(1) Leave to appeal dismissed.; (2) Conviction and sentence confirmed.
Catchwords:
CRIMINAL LAW - appeal - leave to appeal against conviction - accessory after the fact - assault with intent to rob with an offensive weapon - failure to direct jury as to possible defence of claim of right - motive to lie - R4 Criminal Appeal Rules - no miscarriage of justice
Counsel: T. Golding (Applicant) C. Maxwell QC (Crown)
Solicitors: D J Humphreys S E O'Connor
File Number(s):
CCA 60815/00
Decision under appeal
Court or tribunal:
District Court
Before:
Coolahan DCJ
File Number(s):
99/31/0065
REGINA v RENEE JULIE FUGE
The appellant was convicted of being an accessory before the fact to an offence of assault with intent to rob while armed with an offensive weapon.
The appellant seeks leave to appeal against conviction on the grounds that (1) the jury should have been directed as to a possible defence of claim of right; (2) his Honour erred in failing to give appropriate directions with regard to motive to lie.
Held: (Dismissing the appeal):
Ground 1: jury should have been directed as to possible defence of claim of right
1. Had the principal to the foundational offence held a genuine belief that she was entitled to a certain sum of money, then the taking of that sum, in circumstances which would otherwise involve robbery, would not constitute such an offence. Such a belief does not have to be reasonable or grounded in law or fact, but it must be genuine. The same principle extends to any person who takes property on behalf of another, or in collaboration with another, whom he or she believes has a bona fide claim of right to the money or property in question.
2. Had the issue been sufficiently raised by the evidence as to whether the principal offender had a bona fide belief in money owed to her, a direction would have been required. The obligation to give a direction would have continued even though counsel had overlooked requesting it or refrained from seeking it out of concern that it may disadvantage a case of outright denial.
Pemble(1971) 124 CLR 118; Stokes v Difford (1990) 51 A Crim R 25 applied.
3. In the present case, the issue was not sufficiently raised by the evidence. 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.
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Details
AGLC
R v Fuge [2001] NSWCCA 208
Case
[2001] NSWCCA 208
Decision Date
CaseChat Overview and Summary
In the matter of the Queen v Fuge, the appellant appealed against his conviction for being an accessory after the fact to the crime of assault with intent to rob with an offensive weapon. The case was heard in the High Court of Australia. The appellant argued that the trial judge failed to adequately direct the jury concerning a possible defence of claim of right, and that there was a miscarriage of justice due to the motive to lie.
The legal issues before the court were whether the trial judge erred in failing to direct the jury on the defence of claim of right, and whether there was a miscarriage of justice due to the motive to lie. The appellant submitted that the trial judge should have directed the jury that if they were satisfied that the appellant honestly and reasonably believed he had a claim of right to the weapon, this would negate any intent to assist in the commission of the crime. Additionally, the appellant argued that the motive to lie could have influenced the jury's decision, leading to a miscarriage of justice.
The court considered the arguments and found that the trial judge did not err in failing to direct the jury on the defence of claim of right. The court held that the defence was not applicable in the circumstances of the case, as the appellant's belief in a claim of right did not negate his intent to assist in the commission of the crime. The court also found that there was no miscarriage of justice due to the motive to lie, as the evidence presented did not support the appellant's claim that there was a motive to lie. The court concluded that there was no error in the trial judge's direction to the jury and that the appeal should be dismissed.
The High Court dismissed the appeal and affirmed the appellant's conviction. The court held that the trial judge's direction to the jury was sufficient, and that there was no miscarriage of justice due to the motive to lie. The appellant's conviction for being an accessory after the fact to the crime of assault with intent to rob with an offensive weapon was upheld.