Mario Kramar v The Queen
[2013] VSCA 236
•6 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0287
| MARIO KRAMAR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, COGHLAN JJA and DIXON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 8 August 2013 |
| DATE OF JUDGMENT | 6 September 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 236 |
| JUDGMENT APPEALED FROM | DPP (Vic) v Kramar & Anor (County Court of Victoria, Judge Parsons, 24 February 2012) |
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CRIMINAL LAW – Application for leave to appeal – Election – Intentionally causing serious injury to secondary victim who came to assistance of primary victim – Acting in concert – Aiding and abetting – Evidence of words or gestures between attackers not necessary to establish agreement – Open to jury to find applicant acting in concert in attack on primary victim was a party to an agreement to attack secondary victim – Open to jury to find applicant aided and abetted attack on secondary victim – Conviction not unsafe and unsatisfactory – Non-compliance with time limits cannot be justified because counsel of choice is unavailable – Application refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC | Tony Hargreaves & Partners |
| For the Respondent | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
On 24 February 2012 the applicant, Mario Kramar, and his co-defendant Bernard Kramar, were found guilty by a County Court jury of intentionally causing serious injury to Frank Picak (charge 1) and intentionally causing serious injury to Martin Picak (charge 3).
The applicant initially sought an extension of time within which to seek leave to appeal. He relied on two grounds of appeal, and was granted an extension of time, but was refused leave to appeal on the second ground. He later abandoned the first ground of appeal, but elected to renew his application on second ground of appeal, which was that the verdict on charge 3 was unsafe and unsatisfactory.
The Evidence
At about 4.50 am on the morning of 26 November 2009, Mr Frank Picak (‘Frank’) was leaving for work. He had a regular arrangement with his nephew, Martin Picak, who lived two doors down in the same street, to pick Martin up and drive him to work. Shortly after Frank walked out of his front door there was a violent altercation between Frank and Martin and two brothers, Mario and Bernard Kramar. As a result of the fight between the men, Frank sustained serious puncture wounds in his back, groin, stomach, lower leg and buttock for which he required surgery involving excision of part of his bowel. Martin was stabbed in the chest, back and leg. At trial there were considerable differences between the parties’ versions of how these events occurred.
The Crown case was that there had been a long history of animosity between Frank Picak and the Kramar brothers, which began when the Kramar brothers lived in the house behind Frank’s mother’s house while the men were growing up. The Crown alleged that, on the day of the fight, Bernard and Mario Kramar entered Frank Picak’s property. Bernard was carrying the weapon used to stab Frank and Martin. The men attacked Frank and then attacked Martin when he attempted to come to Frank’s assistance. The prosecution case was that the men acted in concert in their attack on both victims and/or that Mario aided and abetted Bernard in his attack on Martin. The applicant was ultimately sentenced for his attack on Martin on that basis.
The defence case was that Frank Picak initiated the fight by throwing something at Bernard and Mario Kramar. The Kramars then entered Picak’s property, were attacked by Frank and defended themselves with a spear or stake which was lying nearby. The Kramars argued that there was no plan to attack either Frank or Marin and that the injuries were inflicted on the victims in self defence.
A no-case submission was made on behalf of the applicant in respect of charge 3 (intentionally cause serious injury to Martin Picak), and the alternative charge 4 (recklessly cause serious injury to Martin Picak). The applicant submitted that there was no evidence from which the jury could infer that the applicant was complicit in Bernard Kramar’s attack on Mario Picak. The ‘no case’ submission was rejected by the trial judge.
Submissions on appeal
The applicant submitted that although the jury found that the applicant assisted Bernard to attack Frank, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was a party to an agreement to attack Martin, when he came to Frank’s assistance. Nor was there any evidence from which the jury could find that Mario had aided and abetted Bernard’s attack on Martin.
The applicant submitted that there was no evidence that Mario knew that Martin Picak would be present when they attacked Frank. During the fight there was no evidence of any word or gesture passing between the brothers that would allow the jury to infer the existence of an agreement between the men to attack Martin or to find that the applicant encouraged or assisted Bernard to carry out that attack. While an animus existed between the applicant and Frank, none existed between the applicant and Martin. After Frank hit Mario with the baseball bat Mario had fled. Thus Mario could not have aided or abetted Bernard in his continuing attack on Martin.
