James v the Queen
[1987] TASSC 30
•9 April 1987
TASSC A19/1987
CITATION: James v The Queen [1987] TASSC 30; A19/1987
PARTIES: JAMES, Seymour Joseph
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CA 56/1986
DELIVERED ON: 9 April 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Cosgrove, Cox and Underwood JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: TASSC A19/1987
Number of paragraphs: 21
Serial No A19/1987
File No CA 56/1986
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COSGROVE J
COX J
UNDERWOOD J
Orders of the Court:
Appeal dismissed.
Application for leave to appeal refused.
Serial No A19/1987
File No CA 56/1986
REASONS FOR JUDGMENT COSGROVE J
9 April 1987
The appellant was arraigned on an indictment containing seven counts. On each count he was convicted and from each conviction he appeals, and applies for leave to appeal. The ground of appeal alleges an error in law in the learned trial judge's direction to the jury. The four grounds on which the application for leave to appeal is based allege a miscarriage of justice. During the hearing before this Court the notice of application for leave was amended by the addition of a further notice that a new trial would be requested on the ground that fresh evidence was available. This request was subsequently abandoned in circumstances which I will later relate.
The original indictment jointly charged the appellant, Robert Joseph Devine and Ronald Peter Gorringe on two counts of robbery with violence and one of aggravated burglary. The appellant and Devine were also jointly charged on one count of grievous bodily harm and three of attempted murder. No particulars were given of the roles which the Crown alleged were played by each accused in the commission of each crime.
It appears from the transcript that from an early stage in the trial, there had been discussions between Crown counsel and counsel for the accused persons as to particulars, but it was not until the trial had been in progress for a week that any formal specific application was made. Even then, it is difficult to ascertain from the record the precise nature of each application. However, it does appear that counsel for all three accused joined in asking for particulars as to the identity of the alleged principal actor in each crime and the nature of the aiding or abetting or instigating alleged against the other accused. We were told that particulars were delivered at the end of the Crown case. They were in this form:
"R v SEYMOUR JOSEPH JAMES,
ROBERT JOSEPH DEVINE AND
RONALD PETER GORRING
FURTHER AND BETTER PARTICULARS
COUNT 1
The accused ROBERT JOSEPH DEVINE at the time and place stated in prosecution of a common purpose with SEYMOUR JOSEPH JAMES and RONALD PETER GORRINGE within the meaning of Section 4 of the Criminal Code Act 1924 robbed Kostinos Mastrapostolos of $20 when armed with an offensive weapon to wit a .22 rifle and at the time of and immediately before such robbery used personal violence to the said Kostinos Mastrapostolos by punching him in the head or face with his fist and SEYMOUR JOSEPH JAMES instigated and abetted ROBERT JOSEPH DEVINE to so act and RONALD PETER GORRINGE instigated and abetted ROBERT JOSEPH DEVINE to so act and RONALD PETER GORRINGE instigated ROBERT JOSEPH DEVINE to so act.
COUNT 2
The accused SEYMOUR JOSEPH JAMES and ROBERT JOSEPH DEVINE at the time and place stated in prosecution of a common purpose with RONALD PETER GORRINGE within the meaning of Section 4 of the Criminal Code Act 1924 entered the said shop with the said rifle and used the following violence:
ROBERT JOSEPH DEVINE by punching Kostinos Mastrapostolos in the head or face on at least two occasions.
and SEYMOUR JOSEPH JAMES by:
(1) striking Kostinos Mastrapostolos on the head with a .22 rifle
(2) shooting Kostinos Mastrapostolos in the chest with a .22 rifle
(3)putting a .22 rifle into Kostinos Mastrapostolos' mouth and saying words to the effect 'if you don't tell us where it is I'll blow your brains out'
(4)putting a .22 rifle to the head of Kostinos Mastrapostolos and pulling the trigger
(5) striking Kostinos Mastrapostolos over the head with a .22 rifle
(6) being armed with an offensive weapon
and RONALD PETER GORRINGE instigated the said SEYMOUR JOSEPH JAMES and ROBERT JOSEPH DEVINE to so act.
