Avder v The Queen

[2011] VSCA 384

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0438

EMRAH AVDER

v

THE QUEEN

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JUDGES:	BUCHANAN JA and WHELAN and ROBSON AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 September 2011
DATE OF JUDGMENT/ORDER:	24 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 384
JUDGMENT APPEALED FROM:	County Court of Victoria at Melbourne, Judge Murphy, 16 November 2010

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CRIMINAL LAW – Application for leave to appeal – Applicant convicted of causing serious injury intentionally – Applicant alleged to be acting in concert or aiding and abetting in the assault – Judge’s charge referred to ‘accomplice’ – Jury question on meaning of accomplice – Judge redirected on elements of acting in concert and aiding and abetting – Judge omitted any further reference to accomplice – Whether the judge’s direction led the jury to reason impermissibly – No risk of impermissible reasoning – Application for leave to appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M C Kowalski	Grigor Lawyers
For the Respondent	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Robson AJA.

WHELAN AJA:

1. I agree with Robson AJA.

ROBSON AJA:

Introduction

1. The applicant stood trial in the County Court at Melbourne on four counts.  Count 1 alleged he caused serious injury intentionally.  Count 2 was an alternative count to count 1, alleging causing serious injury recklessly.  Count 3 alleged robbery.  Count 4, an alternative to count 3, alleged theft.  The applicant was found guilty on Counts 1 and 3, and not guilty of the alternate counts 2 and 4.

1. The applicant was sentenced as follows:

Offence	Maximum	Sentence	Cumulation
Causing serious injury intentionally	20 years	4 years, 6 months	Base
Robbery	12 months	3 months	Nil

Total Effective Sentence:	5 years
Non-Parole Period:	2 years 9 months
Pre-sentence detention declared:	98 days

1. The applicant seeks leave to appeal against the convictions.

Circumstances of the offences

1. In the early hours of the morning of 16 February 2008, the victim, Gurdas Singh Sidhu, was working as a taxi driver.  Just after 4.00 am, Mr Sidhu picked up two passengers, the applicant and Murat Kilinc.  The applicant sat in the front passenger seat of the taxi and Mr Kilinc sat in the back.  Mr Sidhu was unable to

remember what occurred in between picking up the passengers and ending up in hospital.

1. The evidence revealed that the taxi trip lasted approximately 44 minutes.  Footage from inside the taxi showed the applicant and Mr Kilinc talking on their mobile telephones throughout the journey.  Mobile phone records revealed that the applicant and Mr Kilinc were conversing with each other.  At some point, the applicant pulled the hood of his jumper over the baseball cap he was wearing.

1. Footage from the taxi revealed the victim exiting the taxi, followed by Mr Kilinc, then the applicant.  The footage showed the victim back in the taxi some time later.

1. Irene Sumbera was at home when she heard noise outside her home.  She heard yelling and heard two people running.  Asahel Halstead was also at home and heard screaming and saw a person wearing a hooded jumper run past.

1. The taxi was located with the engine running and the meter showing $93.  Mr Sidhu was located slumped and bloodied in the driver’s seat.  Blood was located on the roadway near the taxi.  Torn clothing, a contact lens, currency and part of a mobile phone were located nearby.

1. Stephen De Giogio, a police officer at the time of the offending, gave evidence that he escorted the victim to hospital by an ambulance.  Mr Sidhu told him that there had been an argument over the fare and that the had been assaulted by two passengers.

1. Peta Owen, paramedic, gave evidence that Mr Sidhu had told her that Mr Sidhu thought he had been assaulted by two males.

1. Mr Sidhu suffered a broken nose, a broken jaw, bleeding in both eyes and some problems with his teeth.  Whilst in hospital, Mr Sidhu underwent surgery on his jaw.  Mr Sidhu returned to driving taxis some time after the incident and agreed during examination-in-chief that most of his physical injuries had healed.

1. Twelve days after the offending, the applicant’s hands were examined by a forensic medical officer, Dr Wendy Lim, who found injuries to the applicant’s hands and to his left ankle.  During cross-examination, Dr Lim conceded that the injuries could have been sustained within the previous twelve days.

1. The applicant’s case was that he was present in the taxi.  However, the applicant denied being involved in the offending.

1. The Crown case was that the applicant either acted in concert or aided and abetted Mr Kilinc in the bashing of Mr Sidhu.

The ground of appeal

1. The applicant relies on one ground: that the trial judge failed to properly address the jury’s question as to the second element of the offence of causing serious injury intentionally and the way in which the term ‘accomplice’ may be used in their deliberations, and in so doing led the jury to reason impermissibly.  The applicant abandoned grounds 1 and 2 of the appeal.

1. After the jury retired to consider their verdict, the judge received two questions from the jury.  The first question is the one subject to the sole ground of appeal.  The question was as follows:

We would like clarification on element two of count 1, and whether the term accomplice implies that the accused was aiding and abetting, or whether it is simply one of the two caused the serious injury.

1. During his charge, the learned trial judge had said that the Crown case in relation to count 1 was that the applicant struck one or more blows to Mr Sidhu to the head with either his fists or his feet and that, in doing that, the only inference the jury could draw is that the appellant intended to seriously injure Mr Sidhu and in fact he did seriously injure Mr Sidhu, but he intended to do that.[1]

   [1]Transcript 206.

1. Then the learned trial judge put an alternative way the Crown argued that count 1 may be established.  He said that the Crown said that if the appellant did not do what the Crown firstly alleged, he encouraged Mr Kilinc in undertaking that action, aided and abetted his fellow passenger to do that, and at the time the appellant was aware that the conduct of the fellow passenger, Mr Kilinc would be likely to cause a serious injury to Mr Sidhu.  The learned trial judge instructed the jury that in order to find the appellant guilty of the offence charged he had to be aware that Mr Kilinc intended to cause serious injury to Mr Sidhu.