The evidence
Frank Picak
Frank’s evidence was that he walked out of his front door intending to drive to work. He was about to go out of a small gate in the fence onto the street when Mario ran through the gate, followed by Bernard. Frank saw that Bernard had something in his hand. When Mario hit Frank in the face, he stumbled backwards, and Bernard pushed the stick or spear that he was holding into Frank’s groin and stomach. Frank tried to get up but could not do so and was ‘pretty sure that it was Bernard pushing [him] down’. His sister in‑law, Zlata, came out of her house and began screaming for help.
Frank said that his nephew, Martin, had run in through a small gate in the front fence while his mother was screaming for help and had pulled Bernard off Frank. Mario continued fighting with Frank. Shortly afterwards Frank’s wife came out of his own home with a baseball bat. Mario turned towards her and Frank became concerned that Mario would attack his wife. He tried to gouge Mario’s eyes, then took the bat from his wife and swung it towards Mario. Mario ran out the front gate.
After he swung the bat at Mario, Frank saw Martin and Bernard struggling in the garden bed. He hit Bernard with the bat and Bernard yelled out to Mario for help. At that stage Zlata was holding the main front gate shut and yelling to Mario that he could not come inside. Frank then hit Bernard over the legs with the bat and told Martin to let Bernard go. Both Mario and Bernard took off up the street. The whole incident occurred very quickly, lasting about 10 minutes.
Frank was cross-examined by Mario’s counsel about what he saw of Martin’s struggle with Bernard as follows:
COUNSEL: There was no time when you and [Mario] stopped and watched what Bernard was doing or spectated on anything else; correct?---No….
COUNSEL: When he got out the gate did Zlata then put herself up and hold the gate shut so that he couldn’t come back?---Yes.
COUNSEL: The situation was - and you don’t say at any time that he hit you - this is Mario - that he hit you with any weapon; correct?---No, I didn’t say at all.
COUNSEL: Once he was outside again the situation was that Bernard was still inside; correct?---Correct….
COUNSEL: Incidentally just before we get to that bit. Mario Kramar ran out the front gate; didn’t he?---Yeah, straight out the front.
COUNSEL: …When he was leaving and running out he didn’t go out the same way [as he came in ] did he?---No, he ran out the front gate.
COUNSEL: Despite the fact that Zlata was standing up at the front gate?---Yeah, she was at the front.
COUNSEL: All right, so once he was outside the situation was that Bernard was lying down with Martin over him, or wrestling with him, correct?---Correct.
COUNSEL: And you whacking him with a baseball bat?---I did hit him with a bat, yes.
COUNSEL: And at that point you did hear something from him yelling, ‘Mario, come back, help me’?---Yep. …
COUNSEL: Mario certainly didn’t come in and rescue him, did he? ---No, he didn’t come rescue him.
COUNSEL: And he certainly didn’t come around to the gate that you say he’d already used once?---No.
Martin Picak
In his evidence in chief Martin said that he travelled to work with his uncle, Frank, every day. His mother would stand on the veranda, wait for the sensor light in Frank’s house to go on and then tell Martin to come out of the house, so that he could leave with Frank and the men could travel to work together. Martin said he had heard his mother screaming for help and ran through the front gate to help his uncle. One man was punching Frank and the other was pointing a spear at his uncle and moving it towards him.
He had grabbed the man holding the spear and thrown him behind him to the ground and then grabbed the other one and thrown him down. The man with the spear had stabbed Martin in the chest. He grabbed the spear and threw it down and then they continued punching each other. His mother was at the front gate and the other brother (Mario) was outside the gate behind his mother. He was scared that Mario was going to hit his mother and he told him not to touch her. He saw Bernard run off after they stopped fighting but the last he had seen of Mario was when he was standing behind Zlata.
In cross-examination Martin was asked about the way the fight between him and Bernard came to an end.
COUNSEL: When you were on top of the male on the ground, how did he get away from you?---I was on top of him the whole time. When I got up - I got up off him.
COUNSEL: Why did you get up off him?---Because of the other brother behind my mother.
COUNSEL: The other brother behind - - -?---The other male that was outside of the front gate.
He said he could hear Frank hitting Bernard with the baseball bat, but did not see this occurring.
In cross-examination by counsel for Mario the following exchange occurred:
COUNSEL: You did become aware of Mario being out the front?---Yes. …
COUNSEL: He was standing near to your mum, near to Zlata?---Yes.
COUNSEL: In fact you said that that was something you were a bit concerned by?---Yes.
COUNSEL: You’re not saying he did anything but you were worried about him?---Yeah, a bit worried. I didn’t see him do anything.
