Featherstone v The Queen; Bloxsome v The Queen
[2020] ACTCA 33
•3 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Featherstone v The Queen; Bloxsome v The Queen | |
Citation: | [2020] ACTCA 33 | |
Hearing Dates: | 13–14 May 2020 | |
DecisionDate: | 3 July 2020 | |
Before: | Murrell CJ, Loukas-Karlsson J and Berman AJ | |
Decision: | Verdicts on Counts 8 and 10 quashed. Decision on Bloxsome’s sentence appeal reserved. Remaining grounds of appeal dismissed. See [235]. | |
Catchwords: | APPEAL – CONVICTION – Co-Appellants – Unsafe and unsatisfactory verdicts – unreliability of witnesses – miscarriage of justice – plea in bar – application for separate trial – applications to discharge the jury | |
Legislation Cited: | Criminal Appeal Act 1912 (NSW) s 6(1) | |
Cases Cited: | AH v The Queen [2019] NSWCCA 152 | |
Parties: | Damien Featherstone (Appellant) Rodney Bloxsome (Appellant) The Queen (Respondent) | |
Representation: | Counsel J Purnell SC and J Dempster (Appellant Featherstone) M Jones (Appellant Bloxsome) S Drumgold SC (Respondent) | |
| Solicitors Sharman Robertson Solicitors (Appellant Featherstone) Boxall Legal (Appellant Bloxsome) ACT Director of Public Prosecutions (Respondent) | ||
File Numbers: | AC 19 of 2019; AC 21 of 2019 | |
Decisions under appeal: | Court/Tribunal: Before: Date of Decision: Case Title: Citation: | Supreme Court of the ACT Mossop J 1 April 2019 R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 |
| Court/Tribunal: Before: Date of Decision: Case Title: Citation: | Supreme Court of the ACT Mossop J 15 August 2019 R v Bloxsome [2019] ACTSC 217 | |
THE COURT:
Introduction
These are appeals against conviction by Damien Featherstone and conviction and sentence by Rodney Bloxsome.
Crown case
The Crown case at trial was as follows.
On 26 February 2018 Mr Featherstone was at a house occupied by Mr Diaz in Narrabundah. Also there during the course of events were DT (Mr Featherstone’s wife), NQ (a relative of Mr Featherstone), MX (a friend of Mr Diaz), Mr Dimitrov (an associate of Mr Bloxsome), Mr Russell (Mr Bloxsome’s son), and Mr Bloxsome, who is Mr Featherstone’s uncle.
MX had gone to the house to visit Mr Diaz. She had been dropped off near the premises in a car by four men, one of whom was her ex-boyfriend, BC. After she arrived, Mr Featherstone became concerned that BC and the other men would come to rob him and Mr Diaz of their drugs. Mr Featherstone contacted Mr Bloxsome and asked him to come to the house. Mr Bloxsome arrived with his three sons, Mr Dimitrov, and Mr Dimitrov’s sister, although Mr Dimitrov’s sister and two of Mr Bloxsome’s sons left soon afterwards.
While at the house, Mr Featherstone and Mr Bloxsome consumed methylamphetamine. At the request of Mr Diaz, MX attempted to inject Mr Diaz with methylamphetamine but was unsuccessful. Shortly after, Mr Featherstone announced that everyone at the house should “tool up” and break into a gun shop in preparation for the expected robbery. Mr Diaz, who was holding a machete at the time, told Mr Featherstone that he did not want to leave the house.
Mr Featherstone then shot Mr Diaz in the leg. Mr Diaz cried out in pain. Mr Bloxsome told Mr Diaz to “shut up” and, when he did not do so, Mr Bloxsome stabbed Mr Diaz a number of times. Except for Mr Diaz, the group then left the house. Mr Diaz went to a neighbour’s house and called an ambulance.
When they left the house in Narrabundah, MX was forced into a car and she and Mr Dimitrov were driven to a house in Casey. While at the house, she was interrogated by Mr Featherstone regarding the men in the car. She was not allowed to leave.
At some point, she was taken to the garage by Mr Bloxsome, who tied her hands in front of her with cable ties and ordered her to undress. She did so. On the Crown case, Mr Bloxsome inserted a gun into MX’s vagina and, a short time later, digitally penetrated her.
Mr Bloxsome then took MX to an upstairs bedroom in the Casey house, where she was again sexually assaulted, this time by penile/vaginal intercourse.
Sometime in the afternoon of 26 February 2018, MX was put into a car with Mr Featherstone, Mr Bloxsome, and NQ and driven to the house of Mr Jacky in Tuggeranong. Mr Jacky was believed to be behind the group that the appellants expected to carry out the robbery.
When they arrived, Mr Featherstone left the car, pulled out a gun, and confronted Mr Jacky in his driveway. When Mr Jacky’s young child left the house, Mr Featherstone returned to the car and the group drove away.
On 27 February 2018, Mr Bloxsome and Mr Featherstone left the Casey house with NQ, Mr Dimitrov, and MX. They drove for some time through the inner north suburbs of Canberra. MX made two attempts to “hotwire” cars but both were unsuccessful. After some time, the group drove to Ainslie Football Club. Both appellants remained in the car while NQ and MX approached a group of three elderly people. NQ produced a knife and demanded the keys to their vehicle. Mr Featherstone then got out of the car, approached the group, and brandished a gun at the elderly people, who handed over their car keys. The group left in the stolen vehicle.
In the early hours of 28 February 2018, Mr Bloxsome, Mr Featherstone, NQ, Mr Russell, and MX drove in the stolen vehicle to a shop in Fyshwick that sold military equipment. Mr Featherstone smashed the glass window and entered the shop with MX, NQ, and Mr Russell. The group broke into the glass display cabinets and obtained knives before leaving.
Later that day, Mr Featherstone and Mr Bloxsome were arrested by police. MX avoided the police until the following day, when she was arrested and released on bail. She was not charged with any offence. On the same day, she attended the Canberra Hospital and was seen by Dr Tyson. On 14 and 15 May 2018, she was interviewed by police.
As a result of the above events, charges were laid against Mr Featherstone and Mr Bloxsome. Ultimately, they were arraigned on 15 counts in an indictment dated 8 February 2019. After pleas of guilty were entered in relation to some counts, they were tried on the remaining counts before Mossop J (the trial judge) and a jury. The following table shows the 15 counts, the pleas entered, and, where relevant, the jury’s verdicts.
| Count | Charge | Accused | Plea | Verdict |
| Count 1 | Use offensive weapon against a person in circumstances likely to endanger life | Featherstone | Not guilty | Guilty |
| Count 2 | Possess prohibited firearm | Featherstone | Guilty | N/A |
| Count 3 | Unlawful confinement | Bloxsome | Not guilty | Not guilty |
| Count 4 | Wounding | Bloxsome | Not guilty | Guilty |
| Count 5 | Unlawful confinement | Featherstone | Not guilty | Guilty |
| Count 6 | Assault occasioning actual bodily harm | Bloxsome | Not guilty | Not guilty |
| Count 7 | Sexual intercourse without consent | Bloxsome | Not guilty | Not guilty |
| Count 8 | Sexual intercourse without consent | Bloxsome | Not guilty | Guilty |
| Count 9 | Assault occasioning actual bodily harm | Bloxsome | Not guilty | Not guilty |
| Count 10 | Sexual intercourse without consent | Bloxsome | Not guilty | Guilty |
| Count 11 | Aggravated robbery | Featherstone | Guilty | N/A |
| Count 12 | Possess prohibited firearm | Featherstone | Guilty | N/A |
| Count 13 | Take motor vehicle without consent | Featherstone | Guilty | N/A |
| Count 14 | Aggravated burglary | Featherstone | Guilty | N/A |
| Count 15 | Damage property | Featherstone | Guilty | N/A |
Defence case
The appellants argued that they had done nothing to prevent MX from leaving the Casey house, that her hands had never been tied, and that she had been free to leave whenever she wanted. Mr Bloxsome also denied sexually assaulting MX. They did not deny that they had shot and stabbed Mr Diaz but claimed that they had done so in self-defence.
Mr Featherstone’s police interview and evidence at trial
On 6 April 2018, Mr Featherstone was interviewed by police. He told them that, around the time of the alleged offences, he was experiencing paranoia. He obtained a firearm because he was “at war with a bikie gang in New South Wales”. When asked “what happened at Narrabundah?”, he referred to his belief that:
people were supposedly were (sic) going to run through the house … and my uncle and that come to make sure me and my wife were all right, because we were staying there for a few days with that guy Justin [Diaz].
The expression “run through the house” was understood by all concerned to be a reference to the fact that those in the house would be robbed.
Mr Featherstone told police how Mr Diaz came to be injured. He said that Mr Diaz “started acting real strange” and that he then realised “he had a bit (sic) machete‑type sword in his hand”. He said Mr Bloxsome told Mr Diaz three times to put the machete down and then:
he sort of lunged at Rodney [Bloxsome] and Rodney had a knife in his hand too, so he’s stabbed him, and I’ve had the gun in me hand, and I’ve just let off a shot at him in the leg.
Mr Featherstone gave evidence at the trial. He confirmed that what he had said in the record of interview about shooting Mr Diaz was true and correct. He said that he had been diagnosed with schizophrenia; that, on the day that he had shot Mr Diaz, he had not taken his medication; and that he had consumed “ice” in the three days prior to the shooting.
