Mitchell Salmon-Urbani v The Queen
[2022] VSCA 170
•22 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2021 0170
| MITCHELL SALMON-URBANI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, T FORREST and KENNEDY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 August 2022 |
| DATE OF JUDGMENT: | 22 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 170 |
| JUDGMENT APPEALED FROM: | DPP v Salmon-Urbani (Unreported, County Court of Victoria, Judge Hassan, 27 April 2021) |
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CRIMINAL LAW – Appeal – Conviction – Aggravated carjacking – Complicity – Judge alone trial – Whether evidence of prior criminal association admissible – Whether judge’s reasons inadequate – Whether verdict unreasonable or cannot be supported having regard to the evidence – Judge’s reasons inadequate – Appeal allowed – Verdict of theft of motor vehicle substituted.
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| Counsel | |||
| Applicant: | Mr T Kassimatis QC with Mr C Wareham | ||
| Respondent: | Ms D Piekusis QC | ||
Solicitors | |||
| Applicant: | May Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
T FORREST JA
KENNEDY JA:
Most aspects of the law of criminal complicity in this State are governed by statute.[1]
[1]Section 324C(1) of the Crimes Act 1958 abolishes the common law in relation to aiding, abetting, counselling or procuring the commission of an offence; and s 324C(2) abolishes the common law doctrines of acting in concert, joint criminal enterprise and common purpose (including extended common purpose). By implication – and as the note to s 324C recognises – the common law concerning the circumstances in which a person may withdraw from an offence in which the person would otherwise be complicit is not abolished. See, eg, See White v Ridley (1978) 140 CLR 342, 347–351, 354.
Section 323(1) of the Crimes Act 1958 relevantly provides that ‘a person is involved in the commission of an offence’ if he or she
(a) intentionally assists, encourages or directs the commission of the offence; or
…
(c) enters into an agreement, arrangement or understanding with another person to commit the offence; …
By virtue of s 324(1), ‘a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence’.
On 27 April 2021, following a judge-alone trial, a judge of the County Court found the applicant guilty of charge 7 on the indictment, aggravated carjacking,[2] on the basis of complicity.
[2]Crimes Act 1958, s 79A. The maximum penalty is 25 years’ imprisonment.
The applicant seeks leave to appeal against conviction on three grounds:
1.The learned trial judge erred by providing insufficient reasons for her finding that the applicant was guilty of aggravated carjacking.
2.The learned trial judge erred by admitting the ‘evidence of prior criminal association’. In particular, the trial judge erred by ruling that:
(a) the evidence was relevant or capable of rationally affecting the probability of the applicant’s complicity in [the co-accused’s] offending on charge 7; and
(b) the probative value of the evidence was not outweighed by the danger of its unfair prejudice.
3.The trial judge’s verdict is unsafe and unsatisfactory in that it was not open to her Honour, on the evidence admissible in the applicant’s trial, to have returned a verdict of guilty on charge 7.
We consider that the first ground is made out. The judge’s reasons were inadequate to disclose a path of reasoning towards guilt. As a result, we would set aside the applicant’s conviction for aggravated carjacking and substitute a conviction for theft of a motor car. We would resentence the applicant accordingly.[3] Our reasons follow.
[3]See [61] et seq.
Background to the alleged aggravated carjacking
Two indictments against the applicant – a ‘plea indictment’ and a ‘trial indictment’ – were filed in the County Court. The applicant pleaded guilty to all charges on the ‘plea indictment’ (No K10845986.1), including seven charges of theft; two charges of obtaining property by deception; and one charge of burglary; and also pleaded guilty to three related summary offences of driving whilst suspended.
On the ‘trial indictment’ (No K10845986), the applicant pleaded not guilty to a charge of aggravated carjacking (charge 7); but pleaded guilty to all other charges on the indictment, including two charges of burglary (charges 1 and 4); three charges of theft (charges 2, 3 and 5); arson (charge 6); possessing a drug of dependence (charge 8); and handling stolen goods (charge 9). As we have said, the charge of aggravated carjacking was tried before a judge alone, and resulted in a verdict of guilty.
The lead-up to the alleged aggravated carjacking was as follows.