Zlata Picak
Zlata gave evidence that she saw two men attacking Frank and called for help. Martin had run in the front gate to help his uncle. After Martin ran past her she saw Martin one side of the garden path with one man and Frank with the other man on the other side of the path. She said that:
Martin had one guy on him and Frank had the other guy on him bashing each other, if you know what I mean.
She was then cross-examined as follows
COUNSEL: Did you see while they were doing that, you are indicating that they were bashing at them or on them; is that right? ---Martin had one guy, like, he had - he attacked one guy so one guy and Martin was on that side and Frank and the other guy were on that side.
COUNSEL: You've indicated that someone attacked someone. Who attacked who?---That I don't know because it was just so quickly and just so frightening.
COUNSEL: What happened after you saw each male with either Frank or Martin; what happened after that; what did you see occur?---Well, after all that was happening - like I said it was so quickly and so frightening, the next thing you know one guy was coming from that fence - I don’t know who broke up from who - one guy was coming past that fence.
COUNSEL: Which fence?---The front fences, there’s a gate and I was right beside the gate and he was coming past me and next thing when I turned around to look on the ground Frank and Marty had one guy on the ground. And when I turned around the guy was behind me and I looked at him and I said no, I grabbed the fence, held it tight and I said I’m not letting you back in.
…Well when I grabbed the fence and I told them not to come back in, I didn’t think of my own safety, I thought maybe he might push me away trying to get back in to help his brother …and I looked back and I said ‘ You’re not coming back in ‘ And I just held there tight , I didn’t want to let him back in.
In cross-examination Zlata said she had not heard Bernard say ‘help Mario help’ but just ‘help’.
Conclusion
The jury verdict on charge 3 can only be set aside if this court is satisfied, on the whole of the evidence, that it was not open to the jury to find Mario guilty of charge 3, either because he acted in concert with Bernard, or aided and abetted Bernard, in the attack on Martin.[1] In my opinion the applicant has no chance of persuading the Court that a reasonable jury could not have concluded, on the basis of Mario and Bernard’s conduct that Mario was properly found guilty of that charge. I would therefore refuse the application for leave to appeal.
[1]M v The Queen (1994) 181 CLR 487,493 (Mason CJ, Deane, Dawson and Toohey JJ).
In his frequently cited statement in R v Lowery and King No 2[2] Smith J explained the requirements for establishing that persons charged with an offence have acted in concert in the commission of the alleged crime. He said:
For people to be acting in concert in the commission of a crime their assent to the understanding or arrangement between them need not be expressed by them in words; their actions may be sufficient to convey the message between them that their minds are at one as to what they shall do. The understanding or arrangement need not be of long standing; it may be reached only just before the doing of the act or acts constituting the crime... On the other hand, it is to be remembered that under this doctrine, although the understanding or arrangement must not have been called off before the commission of the crime, the mere facts that while it is being committed one of the persons acting in concert feels qualms or wishes he had not got himself involved or wishes that it were possible to stop the proceedings and still get off Scot free, will not amount to a calling off of the undertaking or arrangement.[3]
[2][1972] VR 560.
[3]Ibid 561. See also R v Jensen and Ward [1980] VR 194, 201 (Full Court).
The written submission made by the Crown in response to the defence no case submission was that the men had agreed to attack Frank Picak and ‘to keep at bay any other person by whatever means necessary, to enable the attack to occur, which included the incidental assault of any other person who intervened during the ambush.’
There may have been insufficient evidence on which the jury could find, beyond reasonable doubt,[4] that the two men knew that Martin was likely to be present when they attacked Frank, because they were aware of his pattern of going to work with his uncle. However in my view the evidence that the two men entered Franks’ property together, with Bernard carrying the spear and that Martin was attacked by Bernard immediately after he pulled Mario away from Frank, while Mario returned to fighting Frank, supported the inference on which the Crown relied. Moreover it was not necessary for the Crown to prove that the men had made such an agreement before the men entered Frank’s property. Such an agreement could be demonstrated by the actions of the men after the fight began and Martin came to Frank’s aid. It was open to the jury to infer the existence of such an agreement because Mario continued the fight, even after Martin became involved in defending his uncle and Bernard attacked Martin.
[4]This assumes that the ‘beyond reasonable doubt’ standard applied to that finding, although it is not necessary to decide whether that was the case. As I explain this is not the only basis on which the men could be held to have acted in concert.