He explained that he had met MX in Canberra in the context of selling and taking drugs. He was staying in Mr Diaz’s house in Narrabundah when MX arrived. He learned that she had been dropped off by a number of men and that they had a shotgun in the car. He said that he had asked MX some questions about the shotgun. Mr Diaz was “freaking out saying ‘They got a gun. They’re coming to rob me’”. Mr Featherstone said that he had rung his uncle (Mr Bloxsome) and said “These people are going to run through the house. You need to get over here real quick”.
He said that while MX was with them, he gave her ice daily, she ate food in his presence, and he denied hitting her or threatening her at any stage. He said, “[t]here was no reason for me to threaten her in any way because she was telling us everything that we wanted to know …”.
Mr Featherstone said that he shot Mr Diaz after Mr Diaz jumped up and lunged at Mr Bloxsome “so Rod [Bloxsome] stabbed him and he kept going and that’s when I shot him in the leg, because if I hadn’t shot him he would have killed my uncle”.
Mr Bloxsome’s interview with police
Mr Bloxsome did not give evidence at the trial. His interview with police on 16 April 2018 was tendered. When he was interviewed by police, he was not asked about the sexual assault allegations. Nor was he asked any questions about the unlawful confinement of MX, but he denied unlawfully confining Mr Dimitrov.
Mr Bloxsome told the police that he had stabbed Mr Diaz, stating:
Well, he had a big machete, man, and I told him to put it down three times. He’s going toward me so I stabbed the cunt. I felt – I feared he was going to stab me.
Grounds of Appeal
The grounds of appeal that we were originally asked to consider at the hearing were:
(a)The learned trial judge’s failure to discharge the jury on 11 April 2019 caused a miscarriage of justice;
(b)The learned trial judge erred in not allowing the jury to re-hear the whole of the sexual assault complainant’s evidence because of expediency and this resulted in a miscarriage of justice;
(c)The verdicts on Counts 1, 4, 5, 8, and 10 were unsafe and unsatisfactory;
(d)The learned trial judge erred in entering a conviction in respect of Count 13, or in the alternative, erred in imposing a sentence of imprisonment cumulative upon the sentence for Count 11;
(e)The sentence in respect of Count 11 is manifestly excessive;
(f)The learned trial judge erred in refusing Mr Featherstone’s application made on 1 April 2019 to be granted a separate trial from Mr Bloxsome;
(g)The learned trial judge erred in refusing Mr Featherstone’s applications made on 8 April 2019 and 11 April 2019 to discharge the jury;
(h)The Crown’s particularisation of Count 5 was deficient and unsatisfactory; and
(i)That, in all of the circumstances, the sentence imposed on Mr Bloxsome was manifestly excessive.
First, we will consider the grounds of appeal relied on solely by Mr Bloxsome. Next, we will next consider the grounds of appeal relied on solely by Mr Featherstone. Last, we will consider the grounds of appeal that are common to the appellants.
Mr Bloxsome’s Grounds of Appeal
Failure to discharge the jury
Ultimately, this ground was abandoned by counsel for the appellant.
Failure to replay the evidence of MX
This ground was also abandoned by counsel for the appellant.
Inconsistent and “unsafe and unsatisfactory” verdicts—Counts 8 and 10
Counsel for Mr Bloxsome argued that the guilty verdict on Count 8 was inconsistent with the acquittal on Count 7, such that the conviction on Count 8 should be overturned. She submitted that, in any case, the verdicts on Counts 8 and 10 were unsafe and unsatisfactory.
We will consider the question of whether the verdict of guilty on Count 10 is unreasonable before examining the guilty verdict on Count 8.
A preliminary matter—the “unsafe and unsatisfactory” terminology
Complaint is made that the guilty verdicts on Count 10, and other guilty verdicts, were “unsafe and unsatisfactory”. The Crown referred to s 37O(2) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) and interpreted the appellants’ complaint to be that the verdicts were “unreasonable, or cannot be supported, having regard to the evidence”. Neither appellant sought to submit otherwise.
As a preliminary matter, we note that it is common in this jurisdiction for grounds of appeal against conviction to be expressed in the same way as many grounds were expressed in this appeal—as being “unsafe and unsatisfactory”. Yet the legislation that gives this Court jurisdiction to allow an appeal against conviction does not use that expression.
Section 37O(2) of the Supreme Court Act provides:
37OOrders on appeal
…
(2)The Court of Appeal on an appeal against conviction must—
(a)allow the appeal if it considers that—
(i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or
(ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or
(iii) on any other ground there was a miscarriage of justice; or
(b)dismiss the appeal.
Where grounds such as these are raised, the task of this Court is to determine whether the verdicts are “unreasonable, or cannot be supported, having regard to the evidence”. It is important that this Court make findings in accordance with the legislation governing its operations. It is equally important that submissions to this Court reflect that legislation.
Fleming v The Queen [1998] HCA 68; 197 CLR 250 (Fleming) was an appeal from the NSW Court of Criminal Appeal. Section 6(1) of the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act) is relevantly identical to s 37O(2) of the Supreme Court Act. The High Court stated (at [12]):
… close attention must be paid to the language of s 6(1) of the Criminal Appeal Act. Use of the potentially confusing phrase “unsafe and unsatisfactory” to cover the several different elements in the sub-section is liable to mislead. There is no substitute for giving attention to the precise terms in which s 6(1) is expressed.
(emphasis added)
A short time later, in R v Giam [1999] NSWCCA 53 (Giam), Spigelman CJ referred to Fleming and said (at [31]):
The … ground of appeal is described in accordance with what has become customary in this State as the "unsafe and unsatisfactory" ground. This terminology is no longer appropriate.
In future, grounds of appeal such as those with which we are dealing should give attention to the decision that the Court must make. The term “unsafe and unsatisfactory” is an unsafe substitute for a ground of appeal that intends to assert, in the terms of s 37O, that a particular verdict “should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”.
This is not an unreasonable demand for precision. In Giam, Spigelman CJ said (at [43]):
It has been convenient to use this formulation in the past for the purposes of separately identifying a ground of appeal, usually drawing on other grounds of appeal in a cumulative way, which is said to justify a verdict of acquittal rather than an order for a new trial.
In the present appeal, the complaints were not made in that manner. The submissions of the parties did not refer to cumulative errors. They focused on the evidence in the trial in an effort to show that the jury’s verdict was (or in the case of the Crown, was not) unreasonable. That is enough to demonstrate that the term “unsafe and unsatisfactory” can mean different things to different people.
On a conviction appeal, the grounds of appeal and the submissions should be directed to the decision that the Court needs to make and the words of s 37O(2) of the Supreme Court Act should be used. As the High Court said in Fleming and the NSW Court of Criminal Appeal said in Giam, the terminology “unsafe and unsatisfactory” is not appropriate to an appeal such as the present.
Count 10
We now consider whether the guilty verdict on Count 10 should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence.
Count 10 concerned an allegation by MX that the appellant Mr Bloxsome had intercourse with her in a bedroom of the house in which she was being held captive. She gave evidence at trial that Mr Bloxsome had penetrated her vagina with his penis when they were alone in the bedroom. The jury convicted the appellant.
MX first alleged that she had been sexually assaulted when a police officer asked whether she had been sexually assaulted. This occurred while MX was detained at the ACT Watch House. After MX gave an affirmative answer, she was taken to a hospital where she was seen by a nurse and a doctor.
When MX was medically examined, only a few days after the alleged sexual assault by Mr Bloxsome, she told the doctor that her vagina had been penetrated by the gun (Count 7) and Mr Bloxsome’s fingers (Count 8). But she said things to both a doctor and a nurse that can only reasonably be interpreted as meaning that there had been no penile/vaginal penetration. She told the doctor that “he went to put his penis in and Damien [Featherstone] came in and told him to stop”.
As is apparent from contemporaneous documents completed by the doctor and the nurse, they understood MX to have made no complaint to them of penile/vaginal penetration. The doctor was examining MX in the context of her having made allegations of sexual assault. It was medically important for the doctor to know whether there had been penile/vaginal penetration. In such circumstances, it is highly unlikely that the doctor would have misunderstood the effect of what MX said to her on this issue.
Not only did MX make no allegation of penile/vaginal intercourse during medical examination, she said things denying that that had occurred.
This is consistent with what she told police in her evidence-in-chief interview:
… he was telling me that he was going to get his son to come in and rape me and then he was going to rape me and then he was going to get Dom [Dimitrov] to come in as well and then … [redacted] knocked on the door, um, that’s when he told me to get up, get my clothes back on. Then we went downstairs.
At trial, MX initially gave evidence that penile/vaginal penetration did occur in the upstairs bedroom. However, in cross-examination, she confirmed that she had told the doctor that there had been no penile/vaginal intercourse and, more importantly, she gave evidence that she had told the doctor the truth. There was no re-examination on this issue.
The jury heard MX tell police a version of events in which penile/vaginal intercourse was not mentioned. MX gave evidence that there was penile/vaginal intercourse, but later said that there had been no penile/vaginal intercourse. MX’s final position on this issue was that penile/vaginal intercourse did not occur.
The conviction on Count 10 cannot stand. Applying the test in M v The Queen (1994) 181 CLR 487 (M), as explained in Libke v the Queen [2007] HCA 30; 230 CLR 559 (Libke), and as applied recently by the High Court in Pell v the Queen [2020] HCA 12; 94 ALJR 394 (Pell), it was unreasonable for the jury to have found beyond reasonable doubt that penile/vaginal intercourse had occurred when MX not only denied that it had happened when being medically examined, but confirmed in evidence that she was telling the truth by denying the allegation, that being her final word before the jury on the subject.
