Jasmin Destanovic v The Queen
[2015] VSCA 113
•21 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0075
| JASMIN DESTANOVIC | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2014 0207
| TANIORA TANGALOA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, WEINBERG and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 March 2015 |
| DATE OF JUDGMENT: | 21 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 113 |
| JUDGMENT APPEALED FROM: | DPP v Destanovic (Unreported, County Court of Victoria, Judge Stuart, 31 January 2014) |
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CRIMINAL LAW – Appeal – Conviction – Joint trial – Four accused (D1, D2, D3, D4) – Armed robbery, aggravated burglary, intentionally cause serious injury – Joint criminal enterprise – Application for separate trials refused – Victim (J) identified each accused as having participated – Additional evidence admissible only against D2 and D3 respectively – Whether additional evidence impermissibly enhanced credibility of J in case against D1 – Jury invited by prosecutor to view J’s credibility as enhanced – Jury invited by prosecutor to reason from acceptance of evidence not admissible against D1 to finding of guilty against him – Judge endorsed invitation – Whether breach of separate consideration requirement – Whether misuse of inadmissible evidence – Conviction of D1 quashed – Retrial ordered – Whether conviction of D2 unsafe and unsatisfactory – Conviction of D2 affirmed.
CRIMINAL LAW – Appeal – Sentence – Armed robbery, aggravated burglary, intentionally cause serious injury – Total effective sentence 8 years’ imprisonment with non-parole period of 5 years – Delay of 5 years between offending and sentencing – Whether sentence manifestly excessive – Sentence within range – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Destanovic | Mr C Boyce SC with Ms G F Connelly | Victor C Andreou |
| For the Applicant Tangaloa | Mr D A Dann | Valos Black & Associates |
| For the Crown | Mr R A Elston QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P:
Summary
I have had the advantage of reading in draft the joint reasons of Weinberg and Beach JJA. For the reasons which their Honours give, I too would refuse both of Mr Tangaloa’s applications for leave to appeal. For reasons which follow, however, I have reached a different conclusion on Mr Destanovic’s application for leave to appeal against conviction. Leave to appeal should be granted but the appeal dismissed.[1]
[1]Since mine is a minority view, I have not addressed Mr Destanovic’s sentence application.
The Destanovic appeal raises a point of general importance about the conduct of joint trials and about how jurors assess the credibility of a common witness. In this case, the victim (‘J’) gave evidence against all four accused. Mr Destanovic’s complaint is that the credibility of the evidence which J gave against him was impermissibly enhanced as a result of his being tried jointly with his co-accused, Tangaloa and Vaotangi (‘T’ and ‘V’ respectively).
The impermissible enhancement of credibility is said to have occurred in the following way. The issue in the trial was whether — as the Crown alleged — Destanovic (‘D’), T and V[2] had each taken part in the invasion of J’s home and the violent attack on him. The only evidence implicating D was J’s identification of him as a participant. J also identified both T and V but, in relation to each of those accused, there was an additional piece of evidence — admissible only against him — which tended to prove that he had been a participant.
[2]Together with a fourth accused, Day.
Accordingly, the existence of these additional pieces of evidence bolstered the credibility of J’s identification evidence against T and V respectively. That was perfectly permissible. What was said to be impermissible was for the jury to treat J’s credibility — thus bolstered in the case against T and V — as also bolstered in the case against D, against whom neither of the additional pieces of evidence was admissible.
The issue arises here in unusual circumstances. In the typical case, nothing is said at trial about ‘credibility enhancement’. When the complaint is raised on appeal, the court is left to determine as a matter of inference whether credibility enhancement of this kind is likely to have occurred. Here, as described in the joint judgment of Weinberg and Beach JJA,[3] the prosecutor invited — and the judge authorised — the jury to approach J’s credibility in that global fashion.
[3]See [87]–[90] below.
With respect to my colleagues,[4] however, I consider that to be a distinction without a difference. Whether credibility enhancement is known to have occurred — as here — or is merely inferred as likely to have occurred, the question must be the same: does the fact of credibility enhancement suffice, by itself, to establish that the joint trial miscarried?
[4]See [140].
In this State, as will appear, that question has been consistently answered in the negative. Successive appellate benches have accepted that a global assessment of a witness’s credibility is both inevitable (as a matter of jurors’ mental processes) and necessary (in order to avoid inconsistent verdicts). To that extent at least, a joint trial is not — and is not intended to be — a perfect replica of the separate trials which would otherwise have taken place.
More particularly, the authorities establish that:
(a)there are powerful public interest considerations which favour the joint trial of joint offenders;
(b)the likelihood of credibility enhancement is an inescapable feature of a joint trial, as jurors cannot be expected to compartmentalise their assessment of a witness’s credibility;
(c)this is a consequence of joint trials that must be accepted in order to avoid inconsistent verdicts;
(d)the likelihood that credibility enhancement has occurred is never sufficient by itself to establish that there was a miscarriage of justice; and
(e)for the ground of appeal to succeed, the appellant accused must show that the evidence admissible only against the co-accused caused him/her some substantive prejudice (for example, because it directly implicated the appellant in the offence charged[5] or because it showed the appellant to be a person of bad character).[6]
[5]See R v Gibb [1983] 2 VR 155 (‘Gibb’) referred to at [32] below.
[6]See ibid; R v Jones & Waghorn (1991) 55 A Crim R 159 (‘Waghorn’) referred to at [40] below.
In the present case, credibility enhancement is D’s sole complaint.[7] He does not contend that the inadmissible evidence caused him any substantive prejudice. In accordance with the authorities, therefore, the appeal must be dismissed.
[7]The two grounds of appeal raise the same point in different ways.
A global view of credibility
Proposition (b) above recognises the reality that jurors inevitably form a global view of a witness’s credibility. As will appear, the trial judge in the present case — who has had very extensive experience in criminal trials — remarked that he had never before heard it suggested that such an approach was impermissible.
The jury’s global assessment of a witness’s credibility will take into account the evidence which the witness gives — both in chief and under cross-examination — and any other evidence which shows the witness to be more, or less, credible (as the case may be). In a joint trial, the assessment of credibility will inevitably be affected by the view which jurors form of the credibility of the evidence which the witness gives against each accused, and by the combined effect of the cross-examination of the witness on behalf of each of those accused.
In the present case, that global assessment of credibility included considering the credibility of the evidence which J gave, respectively, against D, T and V. The judge correctly directed the jury that they were entitled to use the additional evidence admissible only against T solely for the purpose of deciding the case against him, and the additional evidence admissible only against V solely for the purpose of deciding the case against him. For that purpose, the jury were told, they could use the process of inferential reasoning which the judge explained to them. His Honour made it unambiguously clear that this process of reasoning was available only in relation to the accused against whom the particular piece of evidence was admissible.
But it was inevitable that the view which jurors formed about the credibility of J’s identification evidence against T and V would influence their view of his credibility as a whole. It did not follow, of course, that a conclusion that he was credible in relation to T or V meant that he was also credible in his evidence against D. The judge was careful to point this out in his charge.
In my view, for the jury to form a global view about J’s credibility in this way was not to ‘use’ in an impermissible way the additional evidence admissible only against T and V. There is a clear and important distinction to be drawn between:
(a) misusing evidence admissible only against a particular accused, by treating it as having probative value (whether independently or in combination with other evidence) in the case against another accused; and
(b) making a global assessment of the credibility of a common witness.
This distinction is most clearly articulated in the South Australian decision of R v Jones[8] discussed below.[9]
[8](2006) 161 A Crim R 511 (‘Jones’).
[9]See [50] below.
As already mentioned, appellate authority establishes that credibility enhancement is both inevitable in joint trials and justified by the public interest in joint offenders being tried jointly. What occurred in the present trial has served to expose this truth about joint trials in the starkest possible way.
Ordinarily, of course, a jury receives no express invitation — and no authorisation — to engage in credibility enhancement. But once it is acknowledged that this is how juries always assess credibility in joint trials, and that credibility enhancement is insufficient by itself to render the trial unfair, there can be no objection in my view to a jury being invited by a prosecutor — or authorised by a judge — to proceed in this fashion.
The public interest in joint trials
As the Full Court decisions in R v Demirok[10] and in Gibb[11] illustrate, the question for the appeal court is whether, having regard to the course of the trial, the decision of the trial judge not to order a separate trial resulted in a miscarriage of justice.[12] Approaching the matter in that fashion ensures that appellate consideration begins with the powerful public interest considerations which favour joint trials, against which the prejudice said to have been suffered by the accused person must be weighed.[13]
[10][1976] VR 244 (‘Demirok’).
[11]Gibb [1983] 2 VR 155.
[12]Demirok [1976] VR 244, 251-2; Gibb [1983] 2 VR 155, 162.
[13]Demirok [1976] VR 244, 254; Gibb [1983] 2 VR 155, 166.
The classic exposition of the public interest in joint trials is that given by the Full Court in Demirok:
The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.[14]
[14]Demirok [1976] VR 244, 254; see also Webb v The Queen (1994) 181 CLR 42, 88–89.
In the present case, the trial judge quoted this passage in full, and invoked just these considerations, in refusing D’s application for a separate trial. The application was based principally on the argument that, unless there were separate trials, D would be unfairly disadvantaged by the credibility enhancement to which I have referred. The judge said:
A factor I do take into account in this particular matter is that were I to accede to all the applications there would be three separate trials, albeit trials of a relatively short duration, in my estimation, two to three weeks. Secondly, there is a risk of inconsistent verdicts with separate trials. The prosecution case here relies on the evidence of [J], the victim — [J] being accepted — that the accused in question was one of those who attended at his premises during the course of the home invasion.
Despite the evidence of the finding of the gun upon [T]'s arrest at a later time, and despite the fact of [V] being found in possession of items said to have been stolen from [J]’s premises in the weeks or months following, the evidence of [J] is critical to their fate. In relation to [Y][15] and [D] there is no other evidence that in any way implicates them other than through the word of [J].
Different juries may form different views of the credibility and reliability of [J], such that it would not be impossible nor unrealistic to find a situation where [Y] and [D] were convicted by a jury, there being no other evidence implicating them other than the word of [J], and either [T] or [V] being acquitted. Were such to occur, I would have expected that both [Y] and [D] being found guilty and either of the other two not guilty would give rise to a reasonable sense of grievance.
It is, in my view, highly desirable that there be a joint trial in this matter involving all of the accused for that reason alone. I say that not only because of the reasons I have thus far advanced, but because in this case all four of the counsel who are representing the four accused have one aim in attacking the prosecution case. That aim is to discredit [J] as a witness of truth, of credibility and of reliability in his purported identification of each of the accused respectively as being those who invaded his home.