On 1 April 2019, at approximately 11.40 am, the applicant and co-offenders Zoe Pais (‘Pais’) and Cori Harrison (‘Harrison’) drove to residential premises in Devon Meadows. Pais stayed in their vehicle whilst the applicant and Harrison gained access to the premises via a rear sliding door. They stole a large quantity of property, including jewellery, computer equipment and passports. An off-duty police officer observed their vehicle as he drove past the premises. He returned to the premises, but the applicant, Pais and Harrison drove away. The officer checked the premises and observed that a burglary had occurred. Investigating police later located a quantity of property belonging to the victim in a stolen vehicle (charge 1 – burglary; and charge 2 – theft).
At approximately 12.36 pm, Glen Bravo parked his Holden Colorado in the driveway of premises in Clyde. The keys were left in the ignition and his wallet and mobile phone were left in the car. Harrison and the applicant stole the vehicle and, shortly before 1.35 pm, ‘torched’ it (charge 3 – theft of motor vehicle; and charge 6 – arson).
A little after Mr Bravo’s Colorado had been stolen, the applicant and an unidentified person burgled residential premises in Officer South and stole a large amount of property, including computer equipment, a mobile phone, jewellery and cash. They were disturbed by a relative of the premises’ occupant, and drove away in two different vehicles, a Holden Rodeo and a Holden Commodore. Investigation showed that the offenders had loaded further stolen property into a Ford Mondeo in the garage, but were disturbed before that property could be stolen. Some of the stolen property was later found in Harrison’s possession (charge 4 – burglary; and charge 5 – theft).
At 1.35 pm, police were called to the scene of the burning Holden Colorado in Rowville. Officers of the Police Air Wing observed another vehicle speeding away from the scene.
The applicant, Harrison and Pais got into a stolen Mitsubishi Triton parked near Robert Booth Reserve, Hampton Park, at approximately 1.57 pm. Harrison drove the vehicle through Hampton Park erratically, at speed and on the wrong side of the road. At the intersection of South Gippsland Highway and Abbotts Road, he ran a red light, almost colliding with several vehicles.
At approximately 2.10 pm, Harrison drove at high speed southerly along Frankston-Dandenong Road towards Wedge Road, Carrum Downs – which runs approximately east-west – and again ran a red light. An oncoming vehicle, driven by Nicole Welsh, was turning right – to travel east – with the benefit of a green directional arrow. The stolen Mitsubishi driven by Harrison collided with the passenger side of Ms Welsh’s vehicle – which had almost completed its turn and was travelling in an easterly direction – causing it to roll onto its driver’s side. Harrison and the applicant then fled the badly damaged Mitsubishi as it was rolling to a stop a few metres past the intersection.
It was shortly after the collision that the alleged carjacking occurred.
The alleged carjacking
Video footage from a camera attached to a Police Air Wing helicopter captured some of Harrison’s driving up to the point of collision and the collision itself.[4] The footage also captured the movements of the applicant and Harrison (and to a lesser extent, Pais) in the aftermath of the collision, including the circumstances of the alleged carjacking. The Air Wing footage, Exhibit 1, was a central piece of evidence in the prosecution case. Another important piece of evidence was ‘dashcam’ video footage, Exhibit 2, from a camera fitted to a vehicle that had been travelling in the same direction as the vehicle driven by Harrison. That footage captured the collision, and some of the subsequent actions of the applicant and Harrison.[5] The description that follows is drawn largely from the Air Wing footage, supplemented by the dashcam footage.
[4]The video footage was accompanied by a contemporaneous audio commentary by an officer in the helicopter describing observed events as they unfolded.
[5]The dashcam video footage was also accompanied by a contemporaneous audio commentary by an occupant of the vehicle, describing events as they took place. Shortly after Harrison can be seen to run towards a Volkswagen passenger vehicle in Frankston-Dandenong Road while armed with the rifle – see [19] – the driver of the dashcam-fitted vehicle did a ‘u-turn’ over the median strip to drive north. Thus, the dashcam footage does not capture the carjacking.
After the collision, the damaged Mitsubishi continues to roll through the intersection travelling southerly. Before it gets to the southern edge of the intersection, the driver’s door and the front and rear passenger doors are thrown open. While the vehicle is still rolling, Harrison – carrying a rifle – exits the vehicle through the driver’s door; the applicant, apparently holding a backpack, exits from the front passenger side door; and Pais gets out of the rear passenger side door.
