Baini v R
[2011] VSCA 298
•5 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0243
| MICHEL BAINI | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WARREN CJ, NETTLE and ASHLEY JJA | |
WHERE HELD: | MELBOURNE (Sitting at Bendigo) | |
DATE OF HEARING: | 18 September 2011 | |
DATE OF JUDGMENT: | 5 October 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 298 | |
JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Wood, 16 July 2010) | |
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CRIMINAL LAW – Conviction – Blackmail – Many counts referrable to one complainant – Whether judge erred by refusing to sever single count relating to a second complainant – Prejudice to applicant – No formal ruling – Judge suggested that it was for the applicant to demonstrate that prejudice ‘far outhweigh[ed] convenience’ – Judge applied erroneous view of law in exercising his discretion – Whether miscarriage of justice – Demirok v The Queen [1976] VR 244 – Application of proviso to s 568(1), Crimes Act 1958 – Weiss v R (2005) 224 CLR 300 – Applicant’s conviction on severance count brought about substantial miscarriage of justice – Whether other guilty verdicts unsafe or unsatisfactory – Whether judge erred in his directions as to prior inconsistent statements – Leave to appeal granted and appeal allowed in respect of applicant’s conviction on severance count – New trial ordered on that count – Application for leave to appeal otherwise refused.
Sections 371 and 372, Crimes Act 1958
Section 60, Evidence Act 2008
CRIMINAL LAW – Sentence – Aggregate sentence – Failure to comply with requirements stated in DPP v Felton (2007) 16 VR 214 and R v Grossi (2008) 23 VR 500 – Application for leave to appeal against sentence granted and appeal allowed – New aggregate sentence imposed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L C Carter with Ms A P Halphen | Dean Cole & Associates |
| For the Crown | Mr T Gyorffy with Mr C T Carr | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
I have had the generous benefit of considering the draft judgment of Ashley JA. I would make the same orders contemplated in the draft for the reasons stated by his Honour.
I would make one additional observation. The trial judge refused an application to sever Count 50. As Ashley JA observes,[1] the trial judge did not provide formal reasons for doing so, but referred instead to the arguments explored in argument. In my view, the decision of the learned trial judge to aver to oral argument rather than give reasons for his disposition of such a serious application constituted a failure of judicial method. The question of whether a severance order ought to be granted is a serious one with serious consequences for the trial of an accused. A decision to refuse such an application which is attended by error has, in certain circumstances, as it has here, the capacity to vitiate the trial and any conviction recorded against an alleged offender.
[1]See [38], [47].
As this Court stated in Brittingham v Williams:
We must not be taken as laying down as a universal rule that a judge is bound upon request to give reasons for his decision … But in many cases, of which this was one … a judicial officer should state the facts he finds and the reasons for his decision. Such a statement is desirable for the information of the parties, and in order to offer assistance to the court of appeal in the event of there being an appeal.[2]
[2][1932] VR 553, 557–559 (Cussen ACJ, Mann and Lowe JJ). See also, De Iacovo v Lacanale [1957] VR 553, 558–9.
In Public Services Board (NSW) v Osmond, Gibbs CJ ‘describe[d] the requirement to give reasons … as “an incident of the judicial process”, subject to the qualification that it is a normal but not a universal incident.’[3]
[3](1986) 159 CLR 656, 667 (Gibbs CJ) (‘Osmond’). Citing Housing Commission (NSW) v Tatmar Pastoral Co [1983] 3 NSWLR 378, 386 (Mahoney JA).
The scope of those reasons will depend upon the nature of the order and its
attendant circumstances. However, at a minimum, they must ‘explicitly’[4] state the reasons which led to the order being made sufficient ‘to enable the matter to be properly considered on appeal’.[5] The approach adopted by the learned trial judge places this Court in the unenviable position of having to grapple with a transcript of argument in order to elicit reasons from an exchange between the bench and the bar table so that it may consider this application. It is difficult for an appellate court, let alone the parties at trial, to understand the reasons for which a discretionary power was exercised, if those reasons have not been explicitly set out.
[4]Ex parte Powter; Powter, Re (1946) 46 SR (NSW) 1, 5; 63 WN (NSW) 34, 36 (Jordan CJ).
[5]Osmond, 666 (Gibbs CJ).
Moreover, it gives rise to significant difficulties in correctly identifying those reasons. Sometimes in argument, a judge may be comprehensive in conveying difficulties with an application; sometimes not. On occasion, a judge might advance a contradictory view in order to test an argument. That view, although expressed in open court, may not form part of the ultimate reasoning which determines the manner in which the discretionary power was exercised. Parties and appellate courts should not be left to guess at the reasons behind a particular ruling.
As noted, the scope and necessity of reasons will depend upon the nature of the decision being made. However, insofar as that order forms an important interlocutory step in a criminal trial, the giving of reasons would normally form an inherent part of the judicial task. As Irvine CJ observed in Donovan v Edwards:
…in the exercise of their judicial functions, justices are not exempt from the duty which attaches to every judicial officer to state, to the best of his ability, the facts he finds, and the reasons for his decision.’[6]
[6][1922] VLR 87, 88.
Such a statement is equally apposite in the instant case.
NETTLE JA:
I agree with Ashley JA.
ASHLEY JA:
On 4 June 2010, after a 19 day trial in the County Court, a jury found Michel Baini, the applicant, and Bader Arafan guilty of offences of blackmail. The applicant was found guilty on 36 counts and Arafan on 13 counts. Baini had been separately presented on 16 counts and Arafan on 20 counts. On 32 counts, the men had been presented jointly. There had been directed acquittals on some counts,[7] and on others there had been verdicts of not guilty.[8] The detail of the counts and their disposition is as follows:
[7]Three, in the case of the applicant.
[8]Nine, in the case of the applicant.
