Director of Public Prosecutions v Tran (Ruling No 5)
[2013] VSC 208
•26 April 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0074 of 2012
No. 0075 of 2012
No. 0076 of 2012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUOC HAI TRAN NICHOLAS VLADAMIR LEVCHENKO JACQUES TONY FUCILE |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2013 | |
DATE OF RULING: | 26 April 2013 | |
CASE MAY BE CITED AS: | DPP v Tran & Ors (Ruling No 5) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 208 | |
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CRIMINAL LAW – Submissions of no case to answer – Intentionally or recklessly causing injury by counselling or procuring – Circumstantial case – Whether inference of injury open – Whether inference of counselling or procuring injury open – Unlawful imprisonment – Circumstantial case – Whether inference of restraint against will open
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney SC and Mr A. Moore | Office of Public Prosecutions |
| For the Accused Tran | Mr L. Carter | Tony Hargreaves and Partners |
| For the Accused Levchenko | Mr I. Hill QC and Mr T. Walsh | |
| For the Accused Fucile | Mr J. McMahon and Ms R. Shann |
HIS HONOUR:
Introduction
The three accused men, Quoc Tran, Nicholas Levchenko and Jacques Fucile are each charged with offences arising out of an incident at Crown casino on 3 July 2011. Each was working as a security officer at the casino and was involved in the restraint and removal of patrons, Olivia Ferguson and Matthew Anderson. I have outlined the background to these charges and the way in which the Crown puts its case in an earlier ruling.[1] The Crown has now closed its case following which submissions that there is no case to answer have been made as to three charges against Tran and one charge against Levchenko and Fucile. The procedure for this process is set out in s 229 of the Criminal Procedure Act 2009.
[1]R v Tran & ors [2013] VSC 153R.
Mr Carter, on behalf of the accused Tran, made a submission that there is no case to answer with respect to charges 5 and 6, intentionally causing injury and the alternative of recklessly causing injury on the basis that Tran could not be lawfully convicted because there is no evidence on which the jury could conclude that the alleged victim, Ms Ferguson, suffered an injury while being removed from the premises. He also submitted that, even if the offence of intentionally causing injury could be proved in relation to the actions of Hewetson and Turner, the evidence could not result in a guilty verdict of Tran because to conclude that Tran counselled or procured the commission of the offence would be no more than speculation.
Mr Hill QC has submitted, on behalf of the accused Levchenko, that there is no case to answer in respect of the charge of unlawful imprisonment of Matthew Anderson (charge 7). Those submissions were adopted by Ms Shann on behalf of Fucile and then by Mr Carter on behalf of Tran in respect of charge 4. Broadly, the basis of those submissions concerned the issue of whether, in either case, there was evidence of total restraint and whether in either case, there was evidence to sustain the conclusion that what was done to both Ferguson and Anderson in removing them from the premises was against their will.
The test of whether there is a case to answer
The principle applicable to a no case submission is outlined in R v Doney[2] in which the High Court confirmed the decision of Attorney-General's Reference (No. 1 of 1983).[3] That decision included a rejection of the view that a trial judge could stop the trial if, in his or her opinion, a verdict of guilty would be unsafe and unsatisfactory. In Doney, the High Court stated the test as follows:[4]
[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence, such that taken at its highest it will not sustain a verdict of guilty.
[2](1990) 171 CLR 207 (“Doney”).
[3](1983) 2 VR 410.
[4]At pp.214-215.
The test has been considered on numerous occasions by trial judges since Doney was decided by the High Court. Often it is the case that the test arises for consideration in cases where the prosecution case against an accused is circumstantial. As to the charges of causing injury to Ms Ferguson, this is such a case. Ms Ferguson has said she cannot recall the period of time in which she was walked out of the casino premises. She has not said that the wrist-locks caused her pain. As to the requirement that the restraint of the liberty of Ferguson and Anderson was against their will, the prosecution case is again a circumstantial one. Neither have said that this was so. Mr Hill QC made some point of the fact that the prosecution did not question either Anderson or Ferguson on this topic. That is of no relevance, the question is whether there is evidence enabling the inference to be drawn.
In Doney there was an earlier issue to be resolved by the Court which was whether a piece of circumstantial evidence could amount to corroboration of an accomplice. The Court concluded that it could and said:[5]
Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded (citations removed).
[5]At p.211.
In Attorney-General’s Reference (No. 1 of 1983), the Victorian Court of Appeal made it clear that:[6]
The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury’s, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies, J. explained in Plomp’s Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt.
[6]At p.415.
