Lush Parry Kartinyeri v R No. SCCRM 95/293 Judgment No. 5438 Number of Pages 11 Criminal Law

[1996] SASC 5438

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MATHESON(2), MILLHOUSE(3) AND LANDER(1) JJ

CWDS
Criminal law - appeal and new trial and inquiry after conviction - Appellant complained that alternative offence of accessory after the fact was not put to the jury by the learned trial Judge - discussion of 241 Criminal LawConsolidation Act - it would have been appropriate on the facts to have left rhe offence under s241(5) to the jury - no miscarriage suffered by the appellant by reason of omission - no inherent contradiction in a finding of guilty on first count and an acquittal on the second count - conviction not unsafe and/or dangerous bearing in mind the whole of the evidence - appeal against conviction dismissed - appeal against sentence allowed because the learned trial Judge failed to have regard to remissions upon a suspended sentence - head sentence fixed of four years, five months and ten days with a non-parole period of two years. Criminal Law Consolidation Act 1935; Statutes Amendment (Correctional Services) Act 1995, referred to. Benbolt v A (1993) 60 SASR 7, applied.

HRNG ADELAIDE, 11 December 1995 #DATE 20:2:1996 #ADD 28:3:1996

Counsel for appellant:     Mr N Vadasz

Solicitors for appellant:    Nicholas Vadasz

Counsel for respondent:     Ms P Kelly

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 LANDER J The appellant was charged upon information with Cyril Thomas Milera and Grant Andrew Wanganeen, with the offence of robbery in company and the offence of assault occasioning actual bodily harm.

2. The particulars of the offence are that on 14 January 1994 they assaulted Mark Alexander Seja, and together robbed Barbara Alison Kraft of a handbag, driver's licence, bankcard, ANZ Access account card, pearl earrings, cheque book, keys, cosmetic items and personal cards and papers together of value and money in the amount of about $70.

3. At his separate trial before a District Court Judge and jury he was convicted of the first count and acquitted of the second.

4. The appellant has appealed against his conviction on the following grounds:
    "1. The Learned Trial Judge erred in law in not leaving to
    the jury as an alternative verdict the offence of accessory
after the fact pursuant to Section 241(5) of the Criminal
    Law Consolidation Act.
    2. The verdict of guilty was inconsistent with the verdict
    of not guilty.
    3. The verdict of guilty was unsafe and/or dangerous
    bearing in mind the whole of the evidence and, in
    particular -
     (i) The Crown position that the matter was a joint
     enterprise
     (ii) That the jury were unable to return a verdict of
     accessory after the fact notwithstanding the evidence that
     the applicant drove the two co-accused from Adelaide to
     Port Adelaide after the robbery."

5. Mark Seja was an off duty police officer who was in the company of Barbara Kraft at about 2.00 a.m. on Friday, 14 January. They were walking east along Rundle Street, having crossed Pulteney Street from the Rundle Mall on the northern side of Rundle Street. They crossed the traffic lights at the intersection of Rundle Street and East Terrace, intending to walk to the Royal Hotel for the purpose of getting a taxi. They then walked through the parklands area toward a small footbridge. Just before the footbridge Mr Seja's attention was attracted by the noise of two people walking behind him and he turned around and saw three males walking on the path behind him, about 20 metres to the rear. He was able from that distance to identify them as Aboriginal males.

6. He turned around a second time and saw that the three Aboriginal males who he had earlier seen were running towards him at full pace. They were then only 1-2 metres away. The person in the middle came straight towards him, whilst the one on the righthand side ran around behind him on his righthand side, and the one on the left ran around him on his lefthand side. They encircled him and one came towards him, produced a stick of some sort and hit him across the head.

7. Immediately after he was struck, he identified himself as a police officer by using the words, "I'm a copper," but that only drew a second hit to the head in exactly the same place.

8. He noticed blood in his left eye, which he cleared and as he did he lifted his left arm to fend off an apprehended third attack and the stick which was being used by the Aboriginal male struck him on the wrist, causing him grazing and bruising to him arm and ribs. He grabbed hold of the stick, which he wrestled from the offender.

9. He saw that person then run away and join up with the other two men and they all ran away in a north-easterly direction towards the Royal Hotel.

10. He suffered injuries including a laceration to the left forehead, straining of the right wrist, cuts and bruises on the left lower arm and cuts and bruises on the left side of his body. He contacted police and St John Ambulance and was taken to hospital where he was treated for his injuries.