COUNTS
DATE
ACCUSED
RESULT
1
08/10/04-14/10/04
Baini
Not Guilty
2
04/04/05
Baini
Arafan
Guilty (both)
3
08/04/05
Baini
Arafan
Guilty (both)
4
19/04/05
Baini
Arafan
Guilty (both)
5
26/04/05
Baini
Arafan
Guilty (both)
6
13/05/05
Baini
Arafan
Guilty (both)
7
26/05/05
Baini
Arafan
Guilty (both)
8
01/06/05
Baini
Arafan
Guilty (both)
9
10/06/05
Arafan
Directed acquittal
10
09/08/05
Baini
Arafan
Guilty (both)
11
22/08/05
Baini
Arafan
Guilty (both)
12
25/08/05
Baini
Arafan
Directed acquittal (both)
13
14/09/05
Baini
Arafan
Guilty (both)
14
29/09/05
Baini
Arafan
Guilty (both)
15
10/11/05
Baini
Arafan
Guilty (both)
16
24/11/05
Baini
Arafan
Guilty (both)
17
08/12/05
Baini
Guilty
18
21/12/05
Baini
Guilty
19
21/12/05
Baini
Guilty
20
19/01/06
Baini
Guilty
21
17/02/06
Baini
Guilty
22
01/03/06-31/03/06
Baini
Directed acquittal
23
02/03/06
Baini
Guilty
24
15/03/06
Baini
Guilty
25
05/05/06
Baini
Guilty
26
26/05/06
Baini
Guilty
27
07/06/06
Baini
Guilty
28
28/06/06
Baini
Guilty
29
06/07/06
Baini
Guilty
30
01/09/06
Arafan
Directed Acquittal
31
14/09/06
Baini
Arafan
Guilty (Baini)
Not Guilty (Arafan)
32
27/09/06
Baini
Arafan
Guilty (Baini)
Not guilty (Arafan)
33
01/10/06-31/10/06
Baini
Arafan
Directed acquittal (both)
34
12/10/06
Baini
Arafan
Guilty (Baini)
Not guilty (Arafan)
35
26/10/06
Arafan
Directed acquittal
36
09/11/06
Baini
Arafan
Guilty (Baini)
Not guilty (Arafan)
37
30/11/06
Arafan
Directed acquittal
38
07/12/06
Baini
Guilty
39
14/12/06
Arafan
Directed acquittal
40
21/12/06
Arafan
Directed acquittal
41
04/01/07
Baini
Arafan
Guilty (Baini)
Not guilty (Arafan)
42
18/01/07
Baini
Arafan
Guilty (Baini)
Not guilty (Arafan)
43
02/02/07
Baini
Arafan
Guilty (Baini)
Not guilty (Arafan)
44
01/03/07
Baini
Arafan
Guilty (Baini)
Not guilty (Arafan)
45
15/03/07
Baini
Arafan
Guilty (Baini)
Not guilty (Arafan)
46
29/03/07
Arafan
Directed acquittal
47
12/04/07
Baini
Arafan
Not guilty (both)
48
26/04/07
Arafan
Directed acquittal
49
27/04/07
Baini
Arafan
Not guilty (both)
50
08/05/07-30/05/07
Baini (victim Srour)
Guilty
51
10/05/07
Baini
Arafan
Not guilty (both)
52
24/05/07
Arafan
Directed acquittal
53
31/05/07
Arafan
Directed acquittal
54
07/06/07
Baini
Arafan
Not guilty (both)
55
21/06/07
Baini
Arafan
Not guilty (both)
56
05/07/05
Baini
Arafan
Not guilty (both)
57
24/07/07
Arafan
Directed acquittal
58
03/08/07
Baini
Not guilty (both)
59
20/08/07
Arafan
Directed acquittal
60
30/08/07
Baini
Arafan
Not guilty (both)
61
14/09/07
Arafan
Directed acquittal
62
01/10/07
Arafan
Directed acquittal
63
12/10/07
Arafan
Directed acquittal
64
25/10/07
Arafan
Directed acquittal
65
01/11/07
Arafan
Directed acquittal
66
19/11/07
Arafan
Directed acquittal
67
30/11/07
Arafan
Directed acquittal
68
31/12/07
Arafan
Directed acquittal
On 16 July 2010 the applicant was sentenced to an aggregate term of 9 years imprisonment. The judge fixed a non-parole period of 6 years and 6 months. Arafan was sentenced to an aggregate term of 5 years imprisonment, with a non-parole period of 3 years and 6 months. In the case of both men, compensation orders were made.
The maximum sentence for the offence of blackmail is 15 years’ imprisonment.[9]
[9]Crimes Act 1958, s 87(1).
On 30 November 2010 this Court granted Arafan leave to appeal against conviction, allowed his appeal, and entered judgment and verdicts of acquittal on all counts.[10] The case against Arafan had been opened by the prosecutor on the basis that he was an aider and abettor.[11] But at the end of the Crown case the prosecutor, conceding that such a case was not available on the facts, was permitted to argue for Arafan’s guilt on the basis of ‘joint criminal enterprise’. In this Court, the Crown conceded that a miscarriage of justice had thereby occurred. The Court agreed, pointing out that –
40.The change from aiding and abetting to joint criminal enterprise resulted in a trial that differed significantly from that which had been foreshadowed. Critically, it introduced a new element into the case, the need for proof of ‘participation’ on the part of the applicant in the joint criminal enterprise. Had the case been left to the jury as one of aiding and abetting, or indeed acting in concert, the applicant’s presence at the time of the offending, if it had been established, would have satisfied the need for such ‘participation’. Once the change in position had taken place, there had to be a focus upon facts from which such ‘participation’ could be inferred. It was only at the very last stage of the trial, during the course of his Honour’s charge, that this came to be appreciated.
[10][2010] VSCA 356 (Maxwell P and Weinberg JA).
[11]Their Honours accepted that Arafan ‘never personally threatened Rifat, or made any demands of him. It was Baini alone who had acted in that way.’
The Court directed entry of judgment and verdicts of acquittal because, the case having been ultimately advanced as one of joint criminal enterprise, there was no evidence of the ‘participation’ by Arafan which was required to establish criminal responsibility on that basis.
Now Baini seeks leave to appeal against both his conviction and sentence.
The conviction application
Grounds
The grounds upon which the applicant ultimately relied are as follows:
1.The verdicts are unreasonable or cannot be supported by having regard to the evidence.
2.The learned trial judge erred by failing to sever count 50 from the presentment and, as a consequence, there has been a miscarriage of justice (application for severance at T 6-8, 13-60; Ruling at T 60 (29) ).
3.The learned trial judge erred in his directions as to prior inconsistent statements (charge at T 1152-1154).
Circumstances of the offending
Maxwell P and Weinberg JA set out the general circumstances of the matter when dealing with Arafan’s application. It is convenient to set out their Honours’ description of events:
In late 2003 and early 2004, the victim of this offending, Hassan Rifat, found himself being subjected to threats and violence at the hands of a business competitor, one Tony Hakim. According to Rifat, the level of violence directed towards him and his family was both significant and escalating. He claimed that, on one occasion, he was menaced by one of Hakim’s operatives with a pistol.
A mutual friend of both Baini and the applicant, Mustafa Unver, suggested to Rifat that he could introduce him to someone who would protect him from Hakim. At that time, Rifat was especially vulnerable as he had gone to the police in early 2004 to seek their assistance, and had been told that the police would do nothing.
… what then happened [was this]. Baini travelled to Sydney on a number of occasions throughout 2004 in an effort to persuade Hakim to leave Rifat alone. At that time, Rifat owned and operated a business called Telkom, which was described as a ‘second-tier telecommunications business’, and was said to have been a highly successful enterprise.
According to Rifat, Baini told him that Hakim had offered him (Baini) $1,000 a month to take Hakim’s side in the dispute between Hakim and Rifat. Baini told Rifat that, unless he met certain demands, Baini would join forces with Hakim. Rifat said that this led to his having provided Baini with a leased Mercedes Benz motor vehicle (count 1). That was a count upon which Baini was charged alone, and acquitted.
Rifat said that, thereafter, Baini made regular threats to harm Rifat’s family and/or business. He also threatened to kill Rifat’s horses unless his demands for money were met. As a consequence, Rifat sent money to Baini on some 35 separate occasions between 4 April 2005 and 15 March 2007. He also sent money to [Arafan](either directly or through Baini) on some 13 occasions between 4 April 2005 and 24 November 2005.
[Arafan] received a total of about $10,000 in relation to the counts upon which he was convicted. Baini, on the other hand, received $143,581 in respect of the offences for which he was convicted.
By the time the jury came to deliberate, the Crown case was essentially that [Arafan] and Baini had entered into what was described as a ‘joint criminal enterprise’ to blackmail Rifat. Each count reflected a separate demand, followed by a separate payment. Of particular importance, so far as the appeal [by Arafan] to this Court was concerned, was the fact that [Arafan] was not said to have personally made any threat, or issued any demand, to Rifat. Every such threat or demand was made by Baini, and always without [Arafan] having been present.