There are aspects to both of expedition and convenience of witnesses in this case. The witness here, of course, is [J] solely. The other witnesses, in the main, will not be required to be called during the course of this retrial because it has been agreed by the parties that their evidence can be played via the audio-visual recording of them. But [J] himself would be required to give evidence, depending on how many separate [trials] I were to grant, at maximum another three times.[16]
[15]The abbreviation ‘Y’ is used for the co-accused, Day.
[16]Emphasis added.
In relation to the argument about credibility enhancement, his Honour said:
[It] has been argued that the jury may well form a favourable view of [J] as a witness of credibility, reliability and truth in his identification of [T] and [V], and that the jury having formed such a favourable view would then assess the evidence of [J] in that light concerning [Y] and [D] as being the other two participants in this home invasion.
That process that the jury may engage in is a legitimate one in my view. Until the case of R v PMT[17] … was drawn to my attention by [counsel for Y] this morning I had never heard of any suggestion that this would not be a legitimate process that the jury could engage in, in similar circumstances.
Further:
In my view, in this case it is well within the ability of the jury to assess the evidence of the complainant in the light of their own experience and with the benefit of the addresses of counsel without the necessity of the warning advocated by counsel for the applicant. It is my clear view that the jury can, taking [J]’s evidence as a whole, evaluate his reliability.
True, that reliability, credibility issues may be enhanced as a result of the possessions of the items that I have discussed by the two accused; [T] and [V]. It is also true that an attack which is successful perhaps by one or other of counsel on [J]’s credibility can also influence the jury's assessment in a general way and not only in relation to the particular accused the counsel is acting on behalf of who makes any such successful attack, but for the benefit of all the other accused.
[17]See [46] below.
In contradistinction to Demirok and to Gibb[18] (considered below), nothing happened in the course of this trial to create any additional prejudice to D. His argument at the end of the trial was exactly the same as it had been at the beginning, namely, that any enhancement of J’s credibility by the inadmissible evidence would be unfairly prejudicial to him. (At that stage of the trial, D’s counsel was submitting to the judge that he should direct the jury not to approach J’s credibility in the global way proposed by the prosecutor in final address.)
[18][1983] 2 VR 155.
As already indicated, I consider that the judge was correct to view that consideration as not requiring an order for separate trials. For the same reasons, his Honour was correct to direct the jury as he did when they asked if they could reason in that fashion. There was no miscarriage of justice.
The Victorian authorities
Victorian jurisprudence on this topic begins with — and continues to be guided by — the decision of the Full Court in Demirok.[19] In that case, the applicant (‘DM’) and his wife had been tried together, DM alone faced a charge of murder. They were both charged with wounding with intent to do murder. The issue of credibility enhancement arose because DM’s wife (his co-accused) had made a statement to police which was consistent with the Crown case. That statement was admissible only against her, but its content supported the account given by the victim’s widow, which incriminated DM.
[19][1976] VR 244.
An application for separate trials was made on the basis that to have the wife’s statement before the jury in a joint trial
might have the effect that, even if in accordance with the judge’s direction the members of the jury excluded it from their minds when considering the evidence against [DM], their confidence in [the widow’s] credit might be increased, so that without directly or consciously using the statement against [DM] they might nevertheless be more confident in relying upon the evidence of [the widow] against him.[20]
[20]Ibid 250.
The application for severance was refused. On appeal, it was contended that a combination of seven factors had produced such prejudice to DM that there had been a miscarriage of justice. Of the seven, the complaints relevant to the present question were that:
·the co-accused’s statement, although inadmissible against DM, enhanced the credibility of the evidence given by the widow against DM; and
·the Crown was ‘substantially relying upon evidence of one witness [the widow] which was open to serious challenge and that accordingly the inadmissible evidence [in the co-accused’s statement] was particularly dangerous’.[21]
[21]Ibid 253.
The Court concluded that there was no error in the judge’s exercise of discretion to refuse to order separate trials. Taking into account, however, the combined effect of the seven factors and ‘the course which the trial followed’, the Court concluded that there had been a miscarriage of justice. The significant development in the course of the trial had been the wife’s making of an unsworn statement, which contradicted her statement to police and supported her husband’s account. In the Court’s view:
She may in consequence have appeared to the jury not only to be confirming [the widow’s] evidence but also to be a liar in league with the applicant, her husband. If this had been a conclusion suggested by evidence admissible against him it is unlikely that he would have had ground for complaint. The fact is that the suggestion came entirely from evidence not admissible against him.[22]
[22]Ibid 254.
The Court continued:
When these considerations are added to the effect of placing the description of the facts in [the wife’s original police] statement before the jury, we think that the proper conclusion is that there was a miscarriage. We emphasize that we think that this results from a combination of the presence of the seven factors and the course which the trial followed. To make this clear, we say that we would not have taken the view that there had been a miscarriage of justice arising out of the joint trial if the fact had been that the applicant's wife had been charged jointly with him on the first count, nor do we think that there could be said to be a miscarriage of justice arising from the joint trial of the two accused on the second and third counts. The balance of the factors relevant to the public interest against the prejudice of the situation to the applicant would, in those cases, have justified or indeed required a joint trial.[23]
[23]Ibid 254–5 (emphasis added).
The Court concluded as follows:
Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or, in some situations, only marginally relevant. In very rare cases, of which we think this is one, although the trial has been correctly conducted, the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation, we think that it is not satisfactory to say that, the rules governing trials having been observed, there has been no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce. The miscarriage lies in the fact that, despite the correct application of the various rules, the trial has not been of the kind which those rules are intended to produce.[24]
[24]Ibid 255–6 (emphasis added).
Three points should be noted about the Court’s reasoning in these passages. First, it was only the combination of factors, and the course which the trial had taken, which had produced the miscarriage of justice. Secondly, the Court went out of its way to say that, if the wife had also been charged with murder, it would not have reached that conclusion. In those circumstances, the appeal would have failed, notwithstanding the risk of credibility enhancement:
The balance of the factors relevant to the public interest against the prejudice of the situation to the applicant would … have justified or indeed required a joint trial.[25]
[25]Ibid 255 (emphasis added).
Thirdly, as noted earlier, the combination of factors included that the evidence of the widow ‘was open to serious challenge’, which made the inadmissible evidence of the wife ‘particularly dangerous’.[26] This case-specific factor, which went well beyond mere credibility enhancement, was expressly part of the Court’s reasoning to its conclusion that this was one of the ‘very rare cases’ where, notwithstanding that the trial had been conducted correctly, the applicant had been (or might have been) exposed
to a conviction influenced by material which was both inadmissible and highly prejudicial.[27]
[26]Ibid 253.
[27]Ibid 255 (emphasis added).
In Gibb,[28] three accused were jointly presented on one count of murder. G had sought a separate trial, but his application was refused. On appeal, he contended that this refusal had resulted in a miscarriage of justice. The Full Court concluded that, although no ground had been shown for concluding that the judge’s exercised discretion had miscarried, the particular circumstances of the case had produced a miscarriage of justice.
[28][1983] 2 VR 155.
As the Full Court recorded in its reasons, the main thrust of the argument on appeal was that
a large amount of material which was highly prejudicial to [G] and which would not have been admissible if [G] had been tried separately had been placed before the jury.[29]
The prejudicial material was said to fall into three categories, namely:
·statements in the records of interview of the co-accused, which implicated G in connection with the offence;
·unsworn statements by the co-accused, which portrayed G as a person of bad character; and
·evidence led from a witness (‘M’), which established the truth of the accounts given by the co-accused in their records of interview and which, it was said, enhanced M’s credibility in her evidence against G.[30]
[29]Ibid 162.
[30]Ibid 162–3.
Credibility enhancement was, once again, only one of several factors relied on. The Court began its analysis as follows:
Of course, it commonly occurs when there is a joint trial that material admissible only against one accused is received in evidence and it is necessary for the trial judge to warn the jury that they must disregard that evidence in considering the case against the other accused. But it is said that it would be impossible to expect any jury to put all the material highly prejudicial to [G] out of their minds when considering the case against him and that therefore he could not have had a fair trial.
Where three persons are charged with the murder of another and the Crown alleges that all three were present at the time of the killing, the interests of justice ordinarily require that they be tried together. The interests of justice are not confined to the interests of the accused. It would usually be scandalous and a serious blot on the administration of justice if the ordering of separate trials in such cases resulted in inconsistent verdicts.
…
Joint trials of course raise difficulties, some of which cannot be foreseen at the outset. It is for this reason that a Court of Criminal Appeal must retain the power relied upon in R v Demirok. But that power will not generally be exercised merely because evidence which has been properly admitted in the case of one accused is inadmissible in the case of another and prejudicial to that other.[31]
[31]Ibid 163 (emphasis added).
The complaint about credibility enhancement was described in these terms:
In the case against [G] there was a good deal less evidence available to be used as corroboration of [M] than in the case against [the co-accused] where his statement to the police out of court and indeed his statement from the dock substantially corroborated her evidence. Thus the jury might in considering the case against [the co-accused] have concluded that [M’s] evidence was reliable, because corroborated, and if so it would be impossible to expect that the jury, when considering the case against [G] could approach the question of [M’s] evidence unaffected by the view of that evidence formed as a result of a consideration of it in the case in which it was corroborated.[32]
[32]Ibid 165.
The Court expressed the following view:
It is an inevitable feature of a joint trial that some deductions or impressions of the jury in one case must affect their consideration of the other. It is a consequence that must be accepted for the reasons which lead to the ordering of a joint trial. Were this not so, a jury might, theoretically, do the very thing sought to be avoided, that is, return inconsistent verdicts.[33]
[33]Ibid (emphasis added).
This passage is of central importance to the question raised by the present appeal. As can be seen, the Full Court here accepted the inevitability that jurors in a joint trial would transfer ‘deductions or impressions’ from their consideration of one case to their consideration of the other. Crucially, this was not only inevitable but was a ‘consequence that must be accepted’ in order to avoid inconsistent verdicts, that being the very thing which joint trials are intended to avoid. As noted earlier, the need to avoid inconsistent verdicts was central to the reasoning of the trial judge in the present case.[34]
[34]See [19] above.
