R v Franicevic - [2010] QCA 36

SUPREME COURT OF QUEENSLAND

CITATION:

R v Franicevic [2010] QCA 36

PARTIES:

R
v
FRANICEVIC, Tony Ralph
(appellant)

FILE NO/S:

CA No 285 of 2009
DC No 577 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

26 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2010

JUDGES:

Keane and Fraser JJA and P Lyons J
Separate reasons for judgment of each member of the Court each concurring as to the orders made

ORDERS:

1.    Allow the appeal;

2.    Set aside the conviction;

3.    Order a new trial.

CATCHWORDS:
CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – WARNING ADVISABLE OR REQUIRED – ADEQUACY OF WARNING – GENERALLY – where the appellant was found guilty of armed robbery – where the appellant appealed on the ground that the verdict was unsafe and unsatisfactory – where the trial judge allowed a dock identification of the appellant – whether the trial judge gave adequate jury directions in relation to the dock identification of the appellant – whether the omission of further directions about the identification evidence amounted to a wrong decision on a question of law that constituted a ground of appeal under s 668E(1) Criminal Code 1899 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – whether the jury’s verdict was unreasonable or could not be supported by the evidence due to inconsistencies in the eye-witnesses accounts of the robber’s height and build – whether a new trial should be ordered or a verdict of acquittal entered

Criminal Code 1899 (Qld), s 668E(1), s 668E(1A)
Evidence Act 1977 (Qld), s 17, s 18, s 93A, s 101
Penalties and Sentences Act 1992 (Qld), s 13A

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, followed
McLellan v Bowyer (1961) 106 CLR 95; [1961] HCA 49, cited
R vBaira [2009] QCA 332, cited
R v Hadlow [1992] 2 Qd R 440, cited
R v Hayden and Slattery [1959] VR 102, cited
R v Kong[2009] QCA 34, cited
R v Lawrie [1986] 2 Qd R 502, cited
R v Leak [1969] SASR 172, cited
R v Parkinson [1990] 1 Qd R 382, cited
R v Taufahema (2007) 228 CLR 232; [2007] HCA 11, cited
R v Tyler [1994] 1 Qd R 675; [1992] QCA 170, cited

COUNSEL:

H C Fong for the appellant
M J Copley SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Department of Public Prosecutions (Queensland) for the respondent

KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Fraser JA. I agree with those reasons and with the orders proposed by his Honour.

FRASER JA: After a two day trial in the District Court a jury found the appellant guilty of armed robbery. The trial judge, Samios DCJ, recorded a conviction and sentenced 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 Franicevic

Details

AGLC: R v Franicevic [2010] QCA 36
Case: [2010] QCA 36
Decision Date: 26 February 2010

CaseChat Overview and Summary

The case of R v Franicevic involved the appellant who was found guilty of armed robbery. The appellant appealed against his conviction, arguing that the verdict was unsafe and unsatisfactory, primarily focusing on the adequacy of the jury directions regarding the dock identification of the appellant. The appeal was heard in the Queensland Court of Appeal.

The primary legal issues the court needed to address were whether the trial judge adequately directed the jury in relation to the dock identification of the appellant and whether the omission of further directions about the identification evidence amounted to a wrong decision on a question of law. Additionally, the court examined whether the jury's verdict was unreasonable or could not be supported by the evidence, considering the inconsistencies in the eye-witnesses' accounts of the robber's height and build.

The court determined that the trial judge's directions to the jury regarding the dock identification were insufficient. The judge failed to provide adequate warnings about the potential unreliability of such identifications, which is critical when considering the weight of such evidence. The court held that the omission amounted to a wrong decision on a question of law, which constituted a ground of appeal. Furthermore, the court found that the inconsistencies in the eye-witnesses' accounts undermined the reliability of the evidence, making the jury's verdict unreasonable. Consequently, the appeal was allowed, the conviction set aside, and a new trial ordered.

The court's final orders were to allow the appeal, set aside the conviction, and order a new trial. This decision underscores the importance of proper jury directions in cases involving dock identifications and highlights the necessity for courts to ensure that verdicts are supported by reliable and consistent evidence.

Orders

Orders of the court

1. Allow the appeal;

2. Set aside the conviction;

3. Order a new trial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Franicevic [2010] QCA 36
PARTIES:	R v FRANICEVIC, Tony Ralph (appellant)
FILE NO/S:	CA No 285 of 2009 DC No 577 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	26 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2010
JUDGES:	Keane and Fraser JJA and P Lyons J Separate reasons for judgment of each member of the Court each concurring as to the orders made
ORDERS:	1. Allow the appeal; 2. Set aside the conviction; 3. Order a new trial.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – WARNING ADVISABLE OR REQUIRED – ADEQUACY OF WARNING – GENERALLY – where the appellant was found guilty of armed robbery – where the appellant appealed on the ground that the verdict was unsafe and unsatisfactory – where the trial judge allowed a dock identification of the appellant – whether the trial judge gave adequate jury directions in relation to the dock identification of the appellant – whether the omission of further directions about the identification evidence amounted to a wrong decision on a question of law that constituted a ground of appeal under s 668E(1) Criminal Code 1899 (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – whether the jury’s verdict was unreasonable or could not be supported by the evidence due to inconsistencies in the eye-witnesses accounts of the robber’s height and build – whether a new trial should be ordered or a verdict of acquittal entered Criminal Code 1899 (Qld), s 668E(1), s 668E(1A) Evidence Act 1977 (Qld), s 17, s 18, s 93A, s 101 Penalties and Sentences Act 1992 (Qld), s 13A Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, followed McLellan v Bowyer (1961) 106 CLR 95; [1961] HCA 49, cited R vBaira [2009] QCA 332, cited R v Hadlow [1992] 2 Qd R 440, cited R v Hayden and Slattery [1959] VR 102, cited R v Kong[2009] QCA 34, cited R v Lawrie [1986] 2 Qd R 502, cited R v Leak [1969] SASR 172, cited R v Parkinson [1990] 1 Qd R 382, cited R v Taufahema (2007) 228 CLR 232; [2007] HCA 11, cited R v Tyler [1994] 1 Qd R 675; [1992] QCA 170, cited
COUNSEL:	H C Fong for the appellant M J Copley SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Department of Public Prosecutions (Queensland) for the respondent