David Vincent Sheehy and v The Queen and

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0024

DAVID VINCENT SHEEHY

Applicant

THE QUEEN

Respondent

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JUDGES:	WEINBERG, WHELAN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2014
DATE OF JUDGMENT:	10 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 281
JUDGMENT APPEALED FROM:	DPP v Sheehy (Unreported, County Court of Victoria, Judge Coish, 29 November 2013)

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CRIMINAL LAW – Conviction – Applicant convicted of intentionally causing serious injury and acquitted on charge of aggravated burglary – Crown case put on basis of joint criminal enterprise – Whether verdicts inconsistent – Jury’s verdicts logically compatible – Whether conviction on charge of intentionally causing serious injury bad for uncertainty – No latent ambiguity – R v Heaney (2009) 22 VR 164 applied – Leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Whether sentencing judge made findings of fact inconsistent with verdict of not guilty on aggravated burglary charge – Findings not inconsistent – Leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Wheelahan	Robert Stary & Associates
For the Crown	Mr D A Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
WHELAN JA

SANTAMARIA JA:

The applicant stood trial in the County Court at Melbourne, charged with one count of aggravated burglary (charge 1) and one count of intentionally causing serious injury (charge 2). He was acquitted on charge 1, but convicted on charge 2. He was sentenced to a term of four years and six months’ imprisonment, with a non-parole period of three years. He now seeks leave to appeal against both conviction and sentence.
Circumstances surrounding the alleged offending
The applicant and one Mark Lazarus, the victim of the attack, had been involved in a dispute over car parts. At about 10.00am on the morning of 26 March 2012 the applicant and his co-accused, Mina Abraham, drove to Lazarus’ home. They walked up to the front door. According to the prosecution, Abraham had a knife in his possession and the applicant was unarmed.
There was another man present in the house. His name was David Whatley. He was a friend of Lazarus.
As Lazarus went to answer the front door, he had a cricket bat resting on his shoulder. The evidence was unclear as to precisely what occurred thereafter, there being different accounts from the various witnesses who gave evidence. On any view, Lazarus said something to the applicant which Whatley overheard.
Lazarus’ evidence was that although the front door was unlocked, the screen door had been closed when the applicant arrived. He said that he armed himself with a cricket bat because he was anticipating trouble, the applicant having previously threatened him over the telephone. According to Lazarus, Abraham told him to put the bat down or he would be shot. At that point, Lazarus went to open the door, but the applicant ‘ripped it open’. The applicant then threw a punch at Lazarus, before Abraham came up from behind and stabbed Lazarus in the stomach. The applicant and Lazarus then struggled. Abraham stabbed Lazarus in the back of the legs, severing the sciatic nerve. Lazarus collapsed. The applicant then picked up the cricket bat and struck Lazarus to the head, breaking his jaw. Abraham then attempted to stab Lazarus several times to the chest, but his knife did not penetrate Lazarus’ leather jacket. Whatley telephoned the police, and the applicant and Abraham fled the scene.
The Crown case, on the basis of that account, was one of joint criminal enterprise. The Crown said that both the applicant and Abraham entered the house as trespassers with the intention of attacking Lazarus. The Crown further said that the applicant knew that Abraham was armed with a knife.
Alternatively, the Crown submitted that even if joint criminal enterprise could not be established, both the applicant and Abraham were individually guilty of each charge.
Whatley’s evidence differed significantly from that given by Lazarus. He said that he was seated on a couch in the lounge room at the time the applicant and Abraham turned up. He stood up when the two men approached the front door. He heard one of the men say ‘put the bat down and we’ll talk about it’. At that point, according to Whatley, Lazarus ‘half-opened’ the door and was at once punched in the face.
Plainly, on that account, there was an issue as to whether the applicant and Abraham were guilty of aggravated burglary, it being arguable that they had not, in fact, entered as trespassers.