The appellant must be acquitted on Count 10.
Count 8
MX’s evidence at trial was that she was sexually assaulted twice in the back seat of a car in a shed: first, by the appellant manipulating a gun such that its barrel penetrated her vagina for about five to 10 minutes, and then by the appellant penetrating her vagina with his fingers. The allegation of penetration by the gun formed the basis of Count 7 on the indictment, while the allegation of digital penetration formed the basis of Count 8.
The jury acquitted the appellant on Count 7 but convicted him on Count 8. It is argued that those verdicts are inconsistent, that they are an affront to common sense, and that they cannot logically and reasonably stand together.
Two aspects of the trial judge’s directions to the jury should be noted. First, he told the jury that the charges against the appellants had to be considered separately. Second, he told the jury that, when dealing with Counts 7 and 8:
It’s important to note that it’s open to you to be satisfied of the guilt of Mr Bloxsome on one of these charges but not on the other, even though they are alleged to have occurred in close proximity to each other, if there is some reason in the evidence to distinguish between them.
Earlier, His Honour had given the jury a Markuleski direction (R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82) when he said:
Giving separate consideration to the individual counts on the indictment means that you are entitled to bring in verdicts of guilty on some counts and verdicts of not guilty on other counts, if there is a logical reason for that outcome. If you find an accused not guilty of any count because you have doubts about the reliability of one or more of the witnesses’ evidence, then you would have to consider how that conclusion affected your consideration of the remaining counts on the indictment.
The principles of law that apply to a ground of appeal asserting inconsistent verdicts were recently restated in Keen v The Queen [2020] NSWCCA 59 by McCallum JA as follows (at [9]–[10]):
9 As explained by Basten JA in Ganiji v R [2019] NSWCCA 208 at [13] (Button and Lonergan JJ agreeing at [55] and [64]), in a case where all counts rest on the evidence of a particular witness, a conviction on one count accompanied by acquittal on another does not, absent further analysis, necessarily demonstrate inconsistency. His Honour said at [13]:
The critical circumstance said to raise possible error is that both counts depended upon the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects.
10The test to be applied in considering a ground of appeal based on alleged factual inconsistency between verdicts is one of logic and reasonableness: MacKenzie at 366. The joint judgment in that case (Gaudron, Gummow and Kirby JJ) approved the test stated by Devlin J in R v Stone (UK Court of Criminal Appeal, 13 December 1954, unreported) which stated that the applicant in such a case:
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.
To succeed, Mr Bloxsome must satisfy us that no reasonable jury that had applied itself properly to the evidence at trial could have found Mr Bloxsome not guilty on Count 7 but guilty on Count 8.
There was no evidence in support of MX’s evidence on Counts 7 or 8. Count 7 is distinguished from Count 8 as, in Count 7, there was an absence of supporting evidence in circumstances where it is possible that there could have been such evidence. There was no evidence of genital injury to MX, despite her description of vaginal penetration by the barrel of a gun for five to 10 minutes, nor was any of her DNA found on the gun (although there was DNA from an unidentified female).
Given MX’s evidence that she was digitally penetrated by Mr Bloxsome almost immediately after he had penetrated her with the barrel of the gun, the only logical explanation for the differing verdicts is that the jury regarded the absence of corroborating evidence on Count 7 as important. But additional evidence that supported the veracity of MX’s account on Count 8 was also lacking.
To put it slightly differently, in relation to Count 7, the jury may have had doubts about MX’s credibility because of the absence of injury and the absence of her DNA on the gun. While those doubts did not arise in relation to Count 8, there was no difference in the evidence on Counts 7 and 8, which the Crown relied on to support MX’s credibility.
In a criminal trial, an acquittal does not necessarily mean that a Crown witness has been disbelieved by the jury. In MFA v The Queen [2002] HCA 53, 213 CLR 606 Gleeson CJ, Hayne and Callinan JJ said (at [34]):
The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.
The differing verdicts in this case may simply represent the jury’s exercise of caution before being satisfied beyond reasonable doubt of Mr Bloxsome’s guilt on a serious criminal charge. The jury was told to consider the counts separately and it is clear that they did so.
As was said by Simpson AJA in AH v The Queen [2019] NSWCCA 152 (at [62]):
… differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count.
On the other hand, it is difficult to see why the doubts that the jury had on Count 7 (likely based on the absence of supporting evidence for that count) should not have flowed through to their consideration of Count 8. Count 8 suffered from the same absence of supporting forensic evidence.
It is by no means an easy task to decide whether, in the circumstances of a particular case, differing verdicts demonstrate illogicality and unreasonableness or simply represent the jury doing what they were told to do by the trial judge; namely, to consider the allegations separately.
However, there is another matter to factor—we have decided that the verdict on Count 10 must be quashed. When we consider the reasonableness of the guilty verdict on Count 8, we must take into account that Mr Bloxsome was acquitted by the jury on Count 7 and will be acquitted by this Court on Count 10.
The principles behind a Markuleski direction apply not only to a jury, but also to an appeal court that is considering a ground that concerns the asserted unreasonableness of a particular verdict. When deciding whether the guilty verdict on Count 8 is reasonable or not, we must bear in mind that Mr Bloxsome’s guilt on the other two sexual assaults was not proven beyond reasonable doubt; this was because of doubts that the jury must have had, and which we have, about MX’s reliability concerning those allegations. To summarise:
(a)On Count 7, there was no evidence of injury and no forensic evidence to support MX’s evidence.
(b)On Count 10, MX gave evidence, initially at least, of penile/vaginal penetration, which she had denied when being medically examined.
Although the differing verdicts on Counts 7 and 8 may result from the jury being cautious, when this Court’s acquittal on Count 10 is added to the mix, we are satisfied that the verdict on Count 8 cannot stand as it is an affront to common sense and, thus, unreasonable.
The conviction on Count 8 is unreasonable and should be quashed.
Counts 11 and 13
Plea in Bar
At the beginning of the trial, an indictment was presented that included Count 11 (an allegation of aggravated robbery) and Count 13 (an allegation of taking a motor vehicle without consent). The aggravation in Count 11 was that the appellant was in company. Both Count 11 and Count 13 related to the carjacking at the Ainslie Football Club referred to above. The motor vehicle was the property that was the subject of the aggravated robbery offence (Count 11) and the take motor vehicle offence (Count 13). Importantly, Counts 11 and 13 were not expressed to be in the alternative to each other.
When the appellant was arraigned, he pleaded not guilty to Count 11 and guilty to Count 13. There was no further reference to Count 13 before the jury and it was not asked to deliver a verdict on that count.
After the jury found the appellant Mr Bloxsome guilty on Count 11, the trial judge convicted him on that count. Later, his Honour convicted him on Count 13, consistent with the earlier plea of guilty. Eventually, his Honour sentenced the appellant on both counts. The sentence for Count 13 is partially cumulative on the sentence for Count 11, although wholly subsumed by other sentences.
Under this ground, complaint is made that Mr Bloxsome should not have been convicted of both Count 11 (aggravated robbery) and Count 13 (take motor vehicle without consent).
The respondent argues that the time for raising this objection has passed.
The Court’s conclusion on the substantive issue renders it unnecessary to decide whether Mr Bloxsome should be prevented from raising the objection at this time. We simply note that it is difficult to see why the appellant could not have raised a plea in bar when he was arraigned and entered pleas to both counts.
On appeal, counsel for Mr Bloxsome went so far as to assert that there should have been a trial on Count 13 and the jury should have been asked for a verdict on that count.
This submission misunderstands the effect of a guilty plea to a charge that is not expressed as being an alternative count to another charge on the indictment.
In the present case, there was nothing for the jury to determine with respect to Count 13. There was no issue for them to resolve. The situation would be different if Count 13 had been charged as an alternative and the Crown had not accepted the plea of guilty in satisfaction. In such a case, the guilt of the accused on both the primary count and the alternative is at issue. For example, if an accused is charged with murder and pleads not guilty to that charge but guilty to manslaughter, and the Crown declines to accept the plea of guilty to manslaughter in satisfaction, then it is open to the jury to find the accused not guilty of both murder and manslaughter.
Further, if, as Mr Bloxsome’s counsel on appeal suggested, there should have been a trial on Count 13 despite the plea of guilty, why should there not have also been a trial on the other counts to which Mr Bloxsome pleaded guilty (namely, aggravated burglary and damaging property)? Fortunately, for the efficient administration of the criminal law, where a plea of guilty is made to a count that is not an alternative to another count, there is no trial on that count.
In the present case, the argument on this ground seems to be based on the undoubtedly truthful proposition that the same actions of the appellant led to both charges, and that, in the particular circumstances of this case, the property the subject of the robbery was a motor vehicle. It is argued that this means that the appellant could not be convicted of both offences.
The answer to this argument is to be found in Pearce v The Queen [1998] HCA 57; 194 CLR 610 (Pearce). In that case, the High Court rejected the argument that, where an accused has previously been prosecuted for "substantially the same" offence or for an offence the "gist" or "gravamen" of which is the same as the subject of the later prosecution (or for the "same matter"), a “plea in bar is … available if a person is charged with different offences arising out of substantially the same set of facts”: at [18].
