Caporn v The State of Western Australia
[2007] WASCA 148
•13 JULY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CAPORN -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 148
CORAM: MILLER JA
HEARD: 6 JULY 2007
DELIVERED : 13 JULY 2007
FILE NO/S: CACR 162 of 2006
BETWEEN: PAUL RAYMOND CAPORN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :SIMMONDS J
File No :INS 44 of 2006
Catchwords:
Criminal law - Leave to appeal - Correctness of direction on honest claim of right - Where onus of proof lies - Turns on own facts
Criminal law and procedure - Whether trial Judge sufficiently put case for the accused - Turns on own facts
Criminal law and procedure - Verdicts - Whether jury properly addressed as to the manner of giving verdicts - Circumstances of aggravation mixed with substantive offence
Legislation:
Criminal Code (WA), s 22, s 371A
Road Traffic Act 1974 (WA), s 60
Result:
Leave to appeal refused on grounds 1 and 2
Leave to appeal granted on ground 3
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Ian Hope
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v Ali (1981) 6 A Crim R 161
RPS v The Queen (2000) 199 CLR 620
Tully v The Queen (2006) 81 ALJR 391
MILLER JA: The appellant was tried in the Supreme Court at Perth on an indictment which charged one count of aggravated armed robbery and one count of stealing a motor vehicle and driving recklessly. He was convicted of both counts on 20 October 2006. He was sentenced on 1 December 2006 to an effective term of imprisonment of 3 years 6 months.
The appellant seeks leave to appeal against his conviction and raises three grounds. They are as follows:
"GROUNDS OF APPEAL
Ground 1
The trial Judge erred when he failed, whilst re-directing the jury, to clearly state the onus was on the Prosecution:
Particulars
a.After receiving a question from the jury as to s 22 of the Criminal Code His Honour re‑directed them on point;
b.In so doing, whilst addressing the question, His Honour did not make it clear that the onus was on the Respondent to prove beyond reasonable doubt the Appellant was not acting pursuant to s 22 of the Criminal Code.
Ground 2
The trial judge's discretion miscarried when he failed in his charge to the jury to adequately inform them of the evidence in support of the Appellant, such that the Appellant did not receive a fair trial.
Ground 3
The trial judge erred when he directed the jury as to the manner in which their verdicts would be taken:
Particulars
a.His Honour directed the jury verdicts would initially be taken that encompassed the substantive charge together with all of the circumstances of aggravation;
b.His Honour should have told the jury he would initially take their plea to the substantive offence, followed then by verdicts on each of the circumstances of aggravation."
The facts
The following summary of the facts is taken from the prosecutor's opening at the trial of the appellant on 18 October 2006.
The count of aggravated armed robbery alleged the stealing with violence of a Holden Commodore sedan, a Motorola mobile telephone and a wallet containing cash. These were alleged to be the property of John Dragajner ("Dragajner"). At the time of the commission of this offence, it was alleged that the appellant was armed with an offensive weapon, namely a screwdriver, and was in company with another. There was a further circumstance of aggravation alleged, namely, that he did bodily harm to Dragajner.
The count of stealing a motor vehicle and driving it recklessly alleged that the offence had occurred on 2 November 2005 at Mount Lawley. The same Holden Commodore as was the subject of the first count was alleged to have been stolen from Dragajner. A circumstance of aggravation was alleged, namely, that it had been wilfully driven in a manner that constituted the offence of reckless driving within the meaning of s 60 of the Road Traffic Act1974 (WA).
The facts asserted by the prosecution were that Dragajner, on 29 September 2005, gave a friend, Cheryl O'Hara, a lift to the home of a friend of Ms O'Hara. The friend was Jackie Molentis, who lived at the corner of Ninth Avenue and Carrington Street, Maylands.
It appears that Dragajner had dropped Ms O'Hara off because he did not see eye‑to‑eye with Ms Molentis. An arrangement was made that Ms O'Hara would telephone him later to arrange to be collected.
