Cavaiuolo v The Queen

[2021] SASCA 95

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

CAVAIUOLO v THE QUEEN

[2021] SASCA 95

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Livesey and the Honourable Justice Bleby)

9 September 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Appeal against conviction of one count of aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Criminal Consolidation Act 1935 (SA).

The appellant and his co-accused were charged jointly with three offences. Count 1 charged them with aggravated serious criminal trespass in a place of residence contrary to s 170(1) of the CLCA. The circumstances of aggravation alleged were that they committed the offence while in the company of one another, that they committed the offence while knowing of the presence of another person who was lawfully present in the place of residence and that they used or threatened to use an offensive weapon, namely a jemmy bar, when committing the offence.

Count 2 charged the men with aggravated assault contrary to s 20(3) of the CLCA. The circumstances of aggravation alleged were that they committed the offence while in the company of one another and that they used or threatened to use an offensive weapon, namely a knife, when committing the offence.

Count 3 charged the men with aggravated theft, contrary to s 134(1) of the CLCA. The circumstances of aggravation alleged were that they committed the offence while in the company of one another. The co-accused was further charged with damaging property, contrary to s 85(3) of the CLCA (Count 4).

The prosecution case was one of joint enterprise. All three charges against the appellant depended on the jury accepting that he had, at the very least, entered the house.

The appellant was convicted of Count 1, with two of the aggravating features found proved, namely that he committed the offence while knowing of the lawful presence of another person in the property, and while in company of another. He was acquitted of Count 2. The jury was unable to reach a verdict on Count 3.

The co-accused was convicted of all counts. The particulars of aggravation proved with respect to Count 1 were the same as those with respect to the appellant. As to Count 2, the jury found him guilty of aggravated assault, despite also finding that none of the alleged aggravating circumstances were proved, and despite acquitting the appellant, whom the prosecution alleged had wielded the knife the subject of the charge.

The primary issues on appeal were whether, on an information alleging a joint enterprise of the men, the verdicts returned by the jury were inconsistent such that they cannot stand together and whether the verdict of guilty in respect of the appellant was unreasonable and not supported by the evidence.

Held (by the Court), allowing the appeal:

1. The verdicts cannot be explained by the jury having taken a merciful approach. The verdict on Count 1 against the appellant is inconsistent with the verdicts on Count 2 for both men. The appellant has established the likelihood of an injustice.

2. The appellant’s conviction on Count 1 is set aside and the appellant is acquitted of that count.

Criminal Law Consolidation Act 1935 (SA) ss 20(3), 85(3), 134(1), 170(1), referred to.
MacKenzie v The Queen (1996) 190 CLR 348; The Queen v Kelly (1985) 38 SASR 361; R v Drury (1971) 56 Cr App R 104; R v Hunt [1968] 2 QB 433 at 436; R v Jones (1997) 191 CLR 439; R v Kirkman (1987) 44 SASR 591; R v Robertson [2016] SASCFC 133; R v Stone (unreported, 13 December 1954); R v Wilkinson [1970] Crim LR 176, considered.

CAVAIUOLO v THE QUEEN
[2021] SASCA 95

Court of Appeal – Criminal: Lovell, Livesey and Bleby JJA

1. THE COURT: This is an appeal against conviction of a single charge of aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The issues arising are whether, on an information alleging a joint enterprise of two accused, the verdicts returned by the jury were inconsistent such that they cannot stand together (Ground 1) and whether the verdict of guilty in respect of the appellant was unreasonable and not supported by the evidence (Ground 2). This Court previously granted permission to appeal on Ground 1; permission is sought on Ground 2.

2. The appellant and Fotios Pavlidis were charged jointly with three offences. Count 1 charged them with aggravated serious criminal trespass in a place of residence contrary to s 170(1) of the CLCA. The circumstances of aggravation alleged were that they committed the offence while in the company of one another, that they committed the offence while knowing of the presence of another person who was lawfully present in the place of residence and that they used or threatened to use an offensive weapon, namely a jemmy bar, when committing the offence.

3. Count 2 charged the appellant and Mr Pavlidis jointly with aggravated assault contrary to s 20(3) of the CLCA. The circumstances of aggravation alleged were that they committed the offence while in the company of one another and that they used or threatened to use an offensive weapon, namely a knife, when committing the offence.

