R v Falcone - [2008] VSCA 225

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 403 of 2007

THE QUEEN
	v
ANTONIO FALCONE

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JUDGES:	MAXWELL P, VINCENT JA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2008
DATE OF JUDGMENT:	24 November 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 225

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Criminal Law – Appeal – Conviction – Armed robbery – Consciousness of guilt – Whether accused changed clothes between commission of offence and police interview - Whether Edwards direction necessary – Whether prosecution invited jury to draw inference from accused’s conduct – Whether judge’s direction invited jury to reason impermissibly.

Criminal Law – Appeal – Conviction – Armed robbery – Applicant alleged to have carried weapon – Co-offender unidentified – Jury question – Whether jury could convict if not satisfied applicant carried weapon – Whether judge left alternative case to jury – Whether defence had notice of alternative case – Breach of natural justice – Appeal allowed – Conviction set aside – Johnson v Miller (1937) 59 CLR 467 applied.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan SC	Mr S. Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C. Boyce	Leanne Warren & Associates

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Vickery AJA. I agree that the appeal should be allowed for the reasons which his Honour gives, and a retrial ordered.

VINCENT JA:

I too have had the advantage of reading the reasons prepared in draft by Vickery AJA. For the reasons given by his Honour, I also agree that the appeal should be allowed and a retrial ordered.

VICKERY AJA:

On 15 October 2007, the applicant presented in the County Court at Melbourne for trial on a presentment containing one count of armed robbery contrary to s 75A of the Crimes Act 1958 (Vic). The charge in the presentment was:

Antonio Falcone at Richmond in the said State on 22^nd day of February 2006 robbed PETER KOKKIOS of certain property namely money and a Tag Heuer watch and at the time had with him an offensive weapon namely a syringe.

On the day of the offence the applicant was interviewed by the police. The applicant denied his involvement in the offence. He declined to participate in an identification parade.

On 24 February 2006, after the victim of the robbery, Mr Kokkios, had identified the applicant from a photoboard, the applicant was arrested and remanded in custody. He was released on bail on 28 February 2006.

On 19 October 2006, after a two day contested committal hearing in the Magistrates’ Court at Melbourne, the applicant was committed for trial in the County Court on a charge of armed robbery.

Trial

The applicant’s trial commenced on 15 October 2007. On 17 October 2007, the Crown case was closed. The applicant did not call or give any evidence.

On 19 October 2007, following the completion of addresses from counsel and during the trial Judge’s charge, two questions were asked…

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 Falcone

Details

AGLC: R v Falcone [2008] VSCA 225
Case: [2008] VSCA 225
Decision Date: 24 November 2008

CaseChat Overview and Summary

In the case of R v Falcone, the respondent was convicted of armed robbery. The respondent appealed against his conviction, arguing that the trial judge erred in his direction to the jury regarding the inference they could draw from the respondent’s conduct. The Court of Appeal was tasked with determining whether the trial judge’s direction invited the jury to reason impermissibly. The Court also had to decide whether the jury could convict the respondent if they were not satisfied that he carried a weapon, and whether the defence had adequate notice of the alternative case presented by the prosecution.

The primary legal issues in this appeal were whether the trial judge’s direction to the jury regarding the inference they could draw from the respondent’s conduct was permissible, and whether the jury could convict the respondent if they were not satisfied that he carried a weapon during the offence. Another issue was whether the defence had adequate notice of the alternative case presented by the prosecution, and whether this constituted a breach of natural justice.

The Court of Appeal found that the trial judge’s direction to the jury invited them to reason impermissibly, as it suggested that the jury could infer the respondent’s guilt from his conduct without sufficient evidence. The Court also held that the jury could not convict the respondent if they were not satisfied that he carried a weapon, and that the defence did not have adequate notice of the alternative case presented by the prosecution. Consequently, the Court held that the respondent’s conviction was unsafe and unsatisfactory, and set it aside. The Court of Appeal applied the principles established in Johnson v Miller (1937) 59 CLR 467 in reaching its decision.

The Court of Appeal allowed the appeal, set aside the respondent’s conviction, and ordered a retrial. The Court held that the trial judge’s direction to the jury regarding the inference they could draw from the respondent’s conduct was impermissible, and that the jury could not convict the respondent if they were not satisfied that he carried a weapon. The Court also found that the defence did not have adequate notice of the alternative case presented by the prosecution, which constituted a breach of natural justice.

Orders