Harrison is seen to run westerly across Frankston-Dandenong Road towards a north-travelling Volkswagen passenger vehicle. The driver of the Volkswagen then makes a left turn into Wedge Road to travel west, a manoeuvre obviously calculated to avoid an encounter with Harrison, visibly armed with the rifle. Harrison is then seen to reverse direction – he has been running since exiting the stolen Mitsubishi – and run in a north-easterly direction back towards the Wedge Road intersection. The applicant – who had also been running westerly several metres behind Harrison – also changes direction.
The applicant can be seen to reach the intersection a couple of car lengths in front of Harrison. He gets into a silver Holden Commodore station wagon – parked by the southern kerb of Wedge Road, facing west – and into the driver’s seat. Other evidence is that the silver station wagon had been driven by Cliff Broadby, who had got out of it following the collision, to assist Ms Welsh. Shortly before the collision, Mr Broadby’s vehicle was facing westerly in Wedge Road facing a red left-turn arrow, his intention being to turn left into Frankston-Dandenong road to travel south.
After the applicant has been seen to get into Mr Broadby’s vehicle, Harrison runs along the passenger side of it towards a west-facing blue Ford XR8 Falcon utility stationary about half a car’s length behind it. The driver of the blue utility was Kane Baker. Harrison is seen to run across an area between the utility and the silver station wagon (in which the applicant is sitting). Having run across the front of the utility from its passenger side to its driver side, Harrison takes up a position adjacent to the driver’s door rear vision mirror. He is then seen to point the rifle at Mr Baker, who hurriedly exits the vehicle through the driver’s door. As we will make clear, it is at this point that the timing is critical.
No matter what view one otherwise takes of the evidence, there can be no doubt that Harrison committed the offence of aggravated carjacking. Quite apart from the wholly objective evidence provided by the footage – in which Harrison can be seen pointing the rifle at Mr Baker, and Mr Baker can be seen to make a swift exit from his vehicle in an apparent response to the perceived threat – Mr Baker gave evidence at trial that Harrison pointed the gun at his face and said, ‘Get the fuck out of the car or I’ll shoot you, you cunt’. It appears to us that Mr Baker has commenced to exit his vehicle to surrender it to Harrison very shortly before the applicant throws open the driver’s door of Mr Broadby’s station wagon.
There can also be no doubt that, after he exits the station wagon, the applicant runs back towards the utility and jumps into it through the passenger door. He is joined seconds later by Pais, before the vehicle speeds off driven by Harrison. Moreover, there can be no doubt that, at the time that the applicant enters the utility, he has (at the very least) committed a theft of that motor vehicle. To our minds, however, it is open to question whether, as a result of his complicity with Harrison, he has committed the offence of aggravated carjacking.
We will return to this aspect later. It is enough to observe at this point that, to our observation, although the applicant exits the silver station wagon at a moment closely proximate to that at which Mr Baker surrenders his vehicle to Harrison by exiting its driver’s seat – the incident unfolds in mere seconds – there remains a live issue as to whether the carjacking which Harrison undoubtedly committed was not in fact complete by the time the applicant got out of the station wagon and ran to join Harrison at the utility. To our minds, it is debatable whether the video footage – even if taken with the other evidence – demonstrates that the applicant was assisting or encouraging Harrison (or was otherwise complicit) during the critical moments. As we have said, the timing is critical.
After fleeing in the utility, Harrison continued to drive recklessly until the utility collided with other vehicles near the Settlement Hotel, located near the South Gippsland Highway in Cranbourne. Harrison, Pais and the applicant got out of the utility and ran in different directions, but were soon apprehended by police. The applicant made ‘no comment’ to questions put to him in a subsequent police interview.
The judge’s reasons
Before turning to the grounds of appeal, it is convenient to summarise the judge’s reasons, which occupy some 30 pages and 154 paragraphs.
Following an introduction ([1]–[3]), the judge set out various considerations that apply to judge alone trials, including those flowing from the operation of s 4A of the Jury Directions Act 2015 ([4]–[10]). Under the heading ‘General Directions of Law’, the judge dealt with the topics of Evidence Given Remotely ([12]–[13]); Presumption of Innocence ([14]); Burden and standard of Proof ([15]–[16]); Decide Solely of the Evidence/Inferences ([17]–[22]); and Further Directions about Evidence ([23]–[30]), including sub-topics such as post-offence conduct. The judge also dealt with The Law ([31]–[32]); Elements of the Charge ([33]–[36]); and Complicity ([37]–[56]), including under sub-headings. Further, the judge discussed Agreed Facts ([57]); and Evidence of Association between the Accused and Cori Harrison ([58]–[74]), once more under various sub-headings. The judge then discussed Prosecution’s Evidence ([75]–[116]), including that of Kane Baker ([76]–[86]); Cliff Broadby ([87]–[103]); Detective Senior Constable Nicholas Wallace ([104]–[107]), who is the informant; the Exhibits ([108]–[116]), including the video footage early referred to; and Defence Evidence ([117]), of which there was none. The judge then discussed the Submissions of Counsel ([118]–[143]), including Prosecution Submissions ([118]–[130]) and Defence ([131]–[143]). Finally, the judge devotes a handful of paragraphs to Consideration ([144]–[152]) and Conclusion ([153]–[154]).
