Lacco v The State of Western Australia
[2006] WASCA 152
•4 AUGUST 2006
LACCO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 152
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 152 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:28/2005 | 12 JUNE 2006 | |
| Coram: | ROBERTS-SMITH JA PULLIN JA BUSS JA | 4/08/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | ALLON MITCHELL LACCO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Aggravated burglary Whether verdict inconsistent with appellant's acquittal on robbery charges or with acquittal of coaccused Words and phrases "In company" Whether direction adequate |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(5)(c) Criminal Code (WA), s 7(a) |
Case References: | Brougham v The Queen (1986) 43 SASR 187 Button (2002) 129 A Crim R 242 Dharmasena v The King [1951] AC 1 Director of Public Prosecutions v Shannon [1975] AC 717 MacKenzie v The Queen (1996) 190 CLR 348 Osland v The Queen (1998) 197 CLR 316 Phillips v The Queen (2006) 80 ALJR 537 R v Brougham (1986) 43 SASR 187 R v Cooper (1978) 17 SASR 472 R v Darby (1982) 148 CLR 668 R v Kirkman (1987) 44 SASR 591 R v Sherrington & Kuchler [2001] QCA 105 R v Stone, unreported; UKCCA, EWCA Crim; Devlin J; 13 December 1954 R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275 R v Wyles; Ex parte Attorney-General [1977] Qd R 169 Warren & Ireland v The Queen [1987] WAR 314 Jenkins v The Queen (2004) 211 ALR 116 Mule v The Queen (2005) 79 ALJR 1573 R v Galey [1985] NZLR 230 R v Joyce [1988] NZLR 1070 R v Leoni [1999] NSWCCA 14 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LACCO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 152 CORAM : ROBERTS-SMITH JA
- PULLIN JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : TEMPLEMAN J
File No : INS 78 of 2004
Catchwords:
Criminal law - Aggravated burglary - Whether verdict inconsistent with appellant's acquittal on robbery charges or with acquittal of coaccused
Words and phrases - "In company" - Whether direction adequate
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 30(5)(c)
Criminal Code (WA), s 7(a)
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant : Mr M J Aulfrey
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Ian Hope
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Button (2002) 129 A Crim R 242
Dharmasena v The King [1951] AC 1
Director of Public Prosecutions v Shannon [1975] AC 717
MacKenzie v The Queen (1996) 190 CLR 348
Osland v The Queen (1998) 197 CLR 316
Phillips v The Queen (2006) 80 ALJR 537
R v Brougham (1986) 43 SASR 187
R v Cooper (1978) 17 SASR 472
R v Darby (1982) 148 CLR 668
R v Kirkman (1987) 44 SASR 591
R v Sherrington & Kuchler [2001] QCA 105
R v Stone, unreported; UKCCA, EWCA Crim; Devlin J; 13 December 1954
R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275
R v Wyles; Ex parte Attorney-General [1977] Qd R 169
Warren & Ireland v The Queen [1987] WAR 314
(Page 3)
Case(s) also cited:
Jenkins v The Queen (2004) 211 ALR 116
Mule v The Queen (2005) 79 ALJR 1573
R v Galey [1985] NZLR 230
R v Joyce [1988] NZLR 1070
R v Leoni [1999] NSWCCA 14
(Page 4)
1 ROBERTS-SMITH JA: The relevant law is sufficiently set out in the reasons for judgment of Pullin JA. As to the first ground, I agree with Pullin JA that the guilty verdict against the appellant on count 1 was not inconsistent with the acquittals of Fullgrabe and O'Reilly on that count, and nor was it inconsistent with the appellant's own acquittal on count 2.
2 The jury could well have not been satisfied beyond reasonable doubt that although the appellant entered the premises without consent and with intent to steal money from Tania Adams (which, on the prosecution case, he demanded she give her sister), he was a party to the impromptu stealing of other property by Fullgrabe and nor was that within his contemplation. Fullgrabe's acquittal on count 1 is reasonably explicable in the way described by Pullin JA. O'Reilly's acquittal on that count is similarly explicable. I too would not uphold the first ground.
