Citation: Fuge v R [2001] NSWCCA 208
Court: Court of Criminal Appeal, New South Wales
Date: 4 June 2001
Judge(s): Heydon JA; Wood CJ at CL; Sully J
Background
The appellant was convicted of being an accessory before the fact to an assault with intent to rob while armed with an offensive weapon. The underlying offence arose from a planned robbery at a fast food restaurant in Maitland, carried out by two co-offenders. The Crown case was that the appellant supplied materials used in the robbery, encouraged the offenders to proceed, and assisted in coordinating events before and after the attempt.
The principal offender had previously been employed at the targeted restaurant before being dismissed. The group had gathered at the appellant's home on the afternoon of the offence, where the robbery was planned. Although the attempt ultimately failed when the restaurant manager could not open the safe, the offenders had confronted staff at knifepoint.
New counsel, not involved at trial, sought leave to appeal against conviction on two grounds: that the jury should have been directed on a possible "claim of right" defence, and that the trial judge failed to give adequate directions regarding a witness's motive to lie.
Legal Issues
- Whether the trial judge was required to direct the jury on a possible "claim of right" defence, given that the principal offender had been dismissed from the restaurant and may have believed wages were owed to her.
- Whether the trial judge erred in failing to give specific directions to the jury about the risk of reasoning that the existence of a motive to lie proves fabrication, or reversing the onus of proof.
- Whether, in circumstances where neither ground was raised at trial, leave to appeal should be granted under Rule 4 of the Criminal Appeal Rules.
Decision
Ground 1: Claim of right direction
Wood CJ at CL confirmed the applicable legal principle: where a person genuinely believes they are entitled to money or property, taking that money in circumstances that would otherwise constitute robbery does not amount to that offence. The belief need not be reasonable or legally sound, but it must be genuine. The same principle extends to a person acting on behalf of, or in collaboration with, another whom they believe holds such a bona fide claim.
However, the duty to direct the jury on this defence only arises where the issue has been sufficiently raised by the evidence. In this case, the Court found it had not been. The possible motive was mentioned only in passing by one witness who dismissed it as a joke; the principal offender made no reference to a belief in a debt being owed; no particular sum was identified as corresponding to alleged arrears; and the trial was conducted entirely on the basis of whether the appellant had encouraged the offence. No direction was requested by trial counsel. The ground failed.
Ground 2: Motive to lie
The Court held that this was not a case where motive to lie was left as a central or prominent issue for the jury. The jury was not placed in a position where there was any real risk of reversing the onus of proof in connection with such motive. Where the issue arises only in passing, a specific additional direction is not inevitably required to prevent a miscarriage of justice. Clear and proper instructions on the onus of proof, which the trial judge had given, may suffice in such circumstances.
Rule 4 and the "armchair appeal" concern
Wood CJ at CL and Sully J both emphasised the importance of Rule 4 of the Criminal Appeal Rules, which requires that objections to the summing-up, or defects capable of being remedied at trial, be raised at the time of trial. The Court described this as a "classic armchair appeal," where counsel not present at trial had scrutinised the record in minute detail looking for error, without regard to how the trial was actually conducted. Leave was refused because the Court was not persuaded there was any risk of miscarriage of justice on either ground.
Heydon JA noted, separately, that the claim of right principle as it applies to alleged wage arrears is "astonishing" and that statements in intermediate appellate courts supporting it may warrant reconsideration in a suitable future case. Sully J agreed, going further to suggest that prompt legislative correction may be warranted rather than waiting for High Court consideration.
Orders Made
- Leave to appeal dismissed.
- Conviction and sentence confirmed.
Key Takeaways
- A claim of right defence to robbery requires a genuine belief in entitlement to the specific money or property taken. The belief need not be reasonable, but it must be more than a passing reference or dismissible suggestion in the evidence before a trial judge is obliged to direct the jury on it.
- Where a potential defence is not sufficiently raised on the evidence, and trial counsel did not seek a direction, the failure to give that direction will not ordinarily constitute a miscarriage of justice.
- Specific jury directions on motive to lie are not invariably required in every case. Where the issue arises only tangentially and the trial judge has given clear directions on the onus of proof, the absence of a further specific direction may not produce a miscarriage of justice.
- Rule 4 of the Criminal Appeal Rules is not a mere technicality. The Court of Criminal Appeal confirmed that it performs a significant function in the criminal trial process, and leave will not readily be granted where grounds were not raised at trial and no miscarriage of justice is demonstrated.
- Both Heydon JA and Sully J flagged, without deciding, that the extension of the claim of right defence to scenarios such as recovering alleged wage arrears by force may warrant future reconsideration, either judicially or by legislative intervention.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules, Rule 4
Cases
- Pemble (1971) 124 CLR 118
- Walden v Hensler (1987) 163 CLR 561
- Papakosmas (1999) 196 CLR 297
- Jovanovic (1997) 42 NSWLR 520
- Abusafiah (1991) 24 NSWLR 531
- Palmer (1998) 72 ALJR 254
- Sanders 57 SASR 102
- Langham (1984) 36 SASR 48
- Lopatta (1983) 35 SASR 101
- Nundah (1916) 16 SR (NSW) 482
- Bernhard (1938) 2 QB 264
- Kastratovic (1985) A Crim R 28
- Astor v Hayes (1998) 38 A Crim R 219
- Stokes v Difford (1990) 51 A Crim R 25
- Mahoney (2000) 114 A Crim R 130
- Uhrig, NSWCCA, October 1996
- Smith (2000) NSWCCA 468
- Sanderson, NSWCCA, 18 July 1994
- DH (2000) NSWCCA 360