COUNT 3
The accused SEYMOUR JOSEPH JAMES and ROBERT JOSEPH DEVINE at the time and place stated in prosecution of a common purpose with RONALD PETER GORRINGE within the meaning of Section 4 of the Criminal. Code Act 1924 robbed Kostinos Mastrapostolos of the money and goods stated when armed with the said rifle and SEYMOUR JOSEPH JAMES used the following personal violence:
(1) by striking Kostinos Mastrapostolos with a rifle across his head
(2) by shooting Kostinos Mastrapostolos with a .22 rifle in the chest
(3) by putting a .22 rifle in Kostinos Mastrapostolos' mouth and threatening him
and ROBERT JOSEPH DEVINE instigated and abetted SEYMOUR JOSEPH JAMES to so act and RONALD PETER GORRINGE instigated and abetted SEYMOUR JOSEPH JAMES to so act and during the prosecution of the said common purpose ROBERT JOSEPH DEVINE stole an amount of money and SEYMOUR JOSEPH JAMES and RONALD PETER GORRINGE instigated and abetted ROBERT JOSEPH DEVINE to so act.
COUNT 4
The accused SEYMOUR JOSEPH JAMES and ROBERT JOSEPH DEVINE at the time and place stated in prosecution of a common purpose with each other within the meaning of Section 4 of the Criminal Code Act 1924 unlawfully caused grievous bodily harm to Kostinos Mastrapostolos in that SEYMOUR JOSEPH JAMES struck him on the face or head with a rifle and ROBERT JOSEPH DEVINE instigated and abetted SEYMOUR JOSEPH JAMES to so act.
COUNT 5
The accused SEYMOUR JOSEPH JAMES and ROBERT JOSEPH DEVINE at the time and place stated in prosecution of a common purpose with each other within the meaning of Section 4 of the Criminal Code Act 1924 attempted to murder Kostinos Mastrapostolos by shooting him in the chest with a projectile from a .22 rifle in that SEYMOUR JOSEPH JAMES shot him with the said rifle and ROBERT JOSEPH DEVINE instigated and abetted SEYMOUR JOSEPH JAMES to so shoot the said Kostinos Mastrapostolos.
COUNT 6
The accused SEYMOUR JOSEPH JAMES at the time and place stated in prosecution of a common purpose with ROBERT JOSEPH DEVINE within the meaning of Section 4 of the Criminal Code Act 1924 attempted to murder Kostinos Mastrapostolos by attempting to shoot him in the head with a projectile from a .22 rifle and ROBERT JOSEPH DEVINE instigated SEYMOUR JOSEPH JAMES to so act.
COUNT 7
The accused SEYMOUR JOSEPH JAMES at the time and place stated in prosecution of a common purpose with ROBERT JOSEPH DEVINE within the meaning of Section 4 of the Criminal Code Act 1924 attempted to murder Kostinos Mastrapostolos by striking him across the face and/or head on a number of occasions with a .22 rifle and ROBERT JOSEPH DEVINE instigated SEYMOUR JOSEPH JAMES to so act."
When his Honour came to sum up he handed the jurors a memorandum which followed the particulars. The memorandum was in this form:
"THE QUEEN v Robert Joseph DEVINE
Seymour Joseph JAMES
Ronald Peter GORRINGE
MEMORANDUM TO THE JURY
Count 1
In order to be satisfied beyond reasonable doubt that the accused Devine committed the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1the accused stole about $20 from the person of the complainant by means of force intentionally used to prevent or overcome resistance;
and
2at the time of, or immediately before the robbery he used personal violence to the complainant by punching him in the head and face with his fist.
In order to convict the accused James of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1 Devine committed the crime charged in this count
and
2 Either
2.1that the crime was committed in the prosecution of a common purpose
or
2.2 that James instigated or abetted the commission of that crime.