11. Whilst Mr Seja was being assaulted, Ms Kraft was being robbed. She saw the three men when they were about 5 or 6 metres away, travelling three abreast and travelling fairly fast, and she thought then that they were being ambushed.

12. She was carrying a handbag over her left shoulder and when the men moved towards her, she stepped back and grabbed hold of the shoulder bag and moved it in front of her by way of protection. The man who was on her left moved closer, lunged at the bag and as he did, she felt the strap break and at the same time, she fell to the ground.

13. She did not see her bag again. The whole incident took only 30 seconds. She also saw the two men join up with a third man and run in a north-easterly direction towards North Terrace. She confirmed the loss of the items particularized in the account of the robbery.

14. Very shortly after these events a male person, wearing a Richmond football jumper, was seen getting into a taxi on North Terrace, next to the Royal Hotel.

15. The appellant was spoken to at 5.50 a.m. that morning by Constable Woods. He was then wearing a Richmond football jumper and during that conversation, Constable Woods said this to him:
    "Guys, we are investigating a robbery of a female and a male
    off-duty policeman that occurred earlier this morning in a
    park next to North Terrace and Hackney Road in which the
    male was struck with a piece of wood and the female's
    handbag was stolen. I would like to speak ..."

16. Before the police officer could finish the sentence, the appellant said:
    "I just got released from the Port Adelaide Police who
    stuffed up and locked me up on a first instance warrant
    because someone has been using my name. I haven't even been
    to town."

17. The conversation continued inside the house and the police officer said this:
    "Lush, a male person fitting your description and wearing a
    Richmond football jumper was seen getting into a taxi on
    North Terrace next to the Royal Hotel. At that time he was
    in company with two other males."

18. The appellant said:
    "Fuck this, I'm not fucking wearing this. It wasn't my idea
    to rob them. I was just with them. I didn't hit him. Why
    don't you ask fucking Cyril or Grant what happened, instead
    of me."

19. He was then arrested and given his rights.

20. He then told the police officer that at the time they were in the park near the Royal Hotel and that Grant Wanganeen "hit the guy" and Cyril Milera "grabbed the bag" and that they "all just ran and got in the taxi". He said that Cyril had subsequently thrown away the bag. The appellant also gave other accounts of his movements on the night in question which were contradictory, and from which the jury were entitled to infer that the three co-offenders, including the appellant, had discussed a plan to rob the witness, Ms Kraft, at a coffee shop earlier that night.

21. It appears that between the assault and the robbery in the east parklands and the above conversation, the appellant drove the other two men to the address at which Constable Woods interviewed the appellant.

22. The accused did not give evidence and therefore did not attempt in any way to contradict the evidence of Mr Seja and Ms Kraft. In those circumstances, of course, the jury were entitled to accept the uncontradicted evidence of the victims.

23. The only evidence that was brought by the accused was from a Dr White, a Pharmacologist, who gave evidence as to the effects of alcohol, Rohypnol, heroin and Benzodiazepines.

24. Evidence was then led from him as to the effect of some of those drugs in different doses. He was then asked to assume that the appellant had taken an excessive amount of the drug, Rohypnol, and was in Rundle Street with two companions at 2.15 a.m. He was then asked whether it would be possible that there could have been a discussion about robbing someone, that the accused could be standing around during the discussion without any awareness of the discussion itself. The witness said it was possible. He was asked to assume that the accused then walked with his companions without really being aware of what was going on, again to which he said it was possible. Then he was asked to assume that one of the men hit one or two people over the head with a large stick and to assume that the other men went and grabbed the handbag, at which stage the accused ran away. He was asked to assume that the man ran a distance of maybe half a kilometre, give or take 100 metres, and the man then engaged in a conversation with a taxi driver, then got into the taxi and he was asked upon those assumptions could that be done by someone, even though that person had been in a zombie-like condition shortly before. He was then asked to assume various other matters and asked to offer an opinion as to whether or not the accused might have acted wholly under the influence of drugs. All of that, the doctor said, was a possibility.

25. The difficulty with the evidence, of course, is that it is irrelevant because the facts upon which the assumptions are based were simply not proved. Where an expert witness is called to give evidence of an opinion, he makes assumptions of facts. The opinion will not become relevant unless the trier of fact first determines that the facts upon which the opinion is based has been made out. In this case no attempt was made to prove the facts, and therefore the opinion was irrelevant.

