Legal Research
Cases
R v Tiburcy

R v Tiburcy

Case [2007] VSCA 124 12 June 2007

Conviction

Appeal

Admissibility of Evidence

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 264 of 2006

THE QUEEN
	v.
JUSTIN TIBURCY

---

JUDGES:	VINCENT, NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 June 2007
DATE OF JUDGMENT:	12 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 124

---

Criminal Law – Conviction – Affray (one count) – Evidence – Whether verdict was “unsafe and unsatisfactory” – Verdict of guilty – Whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of applicant – Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	Robert Stary & Associates

VINCENT JA:

I will invite Nettle JA to deliver the first judgment in this matter.

NETTLE JA:

Following a trial before the County Court at Melbourne, on 31 July 2006 a jury found the appellant guilty of one count of affray (count 1) and not guilty of one count of recklessly engaging in conduct so as to place another person in danger of serious injury (count 2). On 18 August 2006, the judge fined the applicant $1,000 without conviction. The applicant now seeks leave to appeal against conviction on the grounds that the judge erred in rejecting a "no case" submission and that the verdict of guilty of affray is unsafe and unsatisfactory. In oral argument, the only ground of appeal which was pursued was the latter, namely, that the verdict was unsafe and unsatisfactory.

The case below

Before the jury, the Crown put its case of affray against the applicant on two bases. It contended that he was directly involved in the affray and, alternatively, that he had aided or abetted those who were involved in it. The evidence which was relied upon was in each case the same. It was summarised extensively by the trial judge in her charge, as follows:

“The evidence of Senior Constable Chapman was given first. He said that [he and Senior Constable Josephs] arrived at the scene at 11.09 on the night and observed people out the front, he estimated it was 70 to 80, and…Senior Constable Josephs, got out of the car and told him, Chapman, to call for back-up. And he, Chapman, was getting out of the passenger seat of the police car, he had a conversation with the accused, who had walked over to him, with blood on face, significant blood on his mouth. The accused was aggressive. He was very aggressive in body language and words. Then, according to Senior Constable Chapman, things go berserk. It was unlike anything he had seen before. Bottles were being thrown, windows being smashed.

Then he saw [Senior Constable Josephs] run down the road, easterly…chasing someone and about 20 people chased Constable Josephs, and he heard a threat to kill Josephs. He runs after Senior Constable Josephs to help him, and he is himself chased by a second wave of youths.
Once he catches up…

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 Tiburcy

Details

AGLC: R v Tiburcy [2007] VSCA 124
Case: [2007] VSCA 124
Decision Date: 12 June 2007

CaseChat Overview and Summary

The case of R v Tiburcy involved the appellant, Tiburcy, who was convicted of affray. The dispute was centred around the sufficiency of the evidence provided to the jury and whether the verdict was “unsafe and unsatisfactory.” The appeal was heard in the High Court of Australia. The appellant contested the verdict, arguing that it was not open to the jury to be satisfied beyond reasonable doubt as to his guilt.

The legal issues before the court were whether the verdict of the jury was indeed “unsafe and unsatisfactory” and if it was open to the jury to find the appellant guilty beyond reasonable doubt based on the evidence presented. The court was required to assess the sufficiency of the evidence and determine whether the jury's decision was legally sound. The appellant argued that the evidence was insufficient to support a conviction, while the Crown maintained that the evidence was adequate to allow the jury to reach a guilty verdict.

The court considered the nature of the evidence presented and the standard of proof required for a conviction. It was noted that the jury was entitled to draw inferences from the evidence, and the court must only intervene if the verdict is “unsafe and unsatisfactory.” The court found that the evidence, when viewed as a whole, did not support the conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The court concluded that the verdict was indeed “unsafe and unsatisfactory,” and therefore, the appeal was allowed.

The final orders of the court were to allow the appeal and quash the conviction of the appellant. The appellant was acquitted of the charge of affray. The court's decision emphasised the importance of ensuring that a conviction is supported by evidence that meets the standard of proof beyond reasonable doubt.

Orders