Ali v the Queen
[2010] VSCA 182
•12 July 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0774 |
| ALI ALI |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN, REDLICH and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 July 2010 | |
DATE OF JUDGMENT: | 12 July 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 182 | |
JUDGMENT APPEALED FROM: | R v Ali, [2007] VSC 350, Curtain J | |
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CRIMINAL LAW – Intentionally causing serious injury – Assault in prison – Whether evidence of fellow prisoner should have been excluded as rendering the trial unfair – Trial judge’s directions as to fellow prisoner’s evidence sufficient to warn jury of its dangers – Evidence of witness in a previous trial admitted pursuant to s 55AC of the Evidence Act 1958 (Vic) – Consciousness of guilt evidence did not invite circular reasoning.
CRIMINAL LAW – Sentence – Remorse and rehabilitation – Sentence of 15 years’ imprisonment with a minimum term of 12 years’ imprisonment not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G J C Silbert, SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr S R Johns | Leanne Warren & Assocs |
BUCHANAN JA:
After a trial in the Supreme Court, the applicant was convicted on a count of intentionally causing serious injury. The applicant was sentenced to be imprisoned for a term of 15 years and it was ordered that he serve a term of 12 years’ imprisonment before he was to be eligible for parole.
The applicant seeks leave to appeal against the conviction and the sentence.
The applicant had been convicted on the same charge at the conclusion of two earlier trials. Those convictions were set aside on appeal.
The offence was alleged to have been committed on 29 April 1999 in a cell in the Melbourne Custody Centre. The victim was one Michael Tully. Both the applicant and Tully were in custody on remand.
There were 12 prisoners in the cell, which was quite small, measuring 3.7 metres by 3.1 metres. Benches lined two sides of the cell. A closed circuit camera was fixed in the ceiling.
At the applicant’s trial, evidence as to the events that took place in the cell was given by, inter alia, custody officers employed at the Centre and seven of the prisoners in the cell.
According to the evidence called by the Crown, Michael Tully suffered from a mental illness and had a simple manner. The applicant began harassing Michael Tully. Tully appeared to be scared. The applicant had formed the view that Tully was a paedophile. The applicant spat upon Tully and verbally abused him.
When lunch was brought to the cell, the custody officer responsible for distributing the lunches looked through the window of the cell door and saw the applicant in the process of commencing a kicking motion. He did not see the kick connect, but he called the applicant out of the cell, reprimanded him and extracted an assurance that he would behave himself. The applicant was returned to the cell.
After he returned to the cell, the applicant continued goading Michael Tully, calling him a ‘tamperer’. Other prisoners remonstrated with the applicant, without any success. The applicant took a sticker from a lunch box and told another prisoner to use it to cover the camera in the ceiling.
When that was done, the applicant began to assault Tully. The applicant punched or kicked Tully, who fell sideways on to the bench. One witness described the applicant as jumping on Tully’s head five or six times, another said the applicant stomped on Tully’s head with his foot, another said that the applicant jumped on Tully’s head with both feet, and yet another that the applicant stomped on Tully probably a dozen times. As a consequence of the attack, Tully became unconscious, bleeding from the mouth and nose and making grunting or snorting noises.
Evidence was given that the applicant either wiped his shoes with coffee or washed them in water from the basin in the cell. He told the other prisoners that no-one had seen anything.
When a custody officer discovered Tully, the applicant suggested that he had had a fit.
Michael Tully was taken to hospital but he did not regain consciousness for 13 days. A neurosurgeon gave evidence that he suffered a fractured skull with a blood clot in the surface of his brain. Tully was subsequently taken to a nursing home. He was unable to care for himself in any way. He was not able to walk and was completely dependent on others for his needs. Tully died on 2 August 2002.
Later in the afternoon a detective took possession of the applicant’s shoes and clothing. He noticed that the applicant’s shoes were damp and there was a red stain on one of the applicant’s socks. The applicant’s sock, shoe and tracksuit pants were subjected to forensic analysis. DNA testing revealed that blood on each of the items of clothing was 830 billion times more likely to be that of Mr Tully than any other person within the Victorian Caucasian community.