We will set out in full the judge’s reasons under the heading ‘Consideration’ when we turn to the first ground of appeal.
Ground 2: The evidence of ‘prior criminal association’
It is convenient to turn first to ground 2, which contends that the trial judge erred by admitting ‘evidence of prior criminal association’.
In support of this ground, counsel for the applicant submitted that the only issue at trial was whether the applicant was complicit in Harrison’s carjacking. Relying on Harriman,[6] the prosecutor characterised the ‘prior criminal association’ evidence as circumstantial evidence in proof of the applicant’s joint criminality with Harrison, contending that the earlier offending was relevant to prove a joint motive on the part of the applicant and Harrison to avoid apprehension. It showed the true relationship between the two men.
[6]Harriman v The Queen (1989) 167 CLR 590 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ) (‘Harriman’).
Trial counsel for the applicant objected to its admission on the basis that it was not relevant; alternatively, because any probative value the evidence possessed was outweighed by the danger of unfair prejudice.
The trial judge admitted the evidence on the basis that it was
capable of establishing that [the applicant and Harrison] had a joint motive to evade police which preceded the collision with Ms Welsh’s vehicle and upon the collision extended or developed or evolved into the motive to commit the aggravated carjacking. In other words, the motive to commit the aggravated carjacking cannot be properly viewed as arising only at the point of collision and solely in response to it. Put in context, it may be regarded as the latest manifestation of [the applicant’s and Harrison’s] ongoing efforts to avoid police.
In my view, the evidence of criminal association between the [applicant] and Harrison is therefore relevant to the central, indeed, the only issue in this case, which is complicity. The evidence is capable of rationally affecting the assessment of the issue of complicity; that is, whether the [applicant] was complicit with Harrison in the commission of the aggravated carjacking.
The evidence further puts the aggravated carjacking in a proper and realistic context. Without it, I as the judge, hearing the matter as a judge alone, would have no understanding of the relationship between the accused and Harrison, in circumstances in which they have been acting together over some hours and their actions have been underpinned by a joint criminal motive.
The applicant’s counsel in this Court submitted that the prosecutor’s reliance upon, and the judge’s acceptance of the applicability of, Harriman was misplaced. Counsel submitted that the evidence of prior criminal association was not materially probative of the applicant’s complicity on Harrison’s offending. To the extent that some measure of context was necessary in order to provide a context for Harrison’s and the applicant’s arrival at the scene of the hijacking, it did not extend to a ‘chapter-and-verse’ narrative of the earlier joint offending. It would not have been permitted before a jury; it should not have been led before the judge. Counsel submitted that Harrison’s intention to commit the aggravated carjacking, as a matter of logic, could only have been formed after the collision with Ms Welsh’s vehicle. On that basis, the earlier burglaries and thefts provided nothing by way of evidence – except perhaps some context – from which the trial judge could have inferred legitimately that the applicant was complicit in the aggravated carjacking. Properly viewed, counsel submitted, the earlier offending amounted to prejudicial material inviting rank propensity reasoning.
We consider that the evidence of the applicant’s and Harrison’s joint offending throughout the day leading up to the carjacking was relevant to the sole issue in the trial; that is, whether the applicant was – in one or other of the ways contemplated by s 323(1) of the Crimes Act 1958 – complicit in Harrison’s carjacking.
In our opinion, the evidence of joint criminal association was capable of bearing on the issue whether the applicant intentionally assisted or encouraged Harrison in the commission of the offence of carjacking, or entered into an agreement with Harrison to commit it. As a matter of logic, the evidence that they had acted together in a joint criminal spree throughout the day was capable of informing an appreciation of whether the applicant was complicit with Harrison when he forced Mr Baker to surrender his vehicle. We consider that a fact-finder might legitimately draw an inference from the evidence of their prior relationship that the applicant intended to encourage Harrison in the carjacking, or had agreed with him to commit it. And we consider that the probative value of the evidence far outweighed any prejudicial effect it might have.