The Court in Gibb concluded as follows:
Whilst none of the matters to which we have referred might standing alone necessarily be regarded as producing the result that there was a miscarriage of justice, we have come to the conclusion after prolonged consideration that a combination of all of them means that there was. It was probably not possible to determine in advance that a joint trial would or might have that effect, for it depended to a considerable degree on the course of the trial, the defences taken and the courses taken by the various accused. As in Demirok's Case, so in this case we do not think that the learned trial judge made any error in refusing the application for separate trials. But the course the trial took and in particular the evidence to which we have referred was so prejudicial to [G], and prejudicial to him in a way that would not have been possible if he had been tried separately, that we are called upon to weigh that prejudice against the matters of public interest referred in to R v Demirok … The length of the trial has underlined the significance of those matters. If ever the power referred to in that case is to be exercised this seems to be the occasion for it. The combination of circumstances was most unusual but in the balance between the public interest and a fair trial for [G] we think that the scales come down in favour of [G].[35]
As in Demirok,[36] it was the combination of factors that was decisive. It was said to be a ‘most unusual’ combination of circumstances, including as it did four different aspects of prejudice.
[35]Gibb [1983] 2 VR 155, 166 (emphasis added) (citation omitted).
[36][1976] VR 244.
In Waghorn,[37] the two applicants had been presented for trial jointly on a count of murder. Jones had made statements to the police implicating Waghorn. He then made full admissions himself. Waghorn denied involvement in the killing and did not give evidence at the trial. Jones made an unsworn statement.
[37](1991) 55 A Crim R 159.
Once again, the ground of appeal contended that the refusal of the trial judge to order separate trials had resulted in a miscarriage of justice. Two aspects of prejudice were relied on. The first was that the unsworn statement of Jones, which was not admissible against Waghorn, had nevertheless bolstered the credit of a witness (‘M’) who gave evidence against him. The second was that the unsworn evidence included what Crockett J described as ‘grave allegations of the possession by Waghorn of the worst possible bad character’.[38]
[38]Ibid 165.
Importantly for present purposes, Crockett J specifically held that the complaint of an unfair trial would have failed if it had rested solely on the likelihood that there had been credibility enhancement.[39] It was only when that factor was combined with the bad character evidence — which, in his Honour’s view, ‘added substantially … to the prejudicial matter’ with which Waghorn had to deal — that the claim of miscarriage of justice was made out.[40] Both Murphy J[41] and Smith J[42] reached similar conclusions, namely, that it was the combination of factors that was decisive. Smith J, in particular, dwelt at length on the highly prejudicial nature of the bad character evidence.[43]
[39]Ibid.
[40]Ibid 166.
[41]Ibid 167.
[42]Ibid 185.
[43]Ibid 181–4.
Murphy J recognised the impossibility of the jury being expected — or directed — to divide their assessment of the credibility of the common witness M into two separate parts. His Honour said:
I could not be satisfied that any warning by a trial judge … could hope to persuade a jury, which first accepted [M]’s evidence as to Jones’s implication in the killing, especially because of Jones’s admissions against interest confirmatory of it, to reconsider that same evidence implicating Waghorn, by disregarding the prior acceptance of it assisted by Jones’s admissions.[44]
[44]Ibid 167.
More recently, in R v Iaria,[45] Nettle J reviewed these authorities in considering an application for a separate trial. His Honour’s helpful summary of the applicable principles included the following:
first … where two or more persons are charged with murder at which all were present at the time of the killing, the interests of justice ordinarily require that they be tried together;
…
fifthly, care must be taken to explain to the jury that the case against each accused must be considered separately; and
sixthly, there are some cases in which such a direction will be ineffective and they may occur where one or at least perhaps more than one of the following considerations apply: where out-of-court statements of co-accused contain grave allegations of bad character of the accused; where there is evidence irrelevant to any issue between the Crown and the accused and which could not have been led at a separate trial of the accused but is admissible as to an issue between the Crown and the co-accused and is highly prejudicial to the accused; where evidence irrelevant to any issue between the Crown and the accused is admissible against a co-accused, and as against the co-accused serves to corroborate or reinforce the evidence of an eyewitness against the co-accused, and as a result the jury would be likely to believe the eyewitness, not only in what he or she may say against the co-accused, but also in what he or she may say as against the accused, at least where the Crown places heavy reliance upon that witness to implicate the accused and the evidence is open to serious challenge.[46]
[45][2004] VSC 110 (‘Iaria’).
[46]Ibid [6] (emphasis added).
As can be seen, his Honour’s reference to credibility enhancement included a significant qualification. In his Honour’s view, the risk of credibility enhancement of a common witness might render a ‘separate consideration’ direction ineffective
at least where the Crown places heavy reliance upon that witness to implicate the accused and the evidence is open to serious challenge.
Plainly enough, this qualification owes its origin to Demirok.[47] There, as noted earlier, the factors which (in the Full Court’s view) combined to produce a miscarriage of justice included:
·the ‘substantial reliance’ of the prosecution on the evidence of the victim’s widow, the credibility of whose evidence against DM was assumed to have been enhanced by the evidence admissible only against the co-accused; and
·the fact that the evidence of the widow ‘was open to serious challenge’.[48]
[47][1976] VR 244.
[48]See [59] below.
In Iaria, Nettle J rejected an argument — said to be based on the decision in Waghorn — that Panozzo [Iaria’s co-offender’] should have a separate trial because the case against him was much weaker than that against his co-accused. His Honour said:
[T]he submission appears to me somewhat to misconceive the effect of the decision in Waghorn, by construing it as meaning that where there is a marked disparity in strength of case as between an accused and co-accused, the potential for the production of evidence which is inadmissible against one co-accused will ordinarily warrant an order for separate trials. Properly understood, the point which appears to me to come out of Waghorn is simply that where there is evidence which is admissible against one co-accused and inadmissible against the other, and the jury would find it difficult to exclude that evidence from consideration against the other accused, and it would be likely to strengthen the credibility of a critical witness against that other accused, and thereby turn what is a weak case against him into a strong one; it is likely to be seen that the co-accused has been so much deprived of a fair trial as to constitute a miscarriage of justice.[49]
[49]Iaria [2004] VSC 110, [22] (emphasis added).
In other words, something more is required than mere credibility enhancement. In Nettle J’s formulation, the additional requirement is that the effect of the enhancement would be to ‘turn what is a weak case … into a strong one’. (I pause to point out that it may be difficult for a trial judge to assess, at the start of a joint trial, whether credibility enhancement would be likely to have such a dramatic impact on the prosecution case against a particular accused.)
Finally, reference should be made to the decision of the Court of Appeal in R v PMT,[50] to which the trial judge was referred in the course of argument on the application for separate trials.[51] That was not an appeal from a joint trial but an appeal against conviction on multiple charges of sexual offending against a single complainant (‘C’).
[50](2003) 8 VR 50 (‘PMT’).
[51]See [20] above.
The point at issue was whether the jury’s view of C’s credibility in respect of one allegation should have affected their view of her credibility in respect of others. Specifically, the appellant argued that the jury should have been given a Markuleski direction,[52] to the effect that if they entertained a reasonable doubt concerning the truthfulness or reliability of C’s evidence with respect to one or more counts, that must be taken into account in assessing the truthfulness or reliability of her evidence generally.
[52]See R v Markuleski (2001) 52 NSWLR 82.
The Court rejected the argument. The principal judgment was given by Buchanan JA, with whom Charles and Chernov JJA agreed. The relevant part of his Honour’s reasoning was as follows:
I think it unlikely that a jury given a separate consideration direction will be entirely uninfluenced by the impressions they derive from the evidence of a witness taken as a whole; I doubt that such a natural tendency needs judicial encouragement in the form of a Markuleski direction. Further, I am of the opinion that the proposed direction is likely to promote propensity reasoning and produce confusion rather than assist a jury to properly evaluate the evidence. In my view, in this case it was well within the ability of the jury to assess the evidence of the complainant in the light of their own experience and with the benefit of the addresses of counsel, without the necessity of the warning advocated by counsel for the applicant.[53]
[53]PMT (2003) 8 VR 50, 59 [32] (citation omitted).
As can be seen, his Honour here acknowledged the ‘natural tendency’ of a jury to be influenced ‘by the impressions they derive from the evidence of a witness taken as a whole’. Put another way, the Court here recognised — in a different trial context — the inevitability of jurors making a global assessment of a witness’s credibility.
Interstate decisions
The interstate jurisprudence on joint trials is to very similar effect. In Jones,[54] a majority of the South Australian Court of Criminal Appeal emphatically rejected grounds of appeal contending that credibility enhancement (expressly authorised by the judge’s charge) had rendered a joint trial unfair. In that case, eight men were jointly charged with murder and were presented for trial together. An application for separate trials was refused. The jury convicted four of the men, each of whom then appealed against his conviction.
[54](2006) 161 A Crim R 511.
The relevant grounds of appeal contended that the judge had allowed out-of-court admissions made by three of the accused (‘V’, ‘A’ and ‘F’) to be used ‘in an impermissible way’ in the cases against the other accused.[55] Bleby J (with whom Anderson J agreed) began by highlighting the
distinction between evidence which is capable of amounting to corroboration and evidence which is not necessarily relevant to the case against an accused but which may tend to affect the jury’s assessment of the reliability of a witness whose evidence is in dispute.[56]
His Honour then said:
It follows that, in a trial of multiple defendants, evidence which is admissible only against one accused or, strictly speaking, evidence which is not admissible or even relevant to the case against another accused may assume additional relevance to the jury in determining whether the disputed evidence of a particular witness admissible against any accused should be accepted. The question is not whether that evidence may be said to corroborate the evidence of the witness in the case against any accused. That requires quite different criteria.[57]
[55]Ibid 574 [335].
[56]Ibid 574 [336].
[57]Ibid 578 [347].
It is sufficient for present purposes to refer to only one of the impugned passages of the charge, in which the trial judge was discussing the evidence of a witness (‘R’) whose evidence — like J’s evidence in the present case — was admissible against multiple accused. The judge had said to the jury:
Those are all matters, ladies and gentlemen, that you should consider when assessing the reliability of her evidence. You might also wish to consider whether there are aspects of her evidence which have been proved which are shown to be consistent with her account. She said that [U] was driving a motor car. [U] has admitted driving his car and being at the park that night. She asserted that [F] was driving a motor car. [F] has admitted being in his car and driving it to the park that night. She said that [A] said that he was going with those persons. [A] has admitted going to the area of the park in the car driven by [F]. [F] has also admitted being in the area of the park as she has said. She said that [A] was wearing a yellow jumper. [A] admits that he was wearing a yellow jumper that night. Those are but five or six matters where her evidence is consistent with proven facts. I repeat, they are all matters for you to consider, whether you are prepared to rely on any part of her evidence or reject it.[58]
[58]Ibid 578 [349] (emphasis in original).