1. During his charge to the jury his Honour gave the jury a written statement of the elements of the offences charged.  The jury assistance sheet, as it was called, cannot now be located.  The transcript discloses, however, that the judge took the jury through the jury assistance sheet. When dealing with count 1 on the jury assistance sheet, intentionally causing serious injury, the judge said:

To find the accused guilty at the end of the trial of intentionally causing serious injury, there are four elements which the Crown must prove to you beyond reasonable doubt.  The first is that the [Crown] must prove that the complainant, Mr Sidhu, suffered a serious injury.

...

The second element the prosecution must prove is that the accused or his accomplice, the fellow passenger, Mr Kilinc, caused the complainant’s serious injury, caused Mr Sidhu serious injury.

…

The third element that the prosecution must prove is that the accused or his accomplice intended to cause the serious injury, and the fourth element that the Crown must prove is that the accused or his accomplice acted without lawful excuse or without lawful justification or excuse.[2]

[2]Transcript 172.

1. During their deliberations, the jury asked the question which is the subject of this appeal.

1. During the discussion with counsel as to the form and content of the answer to the jury’s question, the judge indicated as follows:[3]

What I propose to do is confirm the elements of intentionally cause serious injury … without any reference to accomplice.  So the person that you find does it.  Then I’m going to say to them that the Crown – if you are unable to find which of the two did it, then provided they’re satisfied that the Crown’s able to prove beyond reasonable doubt the accused must have carried out one of the parts, either the principal or the aiding and abetting, it would be open to them to find him guilty of either of the two offences.  Then I’m going to then redirect them on the elements of aiding and abetting … and acting in concert.  …  I’m going to give them a full acting in concert, and then a full aiding and abetting direction.

[3]Transcript 226.24-227.12.

1. Trial counsel acceded to this approach and requested the trial judge to ‘remind’ the jury as to other aspects of aiding and abetting.  Following the trial judge’s answering of the question, counsel took no exception.

1. The trial judge redirected the jury as follows:[4]

In relation to the other question; I may have confused you with my directions, and if so I apologise.  What I want you to do, the first point is the Crown does not have to prove which of the two passengers committed the assault, did the physical acts.  The Crown cannot prove that, so they do not have to prove that.  That is the first point to note.  You can only convict the accused man, however, if in these circumstances;  if the Crown is not able to prove whether the accused delivered the actual blows with the relevant intent, and I will come back to those, and took the property with violence, the accused did that, if the Crown is unable to prove that, or aided and abetted the other passenger to do that.  So the Crown cannot prove that the accused did everything, and that the other passenger watched him, or the passenger did everything and the accused watched him, but it is able to prove beyond reasonable doubt that the accused must have carried out one of those parts, the physical acts, or aiding and abetting the other passenger to do those acts, is guilty of intentionally or recklessly causing serious injury, if those elements are made out.

But the Crown does not have to prove that one or the other did it, provided you are satisfied that one or the other did commit the acts, in circumstances where the other person aided and abetted those acts.

I want to now just tell you again the way the Crown puts the criminal liability of the accused in this case.  It is not alleged that the accused committed the offence of intentionally causing serious injury, or recklessly causing serious injury, or robbery, or theft, alone.  Instead, what the Crown is putting to you is that he committed it together with Kilinc.  So the Crown says to you that they were acting in concert.

Now, the law says …

[4]Transcript 229-231.

1. The directions thereafter are in conventional terms for both acting in concert and aiding and abetting.   The directions closely follow the charge book and do not refer to or mention the term ‘accomplice.’

The applicant’s contentions

1. The applicant contends that the jury’s question was not answered as the judge, in his redirection, made no mention of accomplice or what the word ‘accomplice’ implies.  The applicant says that the failure to answer the jury’s direct question potentially led the jury to reason impermissibly and this has led to a miscarriage of justice.

1. The applicant says that the trial judge should have directed the jury that the term accomplice was not to be used in any way by the jury in implying or inferring the necessary elements to establish guilt.  The applicant says that the jury should have been told that the term accomplice does not assist or inform their deliberations in any way.

1. In my opinion, the objection lacks substance.  The judge’s written direction instructed the jury that they had to be satisfied that the accused or his accomplice, the fellow passenger, Mr Kilinc, caused the complainant serious injury.

1. It is true that in redirection the learned trial judge did not refer expressly to the word ‘accomplice’.  He told counsel that he was not going to do so and there was no objection from the applicant’s counsel.

1. In his redirection, the learned trial judge explained that if two or more people act in concert to commit an offence, they will be equally guilty of the offence, regardless of the role they play.  The judge explained to the jury that parties will be acting in concert if there was some sort of agreement between them to commit the criminal act and the agreement remained in existence when the offence was committed.

1. In my opinion, it would have been quite clear to the jury that the reference to ‘his accomplice’ was a reference to the person the accused was acting in concert with and, in particular, the person with whom the accused had agreed to commit the criminal act or alternatively, the person the accused was aiding and abetting.

1. In my view, the redirection would have removed any confusion in the minds of the jury, if there had been any, as to the elements that they were required to find in order to find the applicant guilty of the offences charged.  I do not accept that the failure to expressly address the word ‘accomplice’ would have left the jury in any doubt of the elements that they were required to find.

1. In my opinion, there was no risk of the jury engaging in impermissible reasoning.  I would dismiss the application for leave to appeal.

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