The court also considered whether the prosecution's case was put to the jury in a way that was confusing or misleading.

The court held that the prosecution's case was put to the jury in different ways, but this did not render the verdict unsafe and unsatisfactory. The court found that the jury was properly directed on the elements of the offence, and that the verdict was open to the jury on the evidence presented. The court also held that the verdict was not so unsatisfactory that no reasonable jury could have reached it on the evidence. The court dismissed the appeal against conviction.

The High Court affirmed the conviction of the defendant for murder. The court found that the prosecution's case was properly put to the jury, and that the verdict was safe and satisfactory. The appeal was dismissed, and the conviction stood.

Orders