Having set out this passage, Bleby J explained the highlighted passages as follows:
The passages in italics refer to the admissions made in the out of court statements or formally in court. The passages in bold indicate the purpose for which the Judge was suggesting that the admissions could be used. It was for no other purpose than assessing the reliability of the evidence of R. In my opinion, evidence of the admissions should properly be used for that purpose and there is no defect in that passage of the summing up.[59]
[59]Ibid 578 [350].
In concluding that the separate trials application had been correctly refused, Bleby J said:
As was pointed out in R v Demirok, one of the relevant considerations is that it is ‘against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict, their differences should be resolved by the same jury at the same trial’. This is particularly so in a case like the present where it was alleged that some seven people were involved in a simultaneous attack on the deceased. A necessary corollary of that principle is that a jury should apply the disputed evidence of witnesses at the trial consistently in relation to the case against each individual accused.
If the submissions of the appellants were to be accepted on these grounds, the directions to a jury in a case like this would become quite illogical and absurd and would necessarily undermine that principle. The jury would have to be told, for example, that in considering the reliability of [R] and [S] as witnesses in the case against [U] they could use this admission that he drove his car to the park as supporting their evidence and their reliability because it was consistent with their evidence, but they could not use it when considering the reliability of those witnesses in the case against the other accused which would not have that same degree of support. This gives rise to the quite illogical and absurd position that the jury, so instructed, might find that a witness’s evidence could be relied on in the case against one accused but that the same witness giving the same evidence cannot be relied on in the case against another accused because it does not have the same degree of support. Add to that similar directions in relation to the case against other defendants in the same case and the jury’s task becomes quite unreal, if not impossible.[60]
[60]Ibid 581–2 [361]–[362] (emphasis added) (citation omitted).
The position in Queensland was summarised by Fraser JA (with whom White JA agreed) in R v Belford,[61] as follows:
Generally, there are strong reasons of principle and public policy why joint offences should be tried jointly. The mere fact that one result will be that evidence admissible against one accused but inadmissible against the other accused will be before the jury is not a sufficient reason for ordering separate trials. The strong reasons for a joint trial are strengthened where each of the accused deploys a ‘cut throat’ defence of seeking to incriminate the other. Those and other considerations which favour joint offences being tried jointly must be weighed against the risk that evidence that would not be admitted at the trial of one accused may prejudice the fair trial of that accused. Cases where separate trials should be ordered include those where the evidence admissible against each accused ‘is impossible or at least extremely difficult to disentangle and the evidence against one is highly prejudicial against the other’, where the directions given by the trial judge to avoid prejudice require ‘remarkable mental feats’ that the jury could not be expected to perform, or where the prejudice may be such as to ‘cause a jury even to ignore the directions of a trial judge’.
[61][2011] QCA 43, [104] (‘Belford’) (citations omitted).
The issue of credibility enhancement was not directly raised in Belford but was subsequently addressed by the Queensland Court of Appeal in R v Swan.[62] There, two accused (‘A’ and ‘B’) had been tried jointly for murder. The witness whose credibility was in issue (‘M’) gave evidence only against A, but the credibility of her account was bolstered by statements made by B in his record of interview, which was of course inadmissible against A.
[62][2013] QCA 217 (‘Swan’).
The leading judgment was delivered by Holmes JA (with whom Applegarth and Jackson JJ agreed). After referring to the public interest considerations identified in Demirok,[63] her Honour said:[64]
I have come to the conclusion that the prejudice to [A], in trying him before a jury which also had before it the case against [B], was beyond cure by direction and that the consequence was a miscarriage of justice. [B]’s statements and interviews contained a great deal of prejudicial material, the effect of which was particularly acute in a situation where the jury was considering which of them was responsible for the killing.
Those matters … might have been capable of remedy by appropriate directions.
What was not capable of being so resolved was the problem that [B]’s account reinforced [M] on aspects that were critical in establishing a case against [A]: the story of his violence to [the victim] at the roadside with, at the same time, the withdrawal of [B] from the attack on [the victim] and her indication in the admonition ‘that’s enough’, that no further harm should be done to the woman. It was inevitable that the jury would regard [M]’s account as more credible for that reinforcement; and, as I have indicated, those circumstances were pivotal to a conviction of [A].
The case, in my view, is distinguishable from Belford & Bound, in which the inadmissible evidence contained in the co-accused’s interview was not of great significance, taken in context with the admissible evidence on the same point. The case against [A] was not strong; it depended entirely on [M]’s version of events, and her credibility, which there were many reasons to question, was critical.
It is evident from the summing-up that [B]’s counsel had addressed the jury on the basis of the ‘common story’ of [M] and [B], emphasising that both women were in fear of [A]. The trial judge did not attempt to direct the jury that, while [B] was entitled to point to the correspondence of her account with [M]’s to argue that both of them should be believed as to [A]’s violence, [M]’s credit in the case against [A] should be assessed only on the evidence admissible against him. I do not say that as any criticism of her Honour, because it seems to me that to do so could only have resulted in confusion. But the difficulty of fashioning a coherent and comprehensible direction which explained that [M]’s credit had to be assessed separately on each of the two cases highlights the problem of attempting to try [B] and [A] together.
The problem is of the same kind as was identified in successful appeals in R v Demirok, R v Jones and R v Pham: the impossibility of arriving at a direction which the jury could both comprehend and be expected to follow. Everything turned on [M]’s credibility, which could be regarded differently depending on which set of evidence — that admissible against [B] or that admissible against [A] — it was assessed against. A jury could not reasonably be expected to arrive at a view of her credit based on the case against [B] and then embark again on the same exercise, but disregarding that evidence, in relation to the case against [A].
[63][1976] VR 244.
[64]Swan [2013] QCA 217, [40]–[45] (emphasis added) (citations omitted).
In concurring, Jackson J identified the question as being
whether the task of the jury, properly directed, required that they undertake unrealistic mental gymnastics to a degree that [A] was unfairly denied the right to a fair trial.
My concern is grounded in the difficulty of formulating, in similar cases, a practicable articulation of the distinction to be drawn between a case where the line has been crossed and one where it has not.[65]
His Honour continued:[66]
Some of the problems in this area are intractable. Where defendants are tried together in circumstances like the present case, there will often be evidence of admissions receivable against one but not the other. It also must often be true that the ‘credibility’ of the evidence of a witness against one defendant could be affected if regard is had to the inadmissible evidence against that defendant but admissible against the other.
So, the problem presented by the present case is not to be resolved in favour of separate trials simply because those risks exist, in general. The strong resolve of the High Court in favour of the principle that co-offenders should be tried together, as articulated in Webb v The Queen, informs the consideration of any problem of this kind.
As I understand Holmes JA’s reasons, the dividing line in this case is crossed because of the combination of the circumstances that the case was not a strong one against [A] and depended on [M]’s version and her credibility, which there were many reasons to question. Against that background in at least two important respects, the evidence inadmissible against [A] bolstered [M]’s credibility.
I regard the particular problem with which this line of cases deals to be that which arises where the crown case against the relevant defendant is weak and turns on the credibility of an important witness or witnesses about whom there is an apparent real question of credibility. A separate trial may be called for where the apparent evidence admissible against another defendant but not against the relevant defendant would have the effect of bolstering the important witnesses’ credibility against the relevant defendant.
[65]Ibid [51]–[52].
[66]Ibid [53]–[55], [64] (emphasis added) (citation omitted).
There is an obvious parallel between the reasoning in Swan and that in the Victorian decisions discussed earlier. As can be seen, it was the view of the Queensland Court of Appeal that
(c) a jury could not reasonably be expected to approach the common witness’s credit as if it were divisible, to be separately assessed in the case against each accused;
(d) it was impossible to fashion a direction which the jury could be expected to comprehend, or comply with, so as to avoid credibility enhancement; and
(e) it was the existence of additional features — the weak case against A, and the Crown’s heavy reliance on the evidence of M, whose credit was open to serious question — which meant that the ‘dividing line’ was crossed.
In New South Wales, successive decisions of the Court of Criminal Appeal have likewise focused on the substantive prejudice likely to have flowed from the leading of the relevantly inadmissible evidence. In 1994 and again in 1999,[67] the Court of Criminal Appeal approved the following summary by Hunt J in R v Middis[68] of the circumstances in which separate trials should be ordered:
Briefly, the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.
[67]R v Baartman (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Gleeson CJ, Powell JA and Smart J, 6 October 1994); R v Fernando [1999] NSWCCA 66, [210].
[68]Unreported, Supreme Court of New South Wales, Hunt J, 27 March 1991 (emphasis added).
Hunt J thus specified three quite stringent conditions, all of which need to be satisfied if the case for a separate trial is to be made good. Once again, the considerations are recognisably similar to those identified in the Victorian decisions, and are directed at substantive prejudice: the inadmissible evidence must be shown to be ‘highly prejudicial’ to the applicant accused, and there must be a real risk that it would strengthen an otherwise weak case against the applicant.
In relation to ‘positive injustice’, Hunt J referred to an earlier decision of the Court of Criminal Appeal in R v Oliver[69] and said:[70]
In my view, what the Court of Criminal Appeal was saying [in Oliver] was that, as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would … if it arises … result in positive injustice to him in a joint trial.
…
Obviously enough, all manner of prejudice may be surmised which, if it arises, would not result in such positive injustice. In my opinion, an applicant for a separate trial must demonstrate that there is a real risk (as opposed to a remote possibility) that there will arise in a joint trial prejudice of the type which … if it arises would result in positive injustice to him.
[69](1984) 57 ALR 543, 547.
[70]Unreported, Supreme Court of New South Wales, Hunt J, 27 March 1991.
Subsequently, in R v Pham,[71] the Court of Criminal Appeal adopted Hunt J’s summary with certain qualifications. The principal judgment was written by Adams J (with whom Spigelman CJ agreed). His Honour said:
Two phrases in this summary need some explanation. In ordinary speech, ‘immeasurably’ usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant ‘significant, though incommensurable’. The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to ‘positive injustice’. Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence.
I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant’s case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender’s case is material. Indeed, the opposite would seem to be the case since, if the co-accused’s case was weak, or weaker than the applicant’s, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury’s consideration of the applicant’s case.
[71][2004] NSWCCA 190, [39]–[40] (emphasis added) (‘Pham’).
It was this last issue — the potential effect of the inadmissible evidence — which Adams J viewed as decisive. Pham was a case much like Gibb.[72] The co-accused had given a ‘very long and detailed interview’ to police which incriminated P, the applicant for a separate trial. The record of interview was, of course, inadmissible against P. Adams J concluded that there had been a miscarriage of justice in the joint trial because the substantive content of the co-accused’s interview ‘confirmed, from a source in a position to know and relevantly independent’, incriminating evidence to be given against P by other witnesses.[73] It would have been ‘virtually impossible’ for the jury to avoid using the inadmissible evidence in the case against P.[74]
[72][1983] 2 VR 155.