In order to convict the accused Gorringe of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1 Devine committed the crime charged in this count
and
2 Either
2.1that the crime was committed in the prosecution of a common purpose
or
2.2 that Gorringe instigated the commission of that crime
Count 2
In order to convict the accused James of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1he entered the shop as a trespasser with the intention of committing the crime of stealing
and
2whilst committing the burglary, or whilst he was in the shop, he used or offered violence to the complainant.
In order to convict the accused Devine of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1he entered the shop as a trespasser with the intention of committing the crime of stealing
and
2whilst committing the burglary, or whilst he was in the shop, he used or offered violence to the complainant.
In order to convict the accused Gorringe of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1 Devine or James committed the crime charged in this count
and
2 Either
2.1that the crime was committed in the prosecution of a common purpose
or
2.2 that Gorringe instigated the commission of that crime.
Count 3
In order to convict the accused James or Devine of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1Devine stole about $1,000 from the person of the complainant by means of force intentionally used to prevent or overcome resistance and that either James instigated or abetted that act or that the act was done in the prosecution of a common purpose
and
2at the time of, or immediately before that act of stealing James used personal violence to the complainant and that either Devine instigated or abetted that violence or that that violence was used in the prosecution of a common purpose
In order to convict Gorringe of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1 James or Devine committed the crime charged in this count
and
2 Either
2.1that the crime was committed in the prosecution of a common purpose
or
2.2 that Gorringe instigated or abetted the commission of that crime
Count 4
To convict the accused James of causing grievous bodily harm the jury would have to be satisfied beyond reasonable doubt:
(a)that by an intentional act the accused caused grievous bodily harm to the complainant
and
(b) that that act was unlawful and
(c)either (i) that the accused did that act with the intention of causing grievous bodily harm to the complainant
or (ii) that although the accused had no intention of causing grievous bodily harm to the complainant the accused did that act fore seeing that the probable consequence of his act was that the complainant would suffer grievous bodily harm.
Grievous bodily harm means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause serious injury to health.
In order to convict the accused Devine of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1 James committed the crime charged in this count
and
2 Either
2.1that the crime was committed in the prosecution of a common purpose
or
2.2 that Devine instigated or abetted the commission of that crime.
Count 5
In order to convict the accused James of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1 the accused voluntarily and intentionally shot the complainant in the chest
and
2the accused shot the complainant with the intention of causing the complainant's death
and
3the act of shooting the complainant formed part of a series of events which if it had not been interrupted would have constituted the actual commission of the crime of murder.
In order to convict the accused Devine of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1 James committed the crime charged in this count
and
2 Either
2.1that the crime was committed in the prosecution of a common purpose
2.2 that Devine instigated or abetted the commission of that crime.
Count 6
In order to convict the accused James of the crime charged in this count the jury would have to tee satisfied beyond reasonable doubt that:
1the accused voluntarily and intentionally attempted to shoot the complainant in the head,
and
2the accused attempted to shoot the complainant in the head with the intention of causing the complainant's death,
and
3the accused's act formed part of a series of events which if it had not been interrupted would have constituted the actual commission of the crime of murder.
In order to convict the accused Devine of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that:
1 James committed the crime charged in this count
and
2. Either
2.1 that the crime was committed in the prosecution of a common purpose
or
2.2 that Devine instigated the commission of that crime.
Count 7
In order to convict the accused James of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1the accused voluntarily and intentionally struck the complainant across the face or head a number of times with a rifle
and
2the accused struck the complainant across the face or head with the intention of causing the complainant's death
and
3the accused's act formed part of a series of events which if it had not been interrupted would have constituted the actual commission of the crime of murder.
In order to convict the accused Devine of the crime charged in this count the jury would have to be satisfied beyond reasonable doubt that
1 James committed the crime charged in this count
And
2 Either
2.1that the crime was committed in the prosecution of a common purpose
or
2.2. that Devine instigated the commission of that crime.