4. Count 3 charged the appellant and Mr Pavlidis with aggravated theft, contrary to s 134(1) of the CLCA. The circumstances of aggravation alleged were that they committed the offence while in the company of one another.

5. Mr Pavlidis was further charged with damaging property, contrary to s 85(3) of the CLCA (Count 4).

6. The essential facts alleged by the prosecution are as follows. At approximately 7:15 pm on 13 May 2019, while at his place of residence in Seaton, Sean Gray heard a knock on the door and opened it. He saw the appellant, whom he did not know, standing at the door. The appellant asked whether Christopher Davies (another occupant) was home.  Mr Gray said he was not.  At the same time, Mr Gray saw Mr Pavlidis, who was known to him, quickly approaching the door and holding a jemmy bar. Mr Pavlidis had previously lived at the residence, but had left on bad terms approximately a year earlier.

7. Apprehending that the men were there for no good reason, Mr Gray tried to shut the door. The appellant put his foot in the door to stop it. Mr Gray felt three or four pushes, after which the appellant and Mr Pavlidis forced their way inside the house. The appellant then produced a large knife, brandished it at Mr Gray, and said to him words to the effect, ‘Stay there. It’s got nothing to do with you. We are just here for what is [Pavlidis]’s’.

8. The men stole a number of items belonging to Mr Davies. Pavlidis took three laptop computers, a mobile telephone, a baseball bat and a statue of a dragon. At some stage, the appellant took an electric bike from the lounge room.  Mr Pavlidis damaged a television in a bedroom and a ceramic pot in the hallway. On exiting the house, Mr Pavlidis threatened to kill Mr Gray if he called the police and the appellant said that if Mr Gray called the police, they would come back.

9. The prosecution case was therefore one of joint enterprise.  The charge of aggravated assault against Mr Pavlidis depended on his being in a joint enterprise with the appellant when the appellant was said to have threatened Mr Gray with a knife.

10. All three charges against the appellant depended on the jury accepting that he had, at the very least, entered the house.  As to Count 1, the prosecution case was squarely that it was the appellant who had put his foot in the door and forced entry.  On the hearing of the appeal, counsel for the respondent quite properly did not contend that the conviction of the appellant for Count 1 could be sustained on a premise of joint enterprise if the appellant had not entered the house.

11. The appellant and Mr Pavlidis both gave evidence.  Each of their accounts was broadly consistent with the other’s and contradicted that of Mr Gray.  The appellant said that he was there as a peacekeeper, and that at the request of Mr Pavlidis, he did not enter the house at all. Mr Pavlidis gave evidence that Mr Gray let him into the house, as he was there to collect his own belongings, and that the appellant stayed outside the house at all times.

12. Mr Keith Peek, a witness who was sitting in a white utility at the front of the house, gave evidence to the effect that he saw the appellant and Mr Pavlidis go to the house. The men briefly went out of view for a minute or so, after which the appellant came out of the area near the front door of the house, and remained near the front fence of the house.

13. The trial judge gave the jury an orthodox direction about the concept of joint criminal enterprise.  He applied that direction to the circumstances of the case.  In respect of Count 1, he said that if they were ‘not satisfied beyond reasonable doubt that [the appellant] went into the house and produced the knife, and so on’, then they would have to find him not guilty of that count.  He explained that even though this was a case of joint enterprise, the prosecution case against the appellant relied entirely on the evidence of Mr Gray, to the effect that the appellant had gone into the house.

14. In order to illustrate the concept of joint enterprise, the judge also gave an example of two people agreeing to rob a bank, explaining that the one who waits outside running the engine of the getaway car is equally as guilty as the one who goes inside and performs the robbery.  That is a generally useful example, as it illustrates the concept clearly.  In hindsight – and only in hindsight – given the verdicts that transpired, this example may have contributed to the jury’s apparent difficulty for the reasons which appear below. The prosecution case was one of joint enterprise, but the appellant’s guilt on Count 1 depended on the jury accepting Mr Gray’s evidence that the appellant had forcibly entered the house himself and not simply waited outside.

15. Later, the jury asked a question that they indicated related to Count 1, namely whether one defendant could be found guilty and one not guilty.  The judge answered the question as follows:

    The short answer is that it is possible to return verdicts of guilty in respect of one defendant and not guilty in respect of the other defendant.  However, if you are not satisfied beyond reasonable doubt that one of the defendants forced their way in and entered the house, you would have to carefully consider what impact that finding has on the extent to which you can rely beyond reasonable doubt on Mr Gray’s evidence about entry into the house and you would have to carefully consider what is the practicality of one defendant forcing their way in and entering the house.

