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Court of Criminal Appeal 22 December 2009

MIFSUD, Michael Charles v R

[2009] NSWCCA 313

Theft & property
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES ROBBERY IN COMPANY CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: MIFSUD, Michael Charles v R [2009] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 22 December 2009
Judge(s): McClellan CJ at CL, Simpson J, Hidden J

Background

The appellant was tried in the District Court on a charge of robbery in company. The Crown alleged that he and two younger associates entered a home unit in Potts Point late at night, assaulted the occupant in the course of which a wallet was stolen, and caused significant property damage. The appellant was arrested nearby shortly after the incident, and the victim's wallet was found in his pocket.

The appellant's case at trial included the possibility that the wallet had been taken by one of the other men without his knowledge, and that its presence in his pocket was explained by one of those men handing it to him as police approached. The jury returned a guilty verdict on the robbery in company charge after asking a question that revealed they were considering whether the violence and the taking of the wallet were connected events.

The appellant appealed against conviction and sought leave to appeal against sentence. The primary ground pursued on appeal was that the trial judge had misdirected the jury by failing to leave larceny as an available alternative verdict.

  • Whether the trial judge erred by not directing the jury that larceny was an available alternative verdict to robbery in company.
  • Whether a conviction for larceny would have been a viable and rational outcome on the evidence.
  • Whether larceny was "comparatively trifling and remote" from the principal charge, such that the alternative need not have been left.
  • Whether various other alleged misdirections and procedural fairness complaints warranted intervention (considered unnecessary to resolve given the outcome on the primary ground).

Decision

Simpson J, with whom McClellan CJ at CL and Hidden J agreed, identified the critical issue as whether the trial judge ought to have left larceny to the jury as an alternative verdict. The court applied the principles established in R v King [2004] NSWCCA 20, which confirmed that where a serious offence is charged and the evidence makes a conviction for a lesser alternative a viable and rational outcome, that alternative should ordinarily be left to the jury.

The court considered the evidence in detail and concluded that it was open to the jury to find that the taking of the wallet was a discrete act, separate from the earlier violence in the unit. The jury's own question during deliberations demonstrated they were actively considering precisely this possibility, namely whether opportunistic taking of a wallet could constitute robbery where the violence had occurred for a different reason.

Applying the King framework, the court found that a larceny verdict would not have been fanciful, would have represented a viable and rational outcome, and was not comparatively trifling or remote from the real issue in the case. The failure to leave that alternative accordingly constituted a material misdirection.

Because the conviction was quashed on this ground, the court found it unnecessary to address the remaining grounds of appeal, including the sentence appeal.

Orders Made

  • Appeal allowed.
  • Conviction quashed.
  • A new trial be held.

Key Takeaways

  • Where the evidence at trial makes a conviction for a lesser alternative offence a viable and rational outcome, the trial judge is ordinarily required to leave that alternative to the jury, even if it is not requested by either party.
  • A jury's question during deliberations can itself demonstrate that a lesser alternative verdict was live on the evidence, strengthening any ground of appeal based on failure to leave that alternative.
  • The principle confirmed in R v King [2004] NSWCCA 20 applies broadly to serious offences with available lesser alternatives, not only to murder and manslaughter cases.
  • Larceny is not "comparatively trifling or remote" in the context of a robbery in company charge where the gravamen of the contested issue is whether the taking of property was connected to the accompanying violence.
  • Establishing that an alternative verdict should have been left, and was not, will ordinarily be sufficient to quash a conviction and order a new trial, without the need to resolve other grounds of appeal.

Legislation and Cases Referenced

Cases:
- R v King [2004] NSWCCA 20; (2004) 59 NSWLR 515
- R v Taleb [2006] NSWCCA 119 (referenced in grounds of appeal)
- R v Meher [2004] NSWCCA 355 (referenced in grounds of appeal)
- Ryan v The Queen (2001) 206 CLR 267 (referenced in sentence appeal ground)
- R v Johnson [2004] NSWCCA 76 (referenced in sentence appeal ground)
- Osenkowski (1982) 5 A Crim R 394 (referenced in sentence appeal ground)
- R v McIntyre 111 A Crim R 211 (referenced in grounds of appeal)