26. In all of the circumstances it seems to me that the jury were entitled to accept the uncontradicted evidence of Mr Seja and Ms Kraft and were entitled to conclude that the accused, in the absence of his giving contrary evidence, was acting voluntarily, and that he had the necessary intent.

27. The Crown case, of course, was that the appellant, Wanganeen and Milera were acting in a joint enterprise and that each of the accused were as guilty as each other of each of the crimes, even though only one of the co-accused actually assaulted Mr Seja, and apparently only one took the bag from Ms Kraft.

28. The appellant points to the fact that there is an apparent inconsistency between the verdict of guilty on the first count and the acquittal on the second count, upon the basis that in respect of the first count, the jury must have concluded a joint enterprise, but on the second count must have rejected the notion of a joint enterprise.

29. The appellant also complains that in relation to the first count his Honour erred in failing to leave to the jury the alternative offence of accessory after the fact, pursuant to s241(5) of the Criminal Law Consolidation Act 1936.

30. In respect of that his Honour was addressed in relation to the alternative verdicts which ought to be left to the jury, and it was put to his Honour by the DPP that the true construction of s241(5) would preclude that being left as a verdict for the jury in circumstances such as these.

31. Section 241(5) of the Criminal Law Consolidation Act reads:
    "Where -
    (a) a person charged with an offence as a principal
    offender is found not guilty of the offence charged; but
    (b) the court is satisfied that another person was guilty
    of the offence charged (or some other offence of which the
    accused might on the charge be found guilty),
    the court may, if satisfied that the accused is guilty of an
    offence against subsection (1) as an accessory in relation
    to the offence charged (or that other offence), find the
    accused guilty of an offence against subsection (1)."

32. It was put to his Honour and his Honour accepted that the person referred to in s241(5)(a) was someone different to the accused referred to in s241(5)(b).

33. The DPP has conceded for the purpose of this appeal that the construction which he argued for before his Honour was wrong and accepts to that extent his Honour was led into error.

34. In this appeal the DPP concedes that s241(5) is an alternative offence to each of the counts with which the accused was charged.

35. The construction of the section is not without difficulty because of the unfortunate terminology used in the section itself. Section 241(1) defines a person as being the accessory and another person as being the principal offender but does not consistently use that expression in s241(5).

36. It is also surprising that the section does not refer to the accused consistently throughout it but in some circumstances refers to `the accused' as the accused and some other circumstances as `a person charged'.

37. I think, however, that notwithstanding the unfortunate use of terminology that the person charged in s241(5)(a) is the same person as the accused in s241(5)(b) otherwise it would seem to leave little work for the section to do.

38. I think the section means that notwithstanding that an accused person is found not guilty of a principal offence, if some other person is found guilty of the offence, the accused may still be found guilty of being an accessory provided the matters in s241(1) are made out.

39. The section operates when the accused is firstly found not guilty of the principal offence and secondly the Court is satisfied that some other person committed the principal offence or some other offence and the other circumstances set out in s241(1) apply.

40. I agree that the concession made by the Crown in this appeal is right and that his Honour erred in his construction of s241(5).

41. In respect of the first count his Honour left to the jury the offence charged, namely robbery in company, secondly simple robbery, thirdly larceny of the person, fourthly simple larceny and fifthly assault with intent to rob.

42. He was asked by counsel for the accused to leave the offence under s241(1) of the Act but refused.

43. As I have said, his Honour erred in his construction of s241(5) which meant that the offence under s241(1) was an alternative, and provided it reasonably arose upon the facts ought to have been left to the jury.

44. The factual situation that might have led to a verdict under s241(1) arose only out of the statement of the accused to Constable Woods where he said he was just with them and did not hit Mr Seja and later when he said they just ran and got into a taxi. He later drove them to the place where they were apprehended. The jury might have concluded that in those circumstances there was no joint enterprise but that the accused assisted the principal offenders, namely Wanganeen and Milera to escape apprehension. In those circumstances, it would have been appropriate to have left the offence under s241(1) to the jury.

45. However, the failure to leave that verdict to the jury, in my opinion, does not necessarily mean that the appeal must be allowed. The jury could not have returned the verdict it did unless it was satisfied, at least in respect of the robbery in company, that the elements of the offence had been made out. It would only have needed to consider the alternative verdict in circumstances where it believed that the elements of the offence of robbery in company had not been made out beyond reasonable doubt.

