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R v Fackovec

R v Fackovec

Case [2007] VSCA 93 10 May 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 104 of 2006

THE QUEEN
	v
CHRISTOPHER FACKOVEC

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JUDGES:	VINCENT, EAMES and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 May 2007
DATE OF JUDGMENT:	10 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 93

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CRIMINAL LAW – Appeal against conviction for theft – Motor vehicle belonging to father-in-law taken and subsequently involved in serious accident – Whether express or implied permission as to use – Whether judge erred in direction to jury – Whether applicant honestly believed he was permitted to use motor vehicle – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr G A Georgiou	Victoria Legal Aid

VINCENT JA:

I will invite Nettle JA to deliver the first judgment.

NETTLE JA:

On 28 February 2006 the applicant was presented for trial before the County Court at Bendigo on one count of theft of a motor car (count 1), one count of common assault (count 2), one count of reckless conduct endangering life (count 3), one count of reckless conduct endangering serious injury (count 4) and one count of negligent conduct causing serious injury (count 5). On 28 February 2006, it was ordered that counts 1 and 2 be severed from counts 3, 4 and 5 and the applicant pleaded guilty to count 5. Following a short trial on counts 3 and 4, the applicant was on 23 March 2006 acquitted of each of those counts. But after a further trial on counts 1 and 2, on 29 March 2006 the applicant was convicted of both of those counts.

Following a plea in mitigation of penalty, on 3 April 2006 the judge sentenced the applicant on count 1 to a term of imprisonment of three years, on count 2 to a fine of $250, and on count 5 to a term of imprisonment of 3 years and six months, and ordered that one year and six months of the sentence imposed on count 1 be served cumulatively on the sentence imposed on count 5. The total effective sentence was, therefore, five years’ imprisonment, of which the judge ordered that the applicant must serve not less than four years before being eligible for parole. His Honour further ordered that the applicant be disqualified from holding any licence or permit to drive for a period of five years and fined the applicant a sum of $100 on a summary offence of exceeding the prescribed blood alcohol concentration following a motor accident.

The applicant now seeks leave to appeal against conviction and sentence.

The facts

The applicant is a citizen of the United States of America from the State of New York. In 1999 he met an Australian woman, Nerida Wines, who was studying in New York, and on 2 June 2001 they were married. Thereafter Nerida Wines went through the American immigration process and was granted a Green Card and she worked in the…

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 Fackovec

Details

AGLC: R v Fackovec [2007] VSCA 93
Case: [2007] VSCA 93
Decision Date: 10 May 2007

CaseChat Overview and Summary

The appellant in this matter was convicted of theft by a jury in the County Court of Victoria and now appeals to the Court of Appeal against his conviction. The appellant took his father-in-law's motor vehicle and subsequently crashed it, causing serious injury to another driver. The appellant claimed that he had permission to use the vehicle, either express or implied, and that he honestly believed this to be the case. The appeal raises questions about the correctness of the trial judge's directions to the jury regarding the appellant's belief about permission to use the vehicle and whether there was an error in the judge's direction.

The central issue for the court was whether the trial judge had erred in the direction given to the jury concerning the appellant's belief that he had permission to use the vehicle. The appellant argued that he had an honest and genuine belief that he was permitted to use the vehicle, which would negate the mens rea required for the offence of theft. The court had to consider whether the trial judge had correctly instructed the jury on the requirements of the appellant's belief and whether this belief was honest and genuine. Additionally, the court examined whether the judge's direction to the jury included all the relevant considerations in determining the appellant's belief.

The Court of Appeal found that the trial judge had not correctly directed the jury on the requirements of the appellant's belief regarding permission to use the vehicle. The court held that the trial judge's direction did not encompass all the relevant considerations in determining whether the appellant's belief was honest and genuine. The court also found that the trial judge had not correctly instructed the jury on the distinction between an honest belief and a belief that was genuinely held. As a result, the Court of Appeal allowed the appeal, quashed the conviction, and ordered a re-trial. The court held that the error in the trial judge's direction to the jury was substantial and could have affected the outcome of the trial.

Orders