Haydar Ali v The Queen
[2014] VSCA 117
•16 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0059
| HAYDAR ALI | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2013 0060
| BILLAL ALI | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2013 0061
| BADR ALI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL ACJ, TATE and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 April 2014 |
| DATE OF JUDGMENT: | 16 June 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 117 |
| JUDGMENT APPEALED FROM: | DPP v Ali (Unreported, County Court of Victoria, Judge Coish, 6 December 2012) (Conviction) |
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CRIMINAL LAW – Appeal – Conviction – Separate consideration – Three accused, multiple charges – Jury question – Jury asked whether verdicts could be returned on some charges but not others, and for some defendants but not others – Whether judge’s response adequate – Whether necessary to repeat separate consideration direction – No error.
CRIMINAL LAW – Appeal – Conviction – Bias – Jury questions – Jury note expressed preference for judge to answer questions without accused present – Whether expression of preference created apprehension of bias – Whether further direction on impartiality required – Whether jury should have been discharged – No reasonable apprehension of bias.
CRIMINAL LAW – Appeal – Conviction – Kidnapping – Joint criminal enterprise – Agreement – Participation – Whether all three defendants participated in initial taking of victim – Whether case against third applicant depended solely on conduct subsequent to initial taking – Whether judge or defence counsel opened up impermissible path to conviction – Whether kidnapping continues after initial taking – No error of law by judge or counsel – No impermissible path to conviction – Case founded on subsequent participation would have been open – Davis v The Queen [2006] NSWCCA 392; R v Vu [2011] BCCA 112 followed – Verdict not unsafe and unsatisfactory – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants, | Ms S Leighfield | Galbally Rolfe |
| For the Applicant, Badr Ali | Mr T Kassimatis | Galbally Rolfe |
| For the Respondent | Mr R A Elston QC | Mr Craig Hyland, Solicitor for Public Prosecutions |
MAXWELL ACJ
BEACH JA:
Introduction
The applicants, Haydar Ali, Billal Ali and Badr Ali, each pleaded guilty to three charges of common law assault and one charge of recklessly causing serious injury. Haydar Ali also pleaded guilty to a further two charges of robbery and one charge of common law assault related to the same set of offending. Additionally, Billal Ali pleaded guilty to a charge of possessing a drug of dependence.
The applicants were then tried before a County Court jury on a number of other charges arising from the same series of incidents. Each applicant was convicted of one charge of blackmail, one charge of kidnapping, two charges of robbery and one charge of making a threat to kill.
Coghlan JA refused each of the applicants leave to appeal against their convictions. Each applicant has renewed his application, pursuant to s 315(2) of the Criminal Procedure Act 2009 (Vic), seeking leave to appeal on the following proposed grounds:
1. The learned trial judge erred:
a) in failing properly[1] to answer the jury’s question ‘Can we present verdicts on: a) some charges & not others; b) defents [sic] and not others’;
[1]There are some small and unexplained differences in language between the proposed grounds of Haydar and Billal Ali on the one hand and Badr Ali on the other. When these differences were identified during the hearing, counsel for the applicants said they were of no moment so far as the argument they wished to advance was concerned. That said, the grounds set out above follow the words of Badr Ali’s application. However, so far as ground 1(a) is concerned, in Haydar and Billal’s applications the word ‘properly’ has been replaced by ‘directly, correctly or adequately’.
b) in failing to direct that the jury were entitled to return verdicts on some charges and not others and on some applicants and not others;
c) in directing the jury that the question was ‘somewhat premature’ and, subsequently, in giving perseverance and majority verdict directions; and
d) in failing to direct the jury again on their separate consideration of the charges as they pertained separately to each of the applicants.[2]
2. The learned trial judge erred:
a) in failing to discharge the jury in circumstances where[3] the jury had manifested against the applicant and his co-applicants a reasonable apprehension of bias;
b) in failing to consider whether the giving of a warning against bias might be an alternative to discharging the jury; and
c) in failing to direct or warn the jury at the time their question was answered in terms sufficient to guard against their partiality or bias.[4]
[2]In Haydar and Billal Ali’s applications, proposed ground 1(d) is expressed as an error ‘in failing to re-direct in a complete fashion on separate consideration’.
[3]In Haydar and Billal Ali’s applications, the balance of proposed ground 2(a) (after the word ‘where’) is, ‘there was a reasonable apprehension of bias against the accused by the jury’.
[4]In Haydar and Billal Ali’s applications, proposed ground 2(c) is expressed as an error ‘in failing to give the jury any additional warning in respect of bias’.
As well as proposed grounds 1 and 2, Badr Ali (referred to hereafter as ‘Barry Ali’) seeks leave on the following additional grounds:
3A.The applicant’s trial on charge 9 [the kidnapping charge] miscarried as a result of the trial judge’s failure properly or adequately to direct the jury on the elements of the offence of kidnapping at common law. In particular, the trial judge erred by failing to direct that:
a) the offence is not a continuing offence and is complete when a person is seized and carried away; and
b) were the jury to find the applicant joined his co-applicants at Salamander Dve, after [Ashley Rossborough] was taken from the Lombard’s car park, he [the applicant] was not thereby, or on that finding alone, be [sic] guilty of kidnapping.
3B.The jury’s verdict on charge 9 [the kidnapping charge] of the applicant’s trial is unsafe and unsatisfactory in that it was not open to the jury, on the evidence led at trial and properly instructed, to find the applicant guilty of the offence of kidnapping.
For reasons which follow, we would refuse leave to appeal in each case.
Facts giving rise to charges to which pleas of guilty were entered
On 28 March 2011, Ashley Rossborough, Adam Ewens, Madelyn Harris and Jacob Camilleri were travelling in Rossborough’s car in Royal Crescent, Hillside, when Rossborough did a ‘burnout’. During the ‘burnout’, the occupants of the car heard two men yelling and what sounded like a bottle hitting the car. Rossborough then drove off. His car was followed by a Honda in which Haydar Ali was then travelling as a passenger.
Rossborough stopped outside Ewens’ house and the Honda pulled up in front of Rossborough’s car. Rossborough then reversed and drove away. The Honda followed. Rossborough drove to a nearby shopping centre and parked his car outside a shop called Lombard. The Honda then parked alongside Rossborough’s car. Haydar Ali got out of the Honda and approached Rossborough. Haydar Ali grabbed Rossborough’s neck and dragged him from his vehicle. Haydar Ali then robbed Madelyn Harris of a mobile telephone and school identification. At that time, Haydar Ali also robbed Jacob Camilleri of a mobile telephone.
Shortly after this, Barry Ali and then Billal Ali arrived at the scene in separate cars. Rossborough was subsequently assaulted. Part of the assault was captured on CCTV. Rossborough was punched and his head was pushed into the bonnet of a car. He was taken across the car park and punched in the face. He also received punches and kicks to his chest. The CCTV footage showed Rossborough being held by Haydar Ali and being punched by Billal Ali. Barry Ali was nearby. As a result of the assault, Rossborough sustained a broken nose and bruising to his jaw and ribs.
While all of this was happening, Ewens, Harris and Camilleri were sitting in Rossborough’s car. They were scared and distressed. They then got out of the car and were standing or sitting in the gutter.
The events just described formed the basis for Haydar Ali’s plea of guilty to the two robbery charges to which he pleaded, and for each applicant’s plea of guilty to the three common law assault charges and the charge of recklessly causing serious injury referred to above. Billal Ali’s plea of guilty to the charge of possessing a drug of dependence related to the discovery of a small quantity (33.6 grams) of testosterone found, upon the execution of a search warrant, at Billal Ali’s home on 31 March 2011.