It was Baini’s contention, in his record of interview, that the relationship between himself and Rifat was of an entirely legitimate nature, whereby he (Baini) would render services by dissuading Hakim from further attempts at harm to Rifat. Baini also contended that he had, on two separate occasions, brought valuable business (worth some $35,000 and $18,000) to Telkom. The Crown case, based on Rifat’s evidence, was that the payments he (Rifat) made were the product of extortion, those payments having been made solely in response to Baini’s threats.
So far as particularly the applicant is concerned, that is not the whole story.
First, in a lengthy record of interview conducted on 9 May 2008, the applicant asserted, inter alia, that – (1) he had been given the Mercedes Benz (referred to in connexion with count 1, a count on which he was ultimately acquitted) to drive in appreciation of his assistance in resolving the dispute with Hakim, and for his work drumming-up business for Telkom; (2) he had initially been offered 10 per cent of Telkom for his help in settling the problem with Hakim; (3) he was then offered a third of the business because Rifat and Birch (a solicitor, and Rifat’s then-business partner) needed him to stay with the company; (4) there being some later unhappiness between them – because, as he alleged, Birch and Rifat were taking money out of Telkom which they should not have done – terms of settlement were drawn–up so that he could exit the business; (5) provision in the terms for the transfer to the applicant of 13 million shares in a company named Broadtel was no more than a transfer of what he had been supposed to receive for ‘getting Tony Hakim to release those shares’; (6) he did not know that the Broadtel shares were worth about $350,000 at the time when the terms of settlement were signed; (7) Rifat told him, later, that the shares were no longer worth $350,000 but only $100,000. He had accepted $100,000 ‘and just walk[ed] away’; (8) although he knew nothing about the telecommunications industry, he had brought in business for Telkom. He had worked ‘sauteing’ deals for Telkom for about two years; (9) he did not deny ‘the fact that [he] got two or three grand here and there’. He was ‘getting paid out of the contract that they offered [him]’; (10) according to the terms of settlement, his exit entitlement was in the order of $415,000;[12] (11) he had made no threats in order either to get payments of money or to have the terms of settlement drawn-up.
[12]This was made up of: $100,000 in lieu of the Broadtel shares, $120,000 estimated value of the Mercedes Benz, $120,000 for a BMW provided to Arafan, and $104,000 payable to the applicant at $1000 per week. The arithmetic actually adds up to $444,000.
Second, the Crown alleged, by count 8, that in June 2005 the applicant and Arafan demanded with menaces that Rifat sign a deed of partnership. Such a document was in fact prepared by solicitors, and signed. Its effect was to constitute a partnership between the three men in Telkom. It involved equal division of what the document said was Rifat’s 80 per cent shareholding in the company. Rifat denied that the document had been prepared by the solicitors – of whom he said he knew nothing – on his instructions. He observed also that he did not own 80 per cent of the shares in Telkom at that time.
Third, the Crown alleged, by count 18, that in December 2005 the applicant demanded with menaces that Rifat sign the terms of settlement to which I have already referred. The demand was particularised as one which would require Rifat to pay the applicant $150,000, acquire a BMW for Arafan and make pertinent lease payments, transfer to the applicant or his nominee 13 million ordinary shares in Broadtel Pty Ltd,[13] and transfer ownership of the Mercedes Benz and BMW to the applicant and Arafan when all lease payments had been made.
[13]A company in which Rifat was a shareholder, and of which, at some stage, he had been chairman and CEO.
Terms of settlement were signed in December 2005. The solicitor, Birch, who died before trial, prepared them on Rifat’s instructions. The parties to the terms were Rifat, Telkom, the applicant and Arafan.[14]
[14]Rifat signed for Telkom, as well as in a personal capacity.
The count as particularised did not wholly reflect the terms. Specifically, the terms required Rifat to procure the payment by Telkom to the applicant of $104,000 and also payment by Telkom of $2900 per month in respect of the lease of the Mercedes Benz to which I earlier referred, and to procure the transfer of 13 million shares in Broad Investments Ltd.[15] The terms also required transfer of the motor vehicles to the applicant and Arafan when all lease payments had been made. In return, the applicant and Arafan agreed to surrender all right title and interest in Telkom’s shares.[16] The document also stated that ‘[a]ll previous agreements … for shared involvement in any business are hereby terminated’.
[15]Which was presumably an intended reference to Broadtel.
[16]And in any other business carried on by Rifat, whether personally or in corporate form.
Baini acknowledged that he received, in lieu of the Broad Investments Ltd shares, $100,000. He gave a receipt. It should be understood that this amount formed the larger part of the total of $143,581 which, according to the jury’s verdicts, was the benefit received by the applicant from Rifat.
Third, by count 50 the Crown alleged that in May 2007 the applicant made an unwarranted demand with menaces upon a man named Nicholas Srour that the latter ‘[surrender] 50 per cent of Australasian Financial Services to [the applicant]’.
It was not in doubt that the applicant and Srour discussed the affairs of Australasian Financial Services, of which the latter was the principal. According to Srour’s evidence, the applicant told him that he had an agreement signed, that he was coming to take over 50 per cent of the company, and that it would be beneficial for Srour. The agreement was with a former business partner of Srour, named Capozza, who claimed that certain shares in the company belonged to him.
Srour gave evidence that he had told the applicant that Capozza[17] had long since relinquished any interest in the shares. But the applicant had said that he was ‘coming to claim it’.
[17]And another man named Ed Kennett, who at one stage had a small shareholding.
Srour gave further evidence that at a later meeting the applicant had said he, Srour, owed Capozza $100,000, and that it was his (the applicant’s) debt now. The applicant had told the witness that he was coming to collect in a few days. Asked by the witness how he intended doing that, the applicant had replied ‘you know how I do that’.[18] This made the witness fearful, because the applicant had previously told him that he assaulted people to get what he wanted. Srour said that although he could not precisely recall the words used
…the words were from standover tactics to bullying and assaulting people in order to get things [was] the gist of it..
[18]Or, ‘you know what I do’.
In his May 2008 record of interview – always remembering that it was for the Crown to prove its case – the applicant, as I understand it, said that Capozza had approached him, saying that Srour owed him $100,000 for the shares.[19] He, the applicant, had agreed to negotiate for the payment of the money to Capozza. He had believed the latter’s account, which Srour disputed. He had said to Srour, amongst other things – ‘for fuck’s sake, don’t spin shit to me’. But he not made any demand with menaces. Srour, as I understand the applicant’s account, was to be put in funds to pay Capozza by selling the shares to a man named Adicho.
[19]This implying a version Srour had purchased the shares formerly held by Capozza, but had not paid for them.
The applicant was convicted on each of counts 8, 18 and 50.
It is next convenient to note that it was not in dispute that moneys were paid into a bank account of the applicant on 40 occasions between 4 April 2005 and 30 August 2007,[20] and that the applicant was provided with a Mercedes Benz by Rifat, it having earlier been lease-purchased by one of the latter’s employees.
[20]See admission of facts, made pursuant to s 149A, Evidence Act 1958.
The Crown’s case was that the 40 payments into the applicant’s account correlated with 40 of the counts (68 in all) brought against the two accused.
In respect of 32 payments made between 4 April 2005 and 15 March 2007, the applicant was found guilty of the correlative count on all but one occasion – in respect of which there was a directed acquittal.
In respect of the count correlating with three of those payments, the applicant was found guilty, but Arafan was acquitted.