[73]Pham [2004] NSWCCA 190, [49].
[74]Ibid [50].
As in Gibb, the inadmissible evidence had caused substantive prejudice. On Adams J’s analysis, this was not a case of credibility enhancement at all. Rather — to pick up the distinction drawn at the outset of these reasons — this was a substantive misuse of the inadmissible evidence, giving it probative value in P’s case when it had none.[75]
[75]See [13] above.
On the other hand, Hulme J (with whom Spigelman CJ also agreed) viewed credibility enhancement as the decisive issue:
Whether or not the jury could have put out of its mind when considering the case against [P] the recorded interview, inadmissible against him, there was no practicable way they could have assessed the credibility or reliability of the evidence of the two witnesses differently in the case against [P] than they had or would have done in the case against his brother. Thus in effect, the interview must have intruded into the case against [P] when it was not admissible against him. In reaching this conclusion, I do not disregard the judge’s directions to the jury nor the commonly accepted view, which I share, that juries can and generally do, adhere to the directions they are given. But I do not believe that the jury could, in this case, separately form 2 assessments of the reliability of each of the Crown’s principal witnesses, one assessment using the evidence of the interview and the other, by ignoring it.[76]
This is the only appellate judgment of which I am aware which has concluded that credibility enhancement — standing alone — rendered a joint trial unfair.
WEINBERG JA
[76]Pham [2004] NSWCCA 190, [8].
BEACH JA:
Introduction
On 19 July 2013, following a 28 day trial in the County Court, the applicants Jasmin Destanovic and Taniora Tangaloa, were each convicted of one charge of aggravated burglary, one charge of intentionally causing serious injury and one charge of armed robbery. A co-accused, Jack Vaotangi, was found guilty of the same charges, however the jury failed to reach verdicts on the same charges in respect of another alleged co-offender, Henry Day.[77]
[77]Subsequently, on 28 August 2013, the Crown entered a nolle prosequi in relation to Day.
Following plea hearings that took place over a number of days in 2013, the applicants were sentenced on 31 January 2014 as follows:
Jasmin Destanovic Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(1)] 4 years 12 months 2 Intentionally causing serious injury [Crimes Act 1958 s 16] 20 years [Crimes Act 1958 s 16] 3 years 12 months 3 Armed robbery [Crimes Act 1958 s 75A(1)] 25 years [Crimes Act 1958 s 75A(1)] 6 years Base Total Effective Sentence: 8 years Non-Parole Period: 5 years Pre-sentence Detention Declared: 307 days
Taniora Tangaloa Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(1)] 4 years 12 months 2 Intentionally causing serious injury [Crimes Act 1958 s 16] 20 years [Crimes Act 1958 s 16] 3 years 12 months 3 Armed robbery [Crimes Act 1958 s 75A(1)] 25 years [Crimes Act 1958 s 75A(1)] 6 years Base Total Effective Sentence: 8 years Non-Parole Period: 5 years Pre-sentence Detention Declared: 307 days
The co-offender, Vaotangi, received a total effective sentence of 7 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months.
Destanovic and Tangaloa each seek leave to appeal against both their convictions and the sentences imposed.
Destanovic seeks leave to appeal against conviction on the following grounds:
1.The learned trial judge erred, and a substantial miscarriage of justice occurred thereby, by permitting and then endorsing a prosecution argument whereby the jury were invited to use the convictions of the co-accused Tangaloa and Vaotangi as a reason for convicting the applicant.
2.The learned trial judge erred, and a substantial miscarriage of justice occurred thereby, by failing to order that the applicant be tried separately from his co-accused.[78]
[78]A third ground in which it was contended that the verdicts of guilty were unreasonable and against the weight of the evidence was abandoned by Destanovic at the hearing of the applications for leave to appeal.
Destanovic seeks leave to appeal against sentence on the following grounds:
1.The learned sentencing judge failed properly to take into account in mitigation of penalty the very long delay that had elapsed between the commission of the offences and sentence.
2.The learned sentencing judge erred by doubly punishing the applicant.
3.The learned sentencing judge erred by imposing individual sentences, a total effective head sentence and non-parole period that were manifestly excessive in all the circumstances.
Tangaloa seeks leave to appeal against conviction on the following grounds:
1.A substantial miscarriage of justice arose in the applicant’s case as a result of the learned trial judge permitting the jury to reach a finding that the gun found in the applicant’s possession on 5 February, 2009 was the same gun produced by one of the offenders in the incident giving rise to the charges on the indictment.
2.The learned trial judge erred in directing the jury that they could use a finding that Mr Jones was correct in his evidence about the co-accused Vaotangi’s participation — to enhance the overall credibility and reliability of Mr Jones as a witness.
Tangaloa seeks leave to appeal against sentence on the following ground:
1.The individual sentence on the charge of armed robbery, the total effective sentence and the non-parole period are each manifestly excessive, in that the learned sentencing judge failed to sufficiently moderate the sentences on account of the delay that had arisen in the applicant’s case.
Circumstances of offending and parties’ cases at trial
The complainant in the trial was one Stephen Jones. On 15 January 2009, at about 7:30pm, a number of men carried out a home invasion at the complainant’s home.
After ringing the doorbell, they kicked in the front door of the house and forced the complainant from the ensuite in which he had shut himself. Two of the men restrained the complainant by the shoulders on the floor of his bedroom, while a third put him in a headlock and put a handgun into his mouth. The man with the handgun demanded the keys to two Harley Davidson motorcycles the complainant owned and all the money he had in the house. The man with the handgun then told the complainant that he was going to die. This offender then counted to three and pulled the trigger of the handgun. The complainant heard a ‘click’ sound, but the handgun was not loaded. The complainant lost control of his bladder in fear. The man with the handgun then loaded it with ammunition he took from a bum bag he was wearing.
The complainant tried to make an escape, but was grabbed by his hair and pulled onto his bed. The man with the gun pointed it at the complainant’s arms and legs, and said ‘Where do you want it? You’re gonna cop one today, where do you want it?’ The complainant pleaded for his life. The intruders then hit the complainant a number of times in the head, and one of them cut his right ear with a knife. Later, the complainant recalled being held near the bedroom door to the hallway when another man kicked him to the left side of his face. The man that had previously threatened the complainant with the handgun then hit him on the head with a guitar so forcefully that the guitar shattered. Before the intruders left, the complainant was told that he would be killed if he went to the police.
After the men left, the complainant managed to walk to his neighbour’s house. He was bloodied and initially they could not recognise him. They called an ambulance at 7:51pm. As a result of the assaults, the complainant suffered multiple cuts to his face in the area of his forehead, nose, eyes and in particular a cut to his right ear. He suffered fractures to his left cheekbone, eye socket and anterior maxillary sinus, as well as damage to his teeth.
The perpetrators of the home invasion stole two motorcycles belonging to the complainant (valued in total at approximately $100,000), and the complainant’s Holden Commodore. Other portable items of value were also stolen from the complainant’s home.
At trial, the complainant identified Destanovic, Tangaloa, Vaotangi and Day as perpetrators of the home invasion. The prosecution case was that the applicants were two of the offenders present during the home invasion, together with Vaotangi and Day. The prosecution contended that Tangaloa was the man who threatened the complainant with the handgun and later hit him with the guitar. Tangaloa was found with a handgun upon his arrest on 5 February 2009, and it was the prosecution case that this was the same handgun that was used in the home invasion. So far as Vaotangi was concerned, evidence was given at trial that, in late January and early February 2009, he had been seen to be in possession of the motorcycles and other property stolen from the complainant during the home invasion. Apart from the evidence of the finding of the handgun (admissible only against Tangaloa) and the evidence of property belonging to the complainant being seen in the possession of Vaotangi (admissible only against Vaotangi), the only other relevant evidence admissible against the applicants was the identification of each applicant given by the complainant.
At trial, the prosecution contended each of the accused were engaged in a joint criminal enterprise, and that the evidence of the actions of each of the participants in furtherance of the agreement under which they were acting was admissible against each of the other alleged participants in the criminal conduct that was engaged in on 15 January 2009.
The applicants’ cases at trial were that they were not present during the home invasion. Each applicant contended that, in identifying that applicant as one of the perpetrators of the home invasion, the complainant lied.[79] Further, it was Tangaloa’s case that the handgun he was found with at the time of his arrest was not the gun described by the complainant as having been used to threaten the applicant during the course of the home invasion.
[79]Vaotangi’s and Day’s cases at trial were also that they were not present during the home invasion. They too put the credibility of the complainant in issue, although Day was also able to put the reliability of the complainant’s identification of him in issue having regard to the time at which the perpetrator alleged to be Day was seen by the complainant (after the complainant had already been threatened with the handgun, lost control of his bladder and been severely beaten).
The issue for the jury to determine was whether the prosecution had proven beyond reasonable doubt that the applicants were each present as part of the group of offenders who carried out the home invasion. The applicants conducted their cases at trial on the basis that if the jury was satisfied beyond reasonable doubt as to the participation of the applicants in the home invasion, then there was no contest by either applicant about the other elements of the offences for which they were both ultimately convicted.
Destanovic conviction: ground 1
The genesis of Destanovic’s conviction ground 1 is to be found in the final address of the prosecutor.[80] The prosecutor said:
Now if you find the handgun found by the police on Tangaloa was the handgun used in the incident, then that evidence supports Jones’ evidence that Tangaloa was the attacker. If you find that Vaotangi was the attacker and/or that Tangaloa was an attacker what that must do is enhance your confidence generally in Jones being an honest and reliable witness. If so that could, and I say should, reflect in your assessment of Jones’ evidence, Day and Destanovic were members of the team that attacked him.
[80]Not counsel who appeared for the Crown before us.
No objection was taken by counsel for any accused following this statement, or at the conclusion of the prosecutor’s address. Counsel for each accused addressed the jury, and then the judge commenced his charge.
The judge’s charge to the jury was a model of clarity. In the course of his charge, his Honour gave separate consideration directions that can only be described as impeccable. These directions made it plain to the jury that in considering the case against each accused, the evidence had to be looked at separately, and only by reference to that which was admissible against the particular accused whose case was then being considered. No complaint is made by either applicant about the judge’s charge concerning the issue of separate consideration.
However, during the course of the charge, and after the judge had given his directions concerning the topics of separate consideration and inferential reasoning, the jury asked a question in the following terms:
If gun found to be the same gun (Tangaloa) and — for possession of property concluded to demonstrate participant in theft (Vaotangi):
Can inferential reasoning then be used in regard to accuracy of Jones’ evidence and subsequent presence of Day and Destanovic?
