Rogers and Rogers v The Queen - [2011] VSCA 412

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:

I agree with Mandie JA.

MANDIE JA:

Introduction

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.

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…

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.

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Details

Case: [2011] VSCA 412
Decision Date: 9 December 2011

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