Fr an explicable reason, to which I will later refer, the applicant was acquitted on all 6 counts, said to correlate with particular payments, referable to the period commencing 12 April and ending 30 August 2007.
Arafan was not found guilty on counts which related to offences allegedly committed after 21 December 2005. There was a directed verdict in his favour on 19 counts, and acquittal on 11 counts. These included counts which did not correlate with moneys paid into the applicant’s bank account.
Disposition of the Application
Ground 2
Counsel for the applicant first argued ground 2.
At trial, the judge refused an application to sever count 50. The relevant statutory regime was that established by ss 371 and 372 of the Crimes Act 1958, notwithstanding that the trial was held in May and June 2010.[21] His Honour did not give a formal ruling, but rather rejected the application for reasons which, as he said, had been explored in argument. The transcript makes it plain that he rejected the submission that count 50, in the language of Rule 2 of Schedule 6 of the Crimes Act,[22] was not ‘founded on the same facts or form[ed] or [was] part of a series of offences of the same or a similar character’. It is clear also that the judge rejected the submission that he should exercise his discretion to direct a separate trial on count 50 because the applicant might be prejudiced or embarrassed in his defence.
[21]CGL v DPP [2010] VSCA 26, [7].
[22]Made relevant by s 371.
In this Court, counsel for the applicant submitted that the judge erred by not accepting the argument that count 50 should not have been joined on the same presentment as the other counts. He submitted that the prior personal and business relationships between the parties – by whom he meant Rifat, Srour, Baini and (probably) Capozza – was not a sufficient nexus to justify joinder. He accepted that, ‘in terms’ the offences constituted a series, but he argued that the language of Rule 2 of Schedule 6 needed to be understood in context. He cited R v McLean.[23] He referred also to the fact that the Crown had not alleged cross-admissibility below. It was irrelevant, he submitted, that cross-admissibility might have been contended for by the Crown at trial with prospect of success.
[23](2000) 2 VR 118, 128–130 (Tadgell JA).
Counsel for the Crown submitted in this court that the counts were properly joined. He submitted that-
The cardinal criterion for determining whether counts are properly joined is that there be a link or other nexus, though the rules were intended to be flexible in their operation. The requisite nexus goes beyond the identical legal character of blackmail counts to require a ‘feature of similarity which in all the circumstances of the case enables the offences to be described as a series.’ Here, the applicant was introduced to both victims at the same time, in the context of him providing Rifat with protection. Srour and Rifat had shared business dealings, and Srour was aware when subjected to the applicant’s blackmail that Rifat had been paying him significant sums. The common genesis of both complainants’ involvement with the applicant, their shared circumstances and the underlying knowledge made the bulk of Srour’s evidence (though not the blackmail allegation) admissible in the Rifat trial, and some of Rifat’s evidence admissible in the Srour’s trial.
The alleged offences involving Rifat and Srour, which had a close temporal relationship, occurred against a background of a well-established and relevant relationships between the individuals involved. Thus – (1) Srour had at one stage been associated in business with Hakim; (2) it was Hakim who had introduced Srour and Rifat; (3) Srour had become friends with Rifat, and had later learned of the latter’s ‘quite serious’ problems with Hakim. He had met with Rifat and the applicant in 2004, and later. On occasions, in his presence, Rifat had told Baini about his problems with Hakim. The applicant had said, on four or five occasions, referring to Hakim, that he would ‘sort him out or look after it,’ that he ‘would look after it and make sure that [Hakim] would stay away from him;’ (4) The applicant had told Srour, on a number of occasions, that he assaulted people in order to get his way.
Counsel for the Crown was correct in his submission that most of Srour’s evidence would have been admissible on the trial of the counts involving Rifat, even if count 50 had not been on the presentment. In respect of those counts, it was principally Srour’s evidence concerning the events the subject of count 50 which would have been inadmissible. That is because the Crown did not contend for cross-admissibility – although the prosecutor repeatedly asserted that the applicant’s dealings with Rifat and Srour exhibited a common modus operandi.
On the other hand, had count 50 been discretely tried, only a small amount of Rifat’s extensive evidence would have been admissible. It appears to me that, as the Crown put its case, Rifat could not have given evidence of his dealings with the applicant concerning Hakim, of the circumstances giving rise to counts 8 or 18, or of the many instances on which, as he claimed, the applicant had made demands for money with menaces.
In all, the relationships between the parties established a relevant background to the offending alleged by all the counts. It provided context. But, absent cross-admissibility, with the consequence that the evidence of Rifat and Srour in respect of a count or counts involving the other was limited – though variably so – I doubt, though in the end I need not decide the question, that the language of Rule 2 to Schedule 6 of the Crimes Act was satisfied.
I turn to the question of prejudice. Counsel for the applicant submitted that the judge failed to appreciate the level and nature of the prejudice flowing by reason of the evidence on count 50 being admitted. There was a real risk, he argued, that in its consideration of count 50 the jury would improperly bring to account Rifat’s evidence concerning the other counts. So also, in considering those other counts, there was a real risk that the jury might reason to the applicant’s guilt in reliance on Srour’s evidence. That evidence was said to be particularly potent because of Srour’s assertion that the applicant had told him that he assaulted people to get his way. A separate consideration direction was, counsel argued, less likely to be complied with in such a case.
Counsel submitted that the judge made two specific errors when dealing with the question of prejudice. First, at one point, in debate with counsel, the judge suggested that it was for the applicant to demonstrate that prejudice ‘far outweigh[ed] convenience’. That inverted a passage in the judgment of McHugh J in KRM v The Queen,[24] in which his Honour discussed circumstances in which an application for separate trials may be refused.
[24](2001) 206 CLR 221, 234–235 [38].
If the judge acted upon that view of the law when considering whether there would be relevant prejudice, then he was in error. Normally, one pays little regard to provisional views expressed by a judge in argument, or to teasing questions. But here, most unfortunately, his Honour did not give a formal ruling. He said only that he rejected the application to sever ‘for the reasons which have been explored in argument.’
In this unsatisfactory situation, I consider that it should be assumed, in the applicant’s favour, that the judge applied an erroneous view of the law when considering the exercise of his discretion.
Counsel for the applicant further submitted that the judge erred when he said that the applicant faced no greater prejudice by reason of the inclusion of count 50 in the trial of the other counts, because it was just one more instance where a separate consideration direction would have to be given. That observation, counsel argued, missed the point. It was not just one more instance. It was a count which involved a separate complainant.
In my view, there was differential force in that submission. I consider that the judge could fairly conclude, in a practical sense, that the non-severance of count 50, albeit involving a second complainant, was very unlikely to make any difference to the outcome on the Rifat counts so long as he gave a separate consideration direction. That was the more so when most of Srour’s evidence would in any event be receivable on the Rifat counts.
On the other hand, for reasons which I have explained, the non-severance of count 50 would expose the applicant to the jury considering that count in the context of receipt of much evidence of a prejudicial nature which had nothing to do with the particular count. I consider that the judge’s remarks in arguendo failed to address the potential source of prejudice.
In the event, I consider that the judge’s ruling with respect to non-severance in the exercise of the discretion conferred upon him by s 372(3) was attended by error. Perhaps, also, his ruling with respect to the propriety of joinder was wrong. But that is not the end of it. For there to be a remedy, an error must have occasioned a miscarriage of justice.