Instigation
In order to convict an accused of instigating another person to commit a crime the jury would have to be satisfied beyond reasonable doubt that
1the accused knew that the other person intended to commit the crime and that the accused knew all the essential facts which made what was intended to be done, a crime
2the accused by an intentional act counselled or procured the commission of that crime
3the accused's act of counselling or procuring was wilful – that is that it was done with the intention that his act would cause or encourage the other person to commit the crime
4that the accused's act in fact caused or encouraged the commission of the crime
5. that the other person committed the crime.
Abetting
In order to convict an accused of abetting another person to commit a crime the jury would have to be satisfied beyond reasonable doubt that
1 the other person committed the crime charged
2the accused knew all the essential facts which made what the other person did, or was about to do, a crime
3the accused by an intentional act encouraged the commission of that crime
4the accused's act was wilful – that is it was done with the intention that his act would encourage the other person to commit the crime
5 the accused's act in fact encouraged the other person to commit that crime.
Common purpose
In order to be satisfied that an accused person committed a crime in the prosecution of a common purpose the jury would have to be satisfied that
(a)the accused and one or both of the other accused persons formed a common intention to prosecute an unlawful purpose, namely to commit robbery with violence or to steal from the complainant's shop
and
(b)in the prosecution of that purpose the crime was committed
and
(c)the commission of that crime was a probable consequence of the prosecution of that purpose
ALTERNATIVE VERDICTS IN RESPECT OF GORRINGE
The following verdicts would be open to the jury in respect of the counts against Gorringe:
Count 1
1 Guilty.
2 Not Guilty of robbery with violence but guilty of stealing.
3 Not Guilty.
Count 2
1 Guilty.
2 Not Guilty of aggravated burglary but guilty of burglary.
3 Not Guilty.
Count 3
1 Guilty.
2 Not Guilty of robbery with violence but guilty of stealing.
3 Not Guilty."
The Notice of Appeal and Application for Leave to Appeal recited these grounds:
"The Learned Trial Judge was wrong in law in his direction to the Jury in that;
a)He failed to put to the Jury that in consideration of the case against me they were not confined to the Crown Case as particularised against the co–accused Robert James Devine, and that they were free to consider on all the evidence that it may have been Robert James Devine who entered the premises with the rifle, struck Kostinos Mastrapostolos with it on the head and then shot him and that on that view of the evidence it was open to the Jury to find me guilty as an accessory only or not guilty of the crimes charged.
b) He failed as a consequence to sufficiently put my defence to the Jury.
AND FURTHER TAKE NOTICE that I intend to apply for Leave to Appeal on the same grounds as above if the Court should hold that leave is necessary, and in addition, on the grounds that;
1The combined effect of the joint trial, the particulars supplied by the Crown, the summing up of His Honour the Trial Judge, and the written Memorandum to the Jury was to make the verdicts of the Jury against me unsafe or unsound.
2There was a real and substantial risk that because of the said combination a proper consideration of my case by the Jury was prejudiced.
3That having regard to the way in which the Crown presented its case against the co–accused, Robert James Devine, His Honour the Trial Judge ought to have specifically directed the Jury to the effect that they were entitled to find that Robert James Devine committed the acts referred to in the Indictment and that if they were so satisfied or left in a reasonable doubt as to whether I had committed the acts referred to in the Indictment then I ought to be acquitted.
4.That the written material in the Jury Room comprising the Indictment, Particulars and Memorandum would have the tendency to direct the attention of the Jury away from my defence and in those circumstances a specific direction that the Particulars were not to be used to confine the Jury's consideration of my case was required."
The key paragraph in the written submissions made on behalf of the appellant was paragraph 9, which reads as follows:
"What we say is that the effect of the particulars, the written memorandum and the direction was that the Jury could not convict Devine on the basis that he did the shooting or assault in the shop. They were precluded from considering the case against him on that basis. However, it was a necessary consequence of James' case that the Jury should consider whether there was a reasonable possibility that it was indeed Devine who used the rifle in the shop."