The applicant did not give evidence and no evidence was called on his behalf.
There are six grounds of the application for leave to appeal against conviction. The first two grounds of the application related to the evidence of Francis Richmiller, one of the prisoners in the cell when the victim was assaulted. The grounds are as follows:
1.The trial miscarried by reason of the learned trial judge’s failure to exercise her discretion to exclude the evidence of the witness Richmiller in circumstances where:
(a)the witness was an unindemnified witness;
(b)the witness’ evidence necessarily involved admissions on oath as to the offence of perjury;
(c)these facts together with the history of his evidence, his criminal history and its circumstances rendered his evidence wholly unreliable;
(d)it was oppressive to the applicant and unfair on his trial to admit the evidence given the delay and evolution of Richmiller’s deposition over the course of three trials during the period of delay.
2.The trial miscarried due to the learned trial judge’s inadequate warning in respect of the witness Richmiller, in particular but not limited to:
(a)failing to draw the jury’s attention to Richmiller being unindemnified for the offence of perjury and the reasons why that makes his evidence potentially unreliable;
(b)failing to warn the jury that Richmiller’s evidence is inherently unreliable due to his history.
Richmiller gave evidence that Michael Tully ‘wasn’t all there … He was vulnerable … ‘. The applicant told Richmiller that Tully was a ‘rock spider’, that is, a child molester. The applicant spoke to Tully. Richmiller said that Tully was ‘just telling him what he wanted to hear’ and that Tully appeared to be ‘scared, fearful’.
Richmiller said that he saw Tully lying on the bench in the cell in a foetal position and Ali stomping on his head ‘probably about a dozen times’. The applicant was ‘using one leg up and with enforced vigour’. The applicant’s ‘face was contorted, screwed up with just pure violence as he was doing it and the bloke was laying there helpless. He had done nothing to deserve it.’ No other person attacked Tully. Richmiller said that after the attack, the applicant put his foot in the sink, trying to wash the blood away.
In cross-examination, Richmiller said that he was a heroin addict and had spent a significant part of his adult life in jail. He said that he had made a statement to the police in which he said that he did not know how Michael Tully was injured, for he was reading a book at the time and did not see anything. During the first trial of the applicant Richmiller gave evidence in accordance with that statement. In 2006 he made another statement to a solicitor acting for the applicant saying that the applicant could not have attacked the victim as he was sitting next to Richmiller at the time. He conceded that the statements and the evidence he gave at the first trial amounted to perjury.
At the trial, counsel for the applicant sought to exclude Richmiller’s evidence. The application was refused.
Counsel for the applicant submitted that Richmiller’s evidence should have been excluded in the exercise of the Christie discretion[1] or in the exercise of a residual discretion to reject any evidence on the ground that to receive it would be unfair to the applicant in the sense that the trial would be unfair.[2] It was contended that Richmiller’s evidence was inherently unreliable and unfair to the applicant by reason of his earlier inconsistent testimony, his admissions of perjury, his extensive criminal history and periods of imprisonment and the corrupting effect of conversations between Richmiller and the informant. The unfairness to the applicant was heightened, so it was said, by the implication that Richmiller was courageous in coming forward to give evidence, the implication that it was the level of violence exhibited by the applicant which caused Richmiller to give evidence, the suggestion that associates of the applicant prevailed upon Richmiller to exculpate the applicant and the suggestion that the applicant had the necessary propensity for the level of violence exhibited in the assault upon Tully. Counsel submitted that the fact that Richmiller was not indemnified created a danger of unreliability and said that the prosecution was asking the jury to determine which of Richmiller’s various statements was true.
[1]R v Christie [1914] AC 545.
[2]Rozenes v Beljajev [1995] 1 VR 533; R v Peirce [1992] 1 VR 273; R v McLean & Funk [1991] 1 Qd R 231.
