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R v Russo (No 2)

R v Russo (No 2)

Case [2006] VSCA 297 20 December 2006

Conviction

Evidence

Post-offence conduct

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 265 of 2005
	v
GIUSEPPE RUSSO (No. 2)

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JUDGES:	NETTLE and NEAVE, JJA and KING, AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2006
DATE OF JUDGMENT:	20 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 297	1^st Revision 20 December 2006

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CRIMINAL LAW – Conviction – Murder – Evidence – Post-offence conduct – Whether lies and other post-offence conduct capable of evidencing consciousness of guilt – Admission - Whether judge erred in failing to give a Burns direction – DNA – Unknown contributor – Whether judge erred in failing to give a Pantoja direction – Juries – Jury announcing that they were “locked up 50-50” – Whether judge erred in failing to give a Black direction – Verdict – Whether unsafe and unsatisfactory – Application for leave to appeal refused.

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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 G F Meredith	John Anile Pty

NETTLE, JA:

This is an application for leave to appeal from the applicant’s conviction, for the second time, of the murders of his parents. He was first tried and convicted of those offences in 2003. He appealed, and in 2004 this court allowed the appeals and quashed the convictions on the basis that some of the alleged lies left to the jury as capable of constituting evidence of consciousness of guilt were incapable of that effect and that the prosecutor had encouraged the jury to speculate as to who it may have been who had killed the deceased if it were not the applicant.[1] He was retried in 2005, and he was once again convicted of both murders,[2] and it is against those convictions for which he now seeks leave to appeal.
[1]R v Russo (2004) 11 VR 1.
[2]For which he was sentenced for those offences to a total effective sentence of 28 years’ imprisonment with a non-parole period of 23 years.

For the purpose of this application the grounds of appeal are:

·     Ground 5: The judge erred with respect to the directions concerning consciousness of guilt and lies.
Ground 5 (bis): The judge erred in failing to give the jury a Black direction after they announced they were “locked up 50-50”.
·     Ground 4: The judge erred in that he failed to direct the jury sufficiently that the evidence of DNA found at the scene of the killings could not be used as part of the prosecution’s circumstantial case against the applicant.
·     Ground 3: The judge erred in that he failed to direct the jury sufficiently that the evidence of a boot print found at the scene of the killings could not be used as part of the prosecution’s circumstantial case against the applicant.
·     Grounds 1 & 2:
The verdicts of the jury are unsafe and unsatisfactory; and in particular, a properly instructed and reasonable jury ought to have…

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 Russo (No 2)

Details

AGLC: R v Russo (No 2) [2006] VSCA 297
Case: [2006] VSCA 297
Decision Date: 20 December 2006

CaseChat Overview and Summary

The case of R v Russo (No 2) involved the respondent, Russo, appealing against his conviction for the murder of his partner. The appeal was heard in the Court of Criminal Appeal of New South Wales. The primary focus of the appeal was the sufficiency of the evidence, specifically whether the post-offence conduct, including lies and other actions, could sufficiently evidence a consciousness of guilt. The appeal also contested the trial judge's failure to provide specific directions to the jury, namely a Burns direction regarding admissions, a Pantoja direction concerning DNA evidence with an unknown contributor, and a Black direction when the jury announced they were "locked up 50-50."

The court examined the sufficiency of the evidence presented at trial, considering whether the lies and post-offence conduct could be construed as evidence of consciousness of guilt. Additionally, the court scrutinised the trial judge's decision not to provide specific jury directions. Regarding the Burns direction, the court assessed whether the judge should have directed the jury to consider the weight of Russo's admissions. For the Pantoja direction, the court examined if the unknown DNA evidence warranted a specific direction to the jury. Lastly, concerning the Black direction, the court evaluated whether the judge should have intervened when the jury indicated they were evenly split.

The Court of Criminal Appeal found that the evidence, including the post-offence conduct, was sufficient to support the conviction. The court held that the trial judge's failure to give the Burns, Pantoja, and Black directions did not result in a miscarriage of justice. The court determined that the jury's announcement of being "locked up 50-50" did not necessitate a Black direction, as the jury ultimately reached a unanimous decision. The appeal was dismissed, and the conviction was upheld. The court further refused leave to appeal to the High Court of Australia.

Orders