Pearce decided the following proposition (at [28]):
Inevitably, any test of the availability of the pleas in bar which considers the evidence to be given on the trial of the second prosecution except in aid of an inquiry about identity of elements of the offences charged would bring with it uncertainties of the kind identified by Scalia J. The stream of authorities in this country runs against adopting such a test and there is no reason to depart from the use of the test which looks to the elements of the offences concerned. Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld.
(citations omitted)
In the present case, the two offences (aggravated robbery and take motor vehicle without consent) each required proof of a fact that was not required by the other offence. Therefore, consistent with what was decided in Pearce, “no plea in bar could be upheld”.
The appellant was found guilty of an offence against s 310 of the Criminal Code 2002 (ACT) (Criminal Code) as below.
310Aggravated robbery
A person commits an offence (aggravated robbery) if the person—
(a)commits robbery in company with 1 or more people; or
(b)commits robbery and, at the time of the robbery, has an offensive weapon with him or her.
Maximum penalty: 2 500 penalty units, imprisonment for 25 years or both.
NoteRobbery means an offence against s 309.
The elements of robbery are set out in s 309 of the Criminal Code.
309 Robbery
A person commits an offence (robbery) if—
(a)the person commits theft; and
(b)when committing the theft, or immediately before or immediately after committing the theft, the person—
(i) uses force on someone else; or
(ii) threatens to use force then and there on someone else;
with intent to commit theft or to escape from the scene.
Maximum penalty: 1 400 penalty units, imprisonment for 14 years or both.
NoteTheft means an offence against s 308 or s 321.
We note that, to be guilty of robbery, an offender must intend to commit theft.
308 Theft
A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
(note omitted)
Therefore, the elements that the Crown had to prove in relation to Count 11 included:
(a)The appellant was “in company”;
(b)There was actual or threatened force; and
(c)There was an intention to permanently deprive.
Count 13 required proof of none of these elements.
Count 13 (to which the appellant pleaded guilty) is an offence against s 318(1) of the Criminal Code, which provides:
318Taking etc motor vehicle without consent
(1)A person commits an offence if the person—
(a)dishonestly takes a motor vehicle belonging to someone else; and
(b)does not have consent to take the vehicle from a person to whom it belongs.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
(notes omitted)
It is an essential element of this offence that the property taken is a “motor vehicle”. For the offence of aggravated robbery, there is no requirement that the property taken be a motor vehicle. The charge on the indictment may well have particularised the property as being a motor vehicle, but it is not an element of aggravated robbery that the property stolen is a motor vehicle.
To summarise, each of the two offences has an element that is not included in the other offence. Count 13 requires proof that the thing stolen was a motor vehicle but Count 11 does not. On the other hand, Count 11 requires proof of force or a threat of force, proof that the appellant was in company or had an offensive weapon with him, proof that the appropriation was dishonest, and proof that there was an intention to permanently deprive. Count 13 does not require proof of any of these elements.
As was noted in Pearce, “[e]ach of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld”: at [28].
Mr Bloxsome’s counsel relied on the circumstance that the property stolen under Count 11 was, in fact, a motor vehicle. She argued that, in the circumstances of this particular case, the elements of Count 13 were a subset of the elements of Count 11. But, as Pearce makes clear, when examining questions of a plea in bar, the particular factual circumstances of the two counts are to be ignored. This is clear from the plurality’s consideration and conclusion regarding a case of the United States Supreme Court, United States v Dixon (1993) 509 US 688. In Pearce, the Court rejected any test that requires consideration of “the evidence to be given on the trial of the second prosecution except in aid of an inquiry about identity of elements of the offences charged”: at [28] (emphasis added).
The plurality in Pearce said, “the principal focus of the rule underlying the pleas in bar … is a rule against repeated prosecution for a single offence”: at [26]. Counts 11 and 13 were not a “single offence”. Each may have arisen from a single series of acts by the appellant, but that is not the same as saying that they are a “single offence”.
In common with many jurisdictions, in the ACT, the taking of a motor vehicle is prohibited even when there is no intention to steal the motor vehicle. Although the primary focus of the offence provision may be “joyriding”, the offence is still committed when there is an intention to permanently deprive. Section 318 places “motor vehicles” in a special category of property. It criminalises a different aspect of the appellant’s misconduct from that criminalised by the offence of aggravated robbery (namely, criminal actions in taking a special class of property—a motor vehicle).
We emphasise that, in Pearce, the plurality made it clear that a plea in bar was not available in the circumstances of that case because “[e]ach of the offences with which the appellant was charged required proof of a fact which the other did not”: at [28].
Count 11 did not require proof that the property taken was a motor vehicle. The appellant would have been convicted even if there had been no mention in the evidence at trial of the nature of the property stolen by force. Count 13 did not require the elements of proof of force or threat of force, an intention to permanently deprive, that the appropriation was dishonest, or that the appellant was in company; the appellant’s plea of guilty would have been accepted in the absence of any evidence of such circumstances.
That said, there is a significant overlap between the two offences: the only extra criminality in the s 318 offence that is not covered by the s 310 offence is that the property involved was a “motor vehicle”. However, that circumstance is only relevant to the question of sentence; the issue is what extra punishment the appellant should receive for Count 13.
Mr Featherstone’s grounds of appeal
We will now turn to the grounds of appeal that solely concern Mr Featherstone before returning to consider the grounds of appeal that relate to both appellants.
Appeal against sentence—Manifest excess
Mr Featherstone abandoned this ground.
Refusal of application for separate trials
On the first day of the trial, counsel for Mr Featherstone made an application that the sexual assault allegations involving Mr Bloxsome (Counts 7, 8, and 10) be separated from the remaining counts and that a separate trial be held on those allegations. No part of the Crown case at trial alleged that Mr Featherstone was criminally involved in Counts 7, 8, and 10.
The trial judge refused the application: R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90, concluding, inter alia (at [28]):
…
(d) the offences alleged in counts 1 to 10 all occurred during a course of events on a single day in which both co-accuseds are alleged to have been involved;
(e)the severance of the trial would require duplication of substantial amounts of evidence in two trials with a corresponding burden upon the Crown and, more significantly, the relevant witnesses; and
(f) the sexual assault allegations are not of such a nature as to vitiate the effectiveness of directions given to the jury or otherwise overwhelm the jury’s consideration of the evidence in relation to the other charges.
His Honour’s decision is the subject of this ground of appeal.
In this Court, counsel for Mr Featherstone submitted that MX’s evidence that she was sexually assaulted by Mr Bloxsome was so prejudicial that no direction from the trial judge could cure that prejudice and, therefore, Mr Featherstone did not receive a fair trial.
The consideration of this ground of appeal involves examination of what actually happened in the trial. The trial judge’s decision was made in advance of the trial, but this Court has the benefit of hindsight. We find not only that the trial judge’s decision was correct on the information before him but also that, in hindsight, no miscarriage of justice was occasioned to Mr Featherstone.
As a matter of practical reality, even if there was a trial in which the sexual assault allegations were not on the indictment, it would be difficult (and unfair to the Crown) if there was no mention of MX’s allegation of being sexually assaulted while she was unlawfully confined (the allegation of unlawful confinement being Count 5 on the co-accused indictment). It was MX’s evidence that she had been bound by cable ties when she was sexually assaulted by Mr Bloxsome in two separate locations and that those sexual assaults occurred while she was unlawfully confined. It would have been artificial if there was no mention of the alleged sexual assault during the alleged unlawful confinement. It would have resulted in an unexplained gap in MX’s narrative of events. The trial judge was correct to say that the sexual assault allegations were “a significant part of the overall Crown case in relation to unlawful confinement” (albeit in the context of dealing with the later application that arose on 11 April 2019).
A trial on the sexual assault allegations alone would require that MX give evidence of how she came to be in the presence of Mr Bloxsome for an extended period of time. Evidence would also be required from other witnesses who saw her there and in relation to how she was treated by the two appellants.
Therefore, the grant of separate trials would have required a great deal of duplication of evidence with many (if not almost all) of the Crown witnesses giving evidence at both trials. The question as to whether separate trials of accused persons should be granted involves more than simply looking at the interests of the accused. “It is the interests of justice as a whole that are to be the governing factor”: R v Baladjam (No 49) [2008] NSWSC 1468 at [14].
In his decision refusing the application, the trial judge referred to the directions that he would provide to the jury. In his opening remarks to the jury, his Honour told them that it was possible that they would hear evidence relating to only one of the accused and not to the other accused and that, if that happened, the jury would “need to take the evidence into account only against the accused to whom it relates.”
In summing up, the trial judge referred to the evidentiary differences against each of the two accused. When directing the jury about the sexual assault counts, his Honour made it clear that there was no suggestion that Mr Featherstone had been criminally involved in those events through references to the evidence, the submissions made on behalf of Mr Bloxsome, and the Crown’s submissions.
The criminal law proceeds on the assumption that jurors follow the judge’s directions: see Gilbert v The Queen [2000] HCA 15, 201 CLR 414 at [13]. At the trial, counsel for Mr Featherstone made no complaint about the sufficiency of his Honour’s directions.
On appeal, counsel for Mr Featherstone extrapolated on the emotional way in which MX had spoken about being sexually assaulted by Mr Bloxsome and submitted that sexual assault allegations are particularly likely to arouse prejudice. However, the reason why sexual assault allegations are more likely to arouse prejudice than other allegations of serious criminal behaviour is not apparent to us.
