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Court of Criminal Appeal 31 July 2015

Dicianni v R; Pintabona v R

[2015] NSWCCA 201

HomicidePublic order & justice offences
CRIMINAL LAW DICIANNI CONVICTION APPEAL TWO MURDER OFFENCES STRONG CROWN CIRCUMSTANTIAL CASE MOTIVE

Citation: Dicianni v R; Pintabona v R [2015] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 31 July 2015
Judge(s): Hoeben CJ at CL; Price J; Davies J

Background

Two applicants challenged their convictions and sentences following a 2013 jury trial before RS Hulme AJ. The first applicant was convicted by majority verdict of two counts of murder. The deceased were brothers who were stabbed to death in their Rozelle home in May 2009. The Crown alleged the killings were motivated by a long-running and bitter business dispute.

The second applicant was the first applicant's partner. The trial judge directed verdicts of not guilty against her on the two murder charges at the close of the Crown case. However, the jury returned majority guilty verdicts on two accessory-after-the-fact charges, on the basis that she drove the first applicant from the murder scene and later provided police with a false alibi on his behalf.

Both applicants sought leave to appeal against conviction and sentence. The first applicant received an overall non-parole period of 30 years. The second applicant received an overall non-parole period of 3 years with a balance of term of 1 year.

  • Whether the jury's verdicts against both applicants were unreasonable or unsupported by the evidence (under s 6(1) of the Criminal Appeal Act 1912 (NSW))
  • Whether the second applicant's police statements from June and July 2009 were properly admitted into evidence
  • Whether the first applicant's sentences were manifestly excessive
  • Whether the second applicant's sentences were manifestly excessive, particularly in light of the principle of totality

Decision

Conviction appeals. The Court dismissed both conviction appeals. On the unreasonable verdict ground, the Court applied the well-established test requiring it to examine the whole of the evidence and determine whether any reasonable jury, properly directed, could have been satisfied beyond reasonable doubt of guilt. The Crown case was strongly circumstantial: it included DNA evidence on a scarf found at the scene, a trail of bloodied footprints leading to a kerbside consistent with entry into a waiting vehicle, the second applicant's false alibi statement, the first applicant's urgent arrangements to leave Australia within days of the murders, and his subsequent flight and extradition. The Court found it was open to the jury to be satisfied beyond reasonable doubt on all counts.

Admissibility of statements. The Court rejected the ground that the second applicant's police statements from 17 June 2009 and 20 July 2009 were wrongly admitted. No error was established in the trial judge's ruling on admissibility.

First applicant's sentence appeal. The Court dismissed this appeal, finding no identifiable error in the sentencing exercise and no basis to conclude the sentences were manifestly excessive for two premeditated murders involving a disguise and prolonged physical violence.

Second applicant's sentence appeal. This appeal succeeded. The Court found error in the sentencing judge's approach to accumulation and totality. The second applicant's criminality consisted of a single act: the false alibi statement she gave to police on 17 June 2009. Although that one statement covered two murders, the Court reasoned that her conduct as accessory differed fundamentally from the principal offender's commission of two separate killings. The Court accepted that some degree of accumulation was appropriate, but concluded that an overall non-parole period of 3 years was plainly unjust given the nature of her involvement, the emotional context of her relationship with the principal offender, and the principle from R v Dileski that such conduct often reflects emotional dependence or misguided loyalty rather than independent criminality.

Orders Made

  • Leave to appeal against conviction granted to both applicants; both conviction appeals dismissed.
  • Leave to appeal against sentence granted to the first applicant; sentence appeal dismissed.
  • Leave to appeal against sentence granted to the second applicant; sentence appeal allowed.
  • The second applicant's sentence of 13 September 2013 was quashed and replaced as follows:
  • Accessory after the fact to the murder of Mario Frisoli: non-parole period of 2 years commencing 13 March 2013, expiring 12 March 2015, with an additional term of 12 months expiring 12 March 2016.
  • Accessory after the fact to the murder of Albert Frisoli: non-parole period of 2 years commencing 13 June 2013, expiring 12 June 2015, with an additional term of 12 months expiring 12 June 2016.
  • The second applicant was directed to be released to parole forthwith.

Key Takeaways

  • A strong Crown circumstantial case, including DNA evidence, a flight from jurisdiction, and a false alibi, can support jury verdicts of guilty on murder charges beyond reasonable doubt even in the absence of direct eyewitness testimony identifying the killer.
  • The Court of Criminal Appeal confirmed that the test for an unreasonable verdict requires the appellate court to examine all the evidence and assess whether a reasonable jury could have reached the verdict, not merely whether some evidence supported it.
  • Where an accessory after the fact commits a single act of assistance that happens to cover two related murders committed in the same episode by the principal offender, treating the two offences as substantially separate for accumulation purposes may produce a result that is plainly unjust on totality grounds.
  • In sentencing accessories after the fact, courts have recognised that conduct arising from emotional attachment or dependence on the principal offender is a relevant mitigating consideration, consistent with R v Dileski.
  • No error was established in the first applicant's sentences; the overall 30-year non-parole period for two premeditated murders was upheld as within the appropriate range.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 281

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- House v R [1936] HCA 40; 55 CLR 499
- M v R [1994] HCA 63; 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Mallet v Mallet [1984] HCA 21; 156 CLR 605
- McKenzie v R [1996] HCA 35; 190 CLR 348
- R v Dileski [2002] NSWCCA 345; 1323 A Crim R 408
- R v Hillier [2007] HCA 13; 228 CLR 618
- R v Tan Do (Unreported, Court of Criminal Appeal, 7 May 1997)
- R v Taouk [2005] NSWCCA 155; 154 A Crim R 69
- R v Ward [2004] NSWSC 420
- R v XX [2009] NSWCCA 115; 195 A Crim R 38
- SKA v R [2011] HCA 13; 243 CLR 400
- Shepherd v R [1990] HCA 56; 170 CLR 573
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460