Levidis v The Queen

[1992] HCATrans 68

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M34 of 1990

B e t w e e n -

NICHOLAS LEVIDIS

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 12 MARCH 1992, AT 9.31 AM

Copyright in the High Court of Australia

Levidis 1 12/3/92

MR O.P. HOLDENSON:  May it please the Court, I appear in

this matter on behalf of the applicant, Mr Levidis.

(instructed by Haines & Polites)

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

my learned friend, MR N. PAPAS, for the Crown.

(instructed by J. Buckley, Solicitor to the

Director of Public Prosecutions (Victoria))

MASON CJ: Yes, Mr Holdenson?

MR HOLDENSON:  The substance of the applicant's complaint in

this matter was expressed by the learned sentencing

judge, as he then was, when he set out those

matters which necessarily had to be resolved or

determined prior to the imposition of sentence.

One of those matters was clearly the factual basis of the jury's verdict. At the foot of page 123 of the application book, the learned sentencing judge set out for himself the task which he had to

determine at that point in time: firstly, as to

whether or not the applicant was the actual thief

from the Myer store on the Friday night, or perhaps

whether the applicant was a party to the agreement

pursuant to which that theft was committed on the applicant at some point in time subsequent to that point in time at which the Myer store was burgled

and the subject property stolen on the Friday

obtained possession of that subject property,

night, but then again at some point in time prior

to Kyriazis entering the Lemon Tree Hotel on the

knowing it to have been stolen.

In engaging in such a fact-finding exercise,

the learned sentencing judge was impliedly

accepting, or perhaps even confirming, that the

verdict of guilty to the one and only count in the

presentment was on its face referable to two

separate appropriations, that is appropriations of

the property; one of them on the Friday night at
the Myer store, the other at some point in time at
which the applicant gained possession of that
subject property, that point in time perhaps being
the Saturday or the Sunday or the Monday morning,

or even the Monday evening.

Unless such an exercise had been undertaken by

the learned sentencing judge, although the verdict

clearly discloses that the applicant had been found
in possession of the subject property, it does not

disclose by which act of appropriation the

applicant came into possession of that property.

Levidis 2 12/3/92

An alternative means of considering the

applicant's complaint is when regard is had to the

hypothetical question of what would happen if the
applicant were today charged with the offence of
being the burglar of the Myer store on the Friday
night or if he were today charged with the offence
of handling by way of assisting in the dishonest
retention of the stolen jewellery on the Monday
afternoon. In other words, could it be that the

applicant could raise in his defence autrefois

convict to such a charge?

The submission on behalf of the applicant is

that the prosecution, in charging one count, where

that one count is referable to two separate and

distinct and mutually exclusive acts or episodes or

incidents or transactions - call them what you

may - namely, the two different appropriations, and

the Crown then proceeding through to the end of the

trial on that basis without at some stage making an

election as to the appropriation upon it which it

would rely at the end of the trial, has permitted

the jury to return a unanimous verdict of guilty

where there may well be no unanimous agreement as

to one of the elements of the offence, namely

appropriation.

The words I have used there in the submission, "where there be no unanimous agreement as to one of

the elements of the offence", is to adopt the
expression of Your Honour Mr Justice Dawson in the

case of Sat page 276 of the report - that is the

Commonwealth Law Report. It may well be that six

or eight jurors have, for example, been of the view

that there was an appropriation on the Friday

evening, namely at the time that the Myer store was

broken into.

It may well be that two jurors are of the view

that there was an appropriation on the Monday

morning, that is the point in time at which the

jurors are of the view that the applicant, Levidis,

came into possession of that stolen property. It

may well be the case that another four jurors are
of the view that the applicant came into possession

of that property on the Monday evening immediately

prior to Kyriazis leaving the Commodore car and

entering the Lemon Tree Hotel.

Where the act of appropriation, as in this case, constitutes an element of the offence and

proof of that element has not been achieved unless

all members of the jury join in saying so, it is

submitted that there is as a result an uncertain

verdict. It may well be different - one may well

be precluded from making this submission if the act

of appropriation did not constitute or does not

Levidis 12/3/92

constitute ar lement of the offence charged, but

in circumstances in Victoria where, under the

relevant provisions of the Crimes Act, one of the

elements of the offences of theft is appropriation.