3 With respect to the second ground, Fullgrabe and O'Reilly were acquitted of aggravated burglary. In the circumstances as revealed by the evidence and the way the prosecution case was conducted, that could only have been because the jury were not satisfied beyond reasonable doubt they had an intent to steal when they entered the premises. The trial Judge expressly directed the jury (T539) that there was no dispute about the elements of entry or lack of consent and that what was in issue was the intent with which each of the accused entered the property.
4 I agree with Pullin JA that it was reasonably open to the jury in those circumstances to find the appellant shared a common purpose with Fullgrabe and O'Reilly to rob or steal money from Tania Adams and therefore that he was in company with them. Separate consideration of the case against different accused may result in different verdicts where the admissible evidence against them is different – and that could reasonably explain the different verdicts here.
5 The appellant was the only one of the three accused who gave evidence. Fullgrabe and O'Reilly each took part in video records of interview with the police. What they said in those interviews was admissible in respect of the accused whose interview it was but not in respect of any other accused. The trial Judge made that plain. He correctly gave the usual direction that each charge against each accused had to be considered separately against the evidence admissible in respect of it, and he expressly told them that what was said in the video records of interview was evidence only in respect of the particular accused.
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6 What Fullgrabe and O'Reilly said in their video records of interview may have caused the jury to have a reasonable doubt about their intent at the relevant time. But that evidence was not available for the jury to take into account when considering the case in respect of the appellant.
7 The situation therefore was that, on the balance of the evidence available to the jury in respect of the appellant on count 1, the jury could well have come to satisfaction beyond reasonable doubt that each of the three accused were acting together to enter the house with intent to steal money from Tania Adams, there being no evidence of denials of such intent by Fullgrabe or O'Reilly. One can readily appreciate the ordinary person having some difficulty with the different conclusions on that issue as between the respective accused, but as a matter of law they are rationally explicable when account is taken of the onus and burden of proof, the requirement that the jury give separate consideration to each charge and each accused and the evidence which did differ between them on the issue of intent or common purpose.
8 The problem however is that raised by the third ground of appeal, in respect of which I agree with Pullin JA. His Honour did not direct the jury that they had to be satisfied all three accused shared that intent or purpose, before they could find the circumstance of aggravation that they were in company proved. That being so, the jury must, I think, be taken to have made that finding in accordance with the directions given to them, that is only on the basis all three were physically present and together at the relevant time. The finding that the appellant was in company with Fullgrabe and O'Reilly must accordingly be quashed. I should also record that I agree with the observations and reasoning of Buss JA with respect to ground 3.1.
9 Finally, I agree with Pullin JA so far as the fourth ground is concerned, and with his conclusion on the appropriate outcome of the appeal.
10 PULLIN JA: This is an appeal against conviction.
11 The appellant was charged with two offences. The first count was that on 16 November 2003 at Dianella, he and two others, Guy Stephen Fullgrabe and Karina Ellen O'Reilly:
"… entered or were in the place of TANIA LEE ADAMS without her consent, with intent to commit an offence therein
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- AND THAT ALLON MITCHELL LACCO, GUY STEPHEN FULLGRABE and KARINA ELLEN O'REILLY were armed with a dangerous weapon, namely a machete
AND THAT immediately before the commission of the offence ALLON MITCHELL LACCO, GUY STEPHEN FULLGRABE and KARINA ELLEN O'REILLY knew or ought to have known that there was another person in the place
AND THAT ALLON MITCHELL LACCO, GUY STEPHEN FULLGRABE and KARINA ELLEN O'REILLY were in company with each other
AND THAT the place was ordinarily used for human habitation."
12 In relation to count 2, the appellant was charged that on the same date and at the same place and jointly with Fullgrabe and O'Reilly, he:
"… stole from TANIA LEE ADAMS and others, with violence, wallets and mobile telephones, the property of TANIA LEE ADAMS, CURT NATHAM WOOD and DANIEL LOUIS SMITH
AND THAT ALLON MITCHELL LACCO, GUY STEPHEN FULLGRABE and KARINA ELLEN O'REILLY were armed with a dangerous weapon, namely a machete
AND THAT ALLON MITCHELL LACCO, GUY STEPHEN FULLGRABE and KARINA ELLEN O'REILLY were in company with each other."
