John Radman v The Queen
[2003] ACTCA 14
•15 May 2003
JOHN RADMAN v THE QUEEN [2003] ACTCA 14
(15 May 2003)
EX TEMPORE JUDGMENT
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 1 - 2003
No. SCC 90 of 2000
Judges: Crispin P, Gyles and Weinberg JJ
Court of Appeal of the Australian Capital Territory
Date: 15 May 2003
IN THE SUPREME COURT OF THE ) No. ACTCA 1 - 2003
) No. SCC 90 of 2000
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JOHN RADMAN
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Crispin P, Gyles and Weinberg JJ
Date: 15 May 2003
Place: Canberra
THE COURT ORDERS THAT:
The appeal against conviction, and the appeal against sentence, be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 1 - 2003
) No. SCC 90 of 2000
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JOHN RADMAN
Appellant
AND:THE QUEEN
Respondent
Judges: Crispin P, Gyles and Weinberg JJ
Date: 15 May 2003
Place: Canberra
EX TEMPORE REASONS FOR JUDGMENT
CRISPIN P:
I agree with the remarks that have been made by Weinberg J. Mr Pappas has ably advanced every argument that could reasonably be put forward on behalf of the appellant but for the reasons expressed by Weinberg J, I see no reason to regard the summing up which his Honour gave to the jury as being in any way inadequate. I see no reason to doubt that the jury properly considered the issues before it and no reason to doubt that the appellant was properly convicted. I also agree that no ground has been established for finding the sentence imposed upon the appellant to be excessive or for concluding that he should be left with a justifiable sense or grievance having
regard to the sentence imposed upon the co-offenders. I too would dismiss the appeal.
I certify that the preceding paragraph number one (1) is a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 8 August 2003
IN THE SUPREME COURT OF THE ) No. ACTCA 1 - 2003
) No. SCC 90 of 2000
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JOHN RADMAN
Appellant
AND:THE QUEEN
Respondent
Judges: Crispin P, Gyles and Weinberg JJ
Date: 15 May 2003
Place: Canberra
EX TEMPORE REASONS FOR JUDGMENT
GYLES J:
I agree and do not wish to add anything save on one point, namely, the question of leave to raise points not taken below, particularly in relation to the summing up. Whilst of course no general rules can be laid down, I agree with what has fallen from Weinberg J about the requirement for leave not being a formality.
For my own part, where counsel of experience in the field is present during a summing up and does not seek particular directions, it would require some persuasion to make out a case to enable new arguments to be addressed on appeal simply because new counsel, with new perspectives, comes into the matter and, working on the transcript in the cold light of day, can see ways in which the matter may have been better put. I also expressly wish to say that merely having counsel who did not take the relevant points at trial come along later and say that there was no forensic reason not to take the hypothetical points would not, generally speaking, persuade me that there is an appropriate ground for the grant of leave to take those points.
I certify that the preceding paragraphs numbered two (2) to three (3) are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 8 August 2003
IN THE SUPREME COURT OF THE ) No. ACTCA 1 - 2003
) No. SCC 90 of 2000
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JOHN RADMAN
Appellant
AND:THE QUEEN
Respondent
Judges: Crispin P, Gyles and Weinberg JJ
Date: 15 May 2003
Place: Canberra
EX TEMPORE REASONS FOR JUDGMENT
WEINBERG J
On 18 November 2002, the appellant was indicted before Gray J on the following charges:
“ Count 1
That he and Peter Adrian MacDonald and David Lesley Parsons on 2nd day of November, 1999 at Canberra in the Australian Capital Territory robbed Luke Tanswell of $642 and cannabis, and at the time of doing so had with them offensive weapons, namely, an extendable baton and a softball bat.
(s. 101 (now s.92) Crimes Act 1900; maximum penalty: 25 years’ imprisonment.)Count 2
That he and Messrs MacDonald and Parsons on 2nd day of November, 1999 at Canberra in the Territory did assault Morgan Lewer.
(s. 24 Crimes Act 1900; maximum penalty: 5 years’ imprisonment.)Count 3
That he on 2nd day of November, 1999 at Canberra in the Territory did assault Luke Rhys Alchin.
(s. 24 Crimes Act 1900; maximum penalty: 5 years’ imprisonment.)”
The appellant pleaded not guilty to each count as did his two co-accused. All three were tried before his Honour and a jury. On 25 November 2002, the jury convicted each accused on all counts. On 19 December 2002, the appellant was sentenced by Gray J as follows: On the count of armed robbery, five years’ imprisonment to commence on 25 November 2002 and on each count of assault occasioning actual bodily harm three months’ imprisonment to be served concurrently with each other and with the sentence imposed for the count of armed robbery. His Honour fixed a non-parole period of three years to commence on 25 November 2002 and to expire on 24 November 2005.