At about 11 am, on 29 September 2005, Dragajner returned to collect Ms O'Hara. When he did so, he saw Ms Molentis' green Falcon sedan. The rear passenger door of the vehicle opened and Ms O'Hara stepped out. She got into Dragajner's Holden Commodore and Dragajner drove away along Eighth Avenue. The vehicle stopped at Eighth Avenue, near the Peninsula Hotel, where Ms O'Hara had some business to attend to.
As Dragajner let Ms O'Hara out of his vehicle, he observed Ms Molentis' green Falcon behind him. A man stepped out of the front passenger seat of Ms Molentis' vehicle and came towards Dragajner's vehicle. Dragajner had not seen this man before.
The man approached Dragajner's vehicle and hopped in. He placed himself in the front passenger seat. It was alleged that he then threatened Dragajner by picking up a black‑and‑yellow‑handled screwdriver which was on the console of the Commodore. He allegedly said that Dragajner had to "make over the car" to Ms Molentis. He showed Dragajner a piece of paper, handed him a pen and told him to sign the car over to Ms Molentis "for the ring that you stole". He threatened him that if he did not do this, he would stab him. He was alleged to have added "I have been done for murder so don't think I won't do it".
Dragajner wrote a note on the piece of paper he had been given. He was then told by the man to get out of the vehicle. He refused, but looked to his right and saw an Aboriginal man whom he had never seen before. There was then a struggle. The Aboriginal man got into the vehicle in the driver's seat and pushed Dragajner over to the centre. Dragajner was then between the two men. Punches were exchanged and it was alleged that the man who had been in the passenger seat attempted to stab Dragajner. He was injured and later at Royal Perth Hospital was found to have multiple, but superficial, bruises and abrasions.
Dragajner's vehicle was started, but Dragajner tried to put his foot on the brake to stop it being driven away. The Aboriginal man pressed his foot on the accelerator and the vehicle was driven down Eighth Avenue into Railway Parade and thence into Ninth Avenue to Carrington Street. Dragajner was ultimately thrown out of the vehicle at Kennedy Street and the vehicle made its way back in the opposite direction from which it had come.
Dragajner's Commodore was recovered. His wallet was missing. The wallet had contained cash. The mobile phone which was in the Commodore was also missing.
Witnesses were called to testify that the Commodore was driven erratically from Eighth Avenue onto Railway Parade. It almost collided with a Stop sign as it negotiated Eighth Avenue into Railway Parade.
On 2 November 2005, a police officer, Constable Stephen Morgan was travelling along Lord Street on his motor cycle. He observed a green Holden Commodore with Northern Territory registration plates and an expired registration sticker. He pulled the car over. The driver of it was the appellant. He was accompanied by a passenger, who was his daughter. The appellant gave a false name. He was asked how he came to have Northern Territory registration plates and an expired Western Australian licence. The appellant replied that he had travelled from the Northern Territory and had a broken windscreen replaced in Kalgoorlie.
Constable Morgan requested that the bonnet of the vehicle be raised so that he could check the identification number. He went back to his motor cycle to make inquiries and whilst there heard the vehicle start up. He looked and saw the vehicle reverse at speed towards him. He jumped out of the way. The vehicle collided with his motor cycle. He drew his revolver, but he did not fire any rounds.
The vehicle then accelerated away down Harold Street at an estimated speed of 60 to 70 kilometres per hour before it turned left into West Parade. The appellant was arrested later the same day and interviewed. He contended that Dragajner had willingly signed over the vehicle, but had then got out of his vehicle, produced a screwdriver and begun to attack the appellant.
Grounds of appeal
Ground 1
This ground contends that the learned trial Judge erred in the course of a redirection to the jury about the provisions of s 22 of the Criminal Code (WA) ("the Code"). Specifically, it is contended that the learned trial Judge failed to make it clear that the onus of proof was on the prosecution to prove beyond reasonable doubt that the appellant was not acting pursuant to s 22 of the Code.
Section 22 of the Code is within ch V of the Code which deals with criminal responsibility. The section (so far as is relevant) is in the following terms:
" ... a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."