16. In respect of Count 2, he identified that on the prosecution case, the appellant and Mr Pavlidis had agreed that the appellant would threaten whomever was home to stay still, in order for Mr Pavlidis to go to Mr Davies’ room to take whatever items of value he could find.  He later reinforced that the prosecution case was that the appellant had committed the assault by pointing a knife at Mr Gray and threatening him.

    The verdicts

17. The appellant was convicted of Count 1, with two of the aggravating features found proved, namely that he committed the offence while knowing of the lawful presence of another person in the property, and while in company of another. The third aggravating feature, that he used or threatened to use an offensive weapon when committing the offence, namely a jemmy bar, was not proved.

18. The appellant was acquitted of Count 2. The jury was unable to reach a verdict on Count 3 in his case.

19. Mr Pavlidis was convicted of all counts. The particulars of aggravation proved with respect to Count 1 were the same as those with respect to the appellant. As to Count 2, the jury found Mr Pavlidis guilty of aggravated assault, despite also finding that none of the alleged aggravating circumstances was proved.

20. The following table summarises the jury’s verdicts.

Count	Charge	Appellant	Mr Pavlidis
1.	Aggravated Serious Criminal Trespass	Guilty	Guilty
	(person present)	proved	proved
	(in company)	proved	proved
	(with weapon)	Not proved	Not proved
2.	Aggravated Assault	Not Guilty	Guilty
	(assault alternative)	Not Guilty	Not applicable
	(in company)	Not applicable	Not proved
	(with weapon)	Not applicable	Not proved
3.	Aggravated Theft	No verdict	Guilty
	(in company)	No verdict	Not proved
4.	Property Damage	Not charged	Guilty

Inconsistencies between verdicts

1. In MacKenzie v The Queen,[1] the High Court identified a number of principles relevant to the consideration of potentially inconsistent verdicts.  First, it identified the difference between factually inconsistent and legally inconsistent verdicts.  Legally inconsistent verdicts are two verdicts which cannot, in law, stand together.  Where that occurs, the inference follows that the jury misunderstood the judge’s directions on the law, compromised disputes or fell into an unidentifiable error. A legal inconsistency requires the verdicts to be set aside.[2]

   [1] (1996) 190 CLR 348 at 366-368.

   [2]     MacKenzie v The Queen (1996) 190 CLR 348 at 366.

2. Factual inconsistencies might be asserted to arise between different verdicts affecting the same accused, co-accused or persons tried separately.  If a factual inconsistency arises on a separate trial, it may well be because the evidence was presented differently, or because the juries took different views of the witnesses.  Discrepancies of this nature can generally be seen as incidents of the jury system.[3]

   [3]     MacKenzie v The Queen (1996) 190 CLR 348 at 366.

3. Where the inconsistency arises in respect of verdicts on different counts in the same trial, the test is one of logic and reasonableness.  The High Court in MacKenzie quoted with approval the test as expressed by Devlin J in R v Stone:[4]

   He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.

   [4]     Unreported, 13 December 1954 (Devlin J), quoted in MacKenzie v The Queen (1996) 190 CLR 348 at 366.

4. The High Court went on to counsel caution before reaching that conclusion, in that ‘if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted’.[5]  The Court also allowed for the possibility that the appellate court may conclude that the jury took a ‘merciful’ view of the facts on one count and acknowledged that this is a course open to and often exercised by juries.[6]  To this end, it cited at length and with approval a statement of King CJ in R v Kirkman:[7]

   [J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to the other charges.  Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law.  Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number.  This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.

   [5]     MacKenzie v The Queen (1996) 190 CLR 348 at 367, citing R v Wilkinson [1970] Crim LR 176.

   [6]     MacKenzie v The Queen (1996) 190 CLR 348 at 367, citing R v Hunt [1968] 2 QB 433 at 436.

   [7] (1987) 44 SASR 591 at 593 (King CJ, Olsson and O’Loughlin JJ agreeing), quoted in MacKenzie v The Queen (1996) 190 CLR 348 at 367-368.

