R v Mocenigo (Ruling No. 4) - [2012] VSC 442

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0029 of 2012

THE QUEEN

ADAM MOCENIGO

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2012
DATE OF RULING:	20 September 2012
CASE MAY BE CITED AS:	R v Mocenigo (Ruling No. 4)
MEDIUM NEUTRAL CITATION:	[2012] VSC 442

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CRIMINAL LAW – No case submission – Test for no case in a circumstantial case – Whether evidence intractably neutral as to murder, manslaughter, accident – Use of consciousness of guilt evidence where evidence is not intractably neutral.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Tinney SC with Ms S Flynn	Office of Public Prosecutions
For the Accused	Mr J McMahon with Ms K Argiropoulos	Michael J Gleeson & Associates

HIS HONOUR:

The accused man, Adam Emilio Mocenigo, is charged with the murder of Kristy-Lee Hall. It is alleged that he killed her on Saturday 26 March 2011. He has pleaded not guilty to the count of murder and the Crown case has now been completed.

On behalf of the accused, Mr McMahon of counsel who appeared with Ms Argiropoulos, has submitted that there is no case for his client to answer on the count of murder. In essence, that submission is based on the assertion that on the evidence as it stands, the jury could not possibly draw an inference that at the time of the death of the deceased, the accused intended to kill her or to cause her really serious injury and also that the jury could not infer that his acts caused her death.

The test to determine whether there is a case to answer in a circumstantial case

It is first important to be clear about the principles which apply to an application of this kind. In R v Doney[1] the High Court confirmed the decision of Attorney-General's Reference (No. 1 of 1983),[2] which included a rejection of the view that a trial judge could stop the trial if, in his or her opinion, a verdict of guilty would be unsafe and unsatisfactory.
[1](1990) 171 CLR 207 (“Doney”).
[2](1983) 2 VR 410 (“Attorney-General's Reference (No. 1 of 1983)”).

The High Court then went on to resolve the issue by stating the test as follows:[3]

It follows that if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence, such that taken at its highest it will not sustain a verdict of guilty.

[3]At pp 214-15.

The test has been considered on numerous occasions by trial judges since Doney was decided by the High…

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 Mocenigo (Ruling No. 4)

Details

AGLC: R v Mocenigo (Ruling No. 4) [2012] VSC 442
Case: [2012] VSC 442
Decision Date: 20 September 2012

CaseChat Overview and Summary

In the recent case of R v Mocenigo, the defendant was brought before the court on a charge of murder. The case hinged on circumstantial evidence, and the defendant sought a dismissal based on the argument that the evidence was intractably neutral as to whether the death was the result of murder, manslaughter, or an accident. The court was tasked with determining whether the evidence could justifiably support a conviction for murder and if so, whether the evidence of consciousness of guilt could be considered.

The court considered the test for determining whether there was a no case submission in a circumstantial case. It examined whether the evidence, when viewed in its totality and in the light most favourable to the prosecution, could support a conviction. The court also assessed whether the evidence was intractably neutral, meaning it could equally support competing conclusions. In this instance, the court found that the evidence was not intractably neutral and could support a conviction for murder. Additionally, the court considered the use of consciousness of guilt evidence, ruling that such evidence could be admitted if the primary evidence was not intractably neutral.

The court concluded that the evidence, including the defendant's actions following the incident, was sufficient to establish a case for the jury. The court held that the evidence, though circumstantial, was not intractably neutral and could reasonably support a conviction for murder. The court also found that the evidence of consciousness of guilt was admissible as it did not rely on intractably neutral evidence but rather complemented the primary evidence. The defendant's application for a no case submission was therefore dismissed.

Orders