As indicated earlier, the offence of armed robbery carries a maximum penalty of 25 years’ imprisonment while the offence of assault occasioning actual bodily harm carries a maximum penalty of five years’ imprisonment.
On 25 February 2003, Mr MacDonald and Mr Parsons were both sentenced by Gray J to imprisonment for five years on the count of armed robbery and three months on each count of assault occasioning actual bodily harm. The sentences imposed upon the counts of assault occasioning actual bodily harm were made concurrent with each other and with the sentence for armed robbery. His Honour fixed a non-parole period of two years and six months to commence on 25 November 2002 in respect of each of the co-accused.
On 29 April 2003, the appellant filed an amended notice of appeal which contained the following grounds of appeal:
“2.1 the conviction is unsafe and unsound;
2.2 the trial judge erred in law in his directions to the jury as to the elements of the offence;
2.3 the trial judge erred in failing to provide any assistance to the jury with respect to the drawing of inferences;
2.4 there has been a miscarriage of justice; and
2.5 in the alternative the sentence imposed in all circumstances is excessive and the trial judge erred in law in failing to give consideration to an alternative sentence to that imposed.”
The appellant ultimately abandoned grounds 2.1 and 2.2 and in effect amalgamated grounds 2.3 and 2.4.
The Crown case was a very simple one. About 9.30 pm on Tuesday, 2 November 1999, the appellant and three other men Mr Parsons, Mr MacDonald and Mr Anthony Petrovic (since deceased), travelled in a silver coloured Ford Fairlane sedan registered number ACT, YAS 54R to the units known as “The Crest”, situated at 12 Wilkins Street, Mawson in the ACT. The residents in Unit 19 at that address included Mr Luke Tanswell, Ms Naomi Travers and Ms Kristie Cale. Also present at that time were some of their friends, including Mr Morgan Lewer and Mr Luke Alchin.
At least two of the men from the Ford Fairlane entered Unit 19, one carrying an extendable baton and the other a softball bat. They gained entry when one of them knocked on the door, announcing that they were the police. Mr Lewer opened the door whereupon they entered the Unit.
Mr Lewer was struck on the thigh with the baton by the first man to enter. He fell to the ground. The man said that it was a raid and told Mr Lewer and the others to lie down on the floor and not look up. They complied.
The second man to enter the Unit then smashed a softball bat down on the dining room table, breaking some glasses on that table. The men in the Unit then demanded drugs. One of the men held Mr Alchin on the ground by standing with one foot on his back. Two of the women in the Unit ran out of the back door. Ms Travers, one of those women, saw the Fairlane sedan in the street. The engine was running and the front passenger door was open. She observed some hands at the steering wheel and a cap, but saw little else. Ms Travers then walked to a nearby Unit, and telephoned the police.
One of the men in the Unit asked for “Luke Tonswell” and demanded drugs and money. Mr Tanswell gave them some cannabis and money from the freezer. The men then collected various items from the Unit, including a bass guitar, mobile phones, Nintendo games, a Walkman, Sony Playstation, jewellery, medical gloves and Tanita scales. Mr Tanswell was told by the men that he was no longer to sell drugs from the Unit and that if they heard of any further sales they would come back and kill him. The men then left the Unit.
After telephoning the police from the nearby Unit, Ms Travers looked out from the balcony and saw the Fairlane sedan drive onto Heard Street. The police arrived shortly thereafter and followed the Fairlane. They saw medical gloves being thrown from the vehicle. The police stopped the vehicle and conducted a search. The appellant was seated on the front passenger seat. The stolen property was located in the rear of the vehicle, as were the weapons. It is of some moment to note that the cannabis stolen from the Unit was found in the console between the driver’s seat and the front passenger seat. The cannabis was therefore located adjacent to the appellant’s position in the vehicle.
The appellant’s case was in a sense equally simple. Neither he nor his co-accused gave evidence at the trial, and no witnesses were called to give evidence on their behalf. There appeared to be no dispute that the armed robbery and the assaults had taken place. The thrust of the cross-examination on behalf of the appellant was that two men only had entered Unit 19 and it was suggested that the descriptions of the men given by the Crown witnesses indicated that the appellant was not one of those two men.
Essentially, the appellant contended that there was no evidence of an agreement between himself and the two men who entered Unit 19 to commit the crimes charged. Accordingly, the evidence did not bring into play the principles of joint criminal enterprise sufficiently to enable him to be convicted of the crimes charged.