Alleged facts giving rise to disputed charges
While each of the applicants denied that the following events occurred, the following events formed the basis of the applicants’ convictions in respect of the charges of blackmail, kidnapping, robbery (two charges) and making a threat to kill.
Rossborough gave evidence that after the assault he was asked to start his car and then to get in the back seat of the car. His evidence was that two men got in the car with him — one as the driver, the other in the back seat of the car. It was the prosecution case that the two men in the car with Rossborough were Haydar Ali and Billal Ali, but that all three men (including Barry Ali) were involved in removing Rossborough from the car park in which the cars were situated.
Rossborough stated that his car was then driven a short distance from the car park to Salamander Drive. While at Salamander Drive, a third man arrived in a car. The prosecution case was that the third man was Barry Ali. It was alleged that at Salamander Drive, a demand was made by one of the applicants that Rossborough pay $10,000. This was said to be a demand with menaces made in the presence of all three accused. It was also alleged that, while at Salamander Drive, threats were made to Rossborough including a threat that if he told anyone what had happened he would be killed.
The three applicants were then alleged to have driven in Rossborough’s car with Rossborough to a nearby ATM. Rossborough’s driver’s licence and Medicare card were taken from him. He was then told to go and withdraw money from the ATM. Rossborough gave evidence that he was told that the applicants knew where he lived and that he should not try to run. Rossborough withdrew $700 from his bank account at the ATM and gave that money to the applicants when he returned to the car. Rossborough gave evidence that he was then driven back to Salamander Drive. Subsequently Rossborough returned home. Later, Rossborough went to hospital where he received medical treatment.
Background to proposed grounds 1 and 2
Proposed grounds 1 and 2 arise from a hand-written note provided by the jury during the course of its deliberations. The jury retired to consider its verdict during the morning of Friday 30 November 2012. A separation oath was administered at that time. At 4.01pm on that day, the judge sent the jury away for the weekend. The jury resumed its deliberations on Monday, 3 December 2012. Late in the afternoon of Tuesday, 4 December 2012, the jury conveyed a handwritten note to the Court. As written, the note provided:
1.Can we draw conclusions based on evidence available in jury room where: the particular piece(s) of evidence were not presented/discussed by the prosecution (defense(s)) & not challenged by the defence(s)/prosecution.
2.Can you please further explain what the meaning of ‘beyond reasonable doubt’ is?
3.Can we present verdicts on:
(a)some charges & not others.
(b)defents [scil, defendants] and not others.
Please note;our preference is that the defendants not be present in front of the jury when the answer is presented.
Having regard to the hour at which the jury’s note was received, the judge, after telling the jury that it had been a long day, said that he would deal with the matters in the note the next morning. No counsel demurred from this course.
On the morning of 5 December 2012, the judge heard submissions from counsel in relation to the jury’s note. The judge foreshadowed what he would say to the jury, subject to any submissions counsel wished to make to the contrary. With respect to the preference expressed at the bottom of the note, the trial judge said:
Subject to what any of you have to say, starting at the bottom, I intend to say that the courts are open and it’s not appropriate that these matters be dealt with in the absence of the defendants and nothing further on that.
The judge then foreshadowed an answer to question 1, before turning to question 2. With respect to question 2, the judge said:
What I intended to do was to repeat the direction I gave them about beyond reasonable doubt, namely that the standard is a high one and the words mean what they say and all I was going to add to that was not only do the words mean what they say, they are ordinary English words, there is no further legal definition of them and they are words which have been applied by juries in criminal courts for many years.
As to question 3, the trial judge said:
Question 3 again requires, in my opinion, some clarification. Question 3 is in some ways premature. The question, on its face, is a little nonsensical in that it is asking about the ability to present verdicts on some charges, not others; defendants, not others. In other words, ‘We will give you a verdict on that and just not on that.’ The way it’s expressed is in a sense nonsensical. I was going to inquire of the jury, first of all there are charges to which the accused have pleaded guilty, then there are charges to which the accused have pleaded not guilty, and I was going to ask … the jury, ‘There are charges to which the accused are pleading guilty, there are charges to which they are pleading not guilty.’ I was going to ask the jury whether they are having difficulty reaching a unanimous verdict in respect of the charges to which the accused have pleaded not guilty. That appears to me to be what is behind the question. If the answer to that is yes, then I will invite submissions from counsel on whether to take a majority verdict, given that we are well over the six hours. If I determine that it is appropriate to take a majority verdict, I would then give the jury a direction in relation to majority verdict and a Black perseverance direction, and I would then ask the jury to retire to consider their verdict having regard to the directions that I had given to them. I wouldn’t say to them that the question is nonsensical, but in many ways the question is premature.
The judge then invited submissions from counsel. The prosecutor largely agreed with the judge’s foreshadowed approach.
Counsel for Haydar Ali then addressed the Court as follows:
It might seem a rather curious approach to take, but in the first instance, having heard what your Honour has said in respect to the answer of each of the matter raised (sic), I don’t disagree. I agree with what your Honour will say to the jury if that be the case.
There is a subsequent issue, though, your Honour. It would be my application on the grounds that I would like to [amplify] if I [may] in a short submission that the nature of these inquiries and their timing is of such a nature that your Honour would discharge the jury at this point. I say that for these reasons, your Honour.
The questions and the comments, looked at as a whole, are critical to the understanding that this court now has as to this jury’s perception and application of its understanding of its role and the manner in which it is exercising that function. The issue that causes me greatest concern is not only the combination of the questions and the comments, but the temporal point at which the jury has made these, what on first blush might seem to be, reasonably innocuous inquiries and comments. I suppose I can put it in this fashion: had these matters been raised with your Honour in the course of the first day of deliberation, they would not, in my submission, have either the import, impact or significance that they now acquire. The concern is this, if I can put it in a rough form. If they are uncertain at this juncture as to two aspects of their role which are fundamental, the first is this, the accused are in their charge, and secondly they need to determine the matter alleged against the accused, Haydar Ali, beyond a reasonable doubt. Under what level of misapprehension, uncertainty and misunderstanding have they been involved in deliberations for the best part of three days? To that extent, and in that context, problematic as the matter now appears, what does your Honour say that emerges and has effect as a cure to what has transpired to this point? For a jury to say at this juncture, 4 o’clock yesterday afternoon, they would prefer that the accused, described by them as the defendants, be not present when these matters are answered stands in stark conflict with two matters: the jury has these men in their charge, and the very first and clear direction which your Honour gave them was that they would determine the matter before this court without any reference to fear, emotion, pity, sympathy or other emotional aspect. They will determine the matter as judges. That question or that comment flies in the case [sic] of their role on oath and affirmation taken before this court and the direction which your Honour has given them.
If I can move to that fourth point out of context and out of sequence, because I think it is the most problematic and troublesome matter that your Honour that is before you. Your Honour could not, and would not, in my respectful submission, inquire of the jury what it means by its preference. On one view, it is a benign inquiry. On another view, it is an absolutely sinister inquiry, sinister in this respect. It carries with it a flavour and an interpretation that for some reason, clearly irrational, but more importantly, unjudicial, this jury has taken a view about an aspect of my client he’s [sic] character, as it were, and they want to determine matters critical to his position in this trial in his absence. That can never be the case and indeed your Honour has indicated the courts are open and I have not cavilled or sought to challenge or modify what your Honour would tell them ultimately if that be the case, but, with great respect, it can’t be simply a matter of directing them that the courts are open. The fact that they have made this inquiry into the third day of their deliberation, this comment, and expressed a preference, a preference which stands in stark contrast to their oath and their function, must, in my respectful submission, create an apprehension of bias, and can I say on instruction in very clear and emphatic terms, my client has no faith or confidence in this jury’s capacity to give him a fair trial at this point in light of both of the questions asked, but more particularly, for the record, might I state it in full terms, ‘Please note, our preference is that the defendants not be present in front of the jury when the answer is presented.’ When he hears those words read to him in conference and he reads the document for himself, he gives clear instructions that he is without confidence in the capacity of this jury to deal with his case in a judicial and fair fashion.