The essential allegations made by the Crown were:
(1)that all three accused went to a shop operated by a Mr Mastrapostolos intending to rob him
(2) Gorringe was the watchkeeper
(3)Devine and the appellant James waited outside the backdoor of the stop until Mr Mastrapostolos came out. Devine then attacked Mr Mastrapostolos and forced him back into the shop, where he took a small sum of money from Mr Mastrapostolos' wallet. Mr Mastrapostolos was denying possession of any more
(4)James then entered with a shortened rifle, beat Mr Mastrapostolos about the head with it, then snot him and attempted but failed to shoot him again, and further attempted to kill him by blows with the rifle. Mr Mastrapostolos suffered very serious injuries, but survived. At some time he handed over a large sum of money to Devine.
The seven counts arose from the separation of the one incident into seven. It was never suggested that Gorringe came into the shop and the conclusion that either Devine or James or both of them inflicted Mr Mastrapostolos' injuries was inevitable. Some of those injuries were consistent only with the use of a rifle, and others with the use of some hard object, harder than a fist.
Mr Mastrapostolos gave evidence through an interpreter. He said that he unlocked the back door of his shop and went outside. He could then "see a person six or seven feet away with a gun and he ran towards me". He said that the person "hit me on the face with his hand and I could see the lights going around". He gave the man his wallet. The man said that he wanted the rest of the money. He went into the shop "and gave him the money. He was still hitting me on the head, I fell down and I can't remember any more". He said that he was being hit on the head with the butt of the gun from behind. It is obvious from the transcript that Mr Mastrapostolos' memory of events was unreliable and that he was prone to reconstruction. He identified Devine as the man who shot him although he had no memory of the shooting. His identification of Devine was two–fold – first from police photographs which the learned trial judge rightly told the jury to ignore and second a "dock" identification. He said that he did not see James, the appellant, on that night or any time prior thereto.
Evidence was given by police witnesses that the appellant James had made a confessional statement to the police in the course of taking part in a record of interview procedure, at the end of which he had affirmed the truth of what he had said but declined to sign the document. The document was however admitted in evidence, and the admission of it is not a ground of appeal. In that record of interview, answers allegedly given by the appellant to the police and recorded in the document amounted to a complete and detailed confession of guilt on the appellant's part to the charges proffered against him in the seven counts In his oral evidence, the appellant denied that he had ever given such answers, and by his counsel accused the police witnesses of having fabricated the evidence in the document. The document was admitted pursuant to the Evidence Act 1910, s81B. The learned trial judge in accordance with s81P withheld the document from the jury. However, counsel for the appellant, apparently in the belief that it was self–destructive, asked for it to be given to the jury and so it was.
Devine, in his oral evidence, gave an account which in substance conceded his own guilt on the first three counts of the indictment, but denied his guilt on any of the other four, and in the course of doing so described the episode in question in terms which fully supported the Crown case against the appellant, and if believed, strongly supported the substance of the record of interview allegedly made by the latter. In effect, Devine's account was that he and the appellant and Gorringe had formed a plan together to rob Mr Mastrapostolos of his money, but that the plan was that Devine should enter the shop and carry out the actual robbery whilst the appellant waited outside. According to Devine's evidence, while he was carrying out his part of the plan, the appellant unexpectedly and in no way according with the scheme which had been concocted, rushed into the shop and performed the acts which formed the subject of counts four to seven inclusive. Devine's account also implicated the appellant as a principal offender in relation to the first three counts, in that those offences were carried out in performance of the agreed plan, and that the appellant had aided and abetted their commission. Devine also made and signed a record of interview in which he made admissions corresponding with his evidence given on oath, and this was tendered in evidence.
