R v Fournair - [2005] VSCA 104

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 109 of 2004

THE QUEEN
	v.
JOSEPH FOURNAIR

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JUDGES:	CHARLES and VINCENT, JJ.A. and OSBORN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 April 2005
DATE OF JUDGMENT:	4 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 104

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CRIMINAL LAW – Conviction – Intentionally causing serious injury – Risk that verdict was based on evidence that did not allow for a finding beyond reasonable doubt – Open to jury to reach verdict on evidence before it – Uncharged acts – Evidence of prior acts required to establish the context of fear of violence – Cross-examination of co-offender as to conduct of plea – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr D.A. Dann	Robert Stary & Associates

CHARLES, J.A.:

Having read the reasons for judgment prepared by Osborn, A.J.A., I agree with his Honour that this application for leave to appeal against conviction should be dismissed, for the reasons he gives.

VINCENT, J.A.:

I agree that, for the reasons advanced by Osborn, A.J.A., the application for leave to appeal against conviction should be dismissed.

OSBORN, A.J.A.:

On 20 December 2003 following a 12 day trial, the applicant Joseph Fournair was convicted of one count of intentionally causing serious injury to Jessica Iljazov. He was sentenced to be imprisoned for 8 years with a non-parole period of 6 years. He now seeks leave to appeal against conviction and sentence.

At the time of the incident in issue the applicant was 32 years old and living with a woman named Staples. The household included three children from a former relationship of the applicant, namely Brendan aged 13, Jamie aged 12 and Bianca aged 9. It also included Jessica Iljazov a daughter of Staples who was then aged 3. Jessica had come to live with her mother in early 2002.

On 12 April 2002 Jessica was struck to the head with a hairbrush by her mother. She then collapsed and an ambulance was called. She was taken first to the Northern Hospital and then after initial investigations she was transferred to the Royal Children’s Hospital. Photographs taken at the time demonstrate that she was suffering from extensive bruising and lacerations to her face, head, torso, buttocks and limbs. Medical imaging undertaken at the time also revealed that she had suffered brain injury by way of subdural haematoma. Her injuries were not explicable by reference only to the assault with the hairbrush on 12 April 2002.

At the trial evidence was given by the applicant’s son Brendan that approximately one and a half weeks before the incident on 12 April 2002 the applicant had required Jessica to kneel in front of a curved wall adjacent to the main bedroom in the house. The applicant had then thrust Jessica’s head into the wall with sufficient force to damage the plaster. The applicant also struck Jessica in the face injuring her…

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 Fournair

Details

AGLC: R v Fournair [2005] VSCA 104
Case: [2005] VSCA 104
Decision Date: 4 May 2005

CaseChat Overview and Summary

In the case of R v Fournair, the respondent, Fournair, was convicted of intentionally causing serious injury. The matter was brought before the court to challenge the conviction on the basis that the jury's verdict might have been influenced by evidence that did not meet the standard of proof beyond reasonable doubt. The court was tasked with examining whether the risk that the jury's decision was based on such evidence was significant enough to warrant a new trial. Additionally, the court considered whether the evidence of uncharged acts was admissible to establish the context of fear of violence, and whether the cross-examination of a co-offender regarding the conduct of a plea was appropriately conducted.

The primary legal issues before the court were whether the risk that the jury's verdict was influenced by inadmissible evidence was substantial, and whether the admission of evidence of uncharged acts was appropriate in the circumstances. The court had to determine whether the evidence of uncharged acts was necessary to provide context and whether it was admissible under the rules of evidence. Furthermore, the court examined whether the cross-examination of the co-offender was conducted in a manner that was fair and did not prejudice the respondent.

The court found that the jury was capable of making a decision based on the evidence presented before it, and there was no substantial risk that the verdict was influenced by evidence that did not meet the required standard. The court also determined that the evidence of uncharged acts was admissible to establish the context of fear of violence, and that the cross-examination of the co-offender was conducted fairly. Consequently, the application for a new trial was dismissed.

The court's final orders were that the application for a new trial was dismissed, and the conviction of the respondent was upheld. The court affirmed that the evidence presented was sufficient to support the jury's verdict and that the trial was conducted fairly.

Orders