In Rozenes v Beljajev the Court described the residual discretion in these terms:
The proposition must be accepted that there is a discretion in a criminal case to reject any evidence, whether or not a confession, on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. So much must be accepted both on principle and by reason of the authorities. It would be wrong to regard as exhaustive the two particular discretions (that relating to probative value and prejudicial effect and that established by Bunning v Cross) put forward by the Attorney-General in McLean & Funk as the only discretions available for the exclusion of evidence other than confessional evidence. … But … once it is accepted that this proposition does not commit to the judge a broad and undefined discretion to determine what is in all the circumstances fair, but requires the judge to consider whether the reception of the evidence will make the trial unfair, it becomes difficult to think of a set of circumstances which might give rise to the discretion in cases where it is not suggested that there is a disproportion between the probative value of the evidence and prejudicial effect. In particular, as Carter J observed in McLean & Funk, it is difficult to see how it can be said that the trial is unfair by reason of the unreliability of evidence which is probative where the circumstances which make the evidence unreliable are properly exposed to the consideration of the jury.
In the present case, each of the matters relied upon by the applicant was exposed for the consideration of the jury. The past inconsistent statements made by Richmiller and his criminal history, which were emphasised by counsel for the applicant, were not so unusual that they were not capable of being properly weighed by the jury in their assessment of the credibility of Richmiller’s testimony. The evolution of Richmiller’s account was well ventilated at the trial. The nature of the offence, an assault in prison, and the fact that the witness was a prisoner, provided a context and an explanation for Richmiller’s changed evidence, which the jury could assess.
The fact that Richmiller was not indemnified by the Crown was hardly relevant. A witness who has not been indemnified may pose some risk in respect of the reliability of the witness’ evidence touching on offending in which the witness is said to have been complicit. The same risk does not attend the evidence of a witness who is not indemnified in respect of unrelated offending.
As to the various accounts given by Richmiller, the Crown’s position at the trial was that his final statement was true. The jury were not invited to work out which of the various accounts given by Richmiller was true.
In my opinion there is nothing unfair or oppressive in calling evidence from an eye witness to a crime. The fact that Richmiller did observe the assault was not in dispute. Of course Richmiller’s testimony was prejudicial to the applicant for, if accepted, it proved the commission of the offence. In my opinion the evidence was not otherwise significantly prejudicial to the applicant. Any prejudicial effect it did have was far outweighed by its probative value.
Pursuant to the second ground, counsel for the applicant submitted that the trial judge’s instructions to the jury in respect of Richmiller were deficient in that her Honour failed to draw to the jury’s attention the fact that Richmiller was not indemnified in respect of the offences of perjury and attempting to pervert the course of justice and that Richmiller’s evidence was inherently unreliable.
In her charge, the trial judge warned the jury of the dangers attending evidence by prisoners. She said that the experience of the law was that their evidence was frequently unreliable as a consequence of their offending, that they might wish to protect themselves by minimising the extent of their own involvement in the commission of any crime and shifting the blame wholly and partly to others. Accordingly, her Honour directed the jury that they need to very carefully scrutinise the evidence of each of the witnesses who was a prisoner, and their evidence should only be accepted once it had been subjected to thorough and subjective scrutiny and the jury were satisfied that it was accurate, truthful and reliable. Her Honour referred to Richmiller’s circumstances, reminding the jury that he had been a drug addict, had admitted making statements to the police and giving evidence which was false. The jury were to take into account the fact that he was an admitted perjurer in considering the reliability and credibility of his evidence.
In my opinion, the directions given by the trial judge to the jury were sufficient to meet the dangers posed by Richmiller’s evidence. The fact that the trial judge did not refer to Richmiller being a witness who had not been indemnified, in my view, would not have caused a miscarriage of justice. It was not suggested that Richmiller was complicit in the criminal offence as to which he was giving evidence. In a sense, Richmiller had an incentive not to inculpate the applicant in the commission of the crime, for in doing so Richmiller exposed himself to the consequences of perjury.
It is hardly surprising that no exception was taken to the directions given by the trial judge in respect of Richmiller’s evidence.[3]
[3]Exception was taken to a point relating to corroboration, but there was no exception to the substance of her Honour’s warning.