Counsel referred to Demirokv The Queen,[25] where the Full Court said this:
When the judge's exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge's discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge's decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge's discretion miscarried, but simply that because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.[26]
[25][1976] VR 244 (Young CJ, Lush and Crockett JJ).
[26]Ibid 251.
The present case falls within the first category described in that passage.
The Court explained what it meant by a miscarriage of justice this way:
Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or, in some situations, only marginally relevant. In very rare cases, of which we think this is one, although the trial has been correctly conducted, the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation, we think that it is not satisfactory to say that, the rules governing trials having been observed, there has been no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce. The miscarriage lies in the fact that, despite the correct application of the various rules, the trial has not been of the kind which those rules are intended to produce.[27]
[27]Ibid 255-256.
It appears that the Court approached a case in which there was a possibility that, despite warnings, inadmissible evidence might have affected the minds of the jury,[28] or perhaps, more restrictively, a case in which there was a substantial possibility that the jury may have been mistaken or misled in the manner in which it reached its conclusion,[29] as one in which it should be concluded that there had been a miscarriage of justice.[30] – this description in substance encompassing a verdict which was unsafe or unsatisfactory.
[28]R v George Smith (1966) 51 Cr App R 22, 27 (Edmund Davies LJ).
[29]Davies and Cody v The Queen (1937) 57 CLR 170.
[30]It would have been a conviction, the Court said, which met the ‘unsafe or unsatisfactory’ criterion of the English Criminal Appeals Act 1968, s 2(1)(a). See [1976] VR 244, 256–257.
The Court also said this:
The many cases dealing with the phrase "no substantial miscarriage of justice" appearing in the proviso to s 568(1) of the Crimes Act 1958, were necessarily cases in which there had been some defect in the trial, and as a result the language in which they are expressed is inappropriate to the present situation.[31]
[31]R v Demirok [1976] VR 244, 256.
It is, I think, not altogether clear whether the Court was saying that the proviso to s 568(1) of the Crimes Act could not apply in such a case. If so, that must have been not because the proviso was an irrelevant consideration, but because the nature of the miscarriage meant that it necessarily constituted a substantial miscarriage. That might be the case if, although the exercise of the discretion was unimpeachable,[32] the ‘developments at the trial’ showed that there had been a failure to observe ‘an essential condition of a satisfactory trial’.[33]
[32]The situation in Demirok.
[33]R v Demirok [1976] VR 244, 251 and 256.
Whatever doubt there might have been as to the potential application of the proviso in a refusal to sever case has subsequently been put to rest. In Collie, Kranz and Lovegrove v R,[34] King CJ stated that the critical issue was whether
The joint trial has produced a substantial miscarriage of justice in the sense of depriving the appellant of a fair trial. [35]
[34](1991) 55 A Crim R 139.
[35]Ibid 147, my emphasis.
The same phrase was used by the Appeal Division in R v Heaney.[36]
[36][1992] 2 VR 531, 555.
Again, in Webb and Hay v The Queen[37] Toohey J described the critical question as being –
Whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused.
[37](1994) 181 CLR 41, 89, my emphasis.
The matter was explicitly dealt with by Winneke P in R v Alexander and McKenzie[38] when his Honour said, citing R v Assim[39] -
The essential issue to be considered is whether any real injustice has been done to the applicant, as otherwise the proviso … can be applied.
[38](2002) 6 VR 53, 67 [31].
[39][1966] 2 QB 249, 259.
Since Demirok, there have been a number of pertinent developments in the law. First, the concept of what is an unsafe or unsatisfactory verdict was described by the High Court in M v The Queen.[40] Second, in Weiss v The Queen[41] the High Court passed upon the operation of the proviso to s 568(1) of the Crimes Act. Third, s 568(1) of the Crimes Act has been replaced by s 276 of the Criminal Procedure Act 2009. The proviso has gone. In terms, an applicant must satisfy the Court, where one or other of paragraphs (b) and (c) applies, that ‘there has been a substantial miscarriage of justice’. Fourth, the High Court has stated, in clear terms, the assumption that a jury will perform its task in accordance with a judge’s directions, even in what might be described as an extreme case.[42]
[40](1994) 181 CLR 487.
[41](2005) 224 CLR 300.
[42]Dupas v The Queen (2010) 241 CLR 237.
The first two developments are of present relevance, as is the fourth; but not the third.
The relevance of the first is that, in Weiss, the High Court directed appellate courts to undertake consideration whether, in a given case, there has been a substantial miscarriage of justice -
in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.[43]
[43](2005) 224 CLR 300, 316 [41].
The question whether an application for leave to appeal against conviction should be granted, and the appeal allowed, always depended, in matters to which s 568(1) of the Crimes Act applied, upon satisfaction of one of the three descriptions set out in the sub-section, and upon the failure of the Crown to call the proviso in aid in a case fitting the second or third description. Criminal appeals being a creature of statute, there was no other basis, in a case such as the present, upon which an appeal might succeed. Before Weiss, a kind of case was recognised in which, even if an appellate court was satisfied that ‘this jury’ or ‘any reasonable jury’ – that was the apparent area of debate, one which was rendered irrelevant by the High Court’s decision – would inevitably have convicted the applicant in the absence of the irregularity, nonetheless the appeal should succeed. That was where ‘the trial was so irregular that no proper trial had taken place’, there being ‘a serious departure from the essential requirements of the law’,[44] where the proceeding ‘so far miscarried as to be hardly a trial at all’, ‘the proceeding [being] fundamentally flawed’, the irregularity constituting ‘such a departure from the essential requirements of the law that it goes to the root of the proceedings’.[45] So also, in Glennon v The Queen,[46] a distinction was drawn between misdirections which were and were not ‘fundamental’.
[44]Quartermaine v The Queen (1980) 143 CLR 595, 600–601 (Gibbs J, with whom Stephen and Murphy JJ agreed).
[45]Wilde v R (1988) 164 CLR 365, 372–373.
[46](1994) 179 CLR 1, 8–9 and 12–13.
Weiss accepted that cases could still arise in which, despite an appellate court concluding, on consideration of the whole record, that the accused’s guilt was established beyond reasonable doubt upon evidence properly admitted at trial, an appeal might be allowed.[47] Stating that ‘no single universally applicable formula can be formulated which identifies cases in which [that course] would be proper’, the Court nonetheless observed that ‘cases in which there has been a significant denial of procedural fairness at trial may provide examples of [such] cases’. It said also that it was unnecessary to consider whether ‘some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such serious breaches of the presuppositions of the trial as to deny the application’ of the proviso.[48]
[47]Weiss v The Queen (2005) 224 CLR 300, 317 [45].
[48]Ibid [46].
In subsequent cases, judges of the High Court have been at pains to emphasise that the circumstances in which the proviso should be held not to apply are to be determined by undertaking the required examination, not by simple resort to and application of the kind of formulations described at [66] above.[49]
[49]Compare the observations of Gleeson CJ and Kiefel J (who dissented in the result) in AK v Western Australia (2008) 232 CLR 438, 447-448 [23] and of Heydon J, 469-470 [87] with the statements of Gummow and Hayne JJ, 455-456 [52]-[55]. See also the reasons of Gummow and Hayne JJ in Gassy v The Queen (2008) 236 CLR 293, 307 [33]-[34] and the reasons of Hayne, Crennan and Kiefel JJ in Cesan v The Queen (2008) 236 CLR 358, 393-395 [123]–[126].