46. In Benbolt v R (1993) 60 SASR 7, King CJ (who dissented on the facts, but concurred as to matters of principle) said at 20:
    "The principle is clear that a failure to direct a jury as
    to an alternative verdict of a lesser offence open to them
    does not entitle the accused to complain unless the failure
    had deprived him of a chance of acquittal of the major
    crime. If the judge correctly instructs the jury on the
    essential ingredients of the crime charged, and fully and
    fairly puts to the jury the defence set up by the accused, a
    verdict of guilty amounts to a finding of every essential
    element of the crime charged and cannot be disturbed by a
    suggestion that the jury on the evidence might have found
    the accused guilty of a lesser crime if the judge had
    informed them that they were at liberty to do so: Ross v
The King (1922) 30 CLR 246; R v Evans (1969) VR 858; R v
Iannazzone (1983) 1 VR 649 esp per Brooking J (at 653-654)."

47. The appellant concedes that the learned trial Judge, in this case, did put the essential ingredients of the crime and fairly put the defence put up by the appellant. In those circumstances it would not be appropriate to interfere with the verdict of the jury.

48. In this appeal the appellant's counsel conceded that his client was guilty of an offence under s241. In those circumstances it would not have been in the interests of the appellant to leave the alternative verdict to the jury because the verdict of not guilty on the second count would have led to a finding of guilt on the alternative count.

49. For those reasons, whilst it may be accepted that the alternative verdict should have been left, in the end no miscarriage has been suffered by the appellant by reason of the omission.

50. The jury were quite entitled in my opinion upon the uncontradicted facts to arrive at a verdict of guilty in relation to the first count. In relation to the second ground of appeal I do not agree that there is inherently a contradiction in a finding of guilt on the first count and an acquittal on the second count.

51. There may well have been a joint enterprise to rob Ms Kraft but that does not necessarily mean that there was also a joint enterprise in relation to the assault occasioning actual bodily harm.

52. Indeed, the learned trial Judge told the jury exactly that. His Honour said:
    "The real issue on Count 2 would appear to be whether either
    Wanganeen or Milera intentionally hit Seja on the head with
    a stick, as part of a joint enterprise with the accused, for
    the purpose of robbing Mrs Kraft. It was not the
    prosecution case and there is no direct evidence that the
    accused actually hit Seja. You may have little difficulty
    in finding that someone intentionally assaulted him. The
    point in issue is whether it is proved that the person did
    it in the course of a joint enterprise with the accused.

It does not follow that merely because you might convict the
    accused on count 1 of robbery in company that, therefore, he
    is necessarily proved to be guilty on count 2 of assault
    occasioning actual bodily harm. It may be that the joint
    enterprise only extended to robbing Mrs Kraft of her
    handbag, and that there was no tacit agreement between the
    three of them that Seja would be assaulted as part of a
    joint enterprise. It may be that one of the three took it
    upon himself without any prior agreement with the others to
    do this, and that such an assault was outside what had
    previously been contemplated. If that is a reasonable
    possibility, then you would acquit on count 2 even if you
    have convicted on count 1."

53. Without setting the further direction out in detail, his Honour restated the direction, making clear to the jury that they would only find the accused guilty of the second charge if they were satisfied that the joint enterprise extended to an agreement to commit an assault occasioning actual bodily harm.

54. In those circumstances it was open to the jury to find that because the accused ran towards the victims and acted with the co-accused to encircle the victims and ran away with one of the co-accused holding the bag that there was a joint enterprise in relation to the robbery, but at the same time not be satisfied beyond reasonable doubt that the accused had agreed to be part of a joint enterprise to commit the assault occasioning actual bodily harm. In those circumstances, it seems to me that it is not right to say that the two verdicts are inconsistent with each other.

55. The third ground made is that the conviction was unsafe and/or dangerous, bearing in mind the whole of the evidence. In my opinion, that complaint cannot be made out.

56. The evidence of Mr Seja and Ms Kraft was uncontradicted. The evidence clearly implicated three men and in those circumstances it was fairly open to the jury to conclude that the accused was part of a joint enterprise to commit the offence of robbery in company. The jury had the advantage of seeing and hearing the evidence and deciding whether the Crown case had been made out beyond reasonable doubt. The appellant has not been able to demonstrate that the evidence lacks credibility or contains discrepancies or displays inadequacies or is otherwise tainted or lacks probative force which would cause this Court to entertain a doubt itself. In my opinion, the verdict arrived at in relation to the first count was not only not one of which to entertain a doubt but in my opinion was correct. In my opinion, a reasonable jury would have arrived at the conclusion it did.

