Rogers and Rogers v The Queen

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2009 0973

ADAM CHARLES ROGERS

Applicant

v  

THE QUEEN

Respondent

and   

S APCR 2009 0984

PHILLIP WALKER ROGERS

Applicant

v

THE QUEEN

Respondent

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JUDGES:

BUCHANAN and MANDIE JJA, WHELAN AJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

13 September 2011

DATE OF JUDGMENT:

9 December 2011

MEDIUM NEUTRAL CITATION:

[2011] VSCA 412

JUDGMENT APPEALED FROM:

R v Adam Charles Rogers and Phillip Walker Rogers (Unreported County Court Judge Duckett, Date of Conviction: 28 August 2009);  R v Adam Charles Rogers and Phillip Walker Rogers (Unreported, County Court, Judge Duckett, Date of Sentence: 16 December 2009)

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CRIMINAL LAW – Armed robbery –Whether jury verdict was unreasonable and could not be supported by the evidence

CRIMINAL LAW – Evidence – False denials in police interview – Whether failure to give Zoneff direction productive of miscarriage of justice

CRIMINAL LAW – Evidence – Guilty pleas – Whether failure to give propensity direction productive of miscarriage of justice

CRIMINAL LAW – Evidence – flight – Consciousness of guilt – multiple count presentment – Whether evidence of flight from police capable of being probative with respect to any of the charged offences – Directions to jury – R v Ciantar (2006) 16 VR 26 applied – Leave granted – Retrial ordered.

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APPEARANCES: Counsel Solicitors
For the Applicant
Adam Charles Rogers
Mr G M Hughan Robert Stary Lawyers
For the Applicant
Phillip Walker Rogers
Mr C B Boyce Leanne Warren & Associates
For the Crown Ms C Quinn Ms J Powell, Solicitor for Public Prosecutions

BUCHANAN JA:

  1. I agree with Mandie JA.

MANDIE JA:

Introduction

  1. The applicant Adam Charles Rogers (‘AR’)[1] seeks leave to appeal against a number of convictions by a County Court jury and, if the convictions are sustained, seeks leave to appeal against sentence.  The applicant Phillip Walker Rogers (‘PR’), who is the younger brother of AR[2], likewise seeks to appeal against conviction and sentence.  All of the convictions (apart from a conviction of AR for dishonestly handling stolen goods) related to events that occurred on 15 August 2007.

    [1]AR was born on 2 June 1977.

    [2]PR was born on 10 January 1980.

  1. The relevant charges against the applicants may be summarised as follows:

On Presentment No C0705897.2

PR was charged with possession of heroin

On Presentment No C0705897.4

Count 1: AR was charged with theft of Ford Falcon BXP 427 the property of Daryl Campbell

Count 2: PR and AR were charged with armed robbery (by way of a knife) at Australia Post, Blackburn (‘the Australia Post robbery’)

Count 3: PR was charged with armed robbery (by way of a knife) at Middleborough Cellars, Box Hill South (‘the Middleborough Cellars robbery’)

Count 4: PR and AR were charged with armed robbery (by way of a knife) at ‘Video Ezy’, Montrose (‘the Video Ezy robbery’)

On Presentment No C0705897.5

Count 1: AR was charged with the theft of Ford Falcon OVX 414, the property of Carmine Cervini

Count 2: AR was charged…

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Details
Case
[2011] VSCA 412
Decision Date

CaseChat Overview and Summary

Rogers and Rogers were convicted in the Supreme Court of Victoria of multiple counts of armed robbery, and they appealed against their convictions to the Court of Appeal of the Supreme Court of Victoria. The appellants challenged the sufficiency of the evidence to support the jury’s verdicts, the trial judge’s failure to give a Zoneff direction concerning the appellants’ false denials during police interviews, and the failure to give a propensity direction in relation to the appellants’ guilty pleas. The appellants also argued that evidence of flight was inadmissible because it did not relate to any of the charged offences and that the trial judge’s directions to the jury concerning the flight evidence were incorrect.

The court considered whether the jury’s verdicts were unreasonable and not supported by the evidence, whether the failure to give a Zoneff direction was a miscarriage of justice, and whether the failure to give a propensity direction was a miscarriage of justice. The court also examined the admissibility of flight evidence in this case, and the correctness of the trial judge’s directions to the jury concerning the flight evidence.

The court found that the jury’s verdicts were open on the evidence, and that the failure to give a Zoneff direction was not a miscarriage of justice. The court found, however, that the failure to give a propensity direction in relation to the appellants’ guilty pleas was a miscarriage of justice. The court also found that evidence of flight was capable of being probative with respect to at least some of the charged offences, and that the trial judge’s directions to the jury concerning the flight evidence were inadequate. The court concluded that the errors were not isolated or minor, but rather cumulative, and therefore a retrial was required.

The court allowed the appeals, quashed the convictions and orders of the trial judge, and ordered a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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