The court below, in attempting to justify that

which had occurred at trial, sought refuge in what

it called the manslaughter cases, but it is my

submission that those cases are entirely

distinguishable and not relevant. That is, where

someone be killed, that is where death be caused,

it may well be, if the jury return a verdict of

manslaughter, it is as a result of the jury

accepting the defence of provocation or, once upon

a time, accepting the defence of self-defence in

circumstances where there was excessive

self-defence, or it may well be that the jury are

of the view that there has been an unlawful and

dangerous act type manslaughter.

But in any event, in circumstances where

sentencing judges have to construe or interpret

verdicts of guilty of manslaughter, the situation

is that the learned sentencing judge is engaging in

an act of characterization or construction of one

act, not several acts as in the instant matter.	So
it is my submission that those manslaughter cases
are entirely distinguishable.

It follows therefore that in my submission,

there is no material distinction between the

instant situation and those situations before the

appellate courts in each of the first four cases

cited in paragraph 3.2 of the outline of

submissions, that paragraph appearing on page 10 of

the application book. The Court will there note

that cited are four cases, Jones, Trotter, Sand

Lapthorne.

If I might very briefly take the Court to the case of Jones, (1980) WAR 203, the situation in
that case can be very briefly described.	There was

one count of rape in the indictment, but the

prosecution had alleged two acts of sexual

intercourse, each without consent. The test posed

by the Full Court of the Supreme Court of Western

Australia appears at the very foot of page 203,

where the court put the matter in this way:

The question which arises from that is,

guilty of what? The general answer to that,

of course, is guilty of rape, but which act of

intercourse?

At page 204, the court set out the manner in which

a trial court or a trial judge can ensure that such

a situation does not arise. At the head of the

Levidis 4 12/3/92

second paragraph on that page, the court indicates

that which ought be done, namely:

It was a case in which the Crown should

have been "required to identify the

transaction upon which it relies".

If I could translate that to the instant matter, in

my submission the Crown should have identified the

transaction upon which it relied by opting for or

electing one of the two appropriations:

appropriation by way of theft on the Friday night

from the Myer store or, alternatively,

appropriation by way of coming into possession of
those goods at a subsequent point in time, without
necessarily opting for Saturday morning or Monday

afternoon or Monday evening.

MASON CJ: But the point of the Jones case was that there

was evidence of two distinct offences.

MR HOLDENSON:	Yes, Your Honour.
MASON CJ:	In the present case there is not evidence of two

distinct offences.

MR HOLDENSON: There is, in my respectful submission,

because there is evidence of the - - -

MASON CJ:  Would you explain to me how there is evidence of

two distinct offences.

MR HOLDENSON: 

The evidence of recent possession enabled the

jury if it so desired to draw one of two
inferences, namely there had been an appropriation
of the goods on the Friday night, that
constituting, in my submission, one offence. It
also enabled the jury to draw the inference, had it
so desired, that the goods had been appropriated at
a.subsequent stage, namely by his coming into
possession of those goods.

MASON CJ: But they were alternative inferences that might

be available.

MR HOLDENSON: That is correct.

MASON CJ:  No one is going to suggest that a jury could draw

the inference of two appropriations.

MR HOLDENSON: That could not happen; they are mutually

exclusive. But in any event

DAWSON J:  And he is only charged with one offence, theft.

MR HOLDENSON: That is correct.

Levidis	12/3/92
DAWSON J: Handling is not an alternative.
MR HOLDENSON:	He was only charged with one offence, but the basis of that, that he so committed the offence of
theft by committing one, albeit alternative and
mutually exclusive appropriations.  When one has
regard to the tests for duplicity, to which I will come briefly in due course, there has been, in my submission, there laid and presented and prosecuted a duplicitous presentment, because each act of appropriation, albeit in the alternative,
constitutes a different offence, only one of which
could have been committed.