If Demirok implicitly treated the consequences of refusal to sever – even if the refusal was a proper exercise of discretion – as a failure to observe an essential condition of a satisfactory trial, and thus that a guilty verdict could not be ‘saved’ by recourse to the proviso, then Weiss, and the authorities to which I have referred at n 37, mean that the proposition cannot be stated in absolute terms. Rather, the significance of the irregularity must be examined in the particular case; and in that examination, proper weight must be given to the adjective ‘substantial’, it being ‘more than mere ornamentation’.[50] But if Demirok is to be understood, in light of later authorities, as requiring a case by case enquiry whether a failure to sever, in the events which occurred, produced a miscarriage with was substantial, then again that enquiry must be conducted, in a case to which s 568(1) of the Crimes Act applies,[51] in accordance with Weiss.
[50]Gassy v The Queen (2008) 236 CLR 293, 300 [17] (Gummow and Hayne JJ).
[51]It will be the same if s 276(1) (b) or (c) of the Criminal Procedure Act 2009 is in point: Sibanda v The Queen [2011] VSCA 285, [5] (Nettle JA), [61]–[65] (Sifris AJA).
In my opinion, it cannot be said that any substantial miscarriage was occasioned to the applicant in respect of the Rifat counts by reason of the refusal to sever.First, the evidence on the counts in respect of which guilty verdicts were returned was, in my opinion, very strong. I will say more about this when dealing with ground 1. Second, the verdicts were delivered in the context of the judge having given a strong separate consideration direction. Third, I consider that applicant’s counsel over-dramatised the potential for the jury to be distracted from its task in the face of the judge’s clear directions with respect to separate consideration of each count. Not only has the High Court recently reaffirmed the assumption that a jury will heed a judge’s direction even what might be described as an extreme case,[52] the jury’s verdicts on the Rifat counts demonstrated a very obvious application of the separate consideration requirement. By way of illustration, the jury acquitted the applicant on counts which alleged offences subsequent to March 2007. That is explained by Rifat’s evidence that he had little or no contact with the applicant after Easter 2007. On the other hand, the jury found the applicant guilty of count 50, the count involving Srour, which turned upon events which occurred in May 2007. The course of the jury’s verdicts, which must be brought to consideration, strongly suggests that it gave separate consideration to each count, and only found a count established where the evidence of guilt of the particular accused was clear-cut.[53]
[52]Dupas v The Queen (2010) 241 CLR 237.
[53]In some instances, the jury found the applicant guilty of an offence but acquitted Arafan of the same offence.
I have reached a different conclusion, however, with respect to the applicant’s conviction on count 50. In my opinion, the refusal to sever did bring about a substantial miscarriage of justice with respect to the applicant’s conviction on that count. The predictable consequence of the ruling was that a great deal of evidence which had no possible relevance to the applicant’s trial on the count, but which was highly prejudicial, went into evidence.[54] Unlike the situation with the Rifat counts, it cannot be inferred from the verdict – because there was only one count concerning Srour – that the jury was unaffected in its consideration of count 50 by that prejudicial material. That is so notwithstanding the assumption that a jury will act in accordance with a judge’s directions.
[54]The situation was in my opinion akin to that described by Winneke P in R v Alexander and McKenzie (2002) 6 VR 53, 62 [24].
In the event, I consider that ground 2 is made out only in respect of count 50.
Ground 3
Although I have concluded that the conviction on count 50 should be set aside in reliance on ground 2, I should say a little about the ground 3, which pertains only to that count.
According to the submissions for the applicant, the gist of the matter, from a factual standpoint, is that Srour –
(a)stated in evidence-in-chief that he was 100 per cent sure that the applicant had used the word ‘standover’, whereas in cross-examination it was shown that on a voir dire he had said that the word was not used at any time; and
(b)denied in cross-examination that the applicant had told him that Adicho owned 50 per cent of Australian Financial Services, whereas on the voir dire he said that he said that the applicant had told him this.
According to the submissions of applicant’s counsel, these prior inconsistent statements ‘were of central importance to the defence case in relation to count 50.’
It is desirable to put the alleged inconsistencies upon which the applicant relies into context.
On a voir dire, Srour said, in substance, that on a number of occasions the applicant had told him about giving protection to people by means of assaults on others, if need be. The applicant would discuss standing over people. But he had not himself used the word ‘standover’. What the applicant had said gave meaning to his reply, when asked by Srour how he was going to enforce his supposed entitlement to 50 per cent of AFS, ‘Well, you know how I am going to do that.’
In examination-in-chief, the witness stated that he was scared and frightened by what the applicant said, knowing –
The few times I’d met with [the applicant] of what he suggested that he does from the sense that he’s a standover man.
Asked what words the applicant had used on those earlier occasions, the witness answered that he could not precisely remember. He referred to ‘the gist’ of what the applicant had said, and repeated that he did not remember the words. He said:
But the words were from standover tactic to bullying and assaulting people in order to get things is what the gist of it was.
Asked by the prosecutor:
You don’t say to the jury that he definitely used the word ‘standover’?
The witness replied:
No. I’d be actually a 100 per cent sure that he’d used the word standover, yes.
But then he agreed that the summary which he had given was the gist of what the applicant had said.
There was this cross-examination:
It was in the context of these occasions, these get togethers, that you say Mr Baini had a conversation with you – or conversations – to the gist that he used standover tactics, bullying and assaulting. Is that right?
Correct.
You say with a 100 per cent certainty that he used the word "standover". That was his word?---Yes.
That led to this cross-examination:
You were asked this question by the learned prosecutor, "You used the word 'standover'. Is that word used by Mr Baini at any stage during those earlier conversations," and you said, "No." Was that question asked of you and did you give that answer?---I don't remember yesterday but if that's what I said you have noted it down. I don't remember saying that.
I turn to the other inconsistency relied upon by the applicant.
On the voir dire, Srour said that the applicant told him -
that he now owns or John Adicho owns 50 per cent of the AFS and the shares had been signed across to him …
In cross-examination, the witness agreed that, from discussion with the solicitor Birch, he understood that there was in existence an agreement concerning a share transfer of shares held by Capozza to Adicho. So far as he understood it – remembering that he never saw the document – the applicant was not a party to it.
Then it was put to the witness that –
Can I suggest to you that when you had discussions with Mr Baini, whether it be the evidence you've given about the phone call or the meeting at the coffee shop, that what in fact Mr Baini was saying to you was that it was John Adicho who owned the 50 per cent, not Mr Baini. What do you say to that?---Untrue. Michel kept relating to it as his.
After that, the evidence on the voir dire was put to Srour. The witness gave an explanation:
Were you asked that question and did you give that answer?---I was asked the question but I think I was just still referring to that Michel was saying that he owned them. The John Adicho I was answering from what – I think that was the name that was on the agreement that I understood it was.
The judge directed the jury as to the alleged inconsistencies. He said that if the witness made the previous statements (which was incontrovertible) and if they were inconsistent, then that circumstance could be used to assess the witness’s truthfulness and reliability. He also directed the jury that it was what the witness said in court which was the evidence upon which the jury could act if it so chose.
Submissions were thereafter made by counsel on an exception taken by the prosecutor. The judge’s attention was directed to s 60 of the Evidence Act 2008. His Honour’s response was that the section did not apply because it relates only to ‘previous representations’, which are defined by the Dictionary in the Evidence Act2008 to mean:
a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
Here, he said, the representations – though given on a voir dire – had been representations in the course of giving evidence in the proceeding.
In the event, the judge did not re-direct the jury that the representations were evidence of the facts asserted.