13 After a trial before Templeman J and a jury, the appellant was found guilty on count 1 and not guilty on count 2. Fullgrabe was found not guilty on count 1, not guilty of count 2, but guilty on count 2 of the alternative charge of stealing. O'Reilly was found not guilty on all charges.
14 The appellant appeals against his conviction. There are four grounds. They are:
(a) The verdict of guilty on count 1 was inconsistent with the acquittal of Fullgrabe and O'Reilly and also inconsistent with his own acquittal on count 2 (Grounds 1 and 2).
(Page 7)
- (b) The verdict of the jury that the appellant was "in company" with Fullgrabe and O'Reilly in relation to count 1 was unreasonable because Fullgrabe and O'Reilly were acquitted of Count 1 (Ground 3.1).
(c) The learned trial Judge erred in the direction he gave to the jury about 'in company' (Ground 3.2)
(d) The trial Judge erred in the directions he gave the jury about the evidence of a witness Christine Adams (Ground 4).
15 The evidence at the trial revealed that the appellant, the co-accused Fullgrabe and O'Reilly, a Christine Adams and another man drove a car and parked in the street near the Dianella house. Present in the house were Christine Adams' sister, Tania Adams, and other people including Curt Wood, Daniel Smith and John Viandante. Christine Adams and O'Reilly left the car and went to the front door of the house. Tania Adams came to the door and Christine Adams asked her sister to repay money which she said Tania Adams owed her. Tania Adams denied she was indebted. There was an argument. Tania Adams told her sister "fuck off" and Mr Viandante came to the front door and behaved aggressively to the women outside. Voices were raised and there was some screaming.
16 Hearing the screaming, the appellant and Fullgrabe left the vehicle and went to the house. The appellant gave evidence that as he approached the house he was aware that Fullgrabe was near him. The appellant took a machete from the car. He and Fullgrabe interpreted the behaviour on the part of Mr Viandante as threatening. The front door was slammed shut by those inside. The appellant said that he heard Tania Adams screaming in the house. He said that he was concerned for her welfare. He then went to a sliding glass door adjacent to the front door and he broke the glass in the door with the machete. He dropped the machete just inside the house. The appellant entered the premises and, according to Tania Adams and Mr Viandante, said "Give her the money. Just give her the money". Fullgrabe entered the house after the appellant. He was in the house for a very short time - perhaps 15 seconds. Christine Adams said that she saw Fullgrabe pick up some items from a coffee table and then leave the house. The appellant then left the house, picking up the machete as he went. There was no evidence that the appellant was seen to take anything.
17 O'Reilly gave evidence that she took a momentary step into the residence and then left. She had no intention to steal any property and denied stealing anything. Tania Adams gave evidence that after the intruders had gone, her wallet was found to be missing. Mr Wood found
(Page 8)
- that his wallet, mobile phone and car keys had gone and Daniel Smith said that his mobile phone and assorted cards had gone.
18 Police later searched a house where the three accused were residing. They found Tania Adams' wallet in O'Reilly's handbag and the other items in a bedroom occupied by O'Reilly and Fullgrabe.
19 When the verdicts were taken on count 1, the jury found the appellant guilty and the other two not guilty. The jury were then asked whether they found each circumstance of aggravation proved against the appellant and they said "yes" in relation to each. In relation to count 2, all accused were found not guilty of the count as framed, but they found Fullgrabe guilty of the alternative charge of stealing.
Inconsistency of the verdicts
20 The first two grounds of appeal allege that the verdict of guilty on count 1 was inconsistent with the acquittal of Fullgrabe and O'Reilly and also inconsistent with the appellant's own acquittal on count 2.
21 This is not a case of legal or technical inconsistency, as where a jury convicts a person of attempting to commit an offence and actually committing the offence. See MacKenzie v The Queen (1996) 190 CLR 348 at 366. This is a case of alleged factual inconsistency. Where that is the allegation, it is necessary to decide whether, as a matter of logic and reasonableness, there is inconsistency: R v Stone, unreported; UKCCA, EWCA Crim; Devlin J; 13 December 1954 per Devlin J (approved by Gaudron, Gummow and Kirby JJ in MacKenzie at 366).