It may well have been the case that there was

an allegation in the case of Jones that there had

been two acts of sexual intercourse. It may well
be that in actual fact there was only one, but

nevertheless there is no distinction because the

Crown were asking or alleging that there had been

two such acts of sexual intercourse without

consent.

MASON CJ:	You are focusing on the element of appropriation, whereas essentially the Crown case as presented was
that the applicant was in possession of the
property.

MR HOLDENSON: That is correct.

MASON CJ: Establishing possession on the part of the

applicant of the property gave rise to various

inferences and possibilities. One was the

application of the doctrine of recent possession

without a satisfactory explanation, and the other

was, pursuant to the provision in the statute,

assumption of the rights of the owner. So

everything derived from the one act of possession

on which the Crown relied.

MR HOLDENSON:  Yes, Your Honour, but the one act of

possession was not the offence charged.	Had the
applicant been charged with the offence of being in

unlawful possession of property reasonably

suspected of being stolen or unlawfully obtained
or, for example, handling by way of dishonestly

retaining, then I would not be able to make any

submission, at least not in this Court.

However, in circumstances where the offence

charged was not possession, that was the means by

which the Crown sought to prove an offence which

had, in my submission, as I have already indicated,

two alternative bases. If I can just go on and

perhaps better answer Your Honour Justice Mason's

question, at pages 34 to 35 of the application

book, where the court rejected this particular

Levidis 6 12/3/92

argument, it is submitted that the court has

actually confused two distinct matters, one of them

being the basis of the offence charged as against

the means by which the prosecution sought to prove that offence, which in this case was by way of the doctrine of recent possession by attempting to

prove that at a certain point of time the applicant

was in possession of the property.

This was the distinction recognized by the

Chief Justice of the Supreme Court of Western

Australia in Lapthorne, (1989) 40 A Crim R 142, where at page 146 in the judgment of the

Chief Justice, with whom His Honour

Mr Justice Seaman agreed and also

Mr Justice Nicholson agreed, at about point 5 on

the page, there is recognized that distinction

which in my submission is applicable in the instant

case. If I might quote a passage at page 146:

from the outset of the trial or at least from

the completion of the opening address of

counsel for the prosecution, an accused is

entitled to know with what he is charged and

with what it will be alleged will be evidence

of other acts which will go to establish a
relationship, or be similar fact evidence or

part of the res gestae.

It is necessary therefore for the prosecution to

allege with what he is charged, namely in this case

it would be theft, in my submission, by way of

appropriation on the Friday night or by

appropriation at a subsequent point in time, and

also to make it clear, that is, an accused is

entitled to know with what it will be alleged will

be evidence of the means by which the Crown will

seek to prove that.

There is no doubt in this case that the

accused person, as he then was, was clearly

apprised of how it was that the Crown sought to

prove their case, namely possession on the Monday

evening. There is no doubt about that, and that

was very, very clearly put to the jury and it was

resolved adversely to the applicant.

However, when one places reliance upon that

passage in Jones' case, which is really nothing

other than from a passage of Mr Justice Dixon, as

he then was, in Johnson v Miller, the transaction

must be identified upon which it relied. In my

submission, that goes back to the appropriation

rather than the means by which the prosecution seek

to prove the offence.

Levidis 12/3/92

Had the prosecutor made an election, as was

the subject of the application at the trial, there

would not have been any uncertainty in the

verdict -

DAWSON J:	Made an election about what?
MR HOLDENSON:	- - - as to which appropriation it was upon

which he relied.

DAWSON J: There is one offence, and the prosecution is

entitled to rely on the evidence as proving that

offence. The jury might draw one or other

inferences from the evidence.

MR HOLDENSON:  There was one offence of theft charged.

DAWSON J: There was not even an alternative of handling.

MR HOLDENSON:  I hear what Your Honour says, and Your Honour

is effectively therefore adopting the ruling of the

learned trial judge, as evidenced by his letter to

counsel which constituted the ruling. That appears

at page - - -

DAWSON J:  He did not leave handling to the jury as an

alternative.

