R v Rugari [2001] NSWCCA 64

Reported Decision : 122 A Crim R 1

New South Wales Court of Criminal Appeal

CITATION : R v Rugari [2001] NSWCCA 64 revised - 1/04/2014 FILE NUMBER(S) : CCA 60345/99 HEARING DATE(S) : 9 March 2001 JUDGMENT DATE : 9 March 2001

PARTIES : Regina v Rugari JUDGMENT OF : Spigelman CJ at 67; Sperling J at 1; Carruthers AJ at 68

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/3067 LOWER COURT JUDICIAL Ford AJ OFFICER :

COUNSEL : P. Strickland (Appellant) M. Grogan (Respondent) SOLICITORS : D. J. Humphreys (Appellant) S. E. O'Connor (Respondent) CATCHWORDS : Appeal against conviction - conduct of Crown Prosecutor - whether closing address by Prosecutor contained inappropriate and prejudicial comments - whether possibility that trial miscarried as a consequence. LEGISLATION CITED : Crimes Act 1900 Browne v Dunn (1894)6 The Reports 67 Moss v Brown [1979] 1 NSWLR Ratten v The Queen (1974) 131 CLR 510 R v Birks (1990) 19 NSWLR 677 CASES CITED: R v Kennedy [2000] NSWCCA487 R v Kneebone (1998-1999) 47 NSWLR 450 R v McCullough (1982) 6 A Crim R 274 R v MRW (1999) 113 A Crim R 308 R v Roulston [1976] 2 NZLR 644 R v Walton [1999] NSWCCA 452 DECISION : See paragraph 63

- 22 -1 CARRUTHERS AJ: Mario Anthony Rugari appeals from his conviction on 4 June 1999 on one count of maliciously wounding Susan Trevor on 31 October 1997 at Miranda in this State contrary to s 35(a) of the Crimes Act 1900, as amended. 2 His Honour, Acting Judge Ford QC, who presided over the trial, sentenced the appellant on 4 June 1999 to imprisonment for 4 years from 25 March 1999 and expiring on 24 March 2003. His Honour fixed a non-parole period of 3 years commencing on 25 March 1999 and expiring on 24 March 2002. In the event that the appeal against his conviction is dismissed, the appellant seeks leave to appeal against sentence. The Notice of Appeal was filed on 24 June 1999. Amended Grounds of Appeal were filed on 27 February 2001. 3 The two original grounds for appeal were firstly, his Honour erred in failing to discharge the jury following the address of the Crown Prosecutor. Secondly, his Honour erred in that he failed to give appropriate directions to the jury to cure inappropriate and unfair comments made by the Crown Prosecutor in his address to the jury. The Amended Grounds of Appeal merely express these Grounds in a different form. 4 As I have indicated, the alleged victim is Ms Susan Trevor who, according to the Crown case, had an ongoing intimate relationship with the appellant which involved her staying at times at his home at Miranda. She was in fact residing in the appellant's home on 30 October 1997 on which evening she and the appellant went to a nightclub at Gymea, accompanied by Ms Shirley Mullane and Mr Peter Doy. 5 During the evening, the complainant danced with an old boyfriend which, according to the Crown case, made the appellant jealous. The appellant left the nightclub without saying goodbye to the complainant or the other two persons. At about 2.30am on 31 October 1997 the complainant and Ms Shirley Mullane and Mr Peter Doy returned to the appellant's home. 6 The complainant observed that the appellant had put her clothing in a number of garbage bags and left them outside his home. 7 The complainant deposed that she went into the kitchen to recover beer in the refrigerator which she claimed belonged to her. She said that after she entered the home the appellant told her: "Fuck off, get out of here".