We would not uphold ground 2.
Ground 1: The inadequacy of the judge’s reasons
Under cover of the first ground, counsel for the applicant submitted that the judge’s reasons are deficient, and amount to no more than ‘analysis by assertion’. Hence, the reasons do not: expose a path of reasoning toward finding that the only reasonable explanation of the applicant’s actions was that he was complicit in Harrison’s offending; adequately explain how conclusions more generally were arrived at with reference to the evidence; and explain how (or why) the submissions advanced for the applicant were rejected.
The respondent’s counsel submitted that the judge’s reasons are sufficient in all the circumstances. This was an unusual case in which the totality of the offending is captured on video footage. It was therefore unnecessary to set out the factual matrix of the relevant offending in any great detail, the only issue being the inferences that could be drawn from the footage. Counsel submitted that the footage ‘speaks for itself’ and sufficiently demonstrates the applicant’s involvement in the carjacking. The prosecution case was overwhelming. In such circumstances, the judge’s reasons are adequate and disclose the necessary pathway to reasoning.
In our view, the submissions of the applicant’s counsel should be accepted.
For the purposes of evaluating the adequacy – or, as the applicant would have it, the inadequacy – of the judge’s reasons, it is convenient to set out in full the nine paragraphs that appear under the heading ‘Consideration’:[7]
[7]Emphasis added.
144 The starting point for my consideration whether or not the prosecution has proven beyond reasonable doubt that the [applicant] committed the offence of aggravated carjacking is that it is undisputed that the co-accused Cori Harrison committed the offence. The only issue in this case is, was the [applicant] complicit?
145 First, I consider that the evidence of the criminal association between Cori Harrison and the accused beginning at 11:40 am on 1 April [2019] demonstrates that the pair had together taken part in a joint criminal spree and shared a joint criminal motive not only to commit crime but also to evade police. The objective of evading police did not merely arise at the point of collision with Ms Welsh’s vehicle. The [applicant] and Harrison and Pais were travelling in a stolen vehicle in which there were numerous items of stolen property. This is not disputed. The joint motive to evade police was in existence at the time of the collision.
146 There is no evidence to suggest that the [applicant] at any time withdrew from his association with Harrison. Upon collision with Ms Welsh’s vehicle, the Air Wing footage, in my view, demonstrates unmistakably that the [applicant] and Harrison continue acting together.
147 They exit their damaged vehicle almost simultaneously and the [applicant] follows Harrison as he runs across several lanes of the Frankston-Dandenong Road. It is clear from the footage that the pair are trying to secure an alternative vehicle. Harrison is armed with the imitation firearm, which is clearly visible. That the [applicant] was at all relevant times aware that Harrison was armed is not in dispute.
148 Whether the [applicant] and Harrison were communicating, or whether it was because the [applicant] could see what Harrison was doing, the footage shows that when Harrison circles back and begins to run towards the stationary vehicles, the [applicant] does precisely the same thing.
149 It is clear the pair are acting in tandem, and it is clear that their actions are directed at stealing a vehicle while Harrison is armed in order to achieve that objective. In my view, the footage is patently inconsistent with the hypothesis that the pair are acting separately and distinctly. I regard the hypothesis that there is no joint criminal activity until the moment when the [applicant] joins Harrison in Mr Baker’s vehicle as insupportable on the evidence and I have no difficulty rejecting it. There is no point at which the [applicant] and Harrison attempt to go their separate ways, even though there are multiple directions in which they could flee.
150 When the [applicant] and Harrison reach the stationary vehicles, they continue acting in unison trying to steal a vehicle. The [applicant] gets into the first vehicle, which is Mr Broadby’s vehicle. Mr Broadby was unclear whether or not he left his keys in the ignition but, in any event, the [applicant] is only in Mr Broadby’s vehicle momentarily before he exits it, which he does at the same time Mr Baker exits his vehicle under threat from Harrison. The [applicant] then joins Harrison in Mr Baker’s vehicle. Ms Pais joins them and they drive away.
151 In my view, it is clear the evidence shows that the [applicant] was certainly not a mere bystander, nor can his actions be viewed as solely his own and not linked to those of Harrison. Rather, the evidence shows that he was at all times an active and joint participant with Harrison in the offence of aggravated carjacking.