"[The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
22 Nevertheless, the respect for the function which the law assigns to juries have led courts to repeatedly express reluctance to accept a submission that verdicts are factually inconsistent. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, that conclusion will generally be accepted. It is not the role of the appellate court to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal the view may be taken that the jury followed the Judge's instructions to consider separately the case presented by the
(Page 9)
- prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a merciful view of the facts upon one count: MacKenzie (supra) at 367.
23 As to the latter point, in MacKenzie Gaudron, Gummow and Kirby JJ referred to comments by King CJ in R v Kirkman (1987) 44 SASR 591 at 593, that sometimes it appears to a jury that, although a number of counts have been alleged against an accused person and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a Judge. King CJ said however that it would be idle to close the court's eyes to what is part and parcel of the system of administration of justice by juries. Appellate courts should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
24 In the same joint judgment in MacKenzie, their Honours noted, however, that there was a residue of cases which remain where different verdicts represent an affront to logic and commonsense which is unacceptable, and strongly suggest a compromise of the performance of the jury's duty. More commonly it may suggest confusion in the minds of the jury or a misunderstanding of their function. It is only where the inconsistency arises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. Everything will depend upon the facts of the particular case. The obligation to establish inconsistency of verdicts rests upon the person making the submission. I should conclude my references to MacKenzie by observing that this case has recently been followed and applied by the High Court in Phillips v The Queen (2006) 80 ALJR 537.
25 In Osland v The Queen (1998) 197 CLR 316, McHugh J explained what had to be considered when hearing an appeal argued on the basis of inconsistency of verdicts (in circumstances where there is no legal or technical inconsistency). He said at [121]:
"In determining whether the inconsistency points to an unsatisfactory conviction, the appellate court must consider the evidence, the issues, and the directions which the jury were given. In a case where the accused claimed that his conviction should be set aside because of the inconsistency of verdicts,
(Page 10)
- McGarvie J [in Bacash [1981] VR 923 at 929] said '[i]n considering this question it is vital to consider the way in which the trial Judge charged the jury'."
26 McHugh J noted that Gaudron and Gummow JJ did not approach the question of inconsistency in that way. They found a flaw in the reasoning of the jury in the particular case without examining the way in which the case was conducted by the Crown, together with the evidence and directions, to determine whether a reasonable jury could have convicted Mrs Osland and at the same time failed to agree in respect of the co-accused's guilt. Both Kirby and Callinan JJ considered the way the case had been conducted and considered the directions given by the trial Judge in finally reaching a conclusion (with McHugh J) that there was no inconsistency in the verdicts.
27 Finally I refer to R v Darby (1982) 148 CLR 668 where the High Court, Gibbs CJ, Aikin, Wilson and Brennan JJ, considered the rule in Dharmasena v The King [1951] AC 1 that where two persons were jointly presented at trial on a single count of conspiracy between themselves and no other, the acquittal of one necessitates the acquittal of the other. The High Court considered that such a rule should no longer apply. Their Honours held at 678 that the conviction of a conspirator whether tried together with, or separately from, an alleged co-conspirator, may stand despite the fact that the latter is or may be acquitted unless, in all the circumstances of the case, the conviction is inconsistent with the acquittal of the other person. In reaching that conclusion, their Honours expressed agreement with the observations of Lord Salmon in Director of Public Prosecutions v Shannon [1975] AC 717 where his Lordship said:
"An accused is entitled to be acquitted unless the evidence satisfies the jury beyond reasonable doubt that he is guilty. A verdict of not guilty may mean that the jury is certain that the accused is innocent, or it may mean that, although the evidence arouses considerable suspicion, it is insufficient to convince the jury of the accused's guilt beyond reasonable doubt. The verdict of not guilty is consistent with the jury having taken either view. The only effect of an acquittal, in law, is that the accused can never again be brought before a criminal court and tried for the same offence. So far as the Crown is concerned, the accused is deemed, in law, to be innocent. His acquittal cannot, affect anyone but himself and indeed would not be admissible in evidence on behalf of or against anyone else. Anyone
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- acquitted of a criminal conspiracy may still be sued in damages for the conspiracy of which he has been acquitted at his trial."