Ground 2.3 contends that the trial judge erred in failing to provide any assistance to the jury in relation to the drawing of inferences, or at least failed adequately to direct the jury regarding that process.
It is important to note at the outset that no exception of any kind was taken to his Honour’s charge to the jury. The complaint regarding his Honour’s direction concerning inferences is now raised squarely for the first time on appeal by counsel who did not appear at the trial. In accordance with O 86 r 58, leave of this Court is required to rely upon this ground.
It was submitted, on behalf of the respondent, that the practice which has developed in New South Wales of requiring an affidavit to be filed which sets out before the Court of Criminal Appeal any explanation which might be proffered for the failure to take an exception to a judge’s charge at the proper time, and in proper form, should also be adopted in this Court: see R v Hines (1991) 24 NSWLR 737 at 743 per Sully J (with whom Hope AJA and Mathews J agreed), and R v Moussa (2001) 125 A Crim R 505 at 519 per Howie J (with whom Giles JA and Carruthers AJ agreed). In my view there is much to be said in favour of such a requirement.
On any view, however, the requirement that leave be sought to raise a ground of appeal based upon a point not taken at trial is not “some mere technicality which may simply be brushed aside”: R v Abusafiah (1991) 24 NSWLR 531 at 536 per Hunt J.
Hunt J went on to observe that one purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. His Honour commented that the right to a fair trial operated not only in favour of the accused, but also of the Crown, which prosecuted on behalf of the whole community. The Criminal Appeal Act 1912 (NSW) did not exist to enable an accused who had been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial.
The appellant and his co-accused were all represented at trial by experienced counsel. Their legal representatives were in the best position to determine whether the directions regarding inferences which his Honour gave were adequate in all the circumstances of this case. Their failure to take exception to those directions bears eloquent testimony to their belief that there was no discernible misdirection, or failure to direct adequately, on this subject and no perceived injustice to their clients.
In my view, there is no basis whatever upon which leave should be granted in this case. It was abundantly plain, from the outset, that the case against the appellant was, to a significant degree, circumstantial. It was clear to all counsel that his Honour would be required to direct the jury regarding the circumstances under which inferences may permissibly be drawn in a criminal trial. Such directions are by no means unusual. Counsel undoubtedly had conducted many cases in which such directions had been given, and would have been well aware of the relevant principles surrounding the giving of those directions.
The law regarding the drawing of inferences has not been the subject of any significant change in recent years. There is no question of counsel having been taken by surprise, or of having acted in ignorance of any radically changed doctrine. If there was a point to be made about the adequacy of the directions given, it should have been made at the trial and not raised for the first time on appeal.
I should add, in any event, that having considered what his Honour did say on the subject of inferences, I am of the view that the directions given were adequate. His Honour said:
“In this case the prosecution relies upon what is circumstantial evidence to establish its case that there was an understanding or arrangement between the accused to commit the robbery and assaults. It relies upon you drawing inferences from the facts that the prosecution puts forward. Circumstantial evidence is sometimes contrasted with direct evidence, that is to say evidence from a person who says that he or she saw or otherwise perceived the fact upon which the prosecution relies as establishing its case.
Where however the prosecution case depends upon circumstantial evidence, then it relies upon evidence of a basic fact or facts from which you, the jury, are asked to infer or conclude that a further fact or facts existed. In this case, being a joint enterprise to commit an armed robbery and the assaults which took place.
Because the onus of proof is on the prosecution to prove its case beyond reasonable doubt as to every essential element or ingredient of the charge, any such inference or conclusion from basic facts relied upon by the prosecution must, of course, be a conclusion reached by you beyond reasonable doubt, having taken into consideration not only the material presented on behalf of the prosecution but also any material presented on behalf of the accused and after giving careful consideration to the submissions of counsel.
A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence, depending upon the nature of the circumstances relied upon when considered as a whole, not individually or in isolation, and the degree of clarity and certainty to which the evidence may lead inevitably to the conclusion that the prosecution has established its case.
It is essential that you establish the evidence with care and consider whether it is reliable before drawing any conclusions from facts which you regard as established by it. If in your view it is not of sufficient reliability to enable you to come to the conclusion which the prosecution says you will come to, after taking into consideration any material presented on behalf of the accused, and having given due weight to the submissions of counsel on both sides, then of course you must acquit.
You may draw an inference from a combination of facts, however, none of which viewed alone would support that inference. Nevertheless, you cannot view a fact as a basis for the inference contended for by the prosecution unless at the end of the day you are satisfied of the existence of that fact beyond reasonable doubt.”