In essence, the evidence against the appellant was three–fold:
1 The unsigned record of interview
2Devine's evidence t the learned trial judge correctly warned the jury about the use of this evidence and the adequacy of the warning is unchallenged)
3 His own performance in the witness box
Counsel for the appellant concentrated a considerable part of his address to the jury on the proposition that the confession was fabricated. He suggested that, because of his injuries the investigating officers were unable to obtain a clear account of the incident from Mr Mastrapostolos. They accepted Devine's and to a lesser extent, Gorringe's version of events and fabricated a confession by the appellant which was consistent with the versions of the other two accused. They were embarrassed, he said, by Mr Mastrapostolos evidence that there was only one man (Devine) and he was armed. He said that the confession "fits the Devine version" ... "it is Devine's attempt to explain a robbery that went wrong" ... "in the confession you are dealing with an exact sequence of events of Devine" … "the only lies that are told are told against James to get Devine off the shooting". He conclude his address by submitting that James is "not the man who shot". He is "a scapegoat".
In the course of his summing up, the learned trial judge reminded the jury of the gist of these submissions, using the word "scapegoat". His Honour carefully took the jury through the memorandum, pointing out that in relation to each count, proof beyond reasonable doubt of the commission of the crime charged by the principal offender(s) was the sine qua non for conviction of any of them. In relation to counts 5, 6 and 7 he said:
"Well now Counts 5, 6 and 7 are the three counts of attempted murder. In each case the principal offender is alleged to be James. Now in order to convict James of the crime of attempted murder under each of these counts, or under Count 5, you would have to be satisfied that the accused voluntarily and intentionally shot the complainant in the chest. That means a willed act; an act he meant to do. You would have to be satisfied that James shot the complainant with the intention of killing him, with the intention of causing the complainant's death. So at the moment when he shot him he had to do it with the intention of killing him. And you would also have to be satisfied that the act of shooting the complainant formed part of a series of events which, if it had not been interrupted, would have constituted the actual commission of the crime of murder. You see, it really is like a charge of murder. You have to be satisfied that James was intending to murder, that he was a potential murderer, and that if the series of events had not been interrupted it would have actually constituted the actual commission of the crime of murder."
He gave a similar instruction in relation to Count 4.
In the light of the foregoing, there is, in my view, not the slightest basis for any suspicion that the jury might not have known that they ought not to convict James unless they were satisfied beyond reasonable doubt that James (and therefore not Devine) did the acts charged. As I have said the conclusion that either James or Devine did those acts was unavoidable. To be satisfied beyond reasonable doubt that James did them required the exclusion of Devine. That proposition is self–evident and nothing in the particulars, the memorandum or the summing up detracted from it. Whatever Ground 1 of the Notice of Appeal means (and it is not free from obscurity and error) there was no need for any explicit direction (as Mr Cranswick QC put it in his oral submission) to consider in relation to proof of James' guilt the possibility "that Devine fired the shot" (obviously by the passage in quotation marks, he meant that Devine was the principal). It was impossible to be satisfied beyond reasonable doubt of James' guilt without doing so.
Grounds 1 to 4 of the Application for Leave to Appeal (generously construed) merely reiterate the same submission. There is no merit in it and the appeal. ought, in my view, be dismissed and the application for leave refused.
In support of the amendment requesting a new trial on the ground of the available fresh evidence, two affidavits were placed before us. That ground was abandoned and counsel specifically declined to ask the court to examine the cogency and credibility of the "fresh evidence". But it was submitted that the affidavits could still be used in aid of the other grounds, because the material in them cast light on "the value" of James' confession. That submission is clearly wrong because:
(a) the "value" of James' confession was not in issue before this Court, and
(b) the court will. not use untested material.
The affidavits were therefore not properly before us.
Serial No A19/1987
File No CA 56/1986
REASONS FOR JUDGMENT COX J
9 April 1987
I agree with the reasons and conclusions of Cosgrove J which I have had the advantage of reading.
Serial No A19/1987
File No CA 56/1986
REASONS FOR JUDGMENT UNDERWOOD J
9 April 1987
For the reasons given by Cosgrove J I agree that the appeal should be dismissed and the application for leave to appeal refused.
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