The point made for the applicant before us was that s 60 meant that the representations constituted by evidence given by Srour on the voir dire, once admitted as an attack on the witness’s credibility, stood as evidence of facts asserted.
I need not consider whether the evidence given by Srour on the voir dire constituted previous representations for the purposes of ss 59 and 60 of the Evidence Act 2008. Assuming in the applicant’s favour that they did, what were the facts asserted? In substance, they were that: (1) the applicant had told Srour that he assaulted people, if need be, to get things done. But that he had not described himself as a standover man; and (2), that the applicant had said that he or Adicho owned 50 per cent of AFS, and that the shares had been signed across to him.
How either of those accounts, had the jury been told that they could be treated as evidence of the facts, could possibly have assisted the applicant, I do not understand. Moreover, the real use of the alleged inconsistencies by applicant’s trial counsel was to attack Srour’s credit. Contrary to the submission advanced in this Court, they were not of ‘central importance to the defence case.’
In the event, there was nothing to ground 3.
Ground 1
Counsel for the applicant accepted that, whether or not Rifat had given evidence of a specific demand being made as a precursor to the making of each payment, nonetheless it had been open to the jury to infer to the standard of criminal satisfaction, in the case of each count on which the jury returned a guilty verdict, that the applicant had made a demand. He submitted, however, that – (a) in respect of a number of counts – 3, 13 to 17 and 25 – Rifat had given no evidence of menaces specific to the particular demand; (b) in respect of other counts, Rifat’s evidence had been impermissibly vague, making use of language such as ‘same reason as the other one’ and ‘the usual’. Counsel criticised the prosecutor’s failure to ask questions apt to provide evidence of specific demands with menaces in the case of each of the many counts; and (c) that the verdicts were unsafe and unsatisfactory in the M v The Queen[55] sense. He referred to (i) evidence which the Crown might have called, but did not;[56] (ii) evidence that the applicant had provided valuable services to Rifat, far exceeding the two transactions (totalling $53,000) to which Capozza made reference in his evidence; (iii) an inconsistency in Rifat’s evidence. On the one hand, Rifat had said that every payment was preceded by demand. On the other hand, he had made payments between April and August 2007, during which period he said that he had little or no contact with the applicant; and (iv), the fact that Rifat did not complain until the applicant brought a proceeding against him founded on the terms of settlement; and initially his complaint was incomplete.
[55](1994) 181 CLR 487.
[56]A file headed ‘mobster’ said by Rifat to exist, and to refer to the applicant. Members of Rifat’s staff who had effected payments on Rifat’s invitations. Telephone records of calls made to Rifat by the applicant.
Counsel for the Crown accepted that, in respect of a number of counts, Rifat had not given evidence of a correlative threat. But he submitted that it had been well-open to the jury to infer that there was a continuing menace, reinforced from time to time, operative in the case of each demand; and that it was incorrect to say that there must have been evidence of a specific threat correlating with each demand. He further submitted that, in the M v R context, it was permissible to look at evidence which might have been given but was not, but that in the end the question whether a verdict was unsafe or unsatisfactory depended upon consideration of the evidence which had been given.
In my opinion, for the following reasons, ground 1 should be rejected.
First, it was not in debate that the judge correctly directed the jury as to the elements of the offence of blackmail. He also correctly instructed it as to the drawing of inferences, in particular, drawing inferences adverse to an accused.
Second, it is the case that, in response to objection by counsel for Arafan, the prosecutor attempted to elicit from Rifat evidence of a particular unwarranted demand with menaces in respect of each payment made. Unsurprisingly, Rifat’s evidence did not address every demand, and he was unable, except in a limited number of instances, to recall any ‘menacing pressures’[57] specific to a particular demand. Had he asserted a recollection any greater than he did, in the absence of a contemporaneous written note it would have been unbelievable. But what he made very clear, in my opinion, was that a menacing pressure was operative in respect of each demand made upon him. If that was not the direct import of his evidence, it was certainly an inference which the jury could have drawn – and I draw – adverse to the applicant to the criminal state of satisfaction. So, for instance, Rifat said that (1) he would not have paid any money without a threat being made; (2) the reason for making certain payments was that he was worried for [his and others] safety, that it was the lesser of two evils; (3) if he did not sign the deed of partnership ‘he would destroy my business, he’d destroy me, bury me 20 feet under, hurt my family and kill my horses’; (4) there were ‘the constant threats all the time’; (5) ‘I felt like a hostage, I had no choice but to do what I had to do’; (6) the applicant ‘wanted his money, continual calls, harassment, made to feel unsafe … it was just like being in a nightmare, just a hostage that never ended’; (7) he was ‘worried for the safety of [his] staff, [himself], [his] family’; (8) a particular payment was made for ‘same reason as the past. You know, worried about your safety, making sure we keep them at bay’; and (9), that every payment was made ‘under duress’. It was in that context that Rifat used phrases such as ‘same as the other ones’, ‘same reasons’, ‘same as previous’ when describing his reason for making a particular payment, which on his evidence implied a correlative demand. Those phrases bespoke a pervasive and continuing menace, which attached to each demand.
[57]The language of Sir Igor Judge, then President of the Queens Bench division, in R v Jheeta [2007] 2 Cr App R 34, 484 [15].
Third, counsel for the applicant rightly did not dispute that a menace might operate although it was not communicated specifically with respect to each demand. His only point was that the prosecutor had, in effect, attempted to achieve the impossible – to obtain evidence of a specific menace communicated with each demand – and had failed. But that was no answer to the evidence in fact placed before the jury, and to the matters for proof and means of proof about which the judge directed the jury.
Fourth, I consider that the criticisms which applicant’s counsel made as to the state of the evidence do not bespeak a situation in which the jury should have had a reasonable doubt of the applicant’s guilt. Having considered the evidence, I entertain no such doubt.
It is true that evidence might have been called by the Crown which was not – most particularly, a ledger which Rifat said was kept concerning payments to the applicant. Again, it might have been possible to produce evidence of the phone calls which Rifat said the applicant made to him when demanding money. It is also true that there was some evidence that the applicant provided services to Rifat’s business. It is further true that Rifat did not complain until he was sued by the applicant on the terms of settlement, and that his initial complaint made no reference to the terms of settlement. These matters were such as might be advanced in final address. But in my view the jury was in entitled to conclude, as I do, that the Crown case was overwhelming. The following are some of the matters supporting that conclusion: (1) Rifat’s evidence went as far as it sensibly could. For that reason, it had credibility; (2) Rifat gave evidence of the applicant’s threat to change sides. The applicant said in his record of interview that Hakim had made him offers. He denied a threat to change sides. Rifat learned of Hakim’s offer. It must have been from the applicant. An inference was surely available that Rifat learned of the offer from the applicant in the context of a threat to change sides; (3) It is grossly improbable that Rifat would willingly have transferred a major interest in Telkom to two people, one of whom he scarcely knew, and neither of whom knew anything about the telecommunications industry; (4) The terms of settlement gave a disproportionate benefit to the applicant for any work that he might have done, and for his supposed interest in Telkom, and it gave a benefit to Arafan, who had done no work for Telkom, and whose supposed interest in Telkom had even less sensible explanation; (5) Rifat continued to make payments to the applicant even after the terms of settlement had been signed; (6) Rifat’s belated complaint was consistent with his account that he had earlier been given no help by the police in the face of Hakim’s alleged threats. Rifat might well have viewed the proceeding instituted by the applicant, as Nettle JA suggested in argument, as ‘the last straw’.