In debate with the judge, the prosecutor submitted that the issue of inferential reasoning was irrelevant to the jury’s question. The judge agreed. However, the prosecutor maintained the position he put in his final address, namely that if the jury concluded that the handgun found by police on Tangaloa was the handgun used in the home invasion then that evidence supported the complainant’s evidence that Tangaloa was an attacker; and similarly, if the jury found that Vaotangi was the perpetrator then that too could enhance the jury’s confidence generally in the complainant being a credible witness. If these matters were found by the jury, the prosecutor contended that they could be used to enhance the credibility of the complainant so far as his evidence that Destanovic and Day were also part of the home invasion.
On the other hand, counsel for Destanovic, while agreeing that inferential reasoning was a red herring, submitted that any finding by the jury in relation to the evidence admissible only against Tangaloa and Vaotangi could not be used in any way against his client. Specifically, counsel for Destanovic submitted that the acceptance of evidence relevant and admissible only against Destanovic’s co-accused could not be used to bolster the credibility of the complainant so far as Destanovic’s trial was concerned.
The judge did not accept the submission made by counsel for Destanovic. The judge answered the jury’s question as follows:
The first part of my direction in relation to answering that question is inferential reasoning has got nothing to do with Day or Destanovic, inferential reasoning is relevant in the trial of Tangaloa insofar as the pistol is concerned. It has just got nothing to do with any of the other three accused men. Inferential reasoning is relevant in the trial of Vaotangi concerning the possession of the Harley‑Davidsons et cetera. It is irrelevant in relation to the trials of the other three men. Those pieces of evidence cannot be used to prove participation by any of the others. They are strictly relevant only to those two accused.
During the course of this trial [the prosecutor] in his final address made the point, which is perhaps the genesis for this question, that if you find that Jones was right about that being the same gun in the trial of Tangaloa, and/or if you find that Jones was right about Vaotangi being present via the inferential reasoning concerning the Harley-Davidsons and recent possession, then you could consider that Mr Jones’ reliability as a witness, his credibility and his truthfulness as a witness are enhanced, and the argument then moved on, well, when you do consider the evidence concerning Day from Jones and the evidence concerning Destanovic from Jones being present, then you can consider your assessment of Jones in the broad as being potentially, it is a matter for you, a reliable witness, a credible witness. So when you consider the evidence of a particular witness, and this is so in any trial, you look holistically at all of the evidence and you make your assessment of that witness’s evidence, in the broad, and also, of course, in the particular, as you consider a particular trial. It is not as if a witness such as Jones is to be compartmentalized entirely. What is compartmentalized is the relevant evidence, and Jones, the evidence of the gun being found, is only relevant to proving, if you so find, Tangaloa’s presence. The relevance of the possession, in the way in which I have defined it of the Harley‑Davidsons et cetera, is relevant solely to prove, if you so find, Mr Vaotangi’s presence. They are not, as I have said, relevant to any of the other respective three accused. But in your overall assessment of a witness you are entitled to look to the whole of his or her evidence and see how it fits with the other evidence called in the trial, or does not fit.
The argument as presented in the broadest terms by [the prosecutor] is a legitimate argument that you may, if you come to the conclusion that having regard to those other pieces of evidence, that Jones is a reliable witness, in that regard you can, it is up to you, consider that finding, if you like, that assessment, in relation to him as a witness of reliability or credibility and truthfulness, that is a process of you making an assessment of a particular witness having regard to all the evidence, then looking to the trial of the particular accused in question and the evidence relevant to that particular accused.
The defence have taken a completely different tack and they have not confined their attack simply to matters relevant to their particular accused. For example, in relation to Mr Day the admitted lie by Jones as to Mr Day’s ethnicity reflects, as you will appreciate, in your assessment again, generally, so it is sauce for the goose and sauce for the gander. The defence themselves say, look, here is an example, and there are so many other examples of inconsistencies. For example, that falsehood has been utilized by all other three counsel to attack Jones’ credibility. Another example, you might think, is Mr Jones’ changes in his account, from the Morrisons to the ambos to the police, and his changes in him making a statement where he denies knowing all four accused in a sworn statement. So all four are entitled to say, ‘Well, not only did he not name me, but he did not name Mr Day or Mr Vaotangi, he did not name Mr Tangaloa’. So this is a process which [the prosecutor] says, he has got it right, if you so find, in relation to Tangaloa, the same gun. That’s his argument. He has got it right in relation to Mr Vaotangi. His possession of those items, [the prosecutor] argues, establishes he was there, he was the thief, or a thief.
The defence say, ‘Look at all these other inconsistencies’, so there are attempts to show consistency, there are attempts to show inconsistency, and all the evidence that is before you is relevant to your assessment of Jones as an honest, reliable and credible witness.
That is the situation. As with any witness, it is a matter for you to make your assessment in the broad having regard to what other evidence is before you, having regard to what other statements have been made by that witness, in precisely the way that it has been argued before you by [the prosecutor] on behalf of the prosecution and by all four counsel on behalf of the defence. They have all sought to generally attack or support Mr Jones, and that is a legitimate process, by reference to other evidence.
But there is one matter that I wish to draw your attention to, and this is, of course, also a direction of law. You must in that process bear steadily in mind in relation to Mr Day and the judicial warning that I gave to you as to Mr Jones’ purported identification of Day, simply because, let us say you find Jones to be reliable in one aspect, it does not mean he is reliable or accurate in relation to other aspects. In particular, let us just say, and I take a hypothetical, that you accept 100 per cent, to use Mr Jones’ phrase, that he has got it right with Tangaloa, he had got it right with Vaotangi, he has got it right with Destanovic. Just accept that, just in the broad. That does not translate in him being accurate and a reliable witness in the identification of Mr Day because of the reasons which I have articulated to you. The glimpse, the opportunity, his state of physical health, his state of mind, and all the other matters that I drew your attention to. That is so not only in relation to Mr Day, in terms of that particular aspect of his evidence of identification of Day, but it is a matter for you to consider the reliability the honesty and the truthfulness of Mr Jones.
Finding that he is reliable, truthful and honest in relation to one matter, or two, does not translate automatically into everything else. You must critically assess Mr Jones in relation to his evidence as it relates to each of the accused in each of their trials. That is a matter of commonsense. It is a matter of law. It follows from my directions to you on repeated occasions about there being four separate trials being conducted here.
Whether or not the jury could have put out of its mind when considering the case against the Appellant the recorded interview, inadmissible against him, there was no practicable way they could have assessed the credibility or reliability of the evidence of the two witnesses differently in the case against the Appellant than they had or would have done in the case against his brother. Thus in effect, the interview must have intruded into the case against the Appellant when it was not admissible against him. In reaching this conclusion, I do not disregard the judge’s directions to the jury nor the commonly accepted view, which I share, that juries can and generally do, adhere to the directions they are given. But I do not believe that the jury could, in this case, separately form [two] assessments of the reliability of each of the Crown’s principal witnesses, one assessment using the evidence of the interview and the other, by ignoring it.[97]
[97]Ibid [6]–[8].
As Pham shows, there will be cases where, notwithstanding the most careful and stringent separate consideration direction having been given, a trial judge will conclude that nothing short of granting separate trials will suffice. That problem will arise, in perhaps its most acute form, where a jury is expected to form two quite separate (and possibly different) assessments of the credibility of a single witness, based upon evidence admissible against one accused but not the other.
This very issue arose in R v Swan.[98] In that case, there were two co-accused (the appellant and one Smith). The relevant witness, Mondientz, gave evidence against both accused. Her credibility had the capacity to be bolstered in the case against the appellant by virtue of certain evidence that was inadmissible against him, namely admissions contained in Smith’s record of interview.
[98][2013] QCA 217 (‘Swan’).
In holding that there should have been separate trials, Holmes JA (with whom Applegarth and Jackson JJ agreed) said:
What was not capable of being so resolved was the problem that Smith’s account reinforced Mondientz’ on aspects that were critical in establishing a case against Swan: the story of his violence to Ms Quirk at the roadside with, at the same time, the withdrawal of Smith from the attack on Ms Quirk and her indication in the admonition ‘that’s enough’, that no further harm should be done to the woman. It was inevitable that the jury would regard Mondientz’ account as more credible for that reinforcement; and, as I have indicated, those circumstances were pivotal to a conviction of Swan.[99]
[99]Ibid [42].
Both Pham and Swan are useful examples of the difficulties that can arise in joint trials where matters of credibility are in issue. They provide support for the approach that we think has long prevailed in this State. An accused is entitled to be tried on the evidence admissible against him or her, and solely on that evidence. The accused is not to be convicted by a ‘side wind’, through evidence that bolsters the credibility of a key prosecution witness, but forms no part of the Crown case against that accused.
Thus, the premise upon which we proceed is that the prosecutor’s invitation to the jury, in his closing address, to use the extremely strong evidence that was available against the two co-accused, Vaotangi and Tangaloa, to enhance the credibility of the complainant’s evidence against Destanovic was misconceived. His submission was inappropriate.
In ordinary circumstances, that might have led nowhere. The jury had previously been warned that they had to give separate consideration to the evidence admissible against each accused, and had been told that the circumstantial evidence admissible against Vaotangi and Tangaloa was not admissible against the applicant.
However, this was a particularly intelligent jury. Rather than gloss over what they had been told, they were plainly troubled by what they correctly perceived to be an inconsistency between the separate consideration direction, and the prosecutor’s invitation to them to use inadmissible evidence, albeit indirectly, when considering the applicant’s guilt. They specifically asked for guidance from the judge as to whether what the prosecutor had said was correct. As we have seen, his Honour gave his imprimatur to the prosecutor’s submission, and invited the jury to reason in accordance with it.
In the vast majority of cases, no issue of the kind raised by ground 1 of Destanovic’s application will arise. Ordinarily, the matter will be dealt with in an orthodox manner in accordance with the well-established principles that govern joint trials. The judge will have to determine whether, notwithstanding the separate consideration direction that will inevitably be given, there is a real risk that the jury may find the task of compartmentalising the evidence altogether too difficult. Depending upon the particular circumstances of the case, a judge may conclude, as Kaye J did in Cox,[100] that the risk is simply too great, and that the interests of justice require the granting of separate trials. On the other hand, given different facts, the judge may conclude that a joint trial can proceed. And there is always the safety mechanism of a Demirok[101] ruling, where circumstances change, and it becomes necessary, well into the trial, to discharge the jury and order separate trials.
[100][2005] VSC 255.
[101][1976] VR 244.