5. The High Court nonetheless confirmed that there would still be a residue of cases where the difference in verdicts represents an affront to logic and common sense, and which suggests a compromise of the jury’s duties, confusion, a misunderstanding of their function or uncertainty about the legal differentiation between the offences.  Intervention will only be required where the appellate court considers that it is necessary to prevent a possible injustice.[8] The obligation to establish inconsistent verdicts rests on the person making the submission.  The appropriate relief depends on the facts of the case.[9]

   [8]     MacKenzie v The Queen (1996) 190 CLR 348 at 368 citing R v Drury (1971) 56 Cr App R 104 at 105.

   [9]     MacKenzie v The Queen (1996) 190 CLR 348 at 368.

   The inconsistent verdicts on Count 2

6. The most obvious difficulties in the present case arise on consideration of the verdicts on Count 2.  The appellant was acquitted, but Mr Pavlidis was convicted, in circumstances where the only route to conviction on which the prosecution had relied, based on Mr Gray’s evidence, was that it was the appellant who had brandished the knife.  The prosecution case against Mr Pavlidis was strictly confined to his participation in the joint criminal enterprise with the appellant.  The verdicts on Count 2 appear to be legally inconsistent with each other.

7. Further, the jury found Mr Pavlidis guilty of the aggravated offence on Count 2, even though no particular of aggravation was found proved.  This difficulty also applies to Count 3, in respect of which the jury could not reach a verdict about the appellant.  In the case of Mr Pavlidis, they found him guilty but found not proved the only particularised element of aggravation. It was not necessary to ask the jury about the element of aggravation on this count, as it was the only one. Having done so, however, the illogicality of the verdict is apparent.

8. This apparent illogicality manifestly affects Mr Pavlidis, the appellant having been acquitted of those counts.  This is not Mr Pavlidis’s appeal. However, for the reasons that follow, these inconsistencies also affect the integrity of the verdict against the appellant on Count 1.

   The apparent difficulty with the verdict on Count 1

9. The prosecution case was premised expressly on the allegation that the appellant took part, physically, in forcing entry into the house. The allegation that the appellant then produced a knife and brandished it at Mr Gray, threatening him, was of a different criminal act, but one that occurred as part of the same course of conduct.  Its veracity depended entirely on the acceptance of Mr Gray’s evidence. To accept beyond reasonable doubt Mr Gray’s evidence that the appellant had forced entry such as to establish Count 1, but not to accept beyond reasonable doubt Mr Gray’s evidence of the startling, immediate follow-up, namely the appellant producing a knife and making a threat, is problematic.  It was a single alleged course of conduct, all dependent on an acceptance of Mr Gray’s account.

   The possibility of a merciful verdict

1. Counsel for the respondent offered a thesis as to why it might be inferred that, in the case of the appellant, the jury had decided to take a merciful approach to Count 2 and, insofar as an insufficient number of jurors were prepared to convict, Count 3.  This thesis relied in part on the evidence of Mr Peek.  The appellant called Mr Peek in support of his denial of having entered the house.

2. Mr Peek gave evidence that he had agreed to drive the appellant and Mr Pavlidis to the house, on the understanding that it was to help Mr Pavlidis pick up some of his stuff.  He stayed in the utility while the other two men went to the front door.  He could not see the front door from where he was parked.  He saw the two men enter the front yard.  They disappeared out of sight for about a minute, and then the appellant reappeared and stood inside the yard resting on the fence, where he remained for eight or nine minutes.  Mr Pavlidis came out at one point and gave something to the appellant. Just before they left, Mr Pavlidis emerged a second time with a bike, and Mr Peek helped him put it in the car before they drove off.

3. Mr Peek’s evidence, if accepted, did not exclude the appellant’s guilt on Count 1, as Mr Peek could not see the front door. On its face, it provides a potential explanation for the sustaining of the conviction for Count 1 and affording mercy on the balance.

4. In conjunction with this, the evidence of Mr Gray tended to suggest a lesser role by the appellant, notwithstanding that he identified the appellant as the principal offender in the assault.  On any view, the appellant was only there to assist his friend.  He had no personal interest in the underlying dispute.  Counsel for the respondent submitted that this aspect of the evidence also tended to support a conclusion that the jury had acted with mercy towards the appellant.