Conclusion
I would grant the application for leave to appeal in respect of the applicant’s conviction on count 50. I would allow the appeal and direct a retrial on that count. Whether a retrial would be of any utility is not a matter for this Court. I would otherwise refuse the application for leave to appeal against conviction.
The sentence application
Grounds
The applicant relied upon the following grounds:
1.The aggregate sentence of nine years imprisonment and the non-parole period of six and a half years imprisonment are each manifestly excessive.
2.The learned sentencing judge erred by giving excessive weight to the applicant’s prior convictions (Reasons, [24]).
3.The learned sentencing judge, in imposing an aggregate sentence pursuant to section 9 of the Sentencing Act 1991 (Vic), erred by:
(a)failing to identify, at least in general terms, the components of the sentence; and
(b)including within the aggregate sentence the sentence imposed on count 50, when this offence was not founded on the same facts and did not form part of a series of offences of the same or similar character as required by section 9(1) of the Sentencing Act.
The maximum penalty for blackmail, as I noted earlier, is 15 years imprisonment. That was the maximum penalty on each of the counts upon which the applicant was convicted; although, of course, totality and proportionality considerations must necessarily have intruded in passing sentence. The judge determined to impose an aggregate sentence. See s 9 of the Sentencing Act 1991. It was not in debate in this Court that it had been open to his Honour to do so (a fortiori, if count 50 was excised). Neither was it in debate that, if the applicant fell to be re-sentenced, it would be appropriate for this Court to impose an aggregate sentence.
For two reasons, the applicant does fall to be re-sentenced. First, the sentence imposed had regard to the applicant’s conviction on count 50. That count involved one of the comparatively serious instances of offending. But now the applicant must be sentenced on the counts upon which he was convicted other than count 50. Second, the Crown rightly conceded that the judge failed to comply with the requirements stated, with respect to the imposition of aggregate sentences – particularly those involving a large number of counts – by this Court in DPP v Felton.[58] See also R v Grossi.[59]
[58](2007) 16 VR 214, 215 [2] (Buchanan JA), [46]–[47] (Kellam AJA).
[59](2008) 23 VR 500, 510–511 [40] (Redlich JA).
In my opinion, consonantly with the approach taken by the parties, the circumstances of the matter are such that imposition of an aggregate sentence is proper.
I have already described the circumstances of the offending. Applicant’s counsel admitted that it was serious. Indeed it was. The applicant committed many offences over a period of nearly two years. The applicant repeatedly put Rifat in fear. Rifat was vulnerable, having, on his account, already failed in an attempt to obtain help from the police. So, for him, the menaces had particular potency. Moreover, the threats made by the applicant extended beyond Rifat to his family and property. The conduct the subject of counts 8 and 18 was particularly serious. It was calculated – no spur of the moment thing. It had a degree of sophistication. It provided a vehicle for the applicant extorting a quite a large sum of money from Rifat. Had the terms of settlement borne full fruit, the applicant might have obtained not less than about $440,000, and perhaps as much as $700-800,000. He was sufficiently brazen to attempt to sue on the terms of settlement, albeit that it proved to be his undoing.
It must next be recognised that, as was his right, the applicant went to trial. In consequence, the mitigating impacts of a plea of guilty, and remorse, are not available to him.
The applicant had a certain criminal history. On 8 July 1996 he was fined without conviction on a charge of possessing an unlicensed pistol or imitation weapon. On 26 August 2002 he was convicted and fined on a charge of possessing ammunition without a licence. Finally, in July 2006, in the County Court, he was convicted on a count of obtaining a financial advantage by deception. He was released on a two year good behaviour bond, on payment of a penalty of $1000. He breached the bond by committing a number of the later offences involving Rifat.
On the plea, applicant’s counsel stated, with respect to the prior matters, that the last of them had involved offending in 2002. Thus, the period spanned by the previous offending was between 1996 and 2002. Other than that, counsel implied that the 2002 offending, dealt with in July 2006, involved a fraud on the Commonwealth; and he described the other matters as old and dissimilar from the instant offending. There had not been, he submitted, any prior offending which involved threats, menaces or any direct violence. He pointed out, also, that the applicant had not previously been imprisoned.
In all, however, no real light was cast upon the circumstances of the prior offending. Its significance or otherwise in connection with sentencing the applicant for the instant offences remained almost completely unexplored.
The applicant was aged between 48 and 50 at time of offending. He was aged 53, nearly 54, at time of sentence. Now he is aged 55. He is a married man with adult children.
It appears that the applicant migrated to Australia from Lebanon when aged 19. After undertaking a course in English, he worked in several jobs and was then self-employed until 1994. Thereafter, until trial, according to counsel’s submissions on the plea, he had not been in regular employment. At times he had worked as a ‘broker of sorts’. His main income, according to counsel, had been social security payments.
The applicant called in aid on the plea 17 testimonials to his good character. The authors of many, but not all, of them, were family members. That is not to doubt the truthfulness of what they said. Certainly that revealed a very different man to the persistent criminal who fell to be sentenced.
Before this Court, applicant’s counsel particularly relied upon his client having ceased offending of his own volition – that is, in early 2007 – upon his client’s limited prior criminal history, and upon the strong evidence of his client’s good character, which included evidence that in recent times before sentence the applicant had taken on a role caring for unwell members of his family. He also called in aid the delay between last offending and sentence – albeit that the police investigation which began in about May 2008 was sparked by his client’s belated attempt to sue on the terms of settlement.
The seriousness of the applicant’s offending meant that just punishment is an important sentencing consideration.
So is general deterrence, because crimes such as the applicant committed are insidious. Those minded to similarly offend should understand that substantial punishment awaits them if their crimes are discovered.
I consider, again, that specific deterrence has a part to play in sentencing the applicant, although it is in his favour that, according to the jury’s verdict, he ceased offending on his volition.
That last consideration, allied with evidence of the applicant’s good character generally, and particularly the evidence of his caring for unwell members of his family, justifies a conclusion that he has fair prospects of rehabilitation. In light of the repeated and serious nature of his offending, no more favourable assessment can be made.
The applicant’s age bears upon the sentence which should be imposed. As I have said, he is now aged 55. He has never been in prison before. Now he has been in prison for about 16 months, including a period of pre-sentence detention.
I allow something in mitigation by reason of delay between last offending and sentence.
The most serious offending was that comprehended by counts 8 and 18. If I was imposing sentences in the ordinary way, then a sentence of 3 years’ imprisonment on each count would be appropriate, with cumulation of 18 months of one sentence on the other. In respect of all the other counts, no basis for distinguishing sentence is disclosed. If sentencing the applicant in the ordinary way, I would impose a sentence of 18 month imprisonment on each count. I would cumulate, in all, 6 months on counts 2, 3, 4, 5, 6 and 7 – those offences preceding execution of the deed of partnership. I would cumulate 6 months in all on counts 10, 11, 13, 14, 15, 16 and 17 – those counts relating to offending between execution of the deed of partnership and the terms of settlement. I would cumulate 18 months in all in respect of the 20 offences thereafter, the applicant having on any view an even less colourable claim to recompense for services rendered in that period. Such individual sentences and orders for cumulation would properly recognise totality and proportionality. In the event, I consider that an aggregate sentence of 7 years imprisonment should be imposed. I would fix a non-parole period of 5 years imprisonment.
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