57. I would dismiss the appeal against conviction.

58. The appellant complains about the sentence. In relation to sentence he was sentenced for the offence of robbery in company to imprisonment for eighteen months, the learned Judge indicating that in that sentence he had regard to the time spent in gaol pending his trial, namely six months.

59. The appellant had previously been sentenced in March 1987 to a period of imprisonment of five years with a non-parole period of three and a half years for the offence of rape committed in 1986. He commenced to serve that sentence on 22 December 1986 and was released on parole on 12 January 1989.

60. On 15 February 1992 the appellant had been sentenced to twelve months' imprisonment in the Whyalla Magistrates Court for a building break which had occurred on 17 July 1989, that is about six months after his release on parole. The sentence was suspended upon the appellant entering into a bond to be of good behaviour for two years and to perform 200 hours of community service. In 1992 he served a further one month and twenty-four days of the sentence for rape for breach of parole conditions.

61. This offence, which occurred within a month of the bond expiring, gave rise to the necessity of a reconsideration of the suspended sentence and that in turn brought into effect the unexpired portion of the outstanding parole in relation to the 1986 offence of rape.

62. Thus the effect of the offence which occurred in January 1994 was that both the sentence of five years for the offence of rape committed in 1986, and the sentence of one year for the building break offence committed in July 1989, were liable to be reconsidered.

63. His Honour dealt with an application to revoke the suspension of the sentence for the building break felony. His Honour revoked the suspension because, as he said, the offence of robbery in company was not trivial or of such a different nature to the building break that it did not constitute good reason for not revoking the suspension of the sentence. He made the sentence of eighteen months for robbery in company cumulative upon the previous suspended sentence of twelve months. I cannot say it was not within his Honour's sentencing discretion to revoke the suspension.

64. The revocation of the suspended sentence made the appellant liable to serve in prison the balance of the sentence passed on 6 March 1987 of five years for rape. The unexpired portion of the rape sentence was two years three months and ten days and his Honour made that cumulative upon the other cumulative sentences.

65. He, therefore, arrived at a total sentence of four years nine months and ten days.

66. He then set a non-parole period of three years from that day.

67. The DPP concedes that his Honour erred in not having regard to the remissions that would be available in respect of that suspended sentence and concedes that an allowance of four months ought to have been made on the head sentence and a corresponding amount on the non-parole period. Indeed, if this appellant's trial, which was delayed by his breach of bail, had taken place when it ought to, the appellant would then have been also entitled to remissions on the unexpired non-parole period, but s4 of the Statutes Amendment (Correctional Services) Act 1995 repealed that entitlement.

68. The effect of it all is that the appellant will serve something like three years and six months in relation to all these matters.

69. His co-offenders were sentenced by Millhouse J in the Supreme Court and his Honour sentenced Milera to three years and Wanganeen to three and a half years, upon their being convicted for both the offences of robbery in company and assault occasioning actual bodily harm.

70. In sentencing this appellant, his Honour recognized that the accused ought to be treated more leniently because he had been convicted only on the first count.

71. His Honour's sentence applies the full rigours of the law to this appellant in circumstances where the appellant has committed no offences between 17 July 1989 and the one for which his Honour sentenced. It was only the accident of the date of the sentence in relation to the building break offence which was handed down on 15 May 1992 that made the accused susceptible to the revocation of the suspension and the re-activation of the non-parole period. It seems to me that in the circumstances where this offence occurred twenty-three months into a twenty-four month period of a good behaviour bond which activated a suspended sentence in relation to an offence which occurred in 1989, which gave rise to the requirement of serving the balance of a non-parole period set in 1987, and where the appellant had spent some six months in prison before the date of sentence, a non-parole period of three years is simply too high.

72. The appeal against sentence has to be allowed because his Honour erred in failing to have regard to the remissions upon the suspended sentence of twelve months.

73. In my opinion the appeal against sentence ought to be allowed so as to reduce the head sentence by four months to reflect the credit for remissions, and to reduce the non-parole period not only to reflect the remissions, but also the other matters to which I have referred. I would substitute a head sentence of four years, five months and ten days. I would fix a non-parole period of two years.

JUDGE2 MATHESON J I agree with the orders proposed by Lander J and with his reasons.

JUDGE3 MILLHOUSE J I agree.