28 The above members of the High Court in Darby acknowledged that the outcome of a conspiracy trial may produce the result where the jury "is saying at the same time that A is guilty of conspiring with B but B is not guilty of conspiring with A." Their Honours explained that the "apparent phenomenon" was to be understood in terms of the obligation of the jury to consider separately the guilt of the two accused on the basis only of the evidence admissible against each.
29 I now turn to this case. I have set out the facts above. His Honour directed the jury that the elements of burglary were that each accused, to be found guilty, must have entered the premises without consent and with intent to commit an offence. He directed the jury that the prosecution case was that the offence which the accused intended to commit was that of stealing.
30 In my opinion, in the light of the evidence and that direction, there is no inconsistency arising from the different verdicts. It was a perfectly reasonable outcome for the jury to conclude that the appellant entered the premises without consent (as to which elements there was no contest) and with the intent to steal. The fact he was acquitted of the second count of robbery is entirely consistent with the evidence, which was that, notwithstanding the appellant's intention to steal, he did not in fact steal any property inside the premises. It was Fullgrabe who stole the property according to the only direct evidence on the subject.
31 The fact that Fullgrabe was acquitted of burglary is reasonably explained on the basis that the jury was not satisfied beyond reasonable doubt of one of the three elements. Lack of consent was not an issue and nor was entry onto the premises, although he was there for only about 15 seconds. However, it was open to the jury to conclude that they were not satisfied beyond reasonable doubt that he intended to steal when he stepped over the threshold into the house. The fact that Fullgrabe was convicted of stealing is entirely consistent with the jury having concluded that at the moment he entered the premises he did so without any intention to steal, but once on the premises saw the mobile phones and other property and decided on the spur of the moment to pick them up and to steal them.
32 The acquittal of O'Reilly on count 2 was also entirely reasonable. She was not seen to steal any property. On count 1, O'Reilly took a
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- momentary step inside the premises and the jury may well have decided on the basis of mercy not to convict her of the serious offence of aggravated burglary. Alternatively, it was open to them to conclude that she had no intention of stealing property when she did momentarily enter the premises.
33 I would therefore dismiss grounds 1 and 2 of the appeal.
Circumstance of aggravation - in company - inconsistency
34 The complaint here is that, if Fullgrabe and O'Reilly were acquitted of burglary, the jury could not have found the appellant to have been in company with Fullgrabe and O'Reilly. If they were all in company, this would be a circumstance of aggravation as defined in s 400(1) of the Criminal Code. If the accused was in company with his co-accused, then one or both of those others must have shared with the appellant a common purpose to steal and one or both must have been physically present. See Button (2002) 129 A Crim R 242 at [120] and see also R v Cooper (1978) 17 SASR 472 and R v Brougham (1986) 43 SASR 187. What is involved in "physical presence" is discussed in Button, but the discussion is not relevant in this case.
35 The only relevant common purpose which could have been shared in this case by the appellant, Fullgrabe and O'Reilly was to steal.
36 The charge against the appellant on count 1 was burglary, which offence was committed as he stepped over the threshold. The jury then had to consider whether either Fullgrabe or O'Reilly were at that moment physically present (they both were) and sharing a common purpose, that is to commit the offence of stealing. O'Reilly was not convicted of stealing. Fullgrabe was convicted of stealing but, as I have mentioned, he was acquitted of burglary and therefore, on the facts of the case, it must be because the jury concluded that he did not have the intention to steal at the moment he stepped into the premises.
37 The question is whether the jury could conclude on the one hand that Fullgrabe was not guilty of burglary because he did not have the intention to steal or to commit robbery when he stepped over the threshold and yet conclude when examining the case against the appellant that the appellant shared a common purpose with Fullgrabe and/or O'Reilly to steal. At first blush one might be inclined to think that the jury could not find that Fullgrabe and O'Reilly had no intention to steal (and so acquit them of burglary) and yet go on to find that the appellant shared a common
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- purpose with them to rob or to steal and therefore be in company with them.