True it was that Mario was fighting with Frank while Bernard was struggling with Martin. But the fact that each man took on a different victim during the fight does not preclude a finding that they were acting in concert in the attacks on both the victims. It was open to the jury to find that Bernard’s struggle with and stabbing of Martin was simply a continuation of the fight which Bernard and Mario had initiated. Mario continued the fight with Frank after he was pulled away by Martin and Bernard began his struggle with Martin. Although Mario ran out the gate when Frank hit him with the bat, he did not leave the scene of the crime and while he was standing outside the gate both Martin and Zlata feared that he would come back into the garden. The evidence did not compel the jury to find that Mario withdrew from the agreement previously made with Bernard by running out of the gate, but remaining present at the scene of the crime.
As I have said, Mario was sentenced on charge 3 on the basis that he had aided and abetted Bernard. Even if I am wrong in the view that it was open to the jury to find Mario guilty on charge 3 on the basis he had acted in concert with Bernard, it was well open to the jury to conclude that Mario assisted and encouraged Bernard’s attack on Martin, which began when Martin went to Frank’s defence.
In R v Lam and Ors[5] (the Salt nightclub case) the basis of criminal liability for an act of aiding and abetting the principal offender was explained as follows:
The culpability which attracts the operation of the criminal law to an individual designated as an aider and abettor … arises from the fact of his or her presence at the time that the crime is committed and behaviour whilst there and not by reason of any earlier agreement or arrangement with the perpetrator with respect to it. That situation is separately addressed. …[I]t is crystal clear that simply being present at the scene of a crime being committed by another is insufficient to render an individual also guilty. Further, it is not enough that the person alleged to be aiding and abetting is present by reason of curiosity, a high level of interest or even because of the presence of strong approval of the principal’s conduct. The justification for rendering the individual liable arises from the contribution that he or she intentionally makes to the commission of the crime. This, of course, can take different forms and these are encompassed by the broad descriptive notions of counselling, procuring, assisting or encouraging the principal offender. It is apparent that quite different questions will be thrown up according to the type of contribution alleged and the circumstances surrounding the particular offence. But whatever the form of contribution, in order to become a party to or participant in the commission of a crime by another, an aider and abettor must do something of a kind that can be reasonably seen as intentionally adopting and contributing to what is taking place in his presence. In this sense, the aider and abettor becomes linked in purpose with the principal actor.[6]
[5][2008] VSA 109.
[6]At [92] See also R v Giorgianni (1985) 156 473, 492-3.
In this case Mario was not simply present at the scene by chance or out of curiosity. Both men were actively involved in the violent attack on Frank, which quickly turned into an attack on Martin as well, when he came to the aid of his uncle. The attacks on Frank and Martin took place in close proximity to each other in Frank’s garden, and were all part of the same event. It is not as if, for example, Bernard came back later in the day and attacked Martin, or the fights occurred in different places.
It was open to the jury to hold that Mario’s presence and behaviour at the scene encouraged Bernard to continue his attack on Martin in the garden bed. The fact that Mario did not actively join in the fight with Martin once Frank had hit Mario with the baseball bat, did not preclude the jury from finding that he was continuing to encourage Bernard to attack Martin with the spear, which was the same weapon that Bernard had used to attack Frank. Although Mario ran out of the gate after Frank hit him with the bat, Zlata’s evidence suggests he was attempting to re-enter and could not do so because she held the front gate shut. Having regard to the sequence of events, the physical proximity of the attacks on Frank and Martin and the short period over which those attacks occurred, it would be absurd to
conclude that Mario’s assistance to his brother ended as soon as he was no longer actively involved in the fight.
Redlich JA would have refused an extension of time to appeal on this ground, both because of the inordinate delay in seeking leave to appeal and because the ground lacked merit. In his reasons for refusing leave he noted that the applicant claimed that a substantial portion of the period of delay in filing the application for leave to appeal had occurred because particular senior counsel was not available to advise and draw the notice of appeal. I would endorse his Honour’s comment that non-compliance with the time limits cannot be justified because counsel of choice is unavailable or cannot give the matter immediate attention.[7]
[7]Kramar v The Queen (Unreported, Redlich JA, Victorian Supreme Court of Appeal, 19 March 2013), [3].
For these reasons the application for leave is refused.
COGHLAN JA:
I have had the advantage of reading the draft of reasons of Neave JA and agree that leave to appeal should be refused.
DIXON AJA:
I also have had the advantage of reading the draft of reasons of Neave JA and agree that leave to appeal should be refused.
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