In most cases, the jury will understand that their task is to consider the evidence against each accused separately. They will further understand that this may mean that they convict one accused and not the other. There will always be a problem where the prosecution case is based largely upon the credibility of a key witness, and that witness’s testimony is supported by evidence admissible against one accused, but not the other.
There is nothing new about any of this. Juries have always been expected to distinguish between joint accused in this way, just as they have always been expected to consider the evidence in support of individual charges separately. Often, the evidence of a complainant in a case involving sexual offending is accepted where it is supported by independent evidence, but not otherwise. That is but one example of the credibility of a witness being assessed in what the judge below described as a ‘compartmentalised’ manner.
The present case is remarkable in several key respects. Had the prosecutor not invited the jury, when considering the case against the applicant, to have regard to a body of evidence that it was agreed was not admissible against him (albeit through the ‘back door’ of Jones’ credibility) the problem that presents itself here would not have arisen. Had the jury not been as honest and astute as they were, and not posed the question that they did, the problem might have escaped attention. Had the judge thought perhaps a little more carefully about the matter, he would have told the jury, as the defence submitted he should, that the prosecutor’s submission was misconceived, and that they were obliged, as a matter of law, to confine their deliberations regarding the applicant to the evidence admissible against him.
In our opinion, these factors, in combination, persuade us that, in the unusual circumstances of this case, there were more than the ordinary risks associated with a joint trial. There is a very real chance that this jury may have convicted the applicant, at least in part, on the basis of evidence that was never part of the case against him. Had he stood trial alone, it is obvious that the jury would have heard nothing about the evidence admissible only against Tangaloa and Vaotangi. They would have assessed the complainant’s credibility solely according to its intrinsic worth. Here, however, the jury, by their question, made it plain that they were troubled about the complainant’s evidence. In response to their question, they were provided with a specific pathway to conviction that was not open as a matter of law.
In our view, the applicant was thereby denied the trial to which he was entitled. It follows, that there was a substantial miscarriage of justice. Ground 1 must succeed, and a new trial be ordered.
Finally, and for the sake of completeness, we should note that it may be said that some of the authority upon which we have relied, in coming to our conclusion on this ground, involved cases where there was a risk that evidence only admissible against one co-accused might be used against another co-accused, and yet that factor alone was held insufficient to warrant the ordering of separate trials,[102] or a retrial after conviction.[103] We simply observe that these cases are distinguishable on the grounds that in none of them was the jury told by the judge (as the jury in this case was told) that it was legitimate to reason from an acceptance of evidence, admissible only against a co-accused (in this case, Tangaloa and Vaotangi), that the accused himself (in this case, Destanovic) was guilty as charged.
[102]See, eg, Iaria [2004] VSC 110 (Nettle J).
[103]See, eg, Demirok [1976] VR 244 (Young CJ, Lush and Crockett JJ).
Destanovic conviction: ground 2
Having regard to our conclusion with respect to ground 1, we can state our views in respect of ground 2 briefly.
At the commencement of the trial, Destanovic’s counsel made an application for a separate trial. The application was made on three bases. First, and perhaps presciently, a concern that the jury might impermissibly reason from an acceptance of the complainant’s evidence against Tangaloa and Vaotangi to a conclusion of guilt regarding Destanovic. Secondly, the fact that a good character direction might be given in respect of Destanovic’s co-accused, which would not be available to Destanovic. Thirdly, the fact that a warning about the reliability of the complainant’s identification of Day had the capacity to undermine Destanovic’s defence.
The judge rejected Destanovic’s application for a separate trial. He held that appropriate directions could be given to protect Destanovic against the risk of unfair prejudice. In accordance with our reasoning regarding ground 1, we see no error in the judge’s rejection of Destanovic’s separate trial application, based on the situation as it existed at the commencement of the trial. No one could have anticipated, at that stage, the combination of events that subsequently transpired, including the prosecutor’s ill-conceived submission, and the jury’s question.
However, once the prosecutor invited the jury to reason in an impermissible fashion, thereby provoking the question that gave rise to the judge’s direction, the problem that presented itself could only have been overcome by a strong direction to the effect that they should not reason as the prosecutor had suggested. Alternatively, if the judge considered that the jury may have been irretrievably tainted by what the prosecutor had said, the position may have been reached where only a discharge would suffice.
Once the jury asked the question, it became imperative for the judge to answer it correctly. That might have saved this conviction. However, when his Honour, in effect, endorsed the prosecutor’s submission as correct, and invited the jury to act upon it if they wished to do so, there was nothing that could prevent a miscarriage of justice. In that sense, and in conformity with Demirok,[104] we consider that, with the benefit of hindsight, the applicant should have been granted a separate trial.[105]
[104][1976] VR 244.
[105]See Demirok [1976] VR 244 (Young CJ, Lush and Crockett JJ), from which an application for special leave was refused (see The Queen v Demirok (1976) 50 ALJR 550). See also R v Ditroia [1981] VR 247 (Starke, Crockett and Fullagar JJ); R v Gibb [1983] 2 VR 155 (Young CJ, Crockett and King JJ); Pham [2004] NSWCCA 190; Swan [2013] QCA 217.
Tangaloa conviction: ground 1
In Tangaloa’s ground 1, complaint is made about the admission into evidence of a .32 calibre loaded pistol found in Tangaloa’s possession on 5 February 2009. It was sought, at the commencement of the trial, to have this evidence excluded on the basis that initially, and at various points in time between the home invasion and the trial, the complainant had described the gun with which he was threatened as a revolver. Self-evidently, the pistol found in Tangaloa’s possession on 5 February was not a ‘revolver’.
The judge, in a careful ruling, set out the various descriptions of the gun given by the complainant from the time of his first police statement up to the time of the trial. His Honour noted the complainant’s initial use of the word ‘revolver’ and later use of the word ‘handgun’.
The judge set out s 55(1) of the Evidence Act 2008 (‘Evidence Act’), and then referred to passages from relevant authorities (including Thompson v The Queen[106] and R v Glen[107]). In analysing the facts, his Honour said:
Turning to a brief analysis of the facts, it seems to me that there are some [four] facts concerning this issue of possession of a hand gun which links the events of 15 January, during the course of the home invasion, and Mr Tangaloa’s arrest three weeks later on 5 February 2009. Firstly, on each occasion Mr Tangaloa is said to be in possession of a hand gun. Secondly, on both occasions he was wearing a bumbag and that bumbag or a bumbag is connected to his possession of a hand gun. On 15 January the bumbag is said to hold the ammunition from which the gun is loaded and on 5 February a bumbag is found to contain a fully-loaded pistol. I say fully loaded because not only was the magazine in place but also there was a bullet in the breach.
The third point which follows from the above is that the gun initially presented to Mr Jones in his mouth with the trigger being pulled was not loaded. Upon Mr Jones’ evidence it was then loaded and the gun found upon Mr Tangaloa’s arrest was, as I say, fully loaded. The fourth matter is that there is a relatively short period of time or interval of about three weeks between the asserted possession and use of a hand gun by Mr Tangaloa and his arrest on 5 February. This short period of time is of particular significance given the unusual nature of the item in question found in Mr Tangaloa’s possession, namely, a hand gun and, as I understand it, one which was not lawfully in his possession and one which was fully loaded; an unusual scenario to say the least.
The prosecution in my view are entitled to rely on the combination of those factors in order to demonstrate that the finding of the hand gun upon his arrest was relevant to the events of 15 January. Alone, some of those matters may be of little moment, but it is the combined force of those matters which the prosecution is entitled to rely upon in its assertion that the evidence is both relevant and of probative force.
[106](1968) 117 CLR 313, 316.
[107][1973] VR 809, 817.
Having dealt with the facts, and referred to relevant authorities, and having determined that the evidence was relevant, the judge turned his attention to ss 135 and 137 of the Evidence Act. He was not satisfied that the probative value of the evidence was substantially outweighed by the danger that it might be unfairly prejudicial to Tangaloa.[108] Nor was he satisfied that the probative value of the evidence was outweighed by the danger of unfair prejudice to Tangaloa.[109]
[108]Evidence Act s 135.
[109]Evidence Act s 137.
While counsel who appeared for Tangaloa before this Court did not accept the correctness of his Honour’s ruling, the thrust of his submissions concerned what occurred subsequently at trial. It became apparent, during the course of the complainant’s evidence, that he had been shown by police a photograph of the pistol that had been found in Tangaloa’s possession on 5 February. In cross-examination, having previously said that he did not know a great deal about guns, he conceded that he now knew the difference between a pistol and a revolver. A little later in his cross-examination, the complainant said: ‘Best I can recall, to the best I can recall it was a revolver’.
Plainly, it was an important aspect of the complainant’s evidence that he did not resile from his description of the weapon that had been pointed at him as a ‘revolver’. At trial, his credibility was pivotal, and Tangaloa’s counsel put a great deal of emphasis upon the varying descriptions that he had given of the weapon with which he had been confronted. It was suggested that he had tailored his evidence, altering his initial description from a ‘revolver’ to a ‘handgun’ as a result of having been made aware that what had been found on Tangaloa was a pistol rather than a revolver.
In his charge, the judge directed the jury that for the evidence of Tangaloa’s possession of the gun on 5 February to be used as proof of his participation in the home invasion some weeks earlier, the jury would have to be satisfied beyond reasonable doubt that the gun with which the complainant was threatened was the same gun as that later seized from Tangaloa. As the judge put it:
If it is not the same gun and if you are not satisfied beyond reasonable doubt that it is the same gun, that evidence is utterly irrelevant and must be put aside by you. If it is not the same gun, it proves nothing.
It may be that a direction in those terms was unduly generous so far as Tangaloa was concerned. On one view, there was no need for the jury to be satisfied beyond reasonable doubt that the gun found on 5 February was the same as that used on 15 January in order to rely on this one piece of evidence as part of the overall case against Tangaloa. It could be argued that the gun was not an indispensable link in a chain of reasoning leading to Tangaloa’s guilt, and for that reason, did not have to be proved to be the same weapon, beyond reasonable doubt. On the other hand, it was open to his Honour, as a matter of discretion, to have formed the view that, in the particular circumstances of this case, the evidence concerning the gun was of sufficient importance to have warranted a prudential direction in those terms.
As to the prosecution’s contention that the jury should be satisfied that the gun found on 5 February was the same as that used in the home invasion, the judge charged the jury:
The prosecution rely on a variety of pieces of evidence to argue that you should be so satisfied that it is beyond reasonable doubt the same gun. The prosecution … says, first of all, there is a link in time. It is but 21 days after the events of 15 January that he, Tangaloa, is found in possession of the pistol. It is not as if there is months between those two events. The prosecution rely therefore on that temporal link of 21 days.