The other aspect that I want to raise briefly are [sic] these, your Honour. If, as your Honour says, question 3 needs to be clarified, I suppose in a sense I’m in agreement with your Honour and it takes a little of the sting out of what I would initially say, but could I say briefly, and I may need to return to it. If assuming, hypothetically, that verdicts have been reached, then two issues arise which are toxic to that process having been achieved. They are these: we are not certain what evidence the jury has determined or applied in reaching its verdict and, secondly, prima facie, they have reached that determination on a lack of clarity and a lack of understanding of what their onus is in terms of beyond reasonable doubt, and such verdict or verdicts at this point must be regarded as unsound, but I will come to that in due course if I need to speak to it in due course.
That may well have exhausted what I wish to say at this point. I can’t amplify the matters any further. Can I repeat, if for no other reason, for perhaps the sake of clarity and summation, the combination and the timing of the inquiry and the comment is what, in my respectful submission, requires this court to determine at this point that the function is miscarried and that the trial should not proceed further and there be a discharge of the jury in respect of Haydar Ali.
Counsel for Barry Ali and counsel for Billal Ali then effectively adopted the submissions made by counsel for Haydar Ali.[5]
[5]The reference in the submission made on behalf of Billal Ali to an application for a ‘difficulties charge’ in the transcript was almost certainly meant to be a reference to an application for a ‘discharge’.
The prosecutor then made submissions in reply, the essence of which was that it was not appropriate at that time to discharge the jury. The judge then said:
Thank you. I’m not satisfied it’s appropriate to discharge the jury having regard to the questions that have been asked and the comment with one of the questions. There is a degree of ambiguity in the questions and, in my opinion, it’s appropriate that I make the inquiries that I have foreshadowed with counsel of the jury and provide answers to these inquiries. If we can bring the jury in, thanks.
The jury was then brought back into court, and his Honour then read back the jury’s note. His Honour then said:
If I can deal, Madam Foreperson, members of the jury, with the last matter first. Our courts are open, the accused must be present and these communications must be in the presence of the accused. I wasn’t sure whether the note was only in reference to question 3 or in reference to questions 1, 2 and 3. It doesn’t matter whether it only refers to question 3 or questions 1, 2 and 3, the direction I have given you applies in relation to either circumstance, so these communications must be in the presence of the accused.
His Honour then gave some directions concerning question 1. In the course of those directions, the judge made certain enquiries of the jury. No complaint was taken at trial (or on these applications) concerning his Honour’s approach to question 1.
The trial judge then turned to question 2 and gave the following direction:
That leads us to question 2. ‘Can you please further explain what the meaning of beyond reasonable doubt is?’
I gave you some directions on beyond reasonable doubt in my charge. I will just repeat what I said and I will then just add the following.
Beyond reasonable doubt is the standard of proof. The standard to which you must be satisfied is a high one. It is expressed in words which reflect our understanding of the serious nature of the work of a criminal court. Those words are ‘beyond reasonable doubt’. They are words which have been applied by juries in criminal courts for many years. They mean what they say and any further definition of them would be neither useful nor proper.
These words, beyond reasonable doubt, mean what they say. They are ordinary English words. There is no further legal definition. They are words which have been applied by juries in criminal courts for many years. There is no further explanation in relation to the meaning of beyond reasonable doubt.
No complaint was made at trial (or on these applications) concerning the judge’s answer to question 2.[6]
[6]See now, ss 20 and 21 of the Jury Directions Act 2013 (Vic).
The trial judge then dealt with question 3 as follows:
In this case, there are a number of charges. There are some charges to which the accused have pleaded guilty. There are other charges to which the accused have pleaded not guilty. I am assuming, and you correct me if I’m wrong, that you are not having any difficulty in relation to the matters to which the accused have pleaded guilty. Correct. You are smiling, so that means that’s not a problem.
In relation to the charges to which the accused have pleaded not guilty, are you having difficulty reaching a unanimous verdict on these charges?
FOREMAN: In some.
HIS HONOUR: Yes, all right. I have to take this in stages. In some ways, the question is somewhat premature. What I now need to do is this. I need you to return to the jury room because I have to now discuss the situation that you now find yourself in now that you have clarified it with me, and it may be that I’m in a position to provide you with on [sic] further directions in relation to that, so we just have to work our way very slowly through these issues one by one. So if you wouldn’t mind, please, if you can return to the jury room.
The jury left the court. The judge then took up the debate with counsel again. All counsel signified they had no difficulty with the judge’s treatment of questions 1 and 2. Counsel for Haydar Ali then renewed his discharge application. The essence of this application was in the following submission and exchange:
It is clear, in my respectful submission, from the answers to the questions asked of the forelady in this trial by your Honour that some verdicts have in fact been determined. In light of what has emerged in terms of the note your Honour received yesterday and which has been the subject of discussion and submission earlier this morning, a fortiori, it is my submission that a discharge take place because the jury has, at least in respect of some verdicts, the precise number and counts we don’t know at this point, done so in a context and in a self-admitted state, according to their note, where they have been uncertain, unclear of the meaning, nature and fashion in which they are to apply the onus. Your Honour hasn’t said, nor do I invite him to say, ‘You should go back and reconsider those verdicts where a decision has been reached, because I have now clarified beyond reasonable doubt.’ That would be an untenable and a dangerous position which I don’t invite your Honour to adopt, but the clear interpretation - - -
HIS HONOUR: I suppose the problem really is, in terms of a further explanation, I haven’t given a further explanation. I have simply repeated exactly what I said.
COUNSEL FOR HAYDAR ALI: And your Honour has done precisely what is required of him, and I make no cavil or comment in relation to what he’s done, but the problem remains that at this juncture, where they have conceded yesterday, late in the day, that they are uncertain as to what that phrase means - - -
HIS HONOUR: Yes, I see the point.
COUNSEL FOR HAYDAR ALI: And they have made determinations, how can one now say they could be sound? It would be inherently dangerous to allow them to continue, in my submission, and adopting the phrase which my friend, [counsel for Billal Ali], made before your Honour, which was a high degree of need, the high degree of need has now been crystallised as a result of your Honour’s quite appropriate and proper inquiry of the jury. It’s a self-admission, your Honour, and I make no criticism of that. It goes back to what I said in the first instance. Had they asked this question on day 1, perfectly appropriate and I’m sure with the wealth of experience at the Bar and coupled with your Honour’s experience in matters of this nature, it’s a common inquiry, but it’s the timing that is the issue.
Counsel for Barry Ali and Billal Ali then adopted the submissions made by counsel for Haydar Ali and joined in the renewal of the application to discharge the jury. The judge rejected the discharge application, saying:
I’m not satisfied there is a high degree of need requiring the jury to be discharged. The jury have, in their questions, sought a further explanation of the meaning of beyond reasonable doubt, which has not been provided in that what has occurred is that the jury have been reminded of the direction that they were provided with in my charge to them, and the jury then, in answer to a query from me in relation to the basis of question 3, have indicated that they are having a difficulty reaching a unanimous verdict on some of the charges to which the accused have pleaded not guilty. I don’t propose to discharge the jury.