As I understand Mr Carter’s submission, he contends that in an entirely circumstantial case the test is “whether the guilty inference contended for by the prosecution is the only inference open and/or whether or not there are inferences consistent with innocence that cannot be rationally excluded by the prosecution.” He relied on the ruling of Kaye J in R v Fieldman[7] and on T Forrest J in Bond.[8] Mr Tinney SC, on behalf of the prosecution, submitted that the question at this stage is not whether there are inferences other than guilt open, but rather, whether the evidence was so deficient that the jury could not rationally exclude those other inferences.
[7][2010] VSC 258.
[8][2012] VSC 119 at [3]-[4].
With respect, Mr Tinney SC is correct. I must only take the case from the jury if the jury could not rationally exclude inferences other than guilt. It is the test identified in Attorney-General’s Reference (No. 1 of 1983) as outlined above, in R v Cengiz[9] and it is applied by Kaye J in Fieldman[10] and by T Forrest J in Bond.[11]The question is not what I would conclude about the evidence and the inferences to be drawn but what, in my opinion, it would be open for the jury to conclude.
[9][1998] 3 VR 720 at p.721.
[10]At [14].
[11]At [7].
The elements of intentionally or recklessly causing injury by counselling or procuring
Before turning to the first no case submission by Tran, relating to charges 5 and 6, intentionally and recklessly causing injury, it is necessary to briefly outline the elements of the offence. In relation to these offences, Tran is charged on the basis of counselling and procuring. It was Adam Hewetson and Kris Turner, who have both given evidence in these proceedings, who had hold of Ms Ferguson and whom the prosecution say inflicted the pain the basis of the charge.
So, Tran can only be guilty of charge 4 if the jury find beyond reasonable doubt that Hewetson or Turner intentionally caused injury which requires:
a) That Olivia Ferguson suffered injury, injury is defined in the Crimes Act 1958 s 15 as including pain and that is what is alleged here;
b) That Hewetson or Turner were the cause of the injury;
c) That Hewetson or Turner intended to cause the injury, that is, inflict pain; and
d) That Hewetson or Turner acted without lawful justification or excuse.
In addition, the jury would then need to find beyond reasonable doubt that Tran counselled or procured that offence, requiring:
a) That Tran knew of, or believed in, the essential circumstances needed to establish that Hewetson or Turner committed the offence; and
b) That Tran intentionally assisted or encouraged Hewetson and Turner to commit the offence.
The submissions
As I understand it, Mr Carter submits that the jury could not rationally conclude beyond reasonable doubt that pain was caused to Ms Ferguson or that such pain was counselled or procured by Tran. Mr Carter submits that the prosecution case on the infliction of pain relies in part on pain being the purpose of the horizontal transport hold and that has not been born out by the evidence. He submitted that there is important evidence indicating that no pain was inflicted and referred to Ms Ferguson’s evidence that she suffered some pain when she was left at the Whiteman St exit by the security staff, but that recollection did not include pain in her wrists. He outlined a number of other possible inferences for the expression on Ms Ferguson’s face as shown in the CCTV footage such as being upset, distressed, drunk, apologetic, or perhaps being in pain in relation to her sore jaw and arm.
On the question of counselling or procuring, Mr Carter submitted that it would simply be speculation for the jury to infer that Tran counselled or procured the injury. He pointed to Hewetson’s evidence that he himself made the decision to continue the horizontal transport hold in addition to being told to by Mr Tran.
Mr Tinney SC, on behalf of the prosecution, argued that the evidence indicated that the horizontal transport hold had been used on Ferguson when it should not have been and that therefore it was open to the jury to conclude that the only purpose for the hold was to inflict pain on Ms Ferguson. He also referred to the evidence of Hewetson that Tran was annoyed with Ms Ferguson and said “you shouldn’t have slapped me”.
Mr Tinney SC further referred to the CCTV footage demonstrating that she “clearly has an extremely pained expression on her face, she can be seen to be crying out in obvious agony, she can be seen throwing her head back and moving her body, trying, seemingly to relieve the pain, and all the while she is being held by two men who are holding her in a completely unnecessary hold…[T]here must be a direct relationship between what’s happening to her and what she is obviously experiencing by way of the pain”.[12] He pointed to the fact that not one of the security staff inquired as to her well-being including Tran who was very close to her and was regularly looking back.
[12]Transcript, p.988.
Mr Tinney SC submitted that such inferences were sufficient of supporting the necessary conclusions, particularly in the context of Tran supervising and conducting the whole procedure and specifically instructing Hewetson to take over the hold.