38 However, applying what the High Court has said in the cases above, there is no inconsistency. The result is merely a product of the separate consideration of the charges. Thus the jury, when considering the charge against the appellant, and having decided that he should be convicted, then moved to consider the question of whether he was acting in company. If the jury had been properly directed, it was open to them to conclude that the appellant and one or both of his co-accused shared a common purpose to steal when the appellant stepped over the threshold and committed burglary. At that moment Fullgrabe and O'Reilly were still outside. They could all have shared the common purpose to steal at that moment.
39 When the jury came to consider the charge against Fullgrabe and O'Reilly, they had to separately consider whether they were satisfied beyond reasonable doubt that they had committed the offences. They were entitled to conclude that although there had been a common purpose to steal or rob as they approached the home and when the appellant stepped inside, they were not satisfied beyond reasonable doubt that at the moment Fullgrabe and O'Reilly stepped inside they still had the intent to steal. These are fine adjustments to the facts but they are possible and logically acceptable adjustments which allow all of the verdicts to stand. I would dismiss ground 3.1.
Circumstance of aggravation - in company - adequacy of Judge's direction
40 I indicated above that, if properly directed, the jury's verdict that the appellant was "in company" was open. That brings me to the ground that alleges that the trial Judge erred in his direction about what had to be established to prove that the appellant was "in company" when he committed the burglary. The directions given were as follows. His Honour said at t/s 539 - 540:
"Now, a burglary can be aggravated, can be made more serious, and it will be more serious, aggravated, if an offender is armed with a dangerous weapon or knew that there was someone else in the place or if there was more than one offender and they were in company with each other or the place was ordinarily used for human habitation.
Now, those are the matters set out in the subsequent paragraphs on the front page of the indictment. So the paragraph
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- numbered 1 is the burglary. The next paragraphs, and there are four of them, are the circumstances of aggravation. You don't consider the circumstances of aggravation unless you're satisfied beyond a reasonable doubt that there has been a burglary. So when you consider the case against, shall we say, Mr Lacco you consider first of all, in this case, whether he went in with intent to commit an offence. If he didn't he's not guilty and that's the end of it. If he did, you're satisfied beyond a reasonable doubt that he did, then you go on and consider the circumstances of aggravation." [Emphasis added]
41 At t/s 556 his Honour said:
"If when you consider the case against any of those three you conclude that each of them or any of them should be convicted, then you will go on then and only then - I'm focusing on count 1 at the moment - then and only then do you go on to consider the circumstances of aggravation. That Mr Lacco was armed with a machete is not in dispute. There could really be no issue about the knowledge that there were other people in the place. The only question would be whether any accused who you found guilty were in company with each other, and that is a matter for you to consider." [Emphasis added]
42 In my opinion his Honour erred in failing to direct the jury that if the appellant committed burglary "in company" with his co-accused, it was necessary for the appellant and one or both of the other accused to share a common purpose to rob or steal at the moment when the appellant committed the burglary. The lack of any such direction means that it was likely that the jury only considered whether O'Reilly and Fullgrabe were physically present, which they undoubtedly were.
43 I would therefore uphold ground 3.2. As a result, the part of the conviction which records the circumstance of aggravation of being "in company", should be quashed. The conviction for burglary with the three other circumstances of aggravation must remain.
The direction concerning the witness Christine Adams
44 His Honour's direction concerning Christine Adams was in the following terms:
"The only direct evidence of stealing; that is, the only witness who says, 'I saw a stealing happen' is Christine Adams.
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- Christine Adams was there at the front door next to Ms O'Reilly, but she was not charged with any offence, and you heard the police officer, I think Mr Young, Detective Young, say that she was not charged because there was no evidence against her.