There was then discussion about whether the jury should be told about majority verdicts. All counsel appeared to agree that this was an appropriate course. During the course of argument, counsel for Barry Ali submitted that the judge ‘ought once again give a separate consideration direction’. The judge then said:
I consider it appropriate to take a majority verdict given, in my opinion, the period of time for deliberation has been reasonable considering the nature and complexity of the trial.
What I propose is that, because the question is in some respects premature, the jury ought be directed that they are allowed to give a majority verdict if they cannot reach a unanimous one. They ought, however, be given a perseverance direction and they ought be reminded of the direction that has already been given in relation to separate consideration in respect of both charges and accused.
…
They ought also be told, in my opinion, that having regard to those directions, they then ought return to continue with their deliberations, in other words that it doesn’t appear to me that the question ought be directly answered in that I’m finding it, on one view of it, as I said to you before, somewhat nonsensical, and I’m really not inclined to explore it with them. Rather, they should be directed on these matters and told to return to continue their deliberations.
…
I’ll also indicate to them that if they have any further queries, they can raise them.
No counsel demurred from this course. Indeed, counsel for Haydar Ali described the judge’s proposed course as ‘perfectly appropriate’, and the judge’s characterisation of the jury’s question as ‘somewhat nonsensical’ as correct.
The judge then gave the jury perseverance and majority verdict directions in standard and well recognised terms. Following these directions, the judge said:
I also remind you of the directions that I gave you in my charge in relation to separate consideration of charges and separate consideration of the matters in relation to each accused.
I would now ask you to return to the jury room having had those directions on all of the matters you have raised. If you have any further questions, just ask and I will answer them.
Following these additional directions, the jury left the court and the trial judge called for exceptions. There were no exceptions. There was no further discussion on the issues. The jury then continued to deliberate for the balance of the morning and afternoon of 5 December 2012. Notwithstanding his Honour’s invitation to the jury that if they had any further questions then they only had to ask, the jury did not ask any further questions of the judge. At 2.28pm on 6 December 2012, the jury delivered the verdicts to which we have already referred.
Proposed ground 1: separate consideration
In our view, there is nothing in proposed ground 1. The judge gave directions to the jury in response to their questions in terms agreed in discussion with counsel. The judge’s answers were appropriate in the context of the trial that had been conducted before him. While different answers could have been given to any of the jury’s questions, and while it is always easy to say that more could have been said, the judge’s answers were responsive to the submissions of the applicants’ trial counsel, were carefully considered and were free from error. There is no basis for now saying that something additional or different could, or should, have been said by the judge.
In Haydar Ali’s written case, it was submitted:
The simple, direct and appropriate answer to the jury’s question [question 3] was: ‘Yes, you are entitled to return verdicts on some charges and not others and on some accused and not others’.
This suggested answer is, of course, wrong — and counsel for Haydar Ali properly conceded so during argument.
It was not correct that the jury could simply decline to return verdicts in respect of some charges or some accused. On the contrary, they were required to return a verdict on each charge against each accused. That was so even though, ultimately, they might have been unable to agree on a verdict in respect of a particular charge. In any event, Haydar Ali’s written case shows the danger of attempting to be prescriptive about an answer that should, or should not, have been given by a trial judge to a jury’s question.
As regards the complaint concerning the judge’s failure ‘to direct the jury again on their separate consideration of the charges as they pertained to each of the applicants’, three things may be said. First, the judge did remind the jury of the directions he had given in his charge in relation to the separate consideration of charges and the separate consideration of the matters in relation to each accused. Further, having reminded the jury of the separate consideration parts of the charge, the judge again said to the jury that if they had any further questions they only had to ask and he would answer them. It is hard to imagine that if the jury had had any further question, they would not have raised the matter with the judge.
Secondly, no exception was taken by trial counsel for any of the applicants in relation to what the judge told the jury. Thirdly, what the judge said to the jury was said in the context of the judge having already charged the jury on these matters, as follows:
You can only convict each accused of the offences charged if you are satisfied beyond reasonable doubt of the particular offence. It would be wrong to say ‘I am satisfied in relation to any of the accused that they did this particular act. For example, made a threat or Haydar grabbed Adam, and therefore I will convict him of, for example; threatening to kill Ashley since that is the same kind of conduct.’ Proof of these acts is not the same as proof of the offences charged.
I now need to give you a direction about the plea of guilty that was made by each accused to a number of the charges, as I have already stated. This plea of guilty is an admission of all the elements of that offence. I direct you that it would be wrong to say that simply because an accused pleads guilty to one charge, he must be guilty of another. You would also be wrong to reason that because he engaged in that misconduct, he is the kind of person who is likely to have committed any of the other charges.
Now, let me direct you on - there are multiple counts, there are multiple charges. There are 13 charges altogether. There are six charges in issue. These are all separate matters. They are all being dealt with in the one trial for convenience. I want to remind you, you must careful [sic] not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately.
It would therefore be wrong to say that simply because you find the accused guilty or not guilty of one charge, he must be guilty or not guilty, as the case may be, of another. It would also be wrong, if you do find the accused guilty of one of the charges, to reason because he engaged in that misconduct he is the kind of person who is likely to have committed any of the other charges.
Each charge must be considered separately in light of the evidence which applies to it, you must ask yourselves in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular crime. If the answer is yes, then you should find the accused guilty of the charge. If the answer is no, you should find the accused not guilty of it.
Similarly, as you know in this trial there are three accused so there are really three trials being heard together for convenience. So once again, the same direction applies in that you must be careful not to allow convenience to override justice. The accused and the prosecution are entitled to have the case against each accused considered separately.
So you consider the case against each accused separately in light only of the evidence relating to that accused and ask yourselves, in relation to each accused, whether the evidence relating to that accused has satisfied you beyond reasonable doubt he is guilty of the offence he has been charged with. If the answer is yes, you should find him guilty. If the answer is no, you should find him not guilty.
Now, you will note that I have said you must consider the case against each accused in light only of the evidence which applies to the accused. This is because some of the evidence you heard in this case is only relevant to the case against one accused or another and if a particular piece of evidence is only relevant to one accused, you may only use it when deciding whether or not that accused is guilty. You must not consider it in relation to any of the other accused.
This was an appropriate direction in relation to the way in which the jury was to approach its task with respect to each charge and each applicant. The judge having charged the jury appropriately and having responded to the jury’s questions appropriately, proposed ground 1 is without merit.
Proposed ground 2: apprehension of bias?
In proposed ground 2, three complaints are made: first, a complaint is made about the judge’s failure to discharge the jury; secondly, a complaint is made about the judge’s failure ‘to consider whether the giving of a warning against bias might be an alternative to discharging the jury’; and, thirdly, a complaint is made about a failure to give an additional direction or warning about bias. There is nothing in the second and third complaints. No submission was made at trial that any additional warning or direction should be given about bias. While, in different circumstances, consideration might have been given to reminding the jury of its duty to be impartial, no direction of this kind was sought by any of the trial counsel for the applicants (perhaps because the judge had earlier given detailed directions concerning the requirement for the jury to act impartially and without bias).
In the course of the initial application to discharge the jury, trial counsel for Haydar Ali submitted that the jury’s expressed preference could not be dealt with ‘simply…[by] directing [the jury] that the courts are open’. This submission was made in support of the application by all three accused to discharge the jury. It was not made in support of any application for a further direction on the issues of impartiality or lack of bias. That this was so is also confirmed by the fact that no accused sought any such further direction following the dismissal of the discharge applications.