Whether there is a case to answer on intentionally causing injury
I have examined the relevant CCTV footage and in particular from when Ms Ferguson is raised to her feet. It is in my opinion, open to the jury conclude as follows about that footage. After Ferguson is put to the floor by the accused Tran she is raised to her feet. When that happens, the accused Tran appears to have her in an arm or wrist hold on her left side. Indeed the manner in which Tran is holding her left hand is quite visible. Mr Kris Turner is on the other side. Tran then speaks to Ferguson. He then summons Hewetson to take over Ferguson’s left arm from him. Hewetson takes a few moments to apply the same hold on Ferguson that Tran had had. The view of Ferguson at this stage is from the back. There is nothing about her conduct at this point to indicate she is feeling pain. However as they begin to walk she begins to lean back slightly. The camera changes and she can be seen from the front. As she reaches the edge of the carpeted area she throws her head back for a moment which it is open to conclude is a reaction to something occurring to her.
As she is brought down the first passageway, the accused Tran is walking ahead of her and looking back at the three people, Hewetson, Turner and Ferguson. There is a gesture from him towards them the meaning of which is not obvious and has not been the subject of evidence.
In the next section and in a different passageway the view is clearer. The first view of her face does not indicate an expression of pain but such an expression does appear at 22:49:35. A jury might conclude her expression was a reaction to acute pain. At the time that happens, Tran is clearly looking at her and gesturing towards her. His hand can be seen in the frame to indicate how close he is to her. He then walks ahead. At 22:50:03, she is released into Whiteman Street. It is true, as Mr Tinney SC has submitted, that she appears to cross her arms over her chest. She has given no evidence as to why she did that.
It is open to the jury to conclude that during the removal of Ferguson, her reactions to being held were episodic and not continuous as being a reaction to pain earlier sustained in the fall. Throughout, Tran was nearby and, the jury could conclude, must have been aware of these reactions of Ferguson. The fact that he in no way intervened at those moments, given that he was involved because of his supervisory role, is evidence on which the jury may conclude that he intended Ferguson to suffer pain and that he counselled or procured that result. I therefore conclude that the accused Tran has a case to answer on charges 5 and 6.
The requirements of unlawful imprisonment
As to the second set of submissions, on unlawful imprisonment, it is again necessary to commence by a description of what conduct will amount to false imprisonment. It requires:
a) Restraint of a person against his or her will;
b) That the restraint be intentional or reckless; and
c) That actions in restraining the person were without lawful justification or excuse.
In R v Huynh[13] the Court of Appeal of this State considered the question in a case where the accused had been convicted by a jury of false imprisonment of a child of 10 years of age. At issue was the trial judge’s direction to the jury and in the course of rejecting the criticism made of it, save for the use of the word “compel”, Redlich JA said:[14]
The elements of the offence of false imprisonment were considered at length in the leading Victorian case of R v Vollmer. As the authorities therein discussed reveal, the essence of the crime is the intentional deprivation of the victim’s liberty. It is sometimes expressed as restraint of the liberty of another person against their will. Arguably, to “compel” someone to remain in a particular place or to go to a particular place does not necessarily involve restraint of the person’s freedom of movement or that it be against their will. A person may, by persuasion, be compelled to remain in or go to a particular place though it could not be said that they had been subjected to restraint or deprived of their liberty to go where they wished. (Emphasis added, citations omitted.)
[13](2006) A Crim R 586.
[14]At [8].
Coldrey AJA added:[15]
In seeking to impugn this direction, the applicant’s counsel relied upon R v Vollmer, particularly the analysis of false imprisonment by Ormiston J, with whom Southwell and McDonald JJ agreed. In essence, his Honour distilled from a myriad of authorities the proposition that false imprisonment was constituted by the intentional and unlawful restraint of the liberty of another person against that person’s will. It seems to me that the trial judge’s directions encompass the above formulation. (Emphasis added, citations omitted.)
[15]At [83]-[84].
Based on other authorities to which he referred, Mr Hill submitted that definition required conduct of a coercive character that amounts to a “total restraint”[16] and that the deprivation of liberty has to be complete.[17] The concept of this offence requires a lack of consent, in this case, by Olivia Ferguson and Matthew Anderson and must be contrary to their will.[18]
[16]See McFadzean v CFMEU [2007] VSCA 289 at [31]; R v Garrett (1988) 40 A Crim R 213 at p.225.
[17]McFadzean v CFMEU [2007] VSCA 289 at [85].
[18]Masrtwyk v DPP [2010] VSCA 111 at [80].