The learned trial Judge directed the jury about s 22 of the Code in the following way:
"If a person, and here I am directing you as to a matter of law, has an honest belief that they have the right to deal with the property as they are dealing with it - in this case, did Mr Caporn have an honest belief that he had received the authorisation of the person who had dealt with the former owner of the vehicle so as to take it over from that owner, whether or not the formal transfer had gone through the vehicle title office - that he had the right to deal with the vehicle?
This comes about because there is a provision in our Criminal Code that states that a person is not responsible for an offence in relation to property where they are acting in the exercise of an honest claim of right and without an intent to defraud. This sort of matter, if it's raised on the facts, is a matter for the state to disprove. They must show beyond a reasonable doubt that the accused did not have and was not acting under such an honest belief as I have described. If there is a reasonable doubt whether or not the accused was acting under such a belief then the accused must be acquitted of the offence in the first charge and, as we will see, that has implications for the second.
However, in evaluating this you must consider all the evidence as to the events in question."
His Honour added:
"You will note that there is no requirement in relation to this, no element in relation to this honest belief, that the belief be a reasonable one. That is to say, if a reasonable doubt is raised as to whether or not the accused had the belief that is sufficient to mean that a necessary element in relation to the charge, number 1, and with effects for number 2; that is to say, number 1 on the indictment, the robbery offence, has not been discharged.
It is not a question of whether the belief under those circumstances is a reasonable one. However, in determining whether there was an honest belief or whether you have a reasonable doubt as to whether there was an honest belief you consider all the circumstances. Remember what I said to you earlier about that."
No complaint is made about this direction.
After the jury had retired, they asked a question. The question was somewhat difficult to interpret, but the learned trial Judge recounted it in the following terms:
"I received a note from you and I will read it back to you just to ensure that this is the note with respect to which you have asked for instructions. I have no reason to think otherwise; I just want to make sure. It begins with a quotation:
'Honestly believe he was acting honestly in recovering the vehicle for or on Jackie's instructions' -
and that's the end of the quotation. Then follows what seems to be a question:
At what point does one lose the protection of acting honestly, ie, if violence is involved or if the other party objects?"
There was no response from the foreman of the jury, and it can be assumed that the jury was seeking further direction in relation to the question of honest claim of right. The particular point seems to have been that the jury wanted to know whether the "protection" of acting with an honest claim of right could be lost if violence was involved, or if the other party objected.
The learned trial Judge redirected the jury in the following terms:
"If you are satisfied in accordance with the burden and the standard of proof that violence was involved or that there were objections - and I stress if you find that to be the case - then such a finding is not necessarily fatal to a finding or a conclusion you draw that the prosecution has not discharged its burden of proof according to the appropriate standard with respect to the honest belief matter, or to put it slightly less complicatedly, I hope, that it would still be possible for you to have, and you might well have, a reasonable doubt as to whether there was an honest belief of the sort that would mean you must acquit on the charge of robbery and with the flow‑on effects that we considered."
Further directions were then given in relation to how the circumstances might impact upon this and there was a repetition of where the onus of proof lay. The learned trial Judge said:
" ... and this is to express it in terms of the prosecution having discharged their burden of proof, that is of course the matter precisely for you of whether you are satisfied beyond a reasonable doubt that he did not have an honest belief.
Remember, that's what the prosecution must satisfy you as to for this matter to be dealt with sufficient with other matters that are also required to be dealt with for an ultimate conclusion adverse to the accused, a guilty plea.
You see, the overall matter, the overall response to the question is that the matters you have raised go to the weighing of evidence, particularly circumstantial evidence, in relation to the matter of honest belief, a claim of right, in accordance with the onus and the standard of proof on the prosecution."
The ground of appeal contends that the learned trial Judge erred in not making it clear where the onus of proof lay in relation to honest claim of right.
In my view, the learned trial Judge made it perfectly clear that the onus was upon the prosecution to prove beyond reasonable doubt that at the relevant time the appellant was not doing an act in the exercise of an honest claim of right and without intention to defraud.
The submissions advanced on behalf of the appellant concede that the learned trial Judge "mentioned the fact the onus was on the State to discount the defence", but it is contended that the redirection was inadequate.