Ground 3 of the application is that the trial judge erred in admitted the evidence of Stephen Langenhoff from a previous trial in circumstances where the requirements of s 55AC of the Evidence Act 1958 were not established.
Section 55AC provides that if on a trial of a person for an offence it appears to the Court that a person has given evidence in a previous trial and that evidence was recorded and transcribed and that person, inter alia, ‘is incapable of giving evidence’, the evidence of that person as recorded and transcribed is admissible in a subsequent trial of the same person for the same offence.
The prosecutor successfully applied to have the evidence of Langenhoff given at a previous trial admitted into evidence in the third trial. He called evidence from medical practitioners that Langenhoff suffered a traumatic brain injury as the result of a motor vehicle accident in the early 1990s and had a major epileptic seizure in April 2006, causing hypoxic brain damage and myocardial heart damage. As a consequence, Langenhoff suffered severe short-term memory loss and underwent a marked character change. In addition, Langenhoff’s father gave evidence that his son had limited capacity to reason, had no short-term memory and a fragmented long-term memory. Medical evidence that Langenhoff was not able to cope with cross-examination was not challenged.
In my opinion the trial judge did not err in admitting the evidence. There was unequivocal evidence led as to the witness’ inability to recall evidence in the short and long term. Effectively, it established that Langenhoff was unable to reproduce the substance of his earlier testimony.
The fourth ground was abandoned.
The fifth ground of the application is as follows:
The trial miscarried by reason of the learned trial judge’s directions on consciousness of guilt, which involved circular or “bootstraps” reasoning in that:
(a)the jury were asked to assess the falsity of statements based on an acceptance of the evidence of the prisoner witnesses;
(b)the statements were permitted to be used as corroborative of the prisoners’ testimony.
One of the warders who entered the cell soon after the assault gave evidence that the applicant said:
What happened, boss? Has he had an epileptic fit or something, boss, what’s happened? I don’t know what’s happened, boss, it looks like a fit.
Another warder said that the applicant said:
He must have had a seizure or something.
The Crown sought to use the evidence as lies which could be construed as implied admissions of guilt.
Counsel for the applicant submitted that the trial judge’s directions to the jury invited circular reasoning. The trial judge said in her charge:
The Crown relied upon these statements which the witnesses have testified were made by the accused Ali, provided you are satisfied that he made them, as an implied admission by Mr Ali that he is responsible for the offence charged. The Crown says that in making these statements Mr Ali is lying because if you accept the evidence of the witnesses in cell 28, then Mr Ali knew what happened to Mr Tully.
In my opinion, her Honour did not invite the jury to engage in circular reasoning. Circular reasoning occurs when the jury is required to assume that the accused has committed the offence in question for the purpose of deciding whether the statement is a lie. The applicant’s statement was not a general denial of guilt, but a statement relating to a material issue which was relevant to determine the applicant’s guilt. The jury were entitled to infer that the applicant lied to conceal guilt and that inference, combined with other evidence, could satisfy the jury of the applicant’s guilt. Her Honour did not invite the jury to establish the falsity of the applicant’s statements to the warders by reference to the testimony of the other prisoners in the cell. Her Honour said:
Thus, the Crown says that when you have regard to the whole of that body of evidence which has been placed before you, the eye witnesses have been supported in their testimony from other sources and the lies told by the accused, that you would be satisfied with regard to the whole of the evidence beyond reasonable doubt of the guilt of the accused.
In order to establish the falsity of the applicant’s statements, the jury were not invited to assume the guilt of the applicant.[4] The falsity of the applicant’s statements was established by evidence that the victim’s injuries were the result of a physical attack and the applicant was aware of that fact. By itself, that was not sufficient to prove the applicant’s guilt.
[4]Cf R v Laz [1998] 1 VR 453, 466 (Ormiston and Charles JJA, Vincent AJA). See Edwards v R (1993) 178 CLR 193, 210 (Deane, Dawson and Gaudron JJ).
In the course of discussions before the charge, counsel for the applicant accepted that the applicant’s statements could be left to the jury as evidence of consciousness of guilt. No exception was taken to this part of the charge.