The submissions
The submissions of Mr Hill QC, and those counsel who adopted his argument, appeared to depend on the following. First, there was no total restraint of liberty. Second, neither Ferguson nor Anderson gave evidence that what was done to him was against her or his will. Finally, what was done was done with their agreement because they wished to leave the premises and therefore the action coincided with their will. On analysis, these are really one element of the offence of false imprisonment and the submissions reduced to the assertion that there was no total restraint of either Anderson or Ferguson because what was being done was not against their will.[19]
[19]See for example, Transcript, pp.1001, 1017, 1025, 1030.
Mr Hill QC relied on the following portions of Anderson’s evidence in particular to make the point he sought to make concerning his supposed agreement to what was done to him once he was raised to his feet:
Were you ever told what was going to happen to you, apart from, “We're going to break your fucking finger” or whatever, were you ever told what was going to happen? --- Not for a while. Eventually someone come up and said, “We're going to lift you” - - -
HIS HONOUR: I just want to be clear. You're talking about one of the security officers? --- Yes, it was a tall - I think he was a fairly tall, bald headed guy. I think he was, I don’t know, he was like someone in charge or whatever, but I’m assuming he was - he actually came over - he was the only sort of - there was only a sort of bit of normality I guess. He came over and said, “Right, we’re going to lift you off the ground” and that’s when it sort of stopped.
The witness Zocchi, who was a casino employee and who came on to the scene and spoke to Anderson while he was being restrained gave the following evidence that Mr Hill QC relied on:[20]
Did you hear him say anything aggressive? --- It’s unclear. I would say no.
In fact, did he say anything? --- I can’t recall.
Did you say something to him? --- Yes, I did, like once I was told that he was aggressive, I then crouched down and spoke to him.
What did you say? --- I said to him that we wanted to get him up and, but I needed him to be calm so that if he was happy, if he was calm and relaxed, I would indicate to or ask the other officers to get him off the ground and we'd move him on.
Was there any response from the patron when you told him that you needed him to be calm, that you were going to get him up? --- Yes, he indicated, he acknowledged that he nodded to me and indicated in some manner, an expression or a nod, that he understood what I said, and based on that I thought we could lift him up off the ground.
[20]Transcript, p.509.
Mr Hill QC suggested that that evidence, in combination with the absence of any statement that was done was against Anderson’s will, suggested that he was consenting to what was being done such that he could not be said to have been falsely imprisoned.
In relation to the evidence given by Olivia Ferguson on this issue concerning the accused Tran, Mr Carter in his submissions relied on the fact that she had apologised for her own behaviour. He referred to the following portions of evidence:[21]
Do you know how long you were on the ground for? --- I'm not sure. It felt like a long time.
You said that you said that you were sorry. Why were you saying you were sorry? --- Because I'd turned around to slap him.
So you were apologising for having slapped him? --- Yeah.
[21]Transcript, p.205.
And then:[22]
All right. Well, I suggest to you you were told that you were going to be lifted up to your feet and taken out of the premises. You say you can't remember that? --- Yes.
And that that’s what happened, you were picked up and you were escorted out? --- Yes.
And you went voluntarily, without a struggle? --- I didn’t struggle.
[22]Transcript, p.262.
It was suggested that if what was done to these two people coincided with their will, then the accused cannot in law be guilty of the offence of false imprisonment.
There is a case to answer on false imprisonment
The response of Ferguson and Anderson to the manner in which they were being held and removed from casino premises cannot be looked at in isolation. The context is important. In summary, in answer to the prosecutor Mr Anderson gave the following evidence.[23] He said he saw Olivia Ferguson sort of raise her arm and move it towards a security person but he was not sure whether she made contact. He said he had taken half a step and then got crunched and was on the ground. He was trying to protect her and to make sure she was all right. He said his head was smashed into the ground, and before he knew it his arms were behind it and his wrists were being bent back, and then the security guards abused him. He said he was face-down on the floor. He said both arms were hurting and his wrists were hurting and he was trying to ask what was going on. He said he had never felt physical pressure like that. The security officer said to him, “You want to be a fucking hero, you want to be a fucking hero” and then someone said “That fucking slut or whore on the ground was on the ground, we have got her on the ground as well”. He said he could not move and his arms were pinned. He said one of them said “This weak cunt is bleeding on me”. Another one said in relation to his hands, “I’m going to break your fucking fingers” or something like that. He said that he could not remember the specific words used. At this stage he could not see Olivia Ferguson.
[23]Commencing at Transcript, p.294.