In the circumstances, there was no error (and certainly no miscarriage) in the judge’s failure to give an additional direction or warning which was not sought at trial by any party.
We turn now to the first complaint made under proposed ground 2. Whether a jury is to be discharged as a result of something that has occurred during a trial is, of course, a matter of discretion. A jury should not be discharged unless there is a high degree of need.[7]
[7]R v Boland [1974] VR 849, 866.
In Webb v The Queen,[8] the High Court held that the test to be applied for determining whether an irregular incident involving a juror warranted the discharge of a juror — or, in some cases, the jury — is whether the incident was such that, notwithstanding the warning of the trial judge, the incident gave rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury had not discharged, or would not discharge, their function impartially.[9]
[8](1994) 181 CLR 41, 53 (‘Webb’).
[9]Ibid.
In R v Matthews,[10] Callaway JA[11] reviewed the authorities, including Webb,[12] and held that the test to be applied was ‘still whether there is a high degree of need, but a reasonable apprehension of bias is one of the circumstances that constitutes a high degree of need’.[13]
[10][1999] 1 VR 534, 537.
[11]With whom Kenny and Buchanan JJA agreed.
[12](1994) 181 CLR 41.
[13]See also R v Holt and Merriman (1996) 87 A Crim R 82, 86; BN v The Queen [2011] VSCA 406, [38]–[40].
In our respectful view, the trial judge’s conclusion was plainly correct. The jury’s expression of a preference for the defendants not to be present at the time when the judge answered their questions did not give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the jury had not discharged, or would not discharge, its function impartially. It is to be remembered that most jurors are unfamiliar with court processes. It follows, in our view, that the asking of a procedural question (even if wrongly premised, and known to be so by people experienced in the ways of trials), or the expressing of a preference for a procedural step which the law does not permit, could not, without more, give rise to a reasonable apprehension of bias.
Juries are now routinely invited by trial judges to ask questions about any matters about which they are unsure. This is a good thing. The more the jury understands, and the more that any misconceptions are exposed by questions from the jury, the more the quality of justice is enhanced. In this case, the jury expressed a preference for a situation that the law does not permit. As counsel for the applicants agreed, there were several possible explanations for the jury’s preference that the defendants not be present, including that they believed it to be inappropriate for the defendants to be aware of the uncertainties conveyed by their questions. The expression of this preference could not, in our view, have given rise to any apprehension or suspicion on the part of a fair-minded and informed member of the public that the jury (or any juror) had not discharged, or would not discharge, their function impartially.[14]
[14]See also DPP v Zheng [2013] VSCA 304, [27]–[37].
It follows from what we have said that we would not give any of the applicants leave to appeal in respect of proposed ground 2.
Proposed ground 3A: directions on kidnapping
In proposed ground 3A, advanced only by Barry Ali, he makes two specific complaints about the judge’s charge on the elements of kidnapping. It is said that the judge should have directed the jury that:
(a) the offence was not a continuing offence and was complete when a person was seized and carried away; and
(b) accordingly, a finding that Barry Ali had joined his brothers at Salamander Drive, after Rossborough had been taken from the car park, would not be sufficient by itself to establish that Barry Ali was guilty of kidnapping.
In order to examine the merits of this proposed ground, it is necessary to describe in some detail how the trial below was conducted. We note at the outset that no exception was taken to the judge’s charge in relation to the elements of the offence of kidnapping. Specifically, trial counsel for Barry Ali made no complaint of the kind now made.
The offence of kidnapping at common law has four elements, as follows:
(a) the accused takes or carries a person away;
(b) the accused does so by force or fraud;
(c) the person taken or carried away does not consent to that conduct; and
(d) the accused acts without lawful justification or excuse.
The offence of kidnapping is to be contrasted with the offence of false imprisonment, which does not include the element of taking or carrying away. The offence of false imprisonment is committed when:
(a) the accused deprives a person of his or her liberty;
(b) the accused intends to deprive the person of his or her liberty; and
(c) the deprivation of liberty is unlawful.
Prior to final addresses, the trial judge raised with counsel whether the Crown intended to go to the jury on the basis that, even if the jury were not satisfied of kidnapping, they might, by some other reasoning, find false imprisonment. The judge discussed this possibility with counsel for Barry Ali on the basis that the Crown might not persuade the jury that Barry Ali took or carried Rossborough away. In response, the prosecutor eschewed reliance upon any alternative charge of false imprisonment.
In his charge, the trial judge correctly charged the jury on the elements of kidnapping. He then turned to the issue of joint criminal enterprise and gave a standard direction as follows:
The law says that if two or more people are part of a joint criminal enterprise to commit an offence, then they will all be equally guilty of that offence, regardless of the role they played. This is one of the situations in which the law holds a person responsible for the actions of other people. In order to find the accused guilty of committing an offence by joint criminal enterprise, the prosecution have to prove these four elements.[15] Firstly, the accused made an agreement with other people to pursue a joint criminal enterprise, and that agreement remained in existence when the offence was committed. Secondly, that the accused participated in the joint criminal enterprise in some way. Thirdly, that in accordance with the agreement, the parties to the agreement between them performed all the acts necessary to commit the offence, and finally, the accused had the state of mind necessary to commit the offence at the time of entering the agreement.
Now, I need to just go into these elements in a little bit more detail. The first element the prosecution have to prove is that the accused made an agreement with other people to pursue a joint criminal enterprise, and that the agreement remained in existence when the offence was committed. So there are two parts to this, first you must be satisfied the accused had come to an understanding or an arrangement amounting to an agreement, with at least one other person to pursue a joint criminal enterprise.
Such an agreement, understanding or arrangement may be expressly stated, or it may be inferred from the surrounding circumstances. And you will recall what I told you about inferences.
[15]As to these four elements, and the correctness of the judge’s charge on joint criminal enterprise, see McEwan v The Queen [2013] VSCA 329, [32].
The trial judge then went on to direct the jury as to how the prosecution put the kidnapping case on the basis of joint criminal enterprise, and as to the respective cases of the three accused, as follows:
In relation to kidnapping, the prosecution allege all the accused made an agreement to kidnap the complainant, and … the prosecution allege the agreements [sic] made before the complainant is taken in the car.
And the prosecution allege that you can infer this from all the circumstances, and all the circumstances include the initial assault by Haydar, others joining in, Billal joining in, Barry being nearby, the continuing aggression, and then the evidence [of] the complainant, that he is put in the car, the other evidence of the other witnesses that he was bundled into the car, and then the complainant Ashley Rossborough has given evidence about two of the accused being present with him in the car, and the prosecution argue that that is Haydar and Billal, and Barry meets them later.
The defence position, Haydar, in terms of Haydar, the submission is that this does not happen, this kidnapping, this does not happen, so there is therefore no agreement. The position of Barry is, firstly, this does not happen, therefore there is no agreement. If there was a kidnapping, he, Barry, was not involved in that you ought not be satisfied he was at Salamander Drive.
You will therefore not be satisfied that he had any involvement in any kidnapping, and therefore was not a party to any agreement. The third accused, Billal, he argues that you ought not be satisfied that he was in the car, you ought not be satisfied he was in Salamander Drive, and therefore you ought not be satisfied he had any, he was party to any agreement in relation to any kidnapping.
The prosecution have to prove that the agreement remained in existence when the offence was committed, and if there is a possibility the agreement had been called off prior to that time, or the accused had withdrawn from that agreement, then the first element will not be met.
