R v Fuge [2001] NSWCCA 208

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Fuge [2001] NSWCCA 208 Hearing dates: 22 May 2001 Decision date: 04 June 2001 Before: Heydon JA at 1; Wood CJ at CL at 3; Sully J at 48 Decision: (1) Leave to appeal dismissed.; (2) Conviction and sentence confirmed. Catchwords: CRIMINAL LAW - appeal - leave to appeal against conviction - accessory after the fact - assault with intent to rob with an offensive weapon - failure to direct jury as to possible defence of claim of right - motive to lie - R4 Criminal Appeal Rules - no miscarriage of justice Legislation Cited: Criminal Appeal Act 1912 Category: Principal judgment Parties: Regina Renee Julie Fuge Representation: Counsel: T. Golding (Applicant) C. Maxwell QC (Crown)

Solicitors: D J Humphreys S E O'Connor File Number(s): CCA 60815/00 Decision under appeal Court or tribunal: District Court Before: Coolahan DCJ File Number(s): 99/31/0065

REGINA v RENEE JULIE FUGE The appellant was convicted of being an accessory before the fact to an offence of assault with intent to rob while armed with an offensive weapon. The appellant seeks leave to appeal against conviction on the grounds that (1) the jury should have been directed as to a possible defence of claim of right; (2) his Honour erred in failing to give appropriate directions with regard to motive to lie. Held: (Dismissing the appeal): Ground 1: jury should have been directed as to possible defence of claim of right 1. Had the principal to the foundational offence held a genuine belief that she was entitled to a certain sum of money, then the taking of that sum, in circumstances which would otherwise involve robbery, would not constitute such an offence. Such a belief does not have to be reasonable or grounded in law or fact, but it must be genuine. The same principle extends to any person who takes property on behalf of another, or in collaboration with another, whom he or she believes has a bona fide claim of right to the money or property in question. Sanders 57 SASR 102; Langham (1984) 36 SASR 48; Nundah (1916) 16 SR (NSW) 482; Bernhard (1938) 2 QB 264; Lopatta (1983) 35 SASR 101; Walden v Hensler (1987) 163 CLR 561;Kastratovic (1985) A Crim R 28; Astor v Hayes (1998) 38 A Crim R 219 applied. 2. Had the issue been sufficiently raised by the evidence as to whether the principal offender had a bona fide belief in money owed to her, a direction would have been required. The obligation to give a direction would have continued even though counsel had overlooked requesting it or refrained from seeking it out of concern that it may disadvantage a case of outright denial. Pemble (1971) 124 CLR 118; Stokes v Difford (1990) 51 A Crim R 25 applied. 3. In the present case, the issue was not sufficiently raised by the evidence. The possibility of a motive for the robbery was mentioned only in passing by one of the witnesses who dismissed it as a joke; the principal offender made no mention of a belief in a claim of right, or having mentioned this to anyone else; no mention was made of a particular sum being taken to satisfy the debt; the appellant made no mention of hearing such a claim; there was no attempt by trial counsel to explain the issue or request a direction and the case was fought on the single issue of whether the appellant had encouraged the offence. Ground 2: motive to lie 4. This was not a case where the issue of motive was left as a central or prominent issue, or as a proper question to ponder. The jury were not left in a position where there was any tangible possibility of them considering that there had been a reversal of the onus of proof in relation to the existence of a motive to lie. There was not an implicit invitation to embark on the prohibited line of reasoning as identified in Jovanovic and Palmer. 5. While there are cases where it is appropriate for the additional caution to be given, it is not inevitably the case that its omission will give rise to a miscarriage of justice. Where the evidence of a possible motive comes from another witness or where the matter arises in some half-hearted way, in passing, then the need for the additional direction will not be so compelling. In such a case it may well be sufficient if the jury has been properly and fairly instructed that the appellant does not have to prove his or her innocence and that they ought not to speculate on matters not established by the evidence. In the present case his Honour gave very clear instructions on the onus of proof. Jovanovic (1997) 42 NSWLR 520; Palmer (1998) 72 ALJR 254 distinguished. Uhrig NSWCCA October 1996; Smith (2000) NSWCCA 468 applied. 6. This is a classic example of an 'armchair appeal', in which counsel not involved at trial, appears to have gone through the record in minute detail looking for error, without reference to the manner in which the trial was conducted. The requirements of rule 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at trial, be raised at the time of trial. Abusafiah (1991) 24 NSWLR 531; Sanderson NSWCCA 18 July 1994; Mahoney (2000) 114 A Crim R 130; DH (2000) NSWCCA 360 considered.