   The verdicts cannot be explained by a merciful approach

5. The proposition that the jury may have returned a merciful verdict on Count 2 and that a merciful attitude was responsible for the failure to reach a verdict with respect to the appellant on Count 3, is problematic. The supposition that the appellant’s acquittal on Count 2 was motivated by mercy requires reconciliation with Mr Pavlidis’s conviction on the same count. Mr Pavlidis’s only path to guilt was his joint enterprise with the appellant, who was alleged to have brandished the knife. A notionally merciful verdict in respect of the appellant on Count 2 is inconceivable without acknowledging that, if the jury did act mercifully in this way, doing so created legal inconsistency between the two verdicts on that count.

6. It follows that to reason that the jury took a merciful approach to the appellant on Count 2 would require embracing the legal inconsistency between the verdicts on that count.  The courts’ understanding and acceptance of merciful verdicts are an acknowledgment of the exigencies of our system of criminal justice, to the extent that those exigencies can be said not to compromise the function of the jury. Where a putative extension of mercy necessarily compromises that function, this Court should not sustain it.

7. It is likely that the jury misunderstood their function when it came to considering the guilt of Mr Pavlidis on Count 2.  Mr Pavlidis has not prosecuted an appeal challenging the safety of that conviction. The appellant’s acquittal on Count 2 cannot, of course, be challenged, notwithstanding the obvious inconsistency of the verdicts.[10]

   [10]   MacKenzie v The Queen (1996) 190 CLR 348 at 368.

8. The prospect of an appeal court setting aside Mr Pavlidis’s conviction on Count 2, if its jurisdiction was engaged, would not change the conclusion that the jury likely did not understand their function, or that they otherwise compromised the performance of their duty.  The difficulty with the verdict against the appellant on Count 1 crystallised at the time the verdicts were given.

9. For the reasons given above, it is not reasonably open for this Court to infer that the verdicts are explicable by the jury returning a merciful verdict on Count 2 in respect of the appellant. Whatever reasoning process the jury employed as a matter of fact, the only conclusion that this Court on appeal should entertain with respect to Count 2 is that the jury were not satisfied beyond reasonable doubt of the truth of Mr Gray’s evidence that the appellant had brandished a knife and threatened him.

   The verdict on Count 1 against the appellant is inconsistent with the verdicts on Count 2

10. Once this conclusion is reached, and given that the prosecution confined its case on Count 1 to the appellant having physically entered the house, we do not accept that it was open to the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt on Count 1.  While it was objectively possible for the appellant to have entered the house and done no more, Mr Gray’s allegations were of a course of conduct. There is no reason to suggest that Mr Gray’s evidence was more reliable with respect to the first count than the second.[11]

    [11]   R v Robertson [2016] SASCFC 133 at [36] (Lovell J, Kelly and Peek JJ agreeing); R v Jones (1997) 191 CLR 439; The Queen v Kelly (1985) 38 SASR 361.

11. There is a further difficulty with the jury’s apparent acceptance of Mr Gray’s evidence that the appellant entered the house. As illogical as it was to do so, the jury convicted Mr Pavlidis on Count 2, aggravated assault, but found the circumstances of aggravation alleged, including that of being in company, not proved.  That is to say, whatever the jury’s reasoning to Mr Pavlidis’s guilt of that charge (contrary to the directions given), it included that he was not in company with the appellant. That suggests a finding, contrary to the verdict on Count 1, that the appellant had not crossed the threshold of the house.

12. This observation might in turn prompt a response that the jury were acting mercifully towards Mr Pavlidis. The difficulty with that proposition is that, however illogically, they still convicted him of aggravated assault.

13. This Court’s obligation is to intervene and set aside a conviction on a demonstrated incident of inconsistent verdicts where the intervention is necessary to prevent a possible injustice. The appellant has established the likelihood of an injustice. The verdict against the appellant on Count 1 is irreconcilable with both verdicts on Count 2. We allow the appeal on Ground 1.

14. The second ground of appeal, in respect of which permission is sought, is that the verdict on Count 1 was unreasonable and not supported by the evidence.  The appellant’s submissions in support of this ground relied on the same issues of inconsistency explored above.  It is not necessary to determine the application for permission.

    Orders

15. Given our conclusion as to the irreconcilability of the appellant’s acquittal on Count 2 with his conviction on Count 1, the appropriate order is to allow the appeal, set aside the conviction on Count 1 and order that the appellant be acquitted.