Now, the second element the prosecution have to prove is the accused participated in the joint criminal enterprise in some way. That is, the accused must have done something to contribute to that enterprise. It is not enough that he merely agreed it should be carried out, for this element to be satisfied, you need to find the accused performed some conduct, either legal or illegal, that in some way contributed to the commission of the crime. It does not matter how important or unimportant those acts were to the completion of the enterprise, as long as he did something to assist.
So the prosecution argument is that you have got the three accused present in the car park, and you have got the violence, and you have got the assaults, and you have effectively got a situation where the three accused are intimately involved in bundling the complainant into the car. And again, in terms of the defence position, well again, Haydar’s position, there is no kidnap, Barry and Billal, Barry, there is no kidnap, if there is, you could not be satisfied beyond reasonable doubt of any participation by Barry. Billal, you could not be satisfied beyond reasonable doubt of any participation by Billal.
The third element the prosecution have to prove, in accordance with the - is that in accordance with their agreement or understanding or arrangement, the parties between them performed all of the acts necessary to commit the offence. That is, all of the necessary acts were committed by the parties to the agreement, so all of the elements of the offence of kidnapping were committed.
Now, you do not need to find that each party to the agreement committed each of these acts, even if they each only played a minor role, this part of the second element will be satisfied as long as all of the necessary acts were committed between the parties to the agreement. The prosecution have to prove the commission of the offence was within the scope of the parties’ agreement.
That is the accused, amongst themselves, must have agreed to commit the acts that constitute the offence. To determine what acts were within the scope of the agreement, you must consider the beliefs the parties held at the time they made that agreement, and whatever acts they all believe would or could be committed in the course of carrying out that agreement are to be treated as being within its scope.
Finally, the prosecution have to prove the accused had the state of mind necessary to commit the offence when he entered into the agreement. Now, in this case that means the accused must have intended to kidnap Ashley Rossborough. That is the relevant state of mind; an intent to kidnap. Each accused must have had that state of mind.
It will not be sufficient for the prosecution to prove that one of the other parties to the agreement had that state of mind at the time of entering into the agreement. In this case, in terms of intent, the prosecution argument is that you can infer intent from conduct. You can look at all the circumstances, look at the conduct of the accused and from that infer that each had the requisite intent.
That is how the prosecution puts its case in relation to joint criminal enterprise in respect of kidnap. Now, I have gone over again: Haydar; did not happen therefore clearly no agreement. Barry: did not happen therefore no agreement. If it did happen, you could not be satisfied beyond reasonable doubt of the participation of Barry. Billal; you could not be satisfied beyond reasonable doubt of the participation of Billal.[16]
[16]We have emphasised the passages which bear directly on this proposed ground of appeal.
On the hearing of this application, counsel for Barry Ali (who did not appear at the trial) submitted that this passage of the charge disclosed legal error on the part of both the trial judge and trial counsel for Barry Ali, about what was necessary to prove the offence of kidnapping. The error lay, it was said, in the suggestion that proof of Barry Ali’s presence at Salamander Drive would be sufficient to establish his participation in the kidnapping. The judge’s error was said to be apparent on the face of the charge. Counsel’s error was to be inferred from what the judge said about ‘the position of Barry’. It was submitted that counsel’s error had had the effect of opening up a path to conviction on this charge which was not open as a matter of law.
Given the seriousness of this imputation of incompetence on the part of trial counsel, we arranged — with the agreement of both parties to the application — for the closing addresses at the trial to be transcribed. That has been done, and the parties have filed supplementary written submissions regarding the content of those addresses.
In his supplementary submission, counsel for Barry Ali maintained the argument that trial counsel’s final address
positively invited the jury to treat as determinative of [Barry Ali’s] guilt on the charge of kidnapping whether he attended at Salamander Drive after [Rossborough’s] kidnapping was complete. And the trial judge compounded the problem by having done little more than summarise defence counsel’s submissions.
Further, according to the supplementary submission, it was significant that trial counsel for Barry Ali:
2.4 … chose not to address the jury on the fact that [Barry Ali] was not a party to bundling [Rossborough] into the red VN Commodore before it was driven away.
2.5 That was … no mere forensic choice. After all, there was a considerable body of evidence that supported the contention that [Barry Ali] did not, with his brothers, bundle [Rossborough] into the red car before it departed the scene. Rather, it implies a misapprehension of the law as it relates to the offence of kidnapping. Tacit in defence counsel’s submissions to the jury about [Barry Ali’s] presence at Salamander Drive is the [false] premise that, by joining his brothers at that address, he was thereby rendered guilty of kidnapping.[17]
[17]Emphasis in original.
For reasons which follow, these submissions must be rejected. They are based on a misreading of counsel’s final address and on a misapprehension both of the way in which the Crown case was presented against the applicants and of the substantial forensic difficulties which the evidence presented for Barry Ali and his counsel.
The judge’s charge made clear — as had the prosecutor in his final address — that the entire case against the applicants was founded on joint criminal enterprise. That was the basis of each of the contested charges — blackmail, kidnapping, robbery and threat to kill. It was also the basis of the charge of recklessly causing serious injury, to which each of the applicants had pleaded guilty.
Taken together, these charges spanned the entire period from the initial assault on Rossborough until his release, after he had promised to arrange payment of the $10,000 demanded of him. The Crown case, in short, was that the three brothers had been acting together throughout, pursuant to an agreement or agreements between them. This was continuous, joint criminality from start to finish.
In the circumstances of this trial, counsel for Barry Ali faced formidable forensic difficulties. First, his client had admitted (by his plea of guilty to the serious injury charge) his participation in the initial assault on Rossborough. Secondly, the evidence established Barry Ali’s continued active involvement in the events which led up to Rossborough being ‘bundled’ into his own car and driven away. As the prosecutor reminded the jury, there was evidence that the three applicants had brought Rossborough back towards his car after the initial assault. Barry Ali had told Rossborough’s passengers to sit in the gutter. There was also evidence that Barry Ali had been punching Rossborough at the same time as Haydar Ali was banging his head into the bonnet of a car.
There was no dispute about Barry Ali’s active participation in the continuing violence. Indeed, in final address, his counsel frankly acknowledged that his client was ‘obviously and self-evidently, and by admission’ in the car park. Counsel continued:
[A]nd he assaults Ashley Rossborough. … He assaults Ashley Rossborough at the bonnet of the car, as … the unfortunate Mr Rossborough … is having his head hit into the bonnet of the car. Barry Ali comes up to him and punches him. Assaults him. He was there all right, was Barry Ali, at Lombard’s car park. He was the man wearing the distinctive bright blue zip-up jacket with the large letters in white emblazoned for all to see across the chest of the jacket. You couldn’t miss him.
Chronologically, the first contested charge was that of blackmail. As the prosecutor reminded the jury, there was evidence that the initial demand for $10,000 was made in the Lombard car park. Each of Rossborough’s passengers gave evidence of having heard the demand being made. The prosecutor’s submission was that this evidence could be used against all of the accused if the jury were satisfied that all three were in the car park. As we have pointed out, there was no dispute about that fact. The prosecution also relied on demands made subsequently by Billal Ali, and by Barry Ali, after the three accused had come together again at Salamander Drive.
It was this charge of blackmail to which defence counsel devoted much of his final address. Counsel first submitted that Barry Ali was not a party to the initial demand in the car park, because it had not been shown that he was present when that demand was made. As far as the later demands were concerned, counsel submitted, the jury could not be satisfied beyond reasonable doubt that Barry Ali was ever at Salamander Drive. According to the submission, the blackmail case based on joint criminal enterprise could only be made out against Barry Ali if he was shown to have been at Salamander Drive. Counsel addressed the jury at length as to why they could not view Rossborough’s evidence as establishing beyond reasonable doubt that Barry Ali was present at Salamander Drive.