In any case, it does not appear that MX’s emotional presentation and her allegations of sexual assault overwhelmed the jury. As has already been noted, the jury acquitted Mr Bloxsome on one of the counts involving an allegation of sexual assault, which suggests that the jury followed the trial judge’s directions to consider the counts on the indictment separately.
It has not been demonstrated that any injustice resulted from the trial judge’s decision to refuse the application for separate trials.
We reject this ground of appeal.
Deficient particularisation of the unlawful confinement charge
On appeal, complaint is made that the Crown’s particularisation of Count 5 on the indictment (the unlawful confinement charge) was inadequate. There are two aspects to this complaint: the first concerns the position at the start of the trial and the second concerns a statement that MX first made during her evidence.
On the second day of the trial second day and after the Crown’s opening to the jury, counsel for Mr Featherstone raised an issue regarding the particularisation of Count 5. The Crown (represented by Mr Williamson) clarified its position in a manner that appears to have been accepted by counsel for Mr Featherstone:
MR WILLIAMSON: … the whole of the course of conduct occurring after [MX] was forced to come with the two accused from the Narrabundah premises, and that includes the conduct that occurred at the Casey premises, which in turn includes her being – and this is my word, not hers – but interrogated whereby she was asked multiple questions in an extremely intimidating way about who was involved in this supposed run through, her being assaulted as part of that interrogation, her having a knife put to her throat and then being told that she had to come with the accused whilst they committed these two other offences, being the aggravated robbery, the carjacking, and the burglary at the military shop. We say the totality of that would have made it abundantly clear to her that she had no freedom on that situation.
HIS HONOUR: Is there anything else that you wanted to raise Mr Purnell?
MR PURNELL: No, your Honour. Thank you.
Following the Crown’s clarification, it was not further suggested that the accused was unaware of the case that he had to meet.
We can understand why there was no further complaint. The particulars that were provided were adequate in the circumstances of the trial, particularly because Mr Featherstone’s case was that, at all times, MX was free to stay or leave as she chose and was a willing participant in what happened when she left the premises with the two accused and committed two criminal offences with them.
The second aspect concerns a statement made by MX, apparently for the first time, when giving evidence. Before then, it was the Crown case that MX’s evidence was that she had been tied when she was sexually assaulted by Mr Bloxsome. She had not mentioned being tied otherwise. However, in her evidence, she said that her hands had also been tied when she was travelling with both accused to the home of Mr Jacky. The Crown case had always been that MX was unlawfully confined during this trip, but the Crown was not previously aware that MX was alleging that her hands had been tied on the way to Mr Jacky’s house.
The appellant’s written submissions on this point say:
The new evidence given by [MX] about her hands having been zip-tied on the way to Ernest Jacky’s house, which was not disclosed or particularised, was in the appellant’s submission so prejudicial it ought to have been particularised by the Crown either before the trial began or in its opening address ...
(emphasis added)
The Crown could not have particularised this aspect of the evidence before becoming aware it. Consequently, the Crown did not inadequately particularise Count 5.
The assertion that the Crown failed to properly particularise the evidence relied upon in support of Count 5 is rejected.
Failure to discharge the jury
Under this ground of appeal, Mr Featherstone refers to two occasions when the trial judge refused an application that the jury be discharged.
The first occasion was on 8 April 2019. Counsel for Mr Featherstone argued that he could not receive a fair trial as a result of the events that had occurred up until that date. Prior to that application, the history of the trial is as follows.
On the first day of the trial (1 April 2019), the application for a separate trial of the sexual offences was made and dismissed.
On the second day of the trial, the Crown and counsel for both accused made opening addresses to the jury. On the third day (Wednesday, 3 April 2019), the Crown called its first witness, Mr Dimitrov. He was undeniably an important witness for the Crown. His evidence-in-chief interview was played to the jury and he commenced his supplementary evidence-in-chief. On the next day (Thursday, 4 April 2019), counsel for Mr Bloxsome withdrew. The trial was adjourned to Monday, 8 April 2019 to allow new counsel to be briefed.
On 8 April 2019, new counsel appeared for Mr Bloxsome. He complained to the trial judge that he was not sufficiently prepared. He sought an adjournment for that reason and other reasons. Before ruling on the application, the trial judge heard from counsel for Mr Featherstone. Counsel’s primary application was as follows:
Our application is that the trial continue this morning, and we do that because we say that if there is any more delay that visits an unfairness on the accused Mr Featherstone.
Later, counsel for Mr Featherstone said, “it’s our application that you either abort the trial or else you proceed this morning”. The trial proceeded.
Appeal counsel for Mr Featherstone complains that his Honour did not discharge the jury (although that was not the primary application at trial).
It is argued that the gap between Wednesday, 3 April 2019 and Monday, 8 April 2019 meant that the jury had four days to consider and reflect on Mr Dimitrov’s unchallenged version of events, prior to any cross-examination, and that this rendered Mr Featherstone’s trial unfair.
Quite why it is assumed that the four-day gap operated to the advantage of the Crown is difficult to discern. Many trials involve such gaps in evidence. Illness of a juror or another essential participant in the trial can result in a gap of four days or even longer. Trials regularly pause over the Easter long weekend. On occasions, interruptions to a trial cause a delay before the commencement of cross-examination of an important Crown witness, yet we are unaware of any occasion in which it has been demonstrated that such a gap results in the trial of the accused becoming unfair. Certainly, no case was provided to us.
We are aware of nothing that suggests that a jury is more likely to believe a witness where there is a gap between evidence-in-chief and cross-examination than where cross‑examination follows immediately after the examination-in-chief of that witness. Nothing was put before this Court to establish the accuracy of that submission.
It is a matter of pure speculation to say that what happened in this trial was unfair to the accused.
Next, complaint is made that the trial judge did not discharge the jury on 11 April 2019, after MX referred for the first time to her hands having been tied when she was in a car on the way to Mr Jacky’s home.
The application was made on the basis that the new evidence was prejudicial. The trial judge refused the application on the basis that, while MX’s evidence was new, it did not change the response of the accused to the Crown case.
Once again, it is difficult to see demonstrable prejudice arising from this new information. Late disclosure of something by a Crown witness invariably provides an opportunity for defence counsel to suggest to a jury that the recent information is a fabrication.
A similar complaint was made in Fischetti v The Queen [2019] ACTCA 2 (Fischetti). In that case, the Crown relied on evidence (the existence and relevance of which emerged during the trial) that resulted in Mr Fischetti’s counsel seeking the discharge of the jury. The trial judge refused the application. On the appeal, this Court said (at [19]–[22]):
19.A Crown opening is undoubtedly an exercise in prediction. The Crown opens to the jury as to what the effect of the evidence is expected to be in support of the charges in the indictment. In some, perhaps most, cases, that prediction proves to be wholly or substantially accurate. But when there is a departure, and the accused takes issue with it, the trial judge has a wide, but not unfettered, discretion to decide whether or not the change that has taken place is substantial, and if so, whether it can be accommodated in a way that is fair to the accused, or whether the jury must be discharged. As outlined below, the law is well-developed in this area. This case is not novel, although it necessarily turns on its own facts and circumstances.
20.The course of evidence in a trial can similarly depart from what has been, and is ordinarily required to be, disclosed to the accused prior to the commencement of the trial. Notwithstanding that general starting point, issues can emerge during the course of a trial and additional evidence obtained and adduced as a result. Once again, the trial judge may be called upon to determine whether the introduction of different or additional evidence can be fairly accommodated, and if not, whether, for example, the solution is to reject the evidence, or discharge the jury.
21.The capacity of a trial judge to discharge a jury by reason of a prejudicial event is not in doubt. But it is a discretion that does not lend itself to rigid rules and formulas. Rather, the decision to grant or refuse a jury discharge application is inherently case specific, recognising that such events will inevitably occur from time to time. The trial judge’s response to such an application must pay careful heed to the nature of what has occurred, and its circumstances, including, non-exhaustively, the seriousness of the event in the context of the contested issues at trial, the stage at which the problem arises and is raised as an issue by way of a discharge application or otherwise, how the incident arose (including its deliberateness or inadvertence on the part of the Crown), and the likely effectiveness of a direction to the jury.
22.Unless there is an evident error in the approach taken by the trial judge, such as acting upon a wrong principle, or such an error is readily able to be inferred from a result that is unreasonable or plainly unjust, an appellant court is not entitled to intervene, even if it would, perhaps, have taken a different approach.
(citations omitted)
In this case, the trial judge was correct in his assessment of the significance of the new allegation made by MX. The new information was only one of several pieces of evidence that the Crown relied on to establish unlawful confinement, and it did not change the forensic challenge for Mr Featherstone.
The trial judge did not err in refusing the application that the jury be discharged on 11 April 2019.
The challenge to the trial judge’s refusals to discharge the jury fails.
Common grounds of appeal—Counts 1, 4, and 5
We turn to the grounds of appeal that are common to both appellants. Both appellants were found guilty on Count 5 (the allegation concerning the unlawful confinement of MX). Both were also found guilty of attacking Mr Diaz—Mr Featherstone shot him (Count 1) and Mr Bloxsome stabbed him (Count 4).