Abraham gave evidence on his own behalf. He said that he had gone with the applicant to Lazarus’ house merely to keep him company while he spoke ‘to a mate about some car parts’. When the applicant got out of the car, he told Abraham that he could come with him to the house if he wished to do so. The applicant walked ahead of him, yelling abuse at Lazarus about the car parts.
Abraham denied having had a knife in his possession. He further denied having said anything about ‘shooting’ Lazarus. He claimed that Lazarus had opened the door, permitting them to enter. However, as soon as they went inside, Whatley had launched an attack upon him, causing him to respond in self-defence. He saw Lazarus, while still armed with the cricket bat, struggling with the applicant and, in effect, strangling him. He claimed that, at that point, he picked up a knife which was on the coffee table. He acknowledged having stabbed Lazarus, but said that he had done so in defence of the applicant or in self-defence.
The applicant did not give evidence. He relied, instead, upon some exculpatory answers that he gave to the police during the course of a record of interview.
Lazarus suffered a number of injuries. These included a penetrating, jagged wound to the posterior aspect of the left thigh, a severed or transected sciatic nerve, a stab wound to the stomach, a lacerated liver, a laceration to the chin and to the back of the head, and a fractured jaw. As a result of the injury to the sciatic nerve, he suffered from foot drop, and his prognosis for recovery was said to be poor.
Grounds of appeal
Conviction
1. The verdict is unsafe and unsatisfactory.
Particulars:
a)The verdict of ‘guilty’ to intentionally causing serious injury is inconsistent with the verdict of ‘not guilty’ to aggravated burglary.
2. The verdict is bad for uncertainty.
Particulars:
a)The learned trial judge erred in ruling that the Crown need not elect which act of causing serious injury the Crown relied upon to cure a latent ambiguity in the evidence.
Sentence
1. The learned trial judge erred in making findings of fact that were inconsistent with the verdict of ‘not guilty’ to aggravated burglary.
Particulars:
a)The learned sentencing judge erred in finding that the applicant was found guilty of intentionally causing serious injury with a bladed weapon on the basis of joint criminal enterprise.
Analysis
The applicant submitted that the case based upon joint criminal enterprise (or ‘concert’ as he described it) was ‘co-extensive’ with the concert based case on intentionally causing serious injury. The Crown had argued that the applicant and Abraham had entered into an agreement or arrangement to attend Lazarus' home, and assault him with a knife. The jury must have rejected that case insofar as it found the two men not guilty of aggravated burglary. How then could the jury, at the same time, have convicted the applicant of intentionally causing serious injury on the basis of preconcert?
In developing that submission, it was argued that the Crown case had been put squarely on the basis that the applicant and Abraham had entered as trespassers by assaulting Lazarus at the precise point of entry. Given the way that the trial had been conducted, it followed that the jury must have entertained a reasonable doubt as to whether the applicant and Abraham were, in fact, the aggressors. The not guilty verdict in relation to aggravated burglary meant that the concert case on intentionally causing serious injury had collapsed.
There would be something to be said for that submission had the only evidence before the jury been that given by Lazarus. On his account, the applicant entered the house as a trespasser, since, although Lazarus went to open the door, the applicant had forced his way in. Even if Lazarus had intended to allow the applicant entry, his version of events suggested that he had done so only in response to a threat.
The difficulty for the applicant in maintaining Ground 1 lies in the fact that the jury may well have acted, instead, upon the evidence given by Whatley. If they had proceeded on that basis, they could well have entertained a doubt as to whether the applicant had, in fact, entered as a trespasser, it being reasonably possible that he actually had permission from Lazarus to come inside or, alternatively, that he held that belief at that moment.
As the Crown submitted in its written case, the applicant's argument in respect of this ground rests upon a fallacy. It relies upon the proposition that a doubt as to whether the applicant entered as a trespasser necessarily entails a doubt as to whether he and Abraham were, relevantly, the ‘aggressors’. Self-evidently, that is not the case. Whatley’s evidence would support a doubt as to whether the applicant entered the house as a trespasser. He heard no threat of the kind described by Lazarus. His evidence was that he heard one of the co-accused suggest to Lazarus that he put the bat down, and they would talk about it. Immediately thereafter, Lazarus opened the door.