In my view, there is no substance in this ground and it has no reasonable prospect of success. I refuse leave to appeal.
Ground 2
This ground contends that "the trial judge's discretion miscarried" when he failed to direct the jury adequately in relation to the evidence in support of the appellant. It is contended that the appellant did not receive a fair trial.
I do not understand how the matter can be said to be one of "discretion". The responsibility of the learned trial Judge was to ensure that the appellant had a fair trial. This required him to instruct the jury about so much of the law as they needed to know in order to dispose of the issues in the case. The learned trial Judge was required to identify the issues and relate the law to those issues: RPS v The Queen (2000) 199 CLR 620 per Gaudron ACJ, Gummow, Kirby and Hayne JJ at [41].
When a trial Judge directs a jury, he is not required to analyse all conflicts and inconsistencies in the evidence adduced during the course of a trial. He will normally direct attention to matters of law and then any particular matters of fact as are necessary to enable the jury to relate the relevant principles of law to the matters of fact which call for their determination: R v Ali (1981) 6 A Crim R 161 per Street CJ at 164 ‑ 165.
In Tully v The Queen (2006) 81 ALJR 391, Hayne J at [79] expressed the need for a trial Judge to avoid "over‑elaboration" of the issues before the jury:
"It is of the first importance to the proper administration of criminal justice that trials not be made longer or more elaborate than they need to be. That object is defeated if trial judges do not focus the minds of the jurors upon what are the real issues in the case and confine the instructions that are given to the jury to only so much of the law as the jury needs to decide those issues. Prudence may well be said to suggest that the judge should err on the side of stating more rather than fewer issues. But it is important to recognise that doing that tends to defeat the object of confining the length and complexity of criminal trials to what is necessary for the attainment of justice. The trial judge must, therefore, steer a difficult course between stating only the real issues in the case, and stating too many issues for the jury's consideration, with consequent over‑elaboration and prolongation of the trial. As Owen J said in Commissioner for Road Transport and Tramways v Prerauer (1950) 50 SR (NSW) 271 at 277, the first duty of the trial judge is 'to explain to a jury in a simple, understandable fashion the law which is applicable to the particular case before them' (emphasis added)." [Citation added]
This was a simple trial. The issues were clear and, in my view, the learned trial Judge concentrated on them without over‑elaboration and without making the trial too complex. The appellant did not testify in his defence. The evidence that related to his beliefs or actions consisted of his answers given to questions put to him by investigating detectives in two video records of interview dated 2 November 2005. Both video records of interview were edited, but they ran to many pages of transcript.
Complaint is made that the learned trial Judge gave insufficient attention to the evidence in support of the appellant, particularly because he referred only to the appellant having referred to a transaction involving Ms Molentis and Dragajner in relation to the vehicle, and because when reference was made to one of the video records of interview conducted with the appellant, the contents of it were not recounted to the jury. In relation to the second count on the indictment, it is complained that the learned trial Judge merely told the jury that there was "evidence from the accused" [sic evidence in relation to the accused] , without reminding them what it was. Counsel for the appellant complains that the two video records of interview ought to have been recounted because they contained exculpatory material.
The first passage about which complaint is made is in the following terms:
"You will also recall the other evidence, Mr Dragajner's own evidence, of course. You will recall the evidence as to the circumstances surrounding the lead‑up to the vehicle being stopped at Eighth Avenue near the corner of Railway Parade. You will recall the evidence of what occurred then from the accused, from Mr Dragajner, and the observations of other witnesses."
This passage was prefaced by the words:
"The accused in the videotape has made a number of statements ... and you will recall several times made statements as to a transaction involving Ms Molentis and the owner of the vehicle, Mr Dragajner, and refers as well to the production of a piece of paper in relation to that."
In a relatively short trial involving simple issues such as this did, I can find no fault with the course taken by the learned trial Judge. His Honour highlighted the essence of the appellant's response to questions put to him by the detectives.