Further, the prosecution point out that this is a handgun, a pistol, an unusual item to be in possession of. It is not as if it is an item which we would commonly find anywhere, says the prosecution.
Third, that what was used on the occasion on 15 January and found on Mr Tangaloa was a handgun, on any view.
Fourth, you will recall that it was Jones’ evidence that the gun placed into his mouth, that gun’s trigger was pulled at that time and it did not fire, whereupon, according to Jones, Tangaloa then put bullets into the gun, and whilst there was no round in the breech of the gun, there were rounds in the magazine of the pistol.
Fifth, the bullets or rounds, more accurately, but I will say bullets, that were used to load the gun were taken from a bum bag that Tangaloa was wearing, and when arrested 21 days later, the pistol was located in a bum bag.
So you put those five matters together, argue the prosecution. Those five matters, not in isolation but together, argue the prosecution, evidence proof beyond reasonable doubt that it was the same gun or, if I could put it differently, the only reasonable inference from those five matters, the only reasonable inference is that it is the same gun.
I have used two different ways of describing this issue of sameness: one, that it must be proven beyond reasonable doubt or, I just have said from those five matters the only reasonable inference is that it is the same gun. Now, either way, the Crown will have satisfied you beyond reasonable doubt if it is the only reasonable inference that it was the same gun. It follows because all other inferences, all other competing inferences have been excluded. So that is how the prosecution put its case.
If you are not satisfied beyond reasonable doubt that it is the same gun, that is the end of that evidence. It must be put aside wholly. It becomes irrelevant and you must treat that evidence as if you had never heard it.
The judge then put Tangaloa’s case on this issue, and gave further directions, as follows:
I now wish to turn to how the defence put its case in relation to this matter. The defence … argue that you could not be satisfied it was the same gun because, firstly, and primarily, the description of the gun given by Jones to the police on a number of occasions in the context of his first statement of 19 January and his evidence at the committal hearing was that the gun in question was a revolver, a completely different type of handgun from, the defence argue, the primary source of this information, the observer, Jones, himself close in time to the events when he made his statement and within the same year when he gave his evidence at the committal hearing, which I think was September, you will remember it, of 2009, described it unequivocally as a revolver, having, as you know from the evidence before you, a completely different way of loading and a completely different appearance from a pistol.
The defence argue on that assertion alone, coming from Jones in his earlier statements is proof positive, says the defence, that that was not the same gun located upon Mr Tangaloa’s arrest.
Furthermore, not only is there that basic inconsistency, argues the defence, the description otherwise of the gun by Jones placed in his mouth and used to threaten him was a vague one. It descended to no detail as to the colour of the gun or any of the attributes of the gun whatsoever. So, even looking at the description of the gun by Jones it is said to be vague. How could you therefore match up the gun found on Tangaloa to the gun said by Jones to be used against him.
And, further, we know that the mechanism of loading the two sorts of firearms is completely different. One, for the pistol, the magazine is loaded, or it could be loaded as a single round in the breech but the magazine is loaded from rounds and the magazine is then inserted into the butt of the handgun, whereas to load a revolver bullets are loaded individually one by one into the cylinder which pops out to the side, and insofar as the description of Jones’ of the way in which that gun, whatever it be, was vague, it did not speak to one way or the other, but perhaps, according to the defence, more likely not involving the insertion of bullets first into a magazine and then the magazine into the butt, rather, into a revolver, as Jones said it was in his statement and maintained in his evidence at the committal hearing.
That in those circumstances, the defence say, that there is proof positive it was not the same gun or, at the very least, you must entertain a reasonable doubt about it. And, further, the defence say the shift from the description of revolver by Jones to pistol is all too convenient. He has changed, says the defence, his account to fit known or subsequently known facts.
Those are, in broad terms, the way that the prosecution put their case and the way [counsel for Tangaloa], on behalf of Mr Tangaloa, has put his case.
If you are satisfied beyond reasonable doubt it was the same gun, then as a matter of logic it is a very small step to conclude, as the only reasonable conclusion, that that connects Mr Tangaloa to the events of 15 January as being a participant.
So, the issue, as I have endeavoured to identify it in relation to this piece of evidence, is all about whether the facts that are relied upon are proven beyond reasonable doubt. If they are, it is open to you to conclude that that same gun, if you so find it beyond reasonable doubt, connects Tangaloa as a participant in the events of 15 January in the home invasion.
That is how you may use that evidence. I told you I would not be giving you that direction until later on. You will also recall I directed you how in any circumstances you cannot use the evidence of the finding of the pistol upon Mr Tangaloa when he was arrested. The fact that he was found in possession of a pistol is utterly irrelevant other than the way in which I have described you may consider it. You cannot, and it would be wrong, as a matter of law and fairness and common sense, but as a matter of law it would be wrong for you to reason in any way that he is a man who is, because he had such a weapon when he was arrested, likely to engage in the conduct alleged to have occurred on 15 January. Other bad behaviour cannot prove the allegations the subject of a particular charge or charges, as we have here. It would be using prejudice and bias against Mr Tangaloa to use any such form of reasoning. It is prohibited and absolutely so.
It is clearly the case that a jury is entitled to accept or reject various parts of a witness’s evidence. It was open to the jury to conclude that the complainant’s ability accurately to describe the handgun with which he was threatened may well have been impaired by the very traumatic circumstances under which he saw the weapon in question. The circumstances to which the prosecutor referred, in that regard, permitted the jury, in our view, to be satisfied beyond reasonable doubt that the gun found on 5 February was the same as that used in the home invasion. The jury were not bound to arrive at that conclusion, but there was sufficient evidence to enable them to do so. Specifically, the odd coincidence of a loaded gun being found in a bum bag was sufficient, having regard to the complainant’s evidence of what had occurred at the time of the home invasion, to enable the jury to find that the gun found on 5 February was one and the same as that used some weeks earlier.[110]
[110]Cf Murrell v The Queen [2014] VSCA 334, [78]–[80].
In argument before this Court, counsel for Tangaloa submitted that not only should the evidence of the finding of the gun on 5 February have been excluded, but that any verdict against his client based upon that evidence was unsafe and unsatisfactory. In his submission, the jury must have had a reasonable doubt that the gun found on 5 February was the same as that used on 15 January.
We reject that submission. While it would have been perfectly open to the jury to have entertained a reasonable doubt as to whether the gun was in fact the same as that previously used, we are unable to say that the jury ‘must’[111] have had a reasonable doubt about that issue, or indeed the applicant’s guilt.
[111]Libke v The Queen (2007) 230 CLR 559, 596 [113] (Hayne J).
In the result, we would reject Tangaloa’s ground 1.
Tangaloa conviction: ground 2
In Tangaloa’s ground 2, he makes essentially the same complaint as does Destanovic in ground 1 of Destanovic’s appeal. While we would uphold the ground in respect of Destanovic, we have come to a different conclusion in relation to Tangaloa.
The ill thought out argument put by the prosecutor that gave rise to Destanovic’s complaint was specifically advanced only against Day (who was the subject of a hung jury) and Destanovic. No complaint whatever was made about the prosecutor’s submission by counsel who appeared for Tangaloa at the trial.[112]
[112]Not counsel who appeared before this Court.
Further, the jury’s question was confined in its terms to their consideration of the cases against Destanovic (and Day), and made no mention whatever of Tangaloa. When the judge called for submissions about that question, counsel for Tangaloa said that he had no submissions to make. Additionally, after the judge gave the jury his answer to the jury’s question, counsel for Tangaloa specifically said that he had no exception to what the judge had said.
While a failure to take objection at trial will not invariably be fatal to an argument that the trial has miscarried, one might reasonably infer from Tangaloa’s counsel’s failure to make any submissions about the issue that nobody, at trial, considered that the prosecutor’s argument, the jury’s question, or the judge’s answer to that question had anything at all to do with Tangaloa.
While it is possible to engage in abstract theorising to the effect that the prosecutor’s argument, and the judge’s endorsement of it, might have been regarded as permitting the jury to reason from the finding of the complainant’s property in Vaotangi’s possession, to an impermissible enhancement of the complainant’s credibility in the case against Tangaloa, and then perhaps to a finding of guilt in relation to Tangaloa, there is nothing in the trial transcript to suggest this as a viable scenario.
It follows that we would reject Tangaloa’s application for leave to appeal against conviction.
Destanovic sentence
Having regard to the conclusions we have reached in respect of Destanovic’s appeal against conviction, it is not necessary for us to deal with Destanovic’s application for leave to appeal against sentence.
Tangaloa sentence
Tangaloa seeks leave to appeal against sentence upon the sole ground that the term of 8 years’ imprisonment, with a non-parole period of 5 years, was manifestly excessive. He relies, in particular, upon the delay of approximately 5 years between Tangaloa’s offending in 2009 and the date of his sentence in 2014.
In sentencing Tangaloa and his co-offenders,[113] the judge said:
In relation to each of you, I find that you have good prospects of rehabilitation. Each of you have had to wait no less than five years for these matters to be concluded. This delay is very substantial. With each of you endeavouring to continue with your lives and your family and work during this long and prolonged period, this delay provides a powerful mitigating circumstance.[114]
[113]Destanovic and Vaotangi.
[114]DPP v Destanovic (Unreported, County Court of Victoria, Judge Stuart, 31 January 2014) (‘Reasons’) [28].
The judge noted that Tangaloa was a 38 year old man who arrived in Australia when he was an infant; that he had successfully completed year 12 and, from the age of 18, had worked as a crowd controller; that he had 11 children, the last two of whom had been born since his offending; and that he had no prior criminal history. Indeed, he accepted that Tangaloa was a man of prior good character.[115]
[115]Reasons [22].
Counsel for Tangaloa conceded that, absent the very significant delay (which was not said to be attributable to the conduct of his client), the sentence imposed by the judge would have been within range. It was the factor of delay that was said to make the sentence imposed manifestly excessive.
We do not agree. This was extremely serious offending of a most brutal kind. The maximum penalties for the offences committed were 25 years, 20 years and 25 years respectively. In the circumstances, and notwithstanding the matters put in mitigation, including the significant delay (which the judge expressly said he took into account), we see no basis upon which it can reasonably be contended that any of the individual sentences, the total effective sentence or the non-parole period were excessive.
Tangaloa’s application for leave to appeal against sentence must be refused.
Conclusion
Destanovic’s application for leave to appeal against conviction will be granted. His appeal will be treated as having been heard instanter and allowed. His convictions will be quashed, and the sentences imposed thereon set aside. A new trial will be ordered in respect of the charges against him.
Tangaloa’s applications for leave to appeal against conviction and sentence will be refused.
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