That view is not, of course, binding on you in any way. If you do not accept Ms Adams' evidence, then you do not know who stole; that is to say, there is no direct evidence that any particular accused actually stole if you do not accept Ms Adams' evidence and, as I've said to you, Ms Adams is a person whose evidence you should consider very carefully because you will need to consider whether she was an impartial witness, having regard to her relationship with Mr Lacco, and the possibility which you will need to consider whether she was giving that evidence in order to protect him, but you may consider that, viewed objectively, Christine Adams' position was really no different from Ms O'Reilly's position except perhaps that she did not go inside the house at all.
She denied any stealing, of course, as did Ms O'Reilly. They all denied stealing. Ms Adams denied stealing but for some reason her denial was accepted; nobody else's denial was accepted by the prosecuting authority. You will need to consider therefore Christine Adams' position very carefully. You may think that she of all of them had the greatest motive for stealing. She was there to collect the money which she said had been stolen from her, and she had the opportunity to steal, she had the motive and the opportunity. She had the opportunity of going into the house and getting out of the house before the others. The evidence is that she was back at the car before the others.
If you thought there was an inference open or that an inference might be open that it was Christine Adams who stole and that she lied to protect her position or that of Mr Lacco, then you would be obliged to acquit all the other accused unless you came to the conclusion that she stole and others aided her, but if when you consider the inferences that are open you consider that there is an inference open that Christine Adams stole, then you must acquit; in other words, before you could convict any of the accused of stealing and hence the robbery, you would have to be satisfied beyond a reasonable doubt that Christine Adams did not steal - you would have to be satisfied beyond a
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- reasonable doubt that Christine Adams did not steal - because if there was a doubt, if there was a possibility that she did, then you could not be satisfied beyond a reasonable doubt that the others stole and they would have to be acquitted unless you were satisfied beyond a reasonable doubt that they aided her."
45 After the summing up it was the prosecutor who complained about this direction. His Honour declined to give any further direction. It is now the appellant who complains about the direction. The complaint is put on the basis that this direction put into the mind of the jury that the appellant might have "acted in conjunction" with Christine Adams "in the theft of property". In my opinion there is no foundation for any complaint about this direction. His Honour was merely warning the jury about Ms Adams' evidence because of her relationship with the appellant and the possibility that she was trying to protect him. The direction was favourable to all the accused, save in relation to the second count, where his Honour seemed to leave open the possibility that it was Christine Adams who stole the goods and the others aided her. Even if that direction was erroneous in any respect, it cannot be of any relevance to this appeal because the appellant was acquitted of the second count and was not convicted of the alternative count of stealing. I would dismiss ground 4.
Result of appeal
46 The result is that ground 3.2 succeeds and the appeal should be allowed in part. The part of the conviction which records the appellant as having committed the offence in the third circumstance of aggravation, namely that the appellant was in company with Fullgrabe and O'Reilly, should be quashed. In lieu he should be convicted of burglary aggravated by the other three circumstances set out in the indictment. That opens up the need to consider the appropriate sentence for the offence. See s 30(5)(c) of the Criminal Appeals Act 2004. In my opinion, this adjustment to the conviction does not warrant any alteration to the sentence of 16 months' imprisonment backdated to 16 November 2003. No written submissions were made by the appellant suggesting otherwise and counsel's oral submissions ended up agreeing that the other circumstances of aggravation were the more significant for sentencing purposes. I would therefore leave the sentence undisturbed.
47 BUSS JA: I agree with Pullin JA, for the reasons given by him, that grounds of appeal 1 and 4 are without merit.
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48 I agree with Roberts-Smith JA, for the reasons given by him, that ground of appeal 2 is without merit.
49 I agree with Pullin JA that the appellant has established ground of appeal 3.2. The learned trial Judge failed adequately to direct the jury in relation to the allegation in count 1 of the indictment that the appellant, Mr Fullgrabe and Ms O'Reilly were "in company" with each other.
50 In R v Brougham (1986) 43 SASR 187, King CJ (with whom Mohr and von Doussa JJ agreed) considered the offence of robbery in company. His Honour said, at 191:
"The true meaning of the provision emerges from the authorities just cited. A person commits a robbery, or an assault with intent, in company where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assault with intent, and of physically participating if required."