The final ground of the application is:
The learned trial judge erred in failing to direct the jury as to how to use post-offence words and conduct that is not alleged as consciousness of guilt – other than the general comment that “no other statements or conduct were relied upon as an admission of guilt”.
In R v Ali(No 2),[5] the appeal from the conviction entered at the applicant’s second trial, the Court held that the trial judge gave an appropriate direction as to consciousness of guilt but should not have left the jury at large to apply that direction to facts other than the washing of the applicant’s runners and his query to the prison officer. The failure to specify the other conduct from which consciousness of guilt might be inferred left the jury unassisted in dealing with such other conduct. In the course of his judgment, Charles JA identified other evidence, for example, the applicant’s statement to the other prisoners that they were not to say anything, as material upon which the jury might have relied upon as evidence as consciousness of guilt. In the present case, counsel for the applicant submitted that the trial judge was required to expressly forbid the jury applying consciousness of guilt reasoning to each of those pieces of evidence.
[5](2005) 13 VR 257.
I do not agree. The jury would have understood from the charge that they were forbidden to regard any post-offence conduct as consciousness of guilt other than the two items of evidence referred to by the trial judge. There is no reason to suppose that the jury did not obey this instruction and, in that event, the difficulty identified in R v Ali (No 2) did not arise.
Counsel for the applicant foreshadowed an application to add a seventh ground of the application for leave to appeal against conviction dealing with DNA evidence. In the end, no such application was made.
For the foregoing reasons I would refuse leave to appeal against conviction.
The application for leave to appeal against sentence entails an examination of the personal circumstances of the applicant.
He is now some 38 years’ old. When he was sentenced, the applicant had 104 past previous convictions from 15 court appearances, including convictions for dishonesty, offences relating to cultivation, possession and use of cannabis, driving offences, street offences and offences of violence, including causing injury intentionally or recklessly, wilful damage to property and assault with a weapon.
The applicant’s parents were born in Lebanon and came to Australia in 1971.
The applicant has five sisters. The applicant was raised in Marrickville in Sydney. He left school in year 10 for a job on the railways and then with Australia Post as a mail officer. His family moved to Melbourne and the applicant joined his uncle in managing a convenience store in North Melbourne. In 1992 the applicant had a serious motor accident which left him with residual disabilities, including a limp, pain and headaches.
According to a report by a psychiatrist made in August 2007, the applicant suffered from a major depressive disorder, although that was said to be at the mild end of the spectrum, and cannabis abuse. The psychiatrist thought the applicant behaved in anti-social ways in the context of inter-personal sensitivity, social alienation and substance abuse. The psychiatrist was somewhat guarded in his views as to the prospects of the applicant’s rehabilitation in the light of his continued denial of the offence and his established criminal history.
There are two grounds of the application for leave to appeal against sentence. The first ground is that the sentencing judge erred in assessing the applicant’s prospects of rehabilitation by placing undue weight upon his not guilty pleas.
In May 2003, a clinical psychologist reported to an earlier court that in his opinion the applicant had relatively good rehabilitation potential. The sentencing judge in the present case did not accept that opinion. Her Honour said that the psychologist’s opinion ‘had not been borne out by the passage of years and your continual failure to acknowledge your responsibility for this crime’. Her Honour noted that the psychiatrist who reported in 2007 recorded that the applicant had spent the majority of the past eight years in management units segregated from the general prison population. He remarked that there had been a number of incidents involving positive urine screenings, disruptive behaviour and possession of prohibited objects.
Counsel for the applicant in the course of the plea submitted to the sentencing judge that the applicant had a new attitude brought about by the verdict of the jury in the third trial. Her Honour responded:
Be that as it may, you nonetheless still maintain your innocence and therefore show no remorse and in those circumstances I would not regard your prospects for rehabilitation as at all likely. In that regard I am not satisfied that you would benefit from any lengthy or substantial period on parole. You have not demonstrated rehabilitation or any substantive or constructive efforts directed towards your rehabilitation whilst in custody other than in these most recent months. In these circumstances I could not be confident that your efforts will continue or that your rehabilitation would benefit from a substantial period on parole.