Another security man who was balding came up and said they were going to get him on his feet. He had no idea how long he was on the ground for. They lifted him up and he was asking where Olivia was. Someone told him that she would be taken out elsewhere. There were two people holding him. Anderson said he could feel that he was bleeding, he could feel that on his face. He said he was fairly groggy and his main concern was to find out where Olivia Ferguson was. He said he was taken out an exit onto Southbank and he walked onto a bridge. They did not tell him where Olivia was. They were still abusing him and calling her a slut or a whore or something similar. He said there were at least three security people that had hold of him. After they let go of him, he turned around and said “You’re fucked” and then said “My brother’s a policeman, he will be involved”.
For the purpose of determining whether there is a case to answer, in my opinion it is open to the jury to conclude that both Ferguson and Anderson were violently put to the floor. That caused some pain to Ferguson and actual injury to Anderson. Once on the floor, they were both completely restrained.
Ms Ferguson said:[24]
Can you tell us anything about your arms and what happened to them? --- They had my arms behind my back, I believe. I know that I felt like I couldn’t move. They kept saying, “Don’t move, don’t move” and I couldn't move even if I wanted to. I was completely pinned. There was no way I could do anything.
[24]Transcript, p.204.
Mr Anderson said:[25]
What was being said? --- I know - first of all, one of them was saying, "You want to be fucking hero, you want to be a hero", and I'm trying to say - I didn't even know what I'd done wrong and then I asked about Olivia and one of them said, "That fucking slut or whore was on the ground, we've got her on the ground as well."
At that stage were you being held in any manner? --- Yes, I had me arms - they were pinned, I couldn't move.
[25]Transcript, p.302.
When they were raised to their feet, which is when the offence is alleged to have commenced, all Ms Ferguson could recall was being “shoved” out an exit.[26]
[26]Transcript, p.206.
As to what occurred to him, Anderson said:[27]
You say you were being held once you got to your feet by two people you thought who were to the side of you? --- Yes.
How were you being held, can you recall that? --- By me arms, wrists bent back, arms at the back.
Could you hold your hands out in front of you - I know you say they were behind you - how were your wrists bent? --- Like that (demonstrating).
Behind? --- Yes.
[27]Transcript, pp.304-305.
By the time they got to their feet it would be open to the jury to conclude that despite their unsurprising lack of resistance given what had just occurred, they were in no way agreeing to what was done. They may well have wanted the incident to be over but it would open to the jury to conclude that that in no way signified any form of consent or agreement.
As the South Australian Court of Criminal Appeal noted in Garrett:[28]
It is well established that the confinement of the victim may occur by his submission to a threat to apply physical force to his person immediately upon him going or attempting to go beyond the area in which the defendant intends to confine him: see Symes v Mahon [1922] SASR 447 at 453, and Watson v Marshall (1971) 124 CLR 621 at 626. […]
The will of a person may be at least as effectively overborne by threats of physical force to other people, or even by threats of damage to valuable personal property. In my view, it is sufficient that the defendant restrains the liberty of a person against his will by threats of immediate physical force to the safety of another person or by other immediate intimidating conduct intended to bring about that result. There is support for this conclusion in the American jurisdictions: see Second Restatement of the Law of Torts, (ALI, 1965-1979), pars 40, 40A and 43; Prosser and Keeton, Handbook of the Law of Torts (5th ed, 1984), pp 49-50. On the other hand, I consider the appellant is correct in the submission that there can be no false imprisonment if the alleged victim agrees to go or to remain in a particular area nominated by the defendant of his own free will and not out of submission to a threat. If may, however, be difficult to determine, as a matter of fact, whether a person submits to a restriction of liberty against his will or of his own free choice.
[28](1988) 40 A Crim R 213 at pp.225-226.
In addition to the evidence of the witnesses, there is, of course, the CCTV footage which in my opinion would be able to be used by the jury to signify reluctant compliance or acquiescence rather than agreement.
The CCTV footage also indicates the level of restraint and it would open to a jury to conclude that the restraint was total in each case. The horizontal transport hold has been described as a position in which the slightest amount of additional pressure by the person applying the hold, or a struggle on the part of the person in the hold, would cause pain. In addition, in the particular case of Mr Anderson, his evidence was that his main concern was for his partner Olivia Ferguson is, of itself, an indication that he was being held against his will and that had he not been, he would have immediately gone to wherever she was.
In my opinion, in each case there is evidence to support all charges of false imprisonment and those counts will be left for the jury’s consideration.
Conclusion
There is a case to answer on charges 4, 5 and 6 in respect of Tran, and on charge 7 in respect of Levchenko and Fucile. It will be open to the jury to consider all of the charges on the indictment.
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