- In Button (2002) 129 A Crim R 242, Kirby J reviewed the authorities in relation to the concept of "in company" and stated a number of propositions, at 273 [120]:
"• First, the statutory definition (s 61J(2)(c)) requires that the offender be 'in the company of another person or persons'.
• Secondly, the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault).
• Thirdly, the cases appear to assume that each participant is physically present.
• Fourthly, participation in the common purpose without being physically present (for example, as a look-out or as an accessory before the fact) is not enough.
• Fifthly, the perspective of the victim (being confronted by the combined force or strength of two or more persons) is
- relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be 'in company', even if the victim was unaware of the other person."
- His Honour then considered the meaning of "physical presence" and the aspect of the crime in question in respect of which physical presence was required. Heydon JA (at 256 [41]) and Greg James J (at 265 [70]) agreed with Kirby J's analysis of the concept of "in company". Greg James J added some observations concerning the degree of proximity to others which could amount to physical presence.
51 In my opinion, the learned trial Judge erred in that he failed to direct the jury that if they found the appellant guilty of the offence of burglary, they could not find the appellant had committed the burglary "in company" unless they were satisfied, beyond reasonable doubt, that the appellant and either or both of his co-accused were physically present at Ms Tania Adams' house for the common purpose of entering the house, without her consent, to commit the offence of stealing.
52 I agree with Pullin JA that the learned trial Judge's misdirection requires that the part of the appellant's conviction which records the circumstance of aggravation of being "in company" should be quashed. I also agree with Pullin JA that the appellant's conviction for burglary, with the other circumstances of aggravation, should not be disturbed.
53 It is unnecessary, in the circumstances, to consider ground of appeal 3.1. I should, however, express my opinion in relation to the following observations in [38] - [39] of Pullin JA's reasons:
"… If the jury had been properly directed, it was open to them to conclude that the appellant and one or both of his co-accused shared a common purpose to steal when the appellant stepped over the threshold and committed burglary. At that moment Fullgrabe and O'Reilly were still outside. They could all have shared the common purpose to steal at that moment.
When the jury came to consider the charge against Fullgrabe and O'Reilly, they had to separately consider whether they were satisfied beyond reasonable doubt that they had committed the offences. They were entitled to conclude that although there had been a common purpose to steal or rob as they approached the home and when the appellant stepped inside, they were not satisfied beyond reasonable doubt that at the moment Fullgrabe
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- and O'Reilly stepped inside they still had the intent to steal. These are fine adjustments to the facts but they are possible and logically acceptable adjustments which allow all of the verdicts to stand."
54 In my opinion, if the jury had been properly directed in relation to the concept of "in company", and if they had been satisfied beyond reasonable doubt that:
(a) the appellant, Mr Fullgrabe and Ms O'Reilly had the common purpose of entering Ms Tania Adams' house, without her consent, to commit the offence of stealing;
(b) the common purpose existed when the appellant entered the house; and
(c) Mr Fullgrabe and Ms O'Reilly were physically present when the appellant entered the house (although they had not yet entered the house themselves),
- each of the appellant, Mr Fullgrabe and Ms O'Reilly would have committed the offence of burglary, aggravated by the circumstance of being in company with each other. The offence, with the circumstance of aggravation I have mentioned, would have been committed by each of them upon the appellant entering the house and notwithstanding that Mr Fullgrabe and Ms O'Reilly had not yet stepped inside. Section 7(a) of the Criminal Code (WA) includes cases where there are several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person. See R v Wyles; Ex parte Attorney-General [1977] Qd R 169 per Hoare J (with whom Matthews J agreed) at 179-180, 182; Warren & Ireland v The Queen [1987] WAR 314 per Franklyn J at 328 - 329; R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275 per Macrossan CJ (with whom Lee J agreed) at 283. Also see R v Sherrington & Kuchler [2001] QCA 105. Directions to the jury in relation to the elements of the offence of burglary, the concept of "in company" and the other circumstances of aggravation alleged in the indictment should have been accompanied by directions concerning s 7(a) of the Criminal Code.
55 I agree with Pullin JA that allowing the appeal in part, in consequence of the appellant having established ground of appeal 3.2, does not require any alteration to the sentence imposed by the learned trial Judge.
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