That counsel focused so heavily on Salamander Place was not surprising. Given what had already been conceded — properly — about Barry Ali’s active participation in the pre-kidnap violence, this doubtless appeared to counsel to be the weakest part of the Crown’s case against him. Importantly for present purposes, defence counsel made no separate mention of the kidnapping count in his final address. Contrary to the submission advanced on this application, nothing said in counsel’s address suggested that proof of Barry Ali’s presence at Salamander Drive would be sufficient to establish his participation in the kidnapping.
Moreover, neither the prosecutor nor the judge ever suggested to the jury that the kidnapping case against Barry Ali could be established merely by proof of his attendance at Salamander Drive. On the contrary, the kidnapping case was based on the evidence of Barry Ali’s presence in the car park and his active participation in the continuing violence against Rossborough at a time closely proximate to his being put in the car and driven away. The evidence, the prosecutor submitted, was clear:
Mr Rossborough was effectively dragged, bundled, coerced. Whatever word you think is appropriate, he was put in that car. He didn’t want to be in that car. It was his car but he didn’t want to be in that car and he didn’t want to go to a bank.
And that was the position he was put in because at that stage … the preamble is important. He has been assaulted by each of the accused. He is in fear, he is scared, he is put in a car, he is driven away. He does not want to go. Certainly does not want to go to the bank with these three individuals. … [T]here is again difference in the way each of the passengers in the car, and Mr Rossborough, recount their honest recollection of this, there is [sic] differences.
Mr Rossborough has got him and two in the car, others have got more in the car. The crucial thing is … that you should be satisfied beyond reasonable doubt that Haydar Ali is in the car, Billal Ali is in the car, and it is Mr Barry Ali that meets up at Salamander…[18]
[18]Emphasis added.
As noted earlier, the judge in his charge correctly summarised the prosecution case as being that
you have got the three accused present in the car park, and you have got the violence, and you have got the assaults, and you have effectively got a situation where the three accused are intimately involved in bundling the complainant into the car.
Plainly enough, the judge was not here suggesting that the jury could convict Barry Ali of kidnapping simply on the basis of his subsequent arrival at Salamander Drive. On the contrary, his Honour referred expressly to all three accused having been present in the car park and having participated in the violence. ‘Effectively’, his Honour said, all three accused were ‘intimately involved in bundling the complainant into the car’. The fact of Barry’s subsequent arrival at Salamander Drive was, of course, relevant to the kidnapping case, both because it could be seen to be consistent with the contention that he had been involved in the initial taking away and because it obviously supported the inference that he was a party to an agreement to kidnap Rossborough.
The case for Barry Ali, his Honour said, was that there was no kidnap or, if there was, the jury could not be satisfied beyond reasonable doubt of any participation by him. While this was a crisper and clearer articulation of the case than that put forward by counsel for Barry Ali in final address, it was perfectly fair, and consistent with the way the case had been conducted on behalf of Barry Ali. Importantly, as we have already said, the judge did not suggest that Barry Ali’s defence to the kidnapping charge turned on whether he had been (proved to have been) at Salamander Place.
In short, there was no suggestion made in this trial, by either counsel or by the judge, that mere proof of Barry Ali’s presence at Salamander Drive was sufficient to found a conviction for kidnapping. In the circumstances, it is strictly speaking unnecessary to decide whether, had such a possibility been raised for the jury’s consideration, it would have been a lawful basis for conviction on that charge. Since, however, the point was the subject of written submissions, we should deal briefly with it.
As this analysis reveals, great care must be taken before submissions are advanced on appeal contending that trial counsel was incompetent or, worse still, so badly misunderstood the law as to open up a path to conviction which was not lawfully open. Submissions of this kind should not be made unless there has been the opportunity for a thorough review of the entire trial and, crucially, of the final addresses. Only then is it possible to ascertain what the real issues in the trial were and, in that context, how and why the defence case was conducted as it was.[19]
[19]See Martin v The Queen [2013] VSCA 377, [104].
Whether kidnapping is a ‘continuing’ offence
On this appeal, and in support of these submissions, counsel for Barry Ali submitted that relevant authority demonstrated that kidnapping was not (and is not) a continuing offence. From this it was said to follow that Barry Ali’s attendance at Salamander Drive could not have constituted participation in the Crown’s alleged joint criminal enterprise, because by that time the offence of kidnapping was complete.
Counsel for Barry Ali relied upon R v Reid[20] and R v D.[21] In Reid, Cairns LJ, in giving judgment for the English Court of Appeal, said:
We can find no reason in authority or in principle why the crime [kidnapping] should not be complete when the person is seized and carried away, or why kidnapping should be regarded, as was urged by counsel, as a continuing offence involving the concealment of the person seized.[22]
[20][1973] QB 299 (‘Reid’).
[21][1984] AC 778 (‘D’s case’).
[22][1973] QB 299, 302.
In D’s case, Lord Brandon of Oakbrook[23] said:
From this wide body of authority six matters relating to the offence of kidnapping clearly emerge. First, … . Secondly, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another; (2) by force or by fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse. Thirdly, … . Fourthly, … . Fifthly, in earlier days, the offence contained a further ingredient, namely, that the taking or carrying away should be from a place within the jurisdiction to another place outside it; this further ingredient has, however, long been obsolete, and forms no necessary part of the offence today. Sixthly, the offence was in former days described not merely as taking or carrying away a person, but further or alternatively as secreting him; this element of secretion has, however, also become obsolete, so that, although it may be present in a particular case, it adds nothing to the basic ingredient of taking or carrying away.[24]
[23]With whom Lord Hailsham of St Marylebone LC, Lord Frazer of Tullybelton, Lord Scarman and Lord Bridge of Harwich relevantly agreed.
[24][1984] AC 778, 800–01.
These authorities[25] established, so counsel submitted, that the offence of kidnapping is not a continuing offence and is complete once the victim has been captured and carried away.
[25]See also R v Nguyen & Tran [1998] 4 VR 394, 411.
That submission must be rejected. While it cannot be doubted that criminal liability for kidnapping attaches once the victim has been taken and carried away, it does not follow that the taking away is complete at that moment. On the contrary, as this Court recently observed in Ulutui v The Queen,[26] it will often be the case that the action of taking a person away to somewhere else continues for a period of time.
[26][2014] VSCA 110, [88] (‘Ulutui’).
As the Court in Ulutui noted, the point was dealt with by the New South Wales Court of Appeal in Davis v The Queen,[27] where Howie J[28] said:
64 Neither Reid nor Campbell[29] supports the proposition that a taking ceases to be a taking at the moment that the kidnapper becomes criminally liable for the offence. The offence might at that moment be complete in law, because the taking has been completed for the purposes of proving the offence, but it is not necessarily complete in fact. Once it has been established that a person has been ‘taken’, in the sense that he or she has been compelled to go where he or she did not want to go, the ‘taking’ continues until the compulsion ceases. It does not cease merely because the person has been taken for a certain distance or for a certain time or even because the kidnapper has ceased to physically move the victim and has commenced detaining that person in the one place. In a real sense, the kidnapper is taking the victim, that is causing the victim to accompany him or her, for the entire duration of the time, however long it is, that the victim is, as a result of the kidnapper’s conduct, involuntarily detained in a place that is not the place where the victim was first detained. The taking begins with the detention and asportation of the victim, and only ends when the victim is released or ceases to withhold consent to the detention.[30]
[27][2006] NSWCCA 392.
[28]With whom Basten JA and Whealy J (as his Honour then was) agreed.
