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36
Court of Criminal Appeal 18 August 2009

Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R

[2009] NSWCCA 202

Fraud & dishonestyTheft & property
CRIMINAL LAW CONVICTION APPEALS ROBBERY IN COMPANY OBTAINING VALUABLE THING BY DECEPTION APPEALS DISMISSED

Citation: Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202
Court: New South Wales Court of Criminal Appeal
Date: 18 August 2009
Judge(s): Basten JA, RS Hulme J, Johnson J

Background

Three co-appellants were convicted after a jury trial in the District Court of robbery in company under s 97(1) of the Crimes Act 1900. Two of the three appellants were also convicted on three counts each of obtaining a valuable thing by deception under s 178BA(1) of the same Act. The convictions arose from a joint criminal enterprise to rob a victim, and the subsequent fraudulent use of an American Express card to obtain motorcycle parts.

Williams DCJ sentenced each appellant in February 2008. The robbery convictions attracted non-parole periods of 18 months, with balance terms of 12 months. The deception convictions each attracted fixed terms of 12 months. No appeal against sentence was brought by any of the appellants.

All three appellants sought to challenge their convictions. They were represented by the same senior counsel at both trial and on appeal.

  • Whether the jury's verdicts on the robbery in company and obtaining by deception charges were unreasonable or could not be supported by the evidence.
  • Whether conduct by the Crown Prosecutor at trial caused a miscarriage of justice (ultimately abandoned at the hearing).
  • Whether the appellants required leave to appeal, given their ground raised a mixed question of fact and law rather than a question of law alone.

Decision

At the commencement of the hearing, counsel for the appellants informed the Court that only the first ground of appeal was being pressed: that the verdicts were unreasonable or could not be supported by the evidence. Because this ground involved a mixed question of fact and law rather than a question of law alone, all three appellants required leave to appeal under s 5(1) of the Criminal Appeal Act 1912, and leave was granted.

Johnson J (with whom Basten JA and Hulme J agreed) applied the established test: whether there was a significant possibility that an innocent person had been convicted. The Court examined the Crown evidence against each appellant and found it to be compelling. The evidence against Johnny Vella and Damien Vella connecting them to the fraudulent use of the American Express card by Rasic was also found to be strong.

The Court noted that minor inconsistencies among Crown witnesses were to be expected in the context of a sudden, violent incident involving multiple persons. The jury had the benefit of observing all witnesses, including the appellants themselves, whose evidence was described as implausible on critical issues. The accumulation of evidence was characterised as rendering the Crown case a strong one.

On the strength of the whole of the evidence, the Court concluded it had not been demonstrated that any verdict was unreasonable or unsupported by the evidence. The abandoned second ground concerning prosecutorial conduct was addressed briefly: even had it been pressed, the verdicts were a consequence of the jury accepting a strong Crown case and were not tainted by any conduct of the Crown Prosecutor.

Orders Made

  • Leave granted to each appellant to appeal against his convictions.
  • Appeal of Simon Rasic dismissed.
  • Appeal of Johnny Lee Vella dismissed.
  • Appeal of Damien Charles Vella dismissed.

Key Takeaways

  • A ground asserting that a jury verdict is unreasonable or cannot be supported by the evidence involves a mixed question of fact and law, not a question of law alone, and therefore requires leave to appeal under s 5(1) of the Criminal Appeal Act 1912.
  • In dismissing all three appeals, the Court of Criminal Appeal confirmed that the applicable test is whether there is a significant possibility that an innocent person has been convicted, assessed against the whole of the evidence at trial.
  • Minor inconsistencies in witness accounts of a sudden, violent incident do not, of themselves, render a verdict unreasonable; such variations are to be expected given the circumstances of the events.
  • Sufficient evidence existed to support the jury's satisfaction beyond reasonable doubt as to the guilt of each appellant, including on the deception charges connected to the fraudulent use of a credit card.
  • The Court's judgment includes pointed remarks about the filing of three near-identical sets of written submissions across the three appeals: the appropriate course, where the same counsel acts for multiple appellants on identical grounds, is a single document with targeted references to appellant-specific arguments.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Crimes Act 1900 (NSW), ss 97(1), 178BA(1)
- Evidence Act 1995 (NSW)

Cases
- Williams v The Queen [1986] HCA 88; 161 CLR 278
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- The Queen v Hillier [2007] HCA 13; 228 CLR 618
- The Queen v Keenan [2009] HCA 1; 83 ALJR 243
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220
- Yacoub v R [2008] NSWCCA 164
- Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
- Carlton v The Queen [2008] NSWCCA 244
- Burrell v R [2009] NSWCCA 193
- R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271
- Chahine v R [2006] NSWCCA 179
- BJR v R [2008] NSWCCA 43; 185 A Crim R 360
- Browne v Dunn (1893) 6 R 67
- R v Birks (1990) 19 NSWLR 677