R v Panozzo - [2007] VSCA 245

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 202 of 2004

THE QUEEN
	v
RICHARD XAVIER PANOZZO

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JUDGES:	CHERNOV and REDLICH JJA and KING AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 OCTOBER 2006
DATE OF JUDGMENT:	15 NOVEMBER 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 245

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CRIMINAL LAW – Murder – Applicant convicted as a participant in joint criminal enterprise or as aider and abettor – Directions on manslaughter – Whether failure by trial judge to leave manslaughter on basis of complicity resulted in miscarriage of justice – Manslaughter by unlawful and dangerous act – Meaning of ‘dangerous’ – Consciousness of guilt – Post-offence conduct equally consistent with consciousness of guilt of murder and manslaughter – Whether post-offence conduct capable of amounting to evidence of consciousness of guilt of murder – R v Heyes (2006) 12 VR 401, R v Ty (2006) 12 VR 557, R v Ciantar (2006) 16 VR 26 considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Galbally Rolfe

CHERNOV JA
REDLICH JA
KING AJA:

On 29 October 2001, the applicant, Richard Xavier Panozzo, who is now aged 41 years, was presented jointly with his co-offender, Joseph Iaria (‘Iaria’), before the Supreme Court at Wangaratta for the murder at Tawonga, on 5 May 2000, of Peter Francioli (‘the deceased’). The applicant and Iaria pleaded not guilty. On 14 December 2001, the jury returned verdicts of guilty to murder against each accused. On 24 November 2003, this Court set aside the convictions and ordered a retrial, essentially because of a fundamental irregularity that occurred in the empanelment of the jury which rendered the trial a nullity. On 2 April 2004, an application for a separate trial lodged on behalf of the applicant was refused but that decision is not the subject of a complaint before us. In the result, on 5 May 2004, the applicant and Iaria were again presented in the Supreme Court at Melbourne for the murder of the deceased. Both pleaded not guilty to the charge of murder, but the trial judge left for the consideration of the jury the alternative verdict of manslaughter notwithstanding that neither the Crown nor the accused contended for such a verdict. On 4 June 2004, the jury returned verdicts of guilty of murder in respect of each accused. After hearing pleas in mitigation of penalty on behalf of each offender, on 6 August 2004, the learned sentencing judge sentenced the applicant to 20 years’ imprisonment with a non-parole period of 15 years and imposed an identical sentence in respect of the co-offender, Iaria. The applicant now seeks leave to appeal against conviction. Although notice was given on his behalf that he proposed to seek leave to appeal against sentence, this claim was not pursued.

Circumstances of the offence

The background and circumstances of the offence as they relate to the applicant are as follows. At the time…

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 Panozzo

Details

AGLC: R v Panozzo [2007] VSCA 245
Case: [2007] VSCA 245
Decision Date: 15 November 2007

CaseChat Overview and Summary

The case of R v Panozzo involved the appellant who was convicted of murder as a participant in a joint criminal enterprise or as an aider and abettor. The appellant applied to the Court of Appeal for an order setting aside his conviction and ordering a retrial on the basis that the trial judge erred in not leaving manslaughter to the jury on the basis of complicity. The appellant also argued that the judge erred in law in failing to direct the jury that if they were satisfied that the appellant had acted recklessly as to causing death or grievous bodily harm, they should consider manslaughter by unlawful and dangerous act. The Court of Appeal considered these arguments and examined the meaning of the term "dangerous" in the context of manslaughter by unlawful and dangerous act. The Court also considered whether the appellant's post-offence conduct could amount to evidence of consciousness of guilt of murder.

The Court of Appeal held that there was no error in the trial judge's directions to the jury regarding manslaughter by complicity. The Court held that the judge's directions on recklessness as to causing death or grievous bodily harm were adequate to allow the jury to consider manslaughter by unlawful and dangerous act. The Court also held that the term "dangerous" should be interpreted in the context of the circumstances of the case and the foresight of the risk of harm to the victim. The Court held that the appellant's post-offence conduct was equally consistent with consciousness of guilt of murder and manslaughter and therefore could not amount to evidence of consciousness of guilt of murder. The Court of Appeal dismissed the appellant's appeal and upheld his conviction.

The Court of Appeal's decision in R v Panozzo highlights the importance of proper directions to juries in criminal trials, particularly in cases involving manslaughter. The Court's interpretation of the term "dangerous" in the context of manslaughter by unlawful and dangerous act provides guidance for future cases. The Court's consideration of post-offence conduct as evidence of consciousness of guilt also provides useful guidance for future cases. The final orders of the Court of Appeal were to dismiss the appellant's appeal and uphold his conviction for murder.

Orders