His Honour then went on to say:
“Further, if there is another conclusion as to the accused’s position reasonably open when you examine the whole of the evidence and which is consistent with the innocence of the accused, it is your duty to bring back a verdict of not guilty.
For a particular accused in this case to be found guilty of the charges that he faces it is for the prosecution to establish that on the facts relevant to the particular charge that you find proved beyond reasonable doubt there is no rational inference available to you consistent with the accused being innocent of the charges. It is the whole of the evidence before you that you must have regard and you may draw an inference of guilt as to a particular accused from a combination of those facts that you find proved, none of which alone might be capable of supporting that inference. The ultimate inference however must exclude any other reasonable explanation than that of guilt.”
These directions regarding the circumstances in which inferences may be drawn against an accused in a criminal trial are both accurate, and in accordance with established authority. In addition, his Honour returned to that issue in his charge to the jury when he summarised the submissions made by counsel for the appellant at the trial.
In the course of summarising those submissions, his Honour said:
“In relation to Mr Radman Mr Whybrow, and again I do not propose to recapitulate what he said to you, made a number of points suggesting that the police had relied upon one of the inferences that might arise from the immediacy of the vehicle being there after the offences had taken place, but put that otherwise there was no evidence or inference that ought to be properly drawn as to the involvement of the accused persons.
He pointed out that the evidence that was given by various witnesses of the appearance of the men in the flat was not consistent, and put that you could not be satisfied beyond reasonable doubt as to who went into the unit. For its part of course, the prosecution does not rely upon any particular person entering the flat, but one can say that the evidence is not inconsistent with two of the four persons in the car having entered the flat.
Now, Mr Whybrow put as a reasonable hypothesis that Mr Radman was just sitting in the car, that two others could have got out, done the things that they did, and that Mr Radman might not necessarily have seen anybody with a baton or with a baseball bat. He points to certain of the inferences and asks you to consider inferences that might support an explanation other than Mr Radman’s involvement and he asked, rhetorically I think, was it a suitable spot for the car to be. And he suggested other spots where the car might have been parked rather than in the place it was.
You will also recall what Mr Standish said about the car’s position, pointing to the prospect of the other occupants of the units observing the car. And those are matters for you, ladies and gentlemen, to consider.”
In summarising Mr Whybrow’s submissions to the jury, his Honour made it clear that, in substance, the defence case was that there was a reasonable hypothesis consistent with innocence, and that the jury should not therefore draw the inference for which the Crown contended. Having regard to his Honour’s charge to the jury as a whole, I am of the view that they could not have been in any doubt as to what the law required of them in the event that they considered that there was a reasonable possibility that Mr Radman was “just sitting in the car” for some innocent purpose. The jury’s verdict plainly negated any such hypothesis.
Mr Pappas, who appeared on behalf of the appellant on the appeal, submitted that this was a case which required an additional direction or directions regarding the drawing of inferences. He relied in support of that submission upon a particular passage which appeared in his Honour’s charge shortly after the passages to which I have previously referred. In that passage, his Honour reminded the jury of a further submission made by Mr Whybrow regarding certain answers given by a police officer to questions put by him at the trial. His Honour said:
“He also referred to the fact that there was no testing of the gloves by the police and asked you to regard that as the police, and the prosecution I think, acting on a mistaken basis in the assumptions that they made about the involvement of these accused. Ultimately of course, ladies and gentlemen, it is for you to determine whether those assumptions were mistaken.”
Mr Pappas submitted that a special direction regarding inferences was necessary in order to ensure that the jury did not proceed upon the same “mistaken basis” as had the police and the prosecution. Indeed, he submitted that in that last passage, his Honour had inadvertently reversed the onus of proof.
In my view, neither variant of this submission can be accepted. His Honour directed the jury repeatedly, and correctly, regarding the onus of proof. Indeed, no objection was taken to his Honour’s charge regarding that issue. Nor could it be. It would not be appropriate to now grant leave to permit an argument which is devoid of merit to be raised before this Court.
As I have previously indicated, I am satisfied that his Honour’s directions to the jury regarding the drawing of inferences were adequate. It is true that his Honour did not, as other judges often do, provide the jury with a concrete example or examples of circumstances in which inferences may be drawn so as to distinguish between what is a permissible mode of reasoning, and what is mere conjecture. It may well have been preferable had his Honour done so. However, the failure to provide such an example or examples did not, in the circumstances of this case, give rise to any miscarriage of justice. I would therefore dismiss the appeal against conviction.
Turning to the appeal against sentence, the only ground of appeal argued was that of parity. It was submitted that Mr Radman, who had been sentenced prior to his co-accused, and given a non-parole period which was six months longer than that given to them, was entitled to feel a legitimate sense of grievance regarding that disparity.
