Rossi v R - [2012] VSCA 228

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0268
GIOVANNI ROSSI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN, WEINBERG and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	13 August 2012
DATE OF JUDGMENT/ORDER:	21 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 228
JUDGMENT APPEALED FROM:	[2010] VSC 602 (Lasry J)

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CRIMINAL LAW – Intentionally causing serious injury – Flight from the scene of the crime – Consciousness of guilt – Failure of trial judge to tell a jury that there might be reasons for flight apart from consciousness of guilt – Failure to take all reasonable steps to find a witness and secure her attendance and accordingly it was not established that the witness was not available to give evidence pursuant to s 65 of the Evidence Act 2008 (Vic) – No substantial miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M D Stanton	Spicer Lawyers (Ms L Treasure)
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions (Ms B Barby)

BUCHANAN JA:

After a trial in the Supreme Court the appellant was found guilty by a jury on a charge of intentionally causing serious injury to Peter D’Amore. The appellant was acquitted on charges of attempted murder, attempted defensive homicide, recklessly causing serious injury and reckless conduct endangering life.

At the time when the offence was alleged to have been committed, Kim Emery had recently moved out of the victim’s house to live with the appellant. There were disputes between Ms Emery and Mr D’Amore as to items of property.

On 16 April 2009, Mr D’Amore went to the appellant’s house to discuss the collection of Ms Emery’s belongings from his house. An argument developed, which led to the appellant returning a mattress and other items of property to Mr D’Amore’s premises. Mr D’Amore threatened the appellant with a piece of wood and took fragile items belonging to Ms Emery to the appellant’s house and smashed them on the driveway.

The appellant approached Mr D’Amore’s house, carrying a bucket which contained diesel fuel and also carrying a blow torch. Mr D’Amore left his house to confront the appellant and threw a wooden plank towards the appellant’s feet. Mr D’Amore said that the appellant threw the diesel fuel over Mr D’Amore’s head and upper body and a fight ensued in which the appellant and Mr D’Amore exchanged punches and, as Mr D’Amore said, he slipped over.

As Mr D’Amore got up, he realised he was on fire, although he said he did not understand how that had come to occur. His hair, back, arm and some of his clothing was on fire. Mr D’Amore got into a shower to quench the flames and an ambulance arrived.

At the trial the appellant did not dispute that he had caused the injuries to Mr D’Amore or that the injuries were serious. The matters in issue were whether the appellant intentionally caused the injuries and whether he was acting…

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 Rossi v R

Details

AGLC: Rossi v The Queen [2012] VSCA 228
Case: [2012] VSCA 228
Decision Date: 21 September 2012

CaseChat Overview and Summary

Rossi was charged with intentionally causing serious injury to another person, and with fleeing the scene of the crime. The case was heard by the Victorian Court of Appeal. The primary issue before the court was whether the trial judge erred by not directing the jury that there could be reasons for the appellant's flight from the scene other than consciousness of guilt. Another issue was whether there was a failure to take all reasonable steps to find a witness, and therefore, it was not established that the witness was not available to give evidence pursuant to section 65 of the Evidence Act 2008 (Vic).

The court found that the trial judge did not err by not directing the jury that there could be reasons for the appellant's flight from the scene other than consciousness of guilt. The court held that there was no error in the trial judge's direction to the jury regarding flight from the scene, and that the judge was not obliged to give an additional direction. Furthermore, the court found that there was a failure to take all reasonable steps to find a witness, and therefore, it was not established that the witness was not available to give evidence. However, the court held that this error did not result in a substantial miscarriage of justice, and did not affect the safety of the appellant's conviction.

In conclusion, the Victorian Court of Appeal upheld the appellant's conviction and sentence, finding that there was no error in the trial judge's direction to the jury, and that any error in failing to establish the unavailability of a witness did not result in a substantial miscarriage of justice.

Orders