The test of whether a verdict is unreasonable, or cannot be supported, having regard to the evidence
In Pell, the High Court recently referred to the function that a criminal appellant court must perform (at [39]):
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
(citations omitted)
This Court must ask itself (M at 493):
whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(citation omitted)
This is to ask the question (Libke at [113]):
whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt.
(citation omitted, emphasis in original)
When we make that assessment, we must recognise that there are some advantages that the jury had, but which are denied to us. We do not refer to the often overemphasised advantage of assessing the demeanour of the various witnesses, but to more prosaic matters, such as an ability to observe physical demonstrations performed by the witnesses. For example, the demonstration of MX as to how she was able to remove her clothes and later re-dress herself with her wrists bound.
The evidence at trial
We now briefly outline the evidence given at the trial, concentrating on the evidence that concerns the counts that are said to have resulted in guilty verdicts that are unreasonable and unsupported by the evidence. We have not ignored the evidence on the other counts, particularly as it reflects on MX’s reliability.
The Crown relied primarily on two witnesses, Mr Dimitrov and MX. Both of their evidence-in-chief interviews were played to the jury.
In his interview, Mr Dimitrov said that:
they seemed to have been interrogating [MX] … they were interrogating [MX] and they were deciding how to treat her – whether she would be “treated like a normal person or like a dog”. Their exact words. And at first, they were kind to her, they were feeding her, et cetera, but she was told she’s not allowed to leave.
As far as the shooting and stabbing of Mr Diaz is concerned, Mr Dimitrov said in the interview that the accused had:
started to get aggressive with him, um, and told him to get in the car and he was coming along for the job. He said “No I don’t want to. I just want to stay here and sleep”, which – and then he got told to get the fuck in the car. And he went – Justin [Diaz] had said – “What the fuck? Why me?” And then Senior [Mr Bloxsome] turned to him and told him to get on the ground on his hands and knees, which – then he, ah, said “No”. Then Damien [Featherstone] shot him through the left leg, and Senior proceeded to stab him multiple times. I wasn’t aware of how many times he’d gotten stabbed until, um, it was disclosed to me yesterday or the day before by Senior himself, that he had stabbed the guy at least fifteen times. Ah, the last time he stabbed him he was not able to, um, scream no more. So back to the incident of the stabbing. Um, the reason why Rodney Bloxsome Senior stabbed him was – he told him to shut up after he’d been shot through the leg, and then proceeded to stab him because he wouldn’t shut up. And then from there, like, I just went, “Oh, holy shit, I got to get out of here. What the fuck am I in the middle of?”.
After Mr Diaz was shot and stabbed, Mr Dimitrov, MX, and others went to another house in Casey. Mr Bloxsome “was in the back with her, making sure she didn’t leave”. The next morning, “they had started to get more and more frustrated with [MX] because she wasn’t giving them any helpful new information, as they put it”. She was put in the back seat of a car and was interrogated by Mr Bloxsome.
Mr Dimitrov later said:
they said to her that if she tried to escape or didn’t comply with what they asked, that she’d be taken out bush and killed … And they stated many, many times they can’t let her go.
There is no doubt that, if the jury accepted the reliability of what Mr Dimitrov said in the evidence extracted above, the guilty verdicts on Counts 1, 4, and 5 would follow.
Later, we will make further reference to Mr Dimitrov’s evidence; in particular, we will refer to the parts of the evidence where he is said to have contradicted himself and where his evidence was contradicted by other witnesses.
MX recounted the circumstances in which Mr Diaz was shot. She had been dropped off at Mr Diaz’s house. Mr Featherstone was there and had assumed that the people who dropped her off were going to rob him. A number of other men turned up, including Mr Bloxsome. Mr Featherstone and Mr Bloxsome wanted to leave the house while she and Mr Diaz wanted to stay. MX said that Mr Diaz had refused to get up from where he was seated on the couch:
they tried to make him get up. He still wouldn’t. He refused and then all of a sudden Damien [Featherstone] shot Justin [Diaz] in the leg. Um, once Damien shot Justin, Rodney [Bloxsome] stabbed Justin multiple times. I can’t remember how many times. And then I was grabbed from the back of the neck and put into, I think it was Dom [Dimitrov]’s car.
Following this, they went to the house in Casey where MX was told to sit at the kitchen table and not say a word to anyone.
MX described being taken into the garage where her hands were tied with cable ties and she was sexually assaulted by Mr Bloxsome in the manner recounted earlier. When asked, “What were they trying to do? What were they trying to achieve?”. She answered “They was trying to get information out of me about my ex-partner. They still had it in their head that my ex-partner and his friends wanted to rob Damien [Featherstone]”. She gave evidence that, at this time, she was physically assaulted by people other than the appellants.
She was then taken to Mr Jacky’s house. She gave oral evidence at trial that her hands were cable-tied during the journey.
The following day, MX, the appellants, and others committed a number of offences. MX agreed that she participated in the offences.
Further reference will be made to MX’s evidence as we consider the challenges to the reliability of her evidence advanced by the appellants on appeal.
We should note that neither the Crown nor the appellants gained any comfort from the evidence given by Mr Diaz (who was shot and stabbed). He denied that either of the appellants was responsible for those injuries, despite both appellants agreeing that they were responsible. In fact, Mr Diaz said that he shot himself.
Mr Dimitrov and MX provided the only substantial evidence upon which the Crown could rely in support of Counts 1, 4, and 5. For that reason, we will examine their evidence carefully. Both at trial and on appeal, there was a substantial challenge to the credibility of those witnesses based on the following propositions.
(a)The circumstances in which they were first interviewed by police provided them with a motive to lie.
(b)They contradicted each other in some respects.
(c)They were contradicted in some respects by the evidence of other witnesses called by the Crown.
(d)There were internal contradictions in the evidence they gave.
The reliability of MX
The circumstances in which MX’s allegations came to light
On 28 February 2018, a number of people (including the appellants and MX) participated in a burglary, a carjacking, and a number of attempts to steal motor vehicles. Both appellants were arrested that day but MX, who was with them, escaped and hid. She was arrested the following day. She had warrants outstanding in both NSW and the ACT. She was aware that she had committed two serious offences. When interviewed by police, in response to a leading question she complained about being sexually assaulted and spoke about conduct of the appellants relating to Counts 1, 4, and 5.
These circumstances provided a motive for MX to fabricate allegations of criminal behaviour in relation to which she was the victim to avoid being charged for the offences in which she participated.
Despite her involvement in the carjacking, the burglary, and a number of attempts to steal motor vehicles, she was never charged with any offence.
The claim that her hands were cable-tied
MX gave evidence that her hands were cable-tied for some hours. It was submitted on appeal that there were significant doubts about whether MX’s evidence in relation to this event was reliable. The reasons for these doubts included:
(a)Mr Dimitrov gave evidence that he never saw MX tied up.
(b)NQ, another Crown witness who was present throughout the three days that MX was said to be unlawfully confined, gave no evidence of seeing MX tied up.
(c)Dr Tyson saw no evidence of any injuries such as “ligature marks” on MX’s wrists, although MX said that her hands were tied tightly. On the other hand, Dr Tyson said in evidence that “the absence of injuries doesn't necessarily indicate that ligatures haven't been applied at some point”.
(d)The circumstances in which MX first said that she was cable-tied during the car trip to Mr Jacky’s house; she had not mentioned it earlier.
(e)MX’s evidence that, despite having her wrists bound, she was “naked” when sexually assaulted in the bedroom (Count 10).
In relation to the last point, whilst the term “naked” does not necessarily suggest that MX’s clothes were completely removed from her, a drawing that she did in the course of her police interview (trial Exhibit 6) showed her clothing next to her in a pile; this would have been impossible if her hands were tied as she said they were.
On the other hand, unused cable ties were found in Mr Featherstone’s car. That evidence is equivocal. It suggests that MX was bound using cable ties but is also capable of suggesting that she became aware of the presence of cable ties and used that knowledge to make a false allegation seem more credible.
When considered together, these circumstances, particularly the evidence of Mr Dimitrov and NQ, cast doubt on the proposition that MX’s hands were ever bound.
Evidence suggesting MX was free to leave
As mentioned, NQ gave no evidence of seeing MX tied up. However, her evidence went further. At no stage did she hear MX being told that she was required to stay or could not leave. Her evidence was that MX could have left but wanted to stay where she was being provided with drugs, a shower, clothes, and somewhere to sleep.
NQ also gave evidence that when she, MX, Mr Featherstone, and another man went to Civic for a few hours to look for cars to steal, MX made no attempt to leave.
Things said to medical staff that were not repeated thereafter
MX told medical staff things that were not later repeated to police or in evidence before the jury. These included being threatened by a blowtorch and that “they hit me after padding me with the phone books and clothes”, although MX did maintain in cross-examination that this latter event occurred.
Was MX provided with food and water?
In cross-examination, MX said that she had nothing to eat or drink. This is contrary to evidence given by the Crown witnesses NQ and Mr Dimitrov.
The sexual assault allegations
The indictment included three allegations of sexual assault upon MX. The jury did not believe her beyond reasonable doubt in relation to one, she denied the occurrence of another while being medically examined (and confirmed that this denial was truthful in her evidence), and we have found that Mr Bloxsome’s convictions on that matter and the remaining allegation cannot stand.
Conclusion regarding the reliability of MX
To examine whether the jury must have had a reasonable doubt regarding Counts 1, 4, and 5, we must assess the reliability of MX’s evidence.