Mr Pappas submitted that there were several factors which operated in the appellant’s favour, and should have led to his being given a shorter non-parole period. These included his prior criminal record, which consisted of two convictions for assault related matters, the last being in 1992, and a substantial body of evidence of good character which had been tendered, and which his Honour agreed warranted serious consideration.
On the other hand, the appellant was 28 years of age at the time of the trial, whereas his co-accused were several years younger.
In relation to the appellant, a presentence report had been prepared for the Court. In that report the author made the following observations:
“When questioned about the effect the offences would have had on the victims he stated that it was ‘regrettable’. However, he believed the victims were involved in “evil” and therefore must have expected ‘evil’ to happen to them.”
Later in the report the author commented:
“During the preparation of this report, Mr Radman was reluctant to discuss the offences with this Officer, maintaining that he was not guilty. He failed to take any responsibility for his offending behaviour, and it is clear that until he firstly, accepts responsibility for his actions, and secondly, addresses his offending behaviour, he will remain at significant risk of re-offending”.
In sentencing the appellant his Honour referred to the report and said:
“Mr Radman described his role in the offences to the Probation and Parole Officer, who has provided a report to this court, as being in the vehicle during the time of the commission of the offence. He claims that the offences themselves were committed by a co-offender who is now deceased, and another man whose identity he did not know. I do not accept that Mr Radman’s role in this offence can be minimised by this description of his involvement. Nor do I consider that it is a reasonable possibility that the offences were committed in the manner that he has described to the Probation and Parole Officer.
I take as a the basis of the jury’s finding of guilt, that Mr Radman was a knowing participant in a joint criminal enterprise to commit the armed robbery and the assaults. I propose to deal withMr Radman on the basis that he was a party to the plan and that he knew the extent of the offences to be committed. Whatever role Mr Radman played was as a principal in the offence and I do not overlook the fact that the extendable baton and the money were found under the seat that Mr Radman occupied when the police stopped the vehicle. I reject any assertion that seeks to minimise the total effect of the jury’s finding as regards himself.”
His Honour continued:
“It is of considerable concern that Mr Radman has expressed no real contrition or remorse for his part in the offence, the best that he came up with in his explanation to the probation and parole officer that the effect on the victims was ‘regrettable’.
He also told the probation and parole officer that he believed that the victims were involved in evil and therefore must have expected evil to happen to them.
In light of this failure to take any responsibility for his offending behaviour or to address it, the probation and parole officer rightly considered that he remained at significant risk of re-offending”.
Subsequently when his Honour came to sentence Mr MacDonald and Mr Parsons he made a number of sentencing remarks upon which Mr Pappas sought to rely. In relation to Mr MacDonald, in particular, he indicated that he was prepared to proceed upon the basis that he was not necessarily a “motivator” of the offences. His conclusion was based upon evidence that Mr MacDonald had a particular personality trait, and was supported by the fact that he was significantly younger then either Mr Radman, or Mr Petrovic.
Similarly, in relation to Mr Parsons, his Honour said:
“As in the case of Mr MacDonald, I consider that the fact that Mr Parsons was significantly younger than the co-offenders, Mr Radman and Mr Petrovic, and that he was possibly not one of the motivators for the offending, are factors that can be counted in his favour.”
Mr Pappas submitted that his Honour had erred in treating the appellant’s age as an indicator of the fact that he was likely to have been one of the “motivators” for the offending when there was no basis for arriving at that conclusion. I am not persuaded by that submission. The appellant was significantly older than either of his co‑accused. It would have been open, on all the evidence, to conclude that the appellant was more significantly involved in instigating the offence than the co-accused. Nonetheless, it is important to note that when his Honour sentenced the appellant, he made no such finding.
The fact that his Honour was prepared to take a more lenient view regarding the involvement of the co-accused when he came to sentence them on a subsequent occasion does not demonstrate any error of the type for which Mr Pappas contends. There was different material before him on that occasion, and there was a proper basis upon which he was entitled to differentiate between the appellant and the co-accused. The differentiation of six months was not, of itself, so great as to warrant a justified sense of grievance on the part of the appellant. Accordingly, I am of the view that the appeal against sentence should also be dismissed.
I certify that the preceding paragraphs numbered four (4) to forty-five (45) are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 8 August 2003
Counsel for the Appellant: Mr J Pappas
Solicitor for the Appellant: Sutherland & Tiirikainen
Counsel for the Respondent: Mr R Refshauge SC
Solicitor for the Respondent: ACT Director of Prosecutions
Date of hearing: 15 May 2003
Date of judgment: 15 May 2003
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