R v Main and Fauid - [2012] QCA 80

SUPREME COURT OF QUEENSLAND

CITATION:

R v Main and Fauid [2012] QCA 80

PARTIES:

R
v
MAIN, Madonna Carol
(appellant)

R
v
FAUID, John Henry
(appellant/applicant)

FILE NO/S:

CA No 88 of 2011
CA No 93 of 2011
DC No 1057 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction
Sentence Application – Fauid

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

3 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2011

JUDGES:

Chesterman JA, Margaret Wilson AJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

In CA No 88 of 2011:

1.   Appeal against conviction allowed to the extent only of quashing the circumstance of aggravation of “in company”.

2.   Appeal against conviction otherwise dismissed.

In CA No 93 of 2011:

1.   Appeal against conviction allowed to the extent only of quashing the circumstance of aggravation of “in company”.

2.   Appeal against conviction otherwise dismissed.

3.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – DIRECTION TO JURY – WHETHER WARNING REQUIRED OR ADVISABLE – where appellants convicted of armed robbery – where the case against the appellants was an identification case – where the identification of the female appellant as the robber was critical to the case against both appellants – where the identification of the robber was based on physical characteristics and circumstantial evidence – whether Domican v The Queen (1992) 173 CLR 555 direction should have been given to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to five and one-half years’ imprisonment for armed robbery – where the applicant was not the robber but was involved in planning, reconnaissance, and acted as lookout for the robber – where applicant was 36 years old with prior criminal history but no prior conviction for armed robbery – whether the sentence imposed was manifestly excessive

Criminal Code 1899 (Qld), s 7

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, considered
Finlay v The Queen [2009] HCATrans 17, followed
Lacco v State of Western Australia [2006] WASCA 152, considered
R v Finlay (2007) 178 A Crim R 373; [2007] QCA 400, followed
R v Kitching[2003] QCA 539, considered
R v Moss[1999] QCA 426, considered
R v Vanderwerff[1999] QCA 169, considered

COUNSEL:

In CA No 88 of 2011:
R A East for the appellant
R G Martin SC for the respondent

In CA No 93 of 2011:
K Prskalo for the appellant/applicant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellants
Director of Public Prosecutions (Queensland) for the respondent

CHESTERMAN JA: I agree with the orders proposed by Mullins J for the reasons…

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

Case: [2012] QCA 80
Decision Date: 3 April 2012

CaseChat Overview and Summary

The appellants, Main and Fauid, were convicted of armed robbery in the Supreme Court of Victoria. The central issue in the appeal was the adequacy of the direction given to the jury concerning the identification evidence against the female appellant, which was critical to the conviction of both appellants. The identification was based on physical characteristics and circumstantial evidence. The court was required to determine if the jury should have been given a Domican direction, which provides guidance on the weight to be given to identification evidence.

The High Court examined the nature of the identification evidence and whether it warranted a Domican direction. The Court held that while the identification evidence was weak, it was not so unreliable as to require a Domican direction. The direction given by the trial judge was deemed sufficient. However, the Court found that the circumstance of aggravation of "in company" was not supported by the evidence and should be quashed. As for the sentence, the Court found that while the sentence was severe, it was not manifestly excessive given the appellant's prior criminal history and the nature of his involvement in the crime.

The appeal against the conviction was partially allowed in that the circumstance of aggravation of "in company" was quashed. The appeal against the conviction was otherwise dismissed. The application for leave to appeal against the sentence was refused. The Court of Appeal's decision was affirmed with the modification that the circumstance of aggravation of "in company" was quashed, and the sentence remained as imposed by the trial judge.

Orders

Orders of the court

In CA No 88 of 2011:

1. Appeal against conviction allowed to the extent only of quashing the circumstance of aggravation of “in company”.

2. Appeal against conviction otherwise dismissed.

In CA No 93 of 2011:

1. Appeal against conviction allowed to the extent only of quashing the circumstance of aggravation of “in company”.

2. Appeal against conviction otherwise dismissed.

3. Application for leave to appeal against sentence refused.

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 Main and Fauid [2012] QCA 80
PARTIES:	R v MAIN, Madonna Carol (appellant) R v FAUID, John Henry (appellant/applicant)
FILE NO/S:	CA No 88 of 2011 CA No 93 of 2011 DC No 1057 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Conviction Sentence Application – Fauid
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	3 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2011
JUDGES:	Chesterman JA, Margaret Wilson AJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	In CA No 88 of 2011: 1. Appeal against conviction allowed to the extent only of quashing the circumstance of aggravation of “in company”. 2. Appeal against conviction otherwise dismissed. In CA No 93 of 2011: 1. Appeal against conviction allowed to the extent only of quashing the circumstance of aggravation of “in company”. 2. Appeal against conviction otherwise dismissed. 3. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – DIRECTION TO JURY – WHETHER WARNING REQUIRED OR ADVISABLE – where appellants convicted of armed robbery – where the case against the appellants was an identification case – where the identification of the female appellant as the robber was critical to the case against both appellants – where the identification of the robber was based on physical characteristics and circumstantial evidence – whether Domican v The Queen (1992) 173 CLR 555 direction should have been given to the jury CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to five and one-half years’ imprisonment for armed robbery – where the applicant was not the robber but was involved in planning, reconnaissance, and acted as lookout for the robber – where applicant was 36 years old with prior criminal history but no prior conviction for armed robbery – whether the sentence imposed was manifestly excessive Criminal Code 1899 (Qld), s 7 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, considered Finlay v The Queen [2009] HCATrans 17, followed Lacco v State of Western Australia [2006] WASCA 152, considered R v Finlay (2007) 178 A Crim R 373; [2007] QCA 400, followed R v Kitching[2003] QCA 539, considered R v Moss[1999] QCA 426, considered R v Vanderwerff[1999] QCA 169, considered
COUNSEL:	In CA No 88 of 2011: R A East for the appellant R G Martin SC for the respondent In CA No 93 of 2011: K Prskalo for the appellant/applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellants Director of Public Prosecutions (Queensland) for the respondent