We are satisfied that her evidence could not have been relied upon without independent corroboration.
The reliability of Mr Dimitrov
The circumstances of Mr Dimitrov’s police interview
At the time that Mr Dimitrov was interviewed by police, he was a suspect in the carjacking offence. He was not charged; at trial, police gave evidence that Mr Dimitrov was acting under duress. However, he also told police of other offences with which he was not charged in relation to which there was no suggestion of duress. He admitted to police that, in the week before the subject events, he went to Sydney and exchanged a gun for methylamphetamine and another gun.
As with MX, the circumstances of Mr Dimitrov’s first police interview provided an incentive to minimise his criminal behaviour. On the other hand, there are circumstances that suggest he has not done so, for example, by telling police that he had done things that it is unlikely the police would otherwise have discovered. Admissions against interest are traditionally seen as matters pointing towards reliability.
The claim that “boiling water” was poured on MX’s legs
Mr Dimitrov gave evidence that he saw “boiling water” being poured on MX’s legs. MX gave no evidence of having had boiling water poured on her. Further, no relevant injury was seen by Dr Tyson, who examined MX a few days later.
If water of approximately 100°C had been poured on MX’s legs, it would be expected that signs of injury would be visible to Dr Tyson. Accordingly, at first glance, it appears that Mr Dimitrov may have been lying about the incident.
However, there is evidence that suggests that the reference to “boiling water” should not be taken literally.
Mr Dimitrov gave evidence that “when they poured boiling water on her, she gritted her teeth and just – like, gritted her teeth and just stared off into the distance rather than yelling and screaming in pain”. More importantly, when he was asked how he knew that the water was boiling, he said:
It wasn’t fully boiling – like, he had walked over. Featherstone had walked over, turned the jug on, and left it for maybe like 30 seconds or so, and like you could see in the actual – on the side where the clear bit of plastic is, you could see the water, it was at least bubbling; it wasn’t steaming, but it should – would still be hot enough to cause pain.
Thus, what at first appeared to be a significant problem with Mr Dimitrov’s credibility (the absence of a boiling water injury) is not necessarily a problem.
The number of times Mr Bloxsome stabbed Mr Diaz
The next challenge to Mr Dimitrov’s credibility is that he exaggerated the number of times that Mr Bloxsome stabbed Mr Diaz.
The appellants rely on the fact that the various estimations that Mr Dimitrov gave about the number of times that Mr Bloxsome stabbed Mr Diaz did not match the evidence of a paramedic who treated Mr Diaz.
Mr Dimitrov’s evidence regarding the number of times that Mr Diaz was stabbed included:
(a)“multiple times”;
(b)“I wasn’t aware of how many times he’d gotten stabbed until … it was disclosed to me … by Senior [Mr Bloxsome] himself that he had stabbed the guy at least fifteen times”;
(c)“I only seen about two, three stabs”;
(d)“… Senior [Mr Bloxsome] himself was saying he stabbed – he must have stabbed seven or eight times. And then Raymond [Russell] … steps in and he goes “No, you stabbed him like fifteen, sixteen times”;
(e)“at least four to six times”;
(f)He had told the prosecutor he saw Mr Bloxsome stab Mr Diaz 10 times but agreed in cross-examination “that may have been an exaggeration”.
Again, it is necessary to consider this issue more closely. If Mr Dimitrov used the term “stabbed” or “stab” as meaning “used his knife in a stabbing motion”, there is no inconsistency at all. At no stage did Mr Dimitrov say that he had seen four to six or 10 stab wounds on Mr Diaz’s body.
It is also important to distinguish between what Mr Dimitrov said that he saw and what he said that he heard.
When Mr Dimitrov was first telling police about Mr Diaz being shot and stabbed, he said:
Damien [Featherstone] shot him through the left leg, and Senior [Mr Bloxsome] proceeded to stab him multiple times. I wasn’t aware of how many times he’d gotten stabbed until, um, it was disclosed to me yesterday or the day before by Senior himself, that he had stabbed the guy at least fifteen times.
A little later in his interview with police, Mr Dimitrov said “I only seen about two, three stabs … but then Senior [Mr Bloxsome] himself was saying he stabbed – he must’ve stabbed seven or eight times ...”
The submission that Mr Dimitrov’s credibility suffers because he exaggerated the number of times that Mr Diaz was stabbed must be considered in light of the evidence that any exaggeration may have been Mr Bloxsome’s exaggeration. Mr Dimitrov’s acceptance of having exaggerated the number of times that Mr Diaz was stabbed does not necessarily carry with it an acceptance that he himself was responsible for that exaggeration.
Whether he had ever used “ice”
Mr Dimitrov was adamant that he had never used the drug ice. In cross-examination, he said “never have; never will. I have my lines I won’t cross”. On the other hand, NQ said that she saw Mr Dimitrov smoking ice.
The Crown was obliged to call NQ as she was a relevant witness. That does not mean that the jury had to accept her evidence. Either Mr Dimitrov was lying about this issue or the evidence of NQ was unreliable because she was mistaken or was lying.
Where the Crown relied on Mr Dimitrov to prove its case beyond reasonable doubt, the weight that can be placed on Mr Dimitrov’s evidence is clearly affected by NQ’s evidence on this issue.
Statements made by Mr Dimitrov that were to the appellants’ advantage
Mr Dimitrov said a number of things in his evidence at trial that were to the appellants’ benefit, despite their counsels’ reluctance to admit it on the appeal, namely:
(a)He did not see MX cable-tied;
(b)He agreed that it was never said in exact terms that MX could not leave and that she was never prevented from leaving;
(c)Apart from the “boiling water” incident, he never saw Mr Featherstone touch or hurt MX; and
(d)He was unaware of Mr Bloxsome’s sexual assault of MX.
Thus, any assessment of Mr Dimitrov’s evidence must pay regard to his apparent willingness to make appropriate concessions.
Conclusion regarding the reliability of Mr Dimitrov
Having considered the arguments of counsel on appeal in light of the evidence, we conclude that there was no reason for the jury to regard Mr Dimitrov’s evidence as unreliable. The evidence is capable of acceptance even in the absence of corroborating evidence. Whether it was open to the jury accept the evidence beyond reasonable doubt is a separate question to which we will now turn.
Count 5—Unlawful confinement
Having discussed the reliability of MX and Mr Dimitrov, we will now discuss whether the verdict on Count 5 is unreasonable in relation to each accused. As noted above, the Court must decide whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that an appellant was guilty. That is, whether the jury must as distinct from might have entertained a doubt about an appellant’s guilt.
The evidence of MX and Mr Dimitrov on Count 5 is summarised above. There was other evidence at trial that we must consider. The appellants’ interviews with police were played to the jury. Mr Featherstone also gave evidence that, while MX was with him, he gave her drugs, food, and drink. He denied threatening her for information, explaining that “she was telling us everything that we wanted to know”.
The evidence of NQ (a Crown witness who was later cross-examined by the Crown as an unfavourable witness) is relevant to Count 5. She had participated in the burglary and carjacking offences. At the time of the trial, she was serving a sentence for those offences having pleaded guilty. NQ is a relative of Mr Featherstone. She blamed him for getting her into trouble. As mentioned above, her evidence was inconsistent with the Crown case that MX was unlawfully confined. She said that:
(a)MX did not try to leave and was free to leave;
(b)MX was not threatened that she would be hurt if she left;
(c)MX did not say that she wanted to leave; and
(d)MX voluntarily went with the others when they left the Narrabundah premises because she was running away from the people who had dropped her off.
As noted above, admissions against interest are traditionally seen as matters pointing towards reliability. NQ made admissions of that type, telling the jury that she had hit MX in the face.
The defence case at trial and on appeal was not run on the basis that there had been collusion between MX and Mr Dimitrov. That approach was appropriate given the circumstances in which each of them was first interviewed by police. They gave similar evidence that cannot be explained by joint concoction. This fact affects the weight that can be given to their evidence.
Mr Dimitrov and MX’s evidence was similar evidence in that:
(a)MX said that she was told to sit on the floor at the Casey premises and Mr Dimitrov said that she was sitting on the floor when “boiling water” was poured over her.
(b)Although MX did not recall the boiling water being poured on her, she did recall the people at the house discussing whether this should be done.
(c)Both witnesses described MX being interrogated about the identity of the people who dropped her off at the Narrabundah premises and their plans. This is consistent with Mr Featherstone, in a paranoid state, fearing a “run through” that required the people in the house to arm themselves.
(d)Both said that a mobile phone was taken from Mr Dimitrov and agreed about how that was done (it was snapped and then thrown out the car window).
It is clear that both appellants were concerned by the prospect that they would be robbed by armed criminals and Mr Featherstone’s concerns were probably exacerbated because he had not taken his medication for schizophrenia. The level of their concern was evidenced by the fact that they committed an aggravated burglary to obtain weapons to defend themselves. In such circumstances, the appellants’ fervent desire to obtain information from MX is understandable. That MX might be interrogated and unlawfully confined in the process is consistent with the fears of the appellants at the relevant time.
It is not unusual in a criminal trial to have evidence that points to the guilt of an accused, or to the contrary (were that not the case, there is often no trial). In the present case, for the reasons expressed above, the jury was entitled to be satisfied beyond reasonable doubt of MX’s and Mr Dimitrov’s evidence concerning the unlawful confinement of MX and to reject the exculpatory evidence of NQ and the appellants beyond reasonable doubt.