Counsel for the applicant submitted that her Honour’s remarks showed that she took the view that the applicant’s prospects of rehabilitation were linked to his plea of not guilty, and that approach failed to recognise his right to a trial and did not take into account other factors that bore upon the question of rehabilitation.
The applicant’s plea of not guilty is relevant in that it bore upon the question of remorse. His counsel in the course of the plea said the prosecutor commented that there seemed to be no remorse. The applicant’s counsel said:
I accept that, your Honour. The reason for that is that Mr Ali still holds the position that he is not the perpetrator of this offence.
The lack of remorse was in turn a factor to be taken into account in determining the applicant’s prospects of rehabilitation. It was apparent from her sentencing remarks that her Honour had regard to other circumstances than the plea in canvassing the question of rehabilitation, not least the applicant’s extensive criminal record, his conduct in prison and the observations of the psychiatrist and the psychologist and the applicant’s failure to take any meaningful steps to effect his rehabilitation save in the months before sentence. In my opinion the sentencing judge did not err in her estimate of the applicant’s prospects of rehabilitation.
The second ground of the application for leave to appeal against sentence is as follows:
The learned sentencing judge erred by imposing a sentence that in all the circumstances of the case is manifestly excessive in particular with regard to:
(a)the mitigatory effect of the report of Dr Cidoni and his findings of the applicant suffering a major depressive disorder;
(b)the impact of delay upon the circumstances of the applicant’s incarceration including his deteriorating mental state;
(c)the applicant’s recent steps towards rehabilitation including his compliance with a management plan; and
(d)the length of time the applicant had spent in custody and the totality of his offending.
Counsel for the applicant submitted that the psychiatrist’s diagnosis of a major depressive disorder should have attracted the application of principles asserted in R v Verdins[6] and should have moderated the need for general deterrence. Counsel criticised the sentencing judge for noting that the psychiatrist described the applicant as being ‘mildly depressed and anxious’. Counsel also relied upon the psychiatrist’s observation that the applicant ‘had been compliant with the preparation of the management plan and had demonstrated for several months, out of the management unit, that he could modify his behaviour’ and the fact that a psychologist had engaged in counselling the applicant.
[6](2007) 16 VR 269.
In addressing the time the applicant had spent in custody and the totality of his offending, counsel for the applicant noted that the sentencing judge had referred to the fact that the applicant had been in custody for two months in 1999 for offences in respect of which he was ultimately acquitted and to the benefit of a concurrency order made in relation to two subsequent sentences passed in 2000 and 2001 which, but for the success of the applicant’s first appeal, would have been served concurrently with the sentence imposed in December 2000. Counsel pointed out that the sentencing judge’s remark that ‘accordingly, in accordance with the principles of totality in the interests of justice I propose to take into account that lost benefit of seven months’ concurrency in fixing the sentence to be imposed in respect of this sentence’, was the only reference made in the course of the sentencing remarks to the issue of totality. Accordingly, so it was said, the sentencing judge failed to apply the principle of totality in relation to the overall time the applicant had spent in prison since 16 February 1999 to the date of sentence on 12 September 2007.
In my view, the circumstances attending the commission of the offence warrant the conclusion that it was a very serious example of a crime for which the maximum penalty is 20 years’ imprisonment. The attack was unprovoked. The victim had a simple manner and appeared vulnerable. The applicant attacked him in order to punish him for a disposition imagined by the applicant. The attack was extremely violent and sustained. The victim offered no resistance and suffered a severe brain injury, which effectively ruined his life. Clearly the offence itself called for condign punishment.
Counsel for the applicant stressed the psychiatrist’s diagnosis of a major depressive illness. The psychiatrist, however, qualified that opinion by noting ‘the information from the medical file, which suggests that the disorder is in the mild end of the spectrum’. Moderation of a need for general deterrence is limited where depression is the result of conviction and incarceration.[7] The sentencing judge accepted that the process of the trials and appeals had been a source of anxiety to the applicant and said that due allowance would be made for that in the sentencing process. Her Honour also said that the delay in resolving the question of the applicant’s guilt was to be taken in account in determining the appropriate sentence. As to the applicant’s recent efforts to rehabilitate himself, the sentencing judge concluded that they were unlikely to continue, a conclusion which in my view is open to her.