MR HOLDENSON:	No suggestion that - - -
DAWSON J:	So there was not any alternative.
MR HOLDENSON:	If I could just take the Court to that

document which constituted evidence of the ruling,

namely the letter sent by the learned trial judge
to counsel, His Honour placed reliance upon the

English case of Stapylton v O'Callaghan - - -

DAWSON J: But we do not need to get into that argument.

The fact of the matter was that handling was not

left to the jury as an alternative.

MR HOLDENSON:	I know that, Your Honour.
DAWSON J:	We do not have to debate whether it could or

would have been left.

MR HOLDENSON: Referring to the letter, Your Honour, there

is no suggestion of handling in that case.

DAWSON J:	Was handling left to the jury as an alternative?
MR HOLDENSON:	No.

DAWSON J: That is the end of the matter.

Levidis	12/3/92
MR HOLDENSON: Stapylton v O'Callaghan is a case which

concerned handling and theft, but the judgment of

the English court related to what might be called

the second appropriation. His Honour placed

reliance upon that decision, and that decision is

certainly - there is no doubt about it - authority

for the proposition that a count, being a theft

count, may rely upon a second appropriation.

However, the subsequent English authorities

which refer to that case indicate that where the

Crown seeks to prove theft by either of two

separate appropriations, as in the instant matter

of Levidis, then there should be, so say the

English courts, two separate counts.

MASON CJ: But the point here is that Crown was not relying

on two separate appropriations.

MR HOLDENSON:  I hear what Your Honour says, but the - - -

MASON CJ: Perhaps you ought to do a little more than hear

it; you ought to appreciate it as well.

MR HOLDENSON:  If I might not only appreciate it but respond

to it, the learned sentencing judge had to

determine which appropriation had taken place,

which appropriation was the basis of the jury's

verdict. His Honour engaged in that fact-finding

exercise in the appropriate manner, and no

criticism was or is made of that.

MASON CJ: His Honour may have done that for the purpose of

determining what he regarded as the appropriate

penalty, but in terms of arriving at the verdict of

guilty, the jury were not asked to base their

verdict on two separate appropriations contended

for by the Crown.

MR HOLDENSON:  In my submission, as the matter was put to

the jury, the jury were permitted, in finding that

the element of appropriation had been proved, to

consider whether or not there had been an
appropriation on Friday night or at a subsequent

point in time.

GAUDRON J: But, really, did it go any more than this:

there were different inferences available from the

evidence of possession. One was of appropriation

on Friday night; one was of appropriation on some

other night or some other time up until the Monday.

Unless they excluded both inferences in the light

of the evidence as it was, your client was guilty.

MR HOLDENSON:  I understand that and that is probably an

appropriate way to characterize that which occurred

at the trial. I do not argue with that

Levidis 9 12/3/92

characterization of that which occurred at the

trial and it was clearly determined adversely to

the applicant.

GAUDRON J:  Your client was in the same position as a person

charged with murder who said, "I didn't do it with

a gun, I did it with a knife". Unless your client

could take it -

MR HOLDENSON:  No, in my submission, there is a distinction

between that situation that Your Honour has just

put to me because in that situation there would

only be one act of causation of death, namely the

infliction of some instrument, whether it be a gun
or a knife or a bullet from a gun, into the body of

the deceased which caused the death of the

deceased.

But in this situation, albeit there was one

act of possession, the jury were asked to construe

that in two alternative manners by going back to

two different appropriations, each of which, on the

basis of the English case of Devell, and as

followed in More and Shelton - each of which is

cited on the list of authorities - ought be, in the

view of the English cases, the subject of separate

counts.

Count No 1 would be the appropriation from

Myers on the Friday night; count No 2, an

alternative count - and there is nothing improper with having alternative counts, of course - would

be that there was a subsequent appropriation and

the jury would be asked to return a verdict of

guilty in respect of one of those but clearly not

both by reason of their being in the alternative.

DAWSON J:  Mr Holdenson, to take up the example that

Justice Gaudron mentioned, if the person accused

with murder shot a person twice and you could not

determine which shot caused the death, you do not charge him with two counts of murder, you charge him with one.

MR HOLDENSON: That is correct.

DAWSON J:  And the jury can take a view that it was one or the other.

MR HOLDENSON: That is correct.

