R v Finnan - [2005] VSCA 151

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 69 of 2004

THE QUEEN

ASHLEY MARK FINNAN

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JUDGES:	VINCENT and NETTLE, JJ.A. and OSBORN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 June 2005
DATE OF JUDGMENT:	1 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 151

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Criminal Law - Conviction - Affray - Intentionally cause injury - Intentionally cause serious injury - Lies as evidence of consciousness of guilt - Edwards direction - Availability of recklessness as an alternative when principal offender convicted of intentionally causing serious injury - Relevance of accused's understanding of principal offender's intentions - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P.G. Priest, Q.C. with Mr T. E. Wraight	Amad & Amad Lawyers

VINCENT, J.A.:

I will request Osborn, A.J.A. to give the first judgment in this matter.

OSBORN, A.J.A.:

The applicant in this matter was found guilty in the County Court at Melbourne on 16 February 2004 on one count of making an affray (count 1); one count of intentionally causing injury (count 2); and one count of intentionally causing serious injury (count 5).

The applicant was subsequently sentenced on 5 April 2004 to 12 months' imprisonment on count 1; 4 months' imprisonment on count 2; and 30 months' imprisonment on count 5. Six months of the sentence on count 1 and 2 months of the sentence on count 2 were ordered to be served cumulatively upon the sentence imposed on count 5, making a total effective sentence of 38 months. A period of 20 months was fixed as required to be served before the applicant could become eligible for parole.

The applicant now seeks leave to appeal against both conviction and sentence with respect to each count.

The Crown case was that the offences took place at Collingwood on 12 August 2000. It was alleged a violent affray took place commencing outside the Barleycorn Hotel in Johnston Street involving a number of accused including the applicant. It was said that the applicant was an early and enthusiastic participant in the affray.

It was further alleged the applicant intentionally caused serious injury to one H when he punched H to the head without warning in circumstances where H was no more than a bystander.

In turn it was alleged the applicant intentionally caused serious injury to S. A co-accused V attempted to attack H with an iron bar and upon S then attempting to restrain V the applicant forced S to the ground holding him while D, a co-accused, stabbed S in the back.

The application for leave to appeal against conviction is brought on two grounds. The first ground attacks the adequacy of the learned trial judge's direction concerning lies potentially demonstrating consciousness of guilt. The second ground goes to the adequacy of a re-direction given as to the element of recklessness in alternative charges to counts 2 and 5 upon which the applicant was…

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 Finnan

Details

AGLC: R v Finnan [2005] VSCA 151
Case: [2005] VSCA 151
Decision Date: 1 June 2005

CaseChat Overview and Summary

The defendant, Finnan, was convicted of affray, and specifically of intentionally causing injury and intentionally causing serious injury in the course of the affray. The appeal against his conviction was dismissed by the Court of Appeal of the Supreme Court of South Australia. The appeal raised issues concerning the adequacy of directions given to the jury regarding the principles of recklessness and the availability of recklessness as an alternative to intentional causation when the principal offender is convicted of intentionally causing serious injury. The court also considered whether the accused's understanding of the principal offender's intentions is relevant to his own culpability.

The court examined the trial judge's directions to the jury, particularly in relation to the Edwards direction. It was established that the trial judge had properly directed the jury on the principles of recklessness and the availability of recklessness as an alternative to intentional causation. The court held that the judge's directions were clear and comprehensive, ensuring that the jury was properly guided in their consideration of the defendant's state of mind. Furthermore, the court found that the accused's understanding of the principal offender's intentions did not alter his own culpability, as the jury was properly directed to consider the accused's own state of mind and actions.

The appeal was dismissed as the court found that the trial judge's directions to the jury were adequate and that the defendant's understanding of the principal offender's intentions was irrelevant to his own culpability. The court held that the conviction was properly based on the evidence and that the jury had been correctly directed on the principles of recklessness and the availability of recklessness as an alternative to intentional causation. The court did not find any error in the trial judge's directions or in the jury's consideration of the evidence.

No further orders were made by the court. The appeal was dismissed, and the defendant's conviction stood as determined by the trial court.

Orders