[29]R v Campbell and Brennan [1981] QdR 516.
[30]Davis v The Queen [2006] NSWCCA 392, [64] (citations and emphasis added).
The Court in Ulutui also referred to the decision of the Court of Appeal for British Columbia in R v Vu.[31] Finch CJ[32] there referred to the passage in Reid set out above and said:
[31][2011] BCCA 112.
[32]In a judgment concurred in by Saunders J and in respect of which concurring reasons were written by Prowse J.
I would observe that the comment that kidnapping need not be regarded as a ‘continuing offence’ was made in a context of deciding whether there was a completed offence without the secreting or concealment of the victim. I do not think it can be regarded as authority for saying that a subsequent confinement may not form part of the offence.[33]
Finch CJ then went on to refer to Davis v The Queen, saying:
I consider the view expressed by Mr Justice Howie in Davis v R … to be preferable. He makes the point that the offence at the moment of taking may be complete in law, but is not necessarily complete in fact. He concludes by saying at para 64:
The taking begins with the detention and asportation of the victim, and only ends when the victim is released or ceases to withhold consent to the detention.[34]
[33][2011] BCCA 112, [45].
[34]Ibid [56].
We respectfully agree with the analyses in Davis v The Queen and in R v Vu.[35] The distinction between ‘complete in law’ and ‘complete in fact’ is crucial, as the present case illustrates. Rossborough was ‘taken away’ when he was driven away from the Lombard car park. Criminal liability attached — then and there — to each of those who participated in putting him in the car and driving him off. But the taking away continued for some considerable time afterwards.
[35]See, further, Charlesworth v The Queen (2009) 193 A Crim R 300, 315–317 [60]–[67].
As Rossborough described in giving evidence, there was only a relatively brief stop at Salamander Drive. The car stopped near a vacant block. Rossborough and one of his captors got out of the car, and Rossborough asked if he could rinse the blood off his face. Having been permitted to do so, he was escorted back to the car. Barry Ali had arrived by this time. He jumped in the driver’s seat and they drove off again. The car was then driven to an automatic teller machine, Rossborough having been asked to state what bank he was with. When Rossborough was only able to withdraw $700, it was Barry Ali who pressed him about how, and when, he would be able to pay the $10,000 which had been demanded.
Authority apart, there is no difficulty of either logic or principle in viewing the kidnapping of Rossborough as having continued from the moment he was placed in the car until the moment he was released. Throughout that period he was in the process of being taken from the point of departure to the intended destination, that being a bank from which he would be made to withdraw funds. As we have seen, the authorities give clear support to that view.
If, therefore, the case against Barry Ali had been that he became a kidnapper — or, for the purposes of joint criminal enterprise, participated in the kidnapping — only by joining his brothers at Salamander Drive, that path to conviction would have been open as a matter of law. But, as our earlier analysis shows, no such case was ever mounted.
It follows that we would refuse leave to Barry Ali in respect of proposed ground 3A.
Proposed ground 3B
In proposed ground 3B, complaint is made by Barry Ali that his conviction for kidnapping was unsafe and unsatisfactory. It is contended that it was not open to the jury, on the evidence led at trial and properly instructed, to find him guilty of the offence of kidnapping.
Consistently with what we have said above, the jury was properly instructed on the issue of kidnapping. The question of whether a conviction is unsafe and unsatisfactory requires the Court to make its own assessment of the material, so as to be satisfied that it was open to the jury to convict. The question is whether, on the
whole of the evidence, the jury must have entertained a reasonable doubt. As Hayne J put it in Libke v The Queen:[36]
[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[37]
For the reasons given earlier, there was evidence which the jury was entitled to accept that Barry Ali was a party to the kidnapping of Rossborough from the car park. Together with the evidence of the witnesses and the CCTV footage, Barry Ali’s pleas of guilty to the charges to which we have referred put him at the scene at the time of the kidnapping and involved in the violence against Rossborough. It was well open to the jury to convict him of kidnapping.
[36](2007) 230 CLR 559, 596–7 [113].
[37]See also M v The Queen (1994) 181 CLR 487; Werry v The Queen [2013] VSCA 373, [10].
It follows that the proposed ground 3B is without merit.
Conclusion
We would refuse each application for leave to appeal.
TATE JA:
I have had the benefit of reading, in draft form, the reasons of Maxwell ACJ and Beach JA. I agree with their Honours, for the reasons they give, that leave to appeal against conviction should be refused with respect to proposed ground 2 of the appeal for each of the applicants and that leave to appeal should be refused with respect to grounds 3A and 3B with respect to Barry Ali.
However, I would grant leave to appeal on proposed ground 1.
I consider that it is reasonably arguable that the trial judge erred in his response to question 3 from the jury when they asked: ‘Can we present verdicts on: a) Some charges & not others; b) Defents [sic] and not others’. Putting to one side the guilty pleas, which his Honour clarified were not the cause of the difficulty the jury was having, it was apparent to the judge that the jury needed to be directed that they could deliver verdicts of guilty, or not guilty, on some charges and not others, and verdicts of guilty, or not guilty, with respect to some defendants and not others. It is clear that this was apparent to the judge because he recognised that the jury needed to be mindful of the separate consideration direction he had already given in respect of both the charges and the accused. In his earlier direction the judge referred to the multiple charges each accused confronted and said:
It would … be wrong to say that simply because you find the accused guilty or not guilty of one charge, he must be guilty or not guilty, as the case may be, of another.
He also said, having mentioned that the trial involved three accused that:
[Y]ou consider the case against each accused separately in light only of the evidence relating to that accused and ask yourselves, in relation to each accused, whether the evidence relating to that accused has satisfied you beyond reasonable doubt he is guilty of the offence he has been charged with. If the answer is yes, you should find him guilty. If the answer is no, you should find him not guilty.
I consider that the judge ought to have repeated at least these aspects of his separate consideration direction and not merely reminded the jury, as he did, of the directions given earlier in his charge ‘in relation to separate consideration of charges and separate consideration of the matters in relation to each accused’. The trial took 17 days and the charge was given over two days and occupied 89 pages. As with almost all jury questions, question 3 revealed a particular aspect of the jury’s process of deliberation with which they were grappling at that time. It was important that the jury be given a direct and responsive answer to resolve immediately what was concerning them and not simply be reminded that they had earlier been given a previous direction on the issue. The object of the procedure by which a jury can ask questions of a judge is ‘to enable the judge to give proper and accurate assistance to the jury upon any matter of law or fact which is troubling them’.[38] Question 3 disclosed what was troubling the jury and, in my view, it is reasonably arguable that proper and accurate assistance required that the separate consideration direction be repeated, either in full, or as extracted above, with the jury also being reminded of the complete earlier separate consideration direction given in the charge.
[38]R v Gorman [1987] 1 WLR 545, 551, as quoted by Buchanan AP in R v Black (2007) 15 VR 551, 555 [14].
However, I do not consider that proposed ground 1 is made out. The applicants confirmed at the hearing of the appeal that the separate consideration direction given by the judge during the charge was unimpeachable. For the judge to refer the jury back to that direction was ultimately free of error. The judge specifically told the jury that if they had any further questions, he would answer them. There were no further queries raised by the jury. As this Court said in R v Halliday,[39] ‘[o]ur system of justice assumes ... that juries obey instructions given to them by trial judges’.[40]
[39](2009) 23 VR 419.
[40]Ibid 439 [81] (Buchanan, Ashley and Weinberg JJA).
In the event, I would grant leave to appeal on ground 1 but dismiss the appeal. As indicated, I would refuse leave to appeal on all other grounds.
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