DAWSON J: This is exactly the same situation.

MR HOLDENSON: That was the subject of reference in a

decision of the Full Court of the Supreme Court in

Inferri, which is not referred to in any of the

documents, that decision having been the subject of

Levidis 10 12/3/92

extensive reference in the recent West

Australian - - -

DAWSON J:  We really do not need authority for that

proposition, do we?

MR HOLDENSON:  I hear what Your Honour says but that very

question was considered and, again, recently in

Chew and this Court has granted special leave to

appeal, as I understand it, in the matter of Chew,

and it was resolved the other way around, as I

understand it. That very question Your Honour has

put to me has been resolved in a different manner;

whether rightly or wrongly it has been so resolved

and that is clear from the case of Inferri.

MASON CJ:  Mr Holdenson, I think it might be preferable if

you drop from your style of advocacy this

expression, "I hear what Your Honour says".

MR HOLDENSON:  Yes, Your Honour, I understand that and I

apologize for that. If I could just, before

concluding the submissions, move on to one case

which, in my submission, is inconsistent with that

which was determined in the instant matter of

Levidis and that is the Tasmanian case of Dick.

That is referred to in the list of authorities,

although not in the outline of argument.

In that case, in Reg v Dick, there was, in the indictment or presentment, one count of receiving

and there was one act of possession relied upon in

order to prove that one count of receiving. There

was evidence, however, of two separate acts of

receipt or receiving the subject property. It was

held, in that case, albeit it at first instance by

the learned trial judge, that that gave rise to a

situation of latent duplicity. That is, in my

submission, inconsistent with that which has been

held in this case of Levidis.

If I might move on to that which, in my

submission, constitutes one of the special leave

points in this case, as already referred to, of

course, in the affidavit in support of the

application and that is that there has been, in the

circumstances of this case, an abuse of the court's

process, that submission and ground clearly being

rejected by the court below.

There has been, in my submission, such by

reason of unfairness where, to use the expression

of Your Honour Mr Justice Dawson in the case of S,
the accused, as he then was, was forced into a
situation of general denial and that being a form

of embarrassment and there was evidence to that

effect, a mere general denial of the allegation.

Levidis 11 12/3/92

There has, furthermore - and, of course, the condition precedent to this point being made out is

that the court is of the view that there was latent

duplicity or duplicity or uncertainty or whatever
in either the count as prosecuted or,

alternatively, the verdict - a failure to comply

with the correct procedure.

If the Court is against me on duplicity or uncertainty then this submission has no basis and

no merit whatsoever. But there were, in my

submission, in the judgments of Jago, a number of

passages to the effect that a misuse by way of any

irregularity and a failure to comply with the

appropriate procedures, that, in itself,

constituted an abuse of the court's process and

that was a means by which such an application or a

basis upon which such an application could be made

and there would therefore be - it would be

necessary to resolve a number of the passages in

the judgments of Jago as to whether or not they do

actually go as far as to relate to a situation of

duplicity or uncertainty.

Apart from those matters which are set out in

both the supporting affidavit and the outline of

submissions, that concludes the submissions at this

stage, if Your Honours please.

MASON CJ:  Thank you, Mr Holdenson. The Court need not

trouble you, Mr Bongiorno.

MR BONGIORNO: If the Court pleases.

MASON CJ:  The decision of the Court of Criminal Appeal was

plainly correct. In order to make out the offence

of theft, the Crown relied on the doctrine of
recent possession without a satisfactory

explanation and, in the alternative, possession

amounting to an assumption of the rights of the

owner. They are alternative ways of making out the

offence of theft, arising in this case out of the

one act of possession and, accordingly, do not

constitute separate offences.

There is no substance in the argument that the

Crown case involved reliance on separate and

distinct acts of appropriation. Consequently,

there was no element of duplicity in the

presentment. Likewise, as the Crown relied on the

one act of possession and not on separate and

distinct acts of appropriation, there was no

element of uncertainty. The application for

special leave to appeal is therefore refused.

AT 9.58 AM THE MATTER WAS ADJOURNED SINE DIE

Levidis 12 12/3/92