[7]See R v RLP [2009] VSCA 271, [30].
With respect to the principle of totality, her Honour took into account the periods which the applicant had spent in custody which were not reckoned as pre-sentence detention, being a period of 86 days in 1999, a period of 62 days in 2000 and a period of 152 days in 2001. The period between 1999 and 2007 referred to by
counsel for the applicant was declared to be pre-sentence detention. It thereby reduced the period of incarceration. It was not also to be taken into account by reducing the sentence on account of totality.
I would refuse the application for leave to appeal against sentence.
REDLICH JA:
I agree with Buchanan JA for the reasons he has given that the applications for leave to appeal against conviction and sentence should be refused.
I would make these additional observations in relation to the appeal against conviction. Under ground 1, the applicant submitted that the trial judge should have exercised the residual discretion described in cases such as Rozenes v Beljajev[8] and The Queen v Pearce[9] to which Buchanan JA has referred. In this context it is to be remembered that where the probative value of the evidence exceeds any prejudice - and I use that term in the sense explained in Festa v The Queen - so that no cause arose for the exercise of the Christie discretion, no other discretion resides with the trial judge to exclude evidence said to be unreliable unless that unreliability cannot be adequately exposed before the jury.
[8][1995] 1 VR 533.
[9][1992] 1 VR 273.
The applicant contended here that as the impugned evidence of the unreliable witness dovetailed with the rest of the prosecution case, it was less likely that the unreliable features of the witnesses’ evidence would be recognised by the jury. But if the factors which make the witnesses’ evidence unreliable are capable of identification before the jury, the degree to which the witnesses’ evidence is consistent with other evidence relied upon does not afford a basis for the exclusion of the evidence. In my view each of the factors which are now relied upon by the applicant were capable of being exposed for the consideration of the jury. As the probative value of that evidence exceeded its prejudicial value there was no basis
upon which the evidence should have been excluded.
In relation to ground 5, the primary issue in the trial was whether it was the applicant who inflicted the serious injuries the subject of the charge. On appeal it was said that once the jury was satisfied as to that fact, the jury would then be satisfied of the applicant’s guilt. It was submitted for the prosecution to use the alleged lies as supporting an inference of guilt would involve a bootstrap argument as the prosecution would have to prove the very facts upon which the guilt of the accused depended. To reason in such a way was circular and impermissible.
The fact that a lie may relate to an essential part of the prosecution case does not deny it the character of an implied admission where evidence may establish its falsity and the motive for which it was told. The decision of the High Court in Edwards is predicated on the view that there is no circular reasoning involved in the contention that the jury, by accepting that a lie has been told which constitutes an implied admission, would necessarily be deciding the whole case.[10] That was recognised by this Court in The Queen v Laz, which drew a distinction between such lies and a lie which could only be established by the jury’s ultimate conclusion of guilt.
[10] R v Lam (Ruling 18) [2005] VSC 292.
Here, before concluding the applicant’s guilt, the jury would also have had to be satisfied that the applicant possessed the necessary mens rea. Even though the lies relied upon involved the assertion of facts central to the prosecution case, the prosecution could rely upon them where the lies were established by evidence which did not prove the guilt of the applicant. That evidence established that the assertions were false and were told because of the realisation that the truth would implicate the applicant in the commission of the offence charged.
It should also be noted that the applicant did not seek to advance any argument in support of ground 5, sub-s (b).
HARPER JA:
I agree with the conclusions to which the learned presiding judge has come in relation to each application for leave to appeal and I do so for the reasons which he has expressed. I also agree generally with the remarks of Redlich JA.
BUCHANAN JA:
The orders of the Court will be that the application for leave to appeal against conviction and the application for leave to appeal against sentence are dismissed.
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