It is not a question of whether, on the evidence, the jury might have had a reasonable doubt as to the guilt of the appellants. It is for the appellants to demonstrate that the jury must have had a reasonable doubt. We are not satisfied that the jury must have entertained a doubt about the guilt of either appellant on this count.
The verdicts on Count 5 are not unreasonable, nor has it been demonstrated that the verdicts cannot be supported having regard to the evidence.
The ground of appeal relating to Count 5 fails.
Counts 1 and 4—The shooting and stabbing of Mr Diaz
There was no dispute that Mr Featherstone shot Mr Diaz (Count 1) and that Mr Bloxsome stabbed Mr Diaz (Count 4). The sole issue for the jury was whether the Crown had proved beyond reasonable doubt that the appellants were not acting in self-defence.
Evidence of Mr Dimitrov
In his interview with police, which was played to the jury, Mr Dimitrov described how Mr Diaz was stabbed and shot. Because the appellants feared being the subject of a home invasion, they decided to rob a gun shop to obtain weapons. All involved were told to collect weapons from the house and head out to the car. Mr Russell had a machete that belonged to Mr Diaz, which he gave to Mr Diaz. Mr Dimitrov said that Mr Featherstone then “schized out … thinking that he was his enemy or something like that”.
Mr Diaz refused to leave his house. Mr Bloxsome then told Mr Diaz to get on the ground. When Mr Diaz refused, Mr Featherstone shot him. Mr Bloxsome told Mr Diaz to stop screaming and stabbed him when he did not stop.
In Court, Mr Dimitrov said that Mr Diaz was standing up when he was shot; he was holding the machete down by his side “not in a threatening manner, at least personally I did not believe it to be”. Before Mr Diaz was shot, he “stood up and just like … bridged his shoulders up a little bit, trying to be firm”. In cross-examination, Mr Dimitrov denied that Mr Diaz had lunged at the appellants with a machete but agreed that he had earlier told prosecutors that Mr Diaz was “looking for a fight” while holding it in his hand.
Evidence of MX
MX’s interview with police was played to the jury. She had tried to inject Mr Diaz with “ice” but had been unsuccessful, which made him angry. Mr Bloxsome then injected him. Like Mr Dimitrov, MX told police that Mr Diaz had refused to leave the house with the others, causing the appellants to become irritated. They tried to get Mr Diaz to stand up, but he refused. Mr Featherstone shot him in the leg and then Mr Bloxsome stabbed him multiple times. She said that Mr Diaz was not holding the machete at the time.
Evidence of NQ
Although she was not in the room at the time, NQ’s evidence was that, after Mr Diaz was injured, Mr Featherstone said “[W]e got to get out of here, this cunt just tried to jump at Uncle Rodney [Bloxsome]”.
Other evidence in the Crown case
The Crown was permitted to cross-examine Mr Diaz. During cross‑examination, the Crown led evidence of violent offences committed by Mr Diaz. The evidence was admitted as tendency evidence and his Honour gave the jury an appropriate direction.
The paramedic gave evidence that Mr Diaz, who was a difficult patient, had sustained two lacerations: one on his right forearm and one on his right hand, as well as a wound to the right leg from being shot.
Mr Diaz told both the paramedic and Constable Gray that he had been stabbed and shot.
The appellants relied on that order of events.
Mr Bloxsome’s interview with police
Mr Bloxsome said that Mr Diaz had a machete and he told Mr Diaz to put it down three times. Mr Diaz came towards him and he feared that he was going to be stabbed, so he stabbed him first. Mr Bloxsome described Mr Diaz as a “violent little motherfucker that stabbed some cunt in Wollongong”. He told police that he had grabbed a knife from the cupboard right next to him and “got him before he could get me”.
Mr Featherstone’s interview and evidence
Mr Featherstone told police that Mr Bloxsome had told Mr Diaz to put the machete down three times. After this, Mr Diaz lunged at Mr Bloxsome, who stabbed him before Mr Featherstone shot Mr Diaz to stop him from further harming Mr Bloxsome.
In his evidence at the trial, Mr Featherstone referred to Mr Diaz “spinning out” and “walking around freaking out”. His evidence that Mr Diaz said “I’m looking for a fight” was consistent with Mr Dimitrov’s evidence.
Mr Featherstone explained that he shot Mr Diaz in the leg because he didn’t want to kill him and that, if he had not shot Mr Diaz, Mr Diaz would have killed Mr Bloxsome. He said, “he nearly killed someone only a few weeks earlier”.
Consideration
There is no complaint about his Honour’s directions on self-defence. The jury’s verdicts on Counts 1 and 4 mean that they were satisfied beyond reasonable doubt that either each appellant did not believe it necessary in self‑defence to do what he did, or what he did was not reasonable in the circumstances as he perceived them (the two limbs of self-defence): Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 and ss 33, 34, 42 and 58 of the Criminal Code.
It is necessary for each appellant to demonstrate that the jury must have had a reasonable doubt about the two limbs to demonstrate that the jury’s verdicts on Counts 1 and 4 were unreasonable or cannot be supported having regard to the evidence. In other words, the relevant appellant must satisfy us that the jury must have found it reasonably possible that the appellant believed that it was necessary to do what he did in self-defence, and that there was a reasonable possibility that what he did was reasonable in the circumstances as he perceived them.
The first matter that we will examine is whether the shooting or the stabbing occurred first. Both MX and Mr Dimitrov said that the shooting happened first, but both appellants said that it was the stabbing. If Mr Diaz was shot before he was stabbed, it is less likely that the stabbing was done in self-defence (at least on the basis that it makes it less likely that the stabbing was reasonable in the circumstances as Mr Bloxsome perceived them).
The appellants seek to rely on the chronological order in which Mr Diaz complained about what had happened, but that attaches too much significance to the evidence of the paramedic and Constable Gray of what an agitated, drug affected, and injured man said to them.
It is unnecessary to resolve this question beyond reasonable doubt, but we consider it likely that the jury accepted MX’s and Mr Dimitrov’s evidence about the order of events. Incidentally, we note that when sentencing Mr Bloxsome, the trial judge found that the chronological order of the events was as MX and Mr Dimitrov had described.
Whatever the chronological order of events, shooting someone with a gun (albeit in the leg) involves considerable violence and may well be considered an overreaction to a man lunging at another person (even when the man is armed with a machete). This would be the case especially if, as Mr Featherstone claimed, he shot Mr Diaz after Mr Bloxsome had stabbed Mr Diaz.
The number of times that Mr Bloxsome tried to stab Mr Diaz is another factor that tends to suggest that the stabbing was not done in self‑defence. Mr Bloxsome succeeded in stabbing Mr Diaz twice but there is evidence (addressed above) that suggests that Mr Bloxsome tried to stab Mr Diaz more than twice; Mr Dimitrov saw, and Mr Bloxsome apparently recounted, that there were more than two “stabbings”.
Mr Diaz was in his own house. The appellants did not have to be there. Indeed, they were planning to leave the house to break into a gun shop and were in the process of arming themselves for that purpose. They could have left the house at any time. Even if Mr Diaz did “bridge up” or lunge towards one of the appellants, the jury was entitled to conclude that shooting then stabbing Mr Diaz (or even stabbing then shooting him) were not reasonable responses to the circumstances as perceived by each appellant.
The jury was also entitled to be satisfied beyond reasonable doubt that the events occurred as Mr Dimitrov described them, notwithstanding some inconsistencies between his evidence and that of MX. On appeal, it was not suggested that the jury could have believed Mr Dimitrov’s evidence about the circumstances in which Mr Diaz was injured but, nevertheless, acquit either appellant on the basis that the Crown had not proved beyond reasonable doubt that either appellant was not acting in self-defence.
It is not a question of whether, on the evidence, the jury might have had a reasonable doubt as to the guilt of the appellants on Counts 1 and 4. It is for the appellants to demonstrate that the jury must have had a reasonable doubt. We do not consider that the jury must have entertained a doubt about the guilt of Mr Featherstone on Count 1 or Mr Bloxsome on Count 4. Neither appellant has satisfied us that the relevant verdict should be set aside as being unreasonable, nor has he shown that the relevant verdict cannot be supported having regard to the evidence.
The grounds of appeal that challenge the convictions on Counts 1 and 4 must fail.
Sentence appeal of Mr Bloxsome
Mr Bloxsome raised a number of matters concerning the sentence imposed upon him. We suggested, and the parties agreed, that consideration of any grounds of appeal concerning sentence should await this Court’s conclusion on the grounds concerning conviction. It was also agreed that no further oral argument would be required.
Now that we have quashed Mr Bloxsome’s convictions on Counts 8 and 10, we invite written submissions in regard to consequential amendments to his sentence.
Orders
The orders of the Court are:
(a)The verdicts on Counts 8 and 10 are quashed.
(b)The appellant Mr Bloxsome is to file and serve any written submissions in relation to resentencing by 17 July 2020.
(c)The Crown is to file and serve any written submissions in relation to resentencing Mr Bloxsome by 31 July 2020.
(d)The appellant Mr Bloxsome is to file and serve any written submissions in reply by 7 August 2020.
(e)The Court’s decision on the appeal grounds concerning sentence remains reserved.
(f)The remaining grounds of appeal are dismissed.
| I certify that the preceding two hundred and thirty-five [235] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Loukas-Karlsson and Acting Justice Berman. Associate: Date: |
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