The second passage complained about is the passage which relates to the second count on the indictment. It was in the following terms:
"As to 2 November, remembering I am simply offering these comments for the assistance that they may provide, you will recall the importance in relation to these events of establishing the unlawful aspect or character of what was done, and that of course was part of the directions as to the law. As to the manner of the driving going on here you will recall the evidence particularly of Constable Morgan, the police officer on the motorcycle who stopped the blue VN Commodore on the occasion in question.
You will recall the video material, the evidence [sic] of Mr Caporn, the accused, there. You will recall, and I have mentioned this already, the evidence as to the car proceeding first in reverse and then forward with its bonnet up, the evidence as to the conditions on Harold Street. You will recall the evidence [sic] of the accused and again I mention this in the video of what occurred."
The learned trial Judge directed the jury to the evidence that they heard, but without recounting it in detail. However, the issues were clear enough. The jury had just heard addresses from each counsel and could not but have been aware that the learned trial Judge was telling them to recall what the appellant had said in his video record of interview. No complaint was made by trial counsel that the case called for any more detailed recounting of the facts.
In relation to the first count, the learned trial Judge clearly directed the jury that the issue before them was whether there had been a stealing of the motor vehicle, or there had not. The learned trial Judge identified the fact that the defence proposition was that there had been a transaction between Dragajner and Ms Molentis in relation to the Commodore by which it had been transferred to her. It was for the prosecution to prove beyond reasonable doubt that the appellant was not acting in the exercise of an honest claim of right in taking the vehicle as he did. Other questions arose in relation to the wallet and the mobile phone. In relation to these, the learned trial Judge correctly pointed out to the jury that a question arose in respect of them as to whether or not any agreement between Ms Molentis and Dragajner could be said to have related to those items. That is to say, could the appellant have been acting under an honest claim of right in relation to them if taken by him? It was, however, for the prosecution to prove beyond reasonable doubt that the appellant had stolen those items.
In relation to the second count, directions were given in relation to the provisions of s 371A of the Code and, in particular, the circumstances in which a person might unlawfully use a motor vehicle. The learned trial Judge stressed that, to unlawfully use the motor vehicle, the appellant had to be doing so without proper excuse. This brought into issue the question of honest claim of right and the learned trial Judge pointed out to the jury that if the appellant honestly believed he was dealing with the vehicle through authority from the person to whom the vehicle had been signed over, he was not dealing with it unlawfully. The directions in relation to onus of proof were clearly stated.
The circumstance of aggravation, namely, driving the vehicle recklessly, was addressed by reference to the evidence. The following passage indicates that it was sufficiently addressed:
"Here again circumstantial evidence is going to be important. The prosecution relies on the evidence as to the circumstances of the bonnet being up, the acceleration backwards, then the acceleration forwards, conditions in the street, Harold Street, at the relevant time with other vehicles around and evidence of pedestrians at the end of the street, away from where the driving began. The prosecution also relies, as you will recall, upon the evidence as to the speed at which the vehicle moved forward and what was described in Senior Constable Morgan's evidence as heavy acceleration backwards.
There is, of course, more evidence than that to bear in mind and it's important, again, you bear all the evidence in mind. There's evidence from the accused [sic] and there's the matter of bringing to bear on all of this evidence, including the evidence of the prosecution and the evidence of what the accused had to say, of the testing of that evidence as I've indicated, consideration of what it indicates to you to determine whether you are satisfied beyond a reasonable doubt that the relevant elements of this circumstance of aggravation are made out."
In my view, it was unnecessary to recount in detail the contents of the video record of interview of the appellant and about which his counsel had just addressed the jury.
In my view, this ground has no reasonable prospect of success and I refuse leave.
Ground 3
This ground contends that the learned trial Judge erred in his direction to the jury in the manner in which the verdicts would be taken.
I have given consideration to his Honour's directions in this respect and they were certainly unusual. Instead of seeking from the jury a verdict in relation to the substantive charge and then moving to each circumstance of aggravation, the course taken was to ask for a verdict in relation to the totality of each count, and then to revert to the circumstances of aggravation only if the verdict was not guilty. This was an odd course and, in my view, leave to appeal should be granted in relation to this ground, but only this ground.
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