The jury’s verdict on Charge 1 may reflect nothing more than its acceptance, as a possibility, that the applicant believed, at the moment he entered the house, that he had Lazarus’ permission to do so. [1]
[1]This accords with Barker v The Queen (1983) 153 CLR 338 at 371 where Dawson J said “[I]n any analysis of s 76 of the Crimes Act it is essential to recognise that the offence consists both of an intentional entry as a trespasser and an intent to steal at the time of entry. The distinction must be maintained because a person accused of burglary may enter a premises with an intention to steal but nevertheless in the belief that he is entitled to enter.” See also, to the same effect, the joint judgment of both Brennan and Deane JJ, at 362.
If that were so, it would nonetheless have been open to the jury to accept the balance of the Crown case, namely that the applicant and Abraham had gone to the house as aggressors intending to inflict serious injury upon Lazarus.
In accordance with the principles laid down by the High Court in Mackenzie v The Queen,[2] the jury’s verdicts in this matter were logically compatible. There was nothing irrational, or suggestive of impermissible compromise, associated with them. It follows, in our view, that Ground 1 must be rejected.
[2](1996) 190 CLR 348.
Turning then to Ground 2, it is clear that the complaint of latent ambiguity cannot succeed. The authorities dealing with this point are set out in The Queen v Heaney.[3] As Ashley JA observed in that case, there will be no such ambiguity if a series of acts, any one of which would be sufficient to constitute the actus reus of the offence, form part of a single criminal activity.
[3](2009) 22 VR 164.
In the present case, the Crown relied upon a combination of injuries as amounting to a serious injury. More specifically, these were the stab wound to the stomach, the stab wound to the leg, and the fractured jaw. It was the Crown case that these injuries were sustained in quick succession, within seconds of each other. They were said to be the product of an agreement between the applicant and Abraham to attack and seriously injure Lazarus. That agreement was said to have been formed before the two men arrived together at the victim’s premises. Having regard to these features of the case, it was, as the Crown submitted, entirely appropriate for the charges against the accused to reflect an allegation of a single criminal offence.
Ground 2 must be rejected.
Finally, the challenge to the sentence imposed cannot succeed. For one thing, it is based upon the same fallacious reasoning that renders Ground 1, in relation to conviction, untenable. The applicant’s acquittal on the charge of aggravated burglary has nothing to say as far as his conviction on the charge of intentionally causing serious injury is concerned. The sentencing judge was perfectly entitled to interpret the jury's verdict, on that charge, as supporting a conclusion that he was jointly responsible with Abraham for all of the injuries inflicted upon the victim.
The sentencing judge, in his sentencing remarks, correctly identified the jury's possible acceptance of Whatley's account as negating the charge of aggravated burglary, but permitting the finding that the joint criminal enterprise regarding the infliction of serious injury, as alleged by the Crown, had been established. This accords with his Honour's description of the defence case in his charge to the jury, which was as follows:
Now the defence. Abraham said – you heard his evidence, which was after some words spoken at the door, Lazarus lets them in, after he says, “Look, relax, let’s talk about it.” So, on Abraham's evidence, they are invited in, so they are not entering as trespassers, and it is the case, in relation to each accused, that they do not enter as trespassers, they are invited in.
During their deliberation, the jury requested further directions on trespass and intention. The redirection the learned trial judge gave was in similar terms to the original direction in that regard. Again, his Honour summarised the defence case with regard to charge 1 as being that the co-accused ‘were invited in’, and this in the context of Abraham saying ‘relax, let’s talk about this’.
It was not suggested, in those circumstances, that the sentence was other than appropriate. For these reasons we would refuse leave to appeal on this ground as well.
For the reasons set out about above, leave to appeal should be refused, both in relation to conviction and sentence.

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[2014] VSCA 281

10 November 2014