152 In my view, the evidence proves that the [applicant]:
(i) intentionally assisted and/or encouraged Harrison to commit the offence of aggravated carjacking; and
(ii) agreed with Cori Harrison to commit the offence of aggravated carjacking and he acted in support of this agreement.
Before turning to an analysis of the judge’s reasons, we pause to note the way in which the prosecution put its case against the applicant. Thus, in his final address the prosecutor did not submit that the evidence justified a finding that the applicant ‘directed’ Harrison in the commission of the offence of carjacking within the meaning of s 323(1)(a) of the Crimes Act 1958, but did submit that the evidence demonstrated that he assisted and encouraged him. Moreover, with respect to the limb in s 323(1)(c), the prosecutor told the judge that, as ‘to whether there was an agreement, arrangement or understanding, … I can indicate at the outset that the Crown focuses its submissions on understanding’. In written submissions to which he spoke, the prosecutor submitted that
it is open to a jury to draw an inference that the [applicant] had either:
· intentionally assisted or encouraged the commission of the aggravated carjacking; or
· intentionally assisted or encouraged the commission of the theft of a motor vehicle and the [applicant] was aware that it was probable that Harrison would commit an offence of aggravated carjacking in the course of seeking to steal a motor vehicle; or
· entered into an understanding with Harrison that a vehicle was going to be stolen at the relevant scene with the use of force and display of weapon; or
· entered into an understanding with Harrison to commit an offence of theft of motor vehicle and the [applicant] was aware that it was probable that Harrison would commit an offence of aggravated carjacking in the course of seeking to steal a motor vehicle.[8]
[8]Emphasis added.
An examination of the judge’s reasons demonstrates that she concluded that ‘the [applicant] was certainly not a mere bystander, nor can his actions be viewed as solely his own and not linked to those of Harrison’. Rather, the evidence showed that the applicant ‘was at all times an active and joint participant with Harrison in the offence of aggravated carjacking’. The judge concluded that ‘the evidence proves’ that the applicant intentionally assisted or encouraged Harrison to commit the offence of aggravated carjacking, and ‘agreed’ with Harrison to commit the offence – the prosecution had focused on ‘understanding’ – and ‘acted in support of that agreement’.
What is missing from the judge’s reasons, however, is an analysis of that part (or parts) of the evidence which moved her to conclude that the applicant was an ‘active and joint participant’ in the carjacking, or that he ‘acted in support’ of an agreement to support Harrison’s offence of carjacking. The prosecutor had submitted in his final address that, in ‘seeking to prove statutory complicity’ the Police Air Wing footage ‘speaks for itself’. To an extent that may be true. But as we have said, we consider that the footage itself raises a live issue as to whether the carjacking was not in fact complete by the time the applicant exited Mr Broadby’s silver station wagon and went to join Harrison at Mr Baker’s blue utility.
Of course, the prosecution might argue that there was an agreement on foot in the lead-up to the carjacking of Mr Baker’s vehicle to carjack a vehicle – any vehicle – to evade police. That was not, however, how the case ultimately was put at trial.
Furthermore, in her reasons the judge said that ‘the evidence of criminal association’ demonstrates that the applicant and Harrison ‘had together taken part in a joint criminal spree’ and ‘shared a joint criminal motive not only to commit crime but also to evade police’, which ‘did not merely arise at the point of collision with Ms Welsh’s vehicle’. Their ‘joint motive to evade police was in existence at the time of the collision’. The evidence demonstrates that, after the collision, the applicant and Harrison ‘continue acting together’ and ‘there is no evidence to suggest that the applicant ‘at any time withdrew from his association’ with Harrison. According to the judge, ‘the pair are acting in tandem’, and the footage ‘is patently inconsistent with the hypothesis that the pair are acting separately and distinctly’. The hypothesis that there is no joint criminal activity until the moment when the applicant joins Harrison in Mr Baker’s vehicle is ‘insupportable on the evidence’. It was clear to the applicant that Harrison was armed, and the two were ‘trying to secure an alternative vehicle’.
When considering the adequacy of the judge’s reasons, attention must, in our view, be directed to the elements of the charged offence. A person commits a carjacking if he or she steals a vehicle and, immediately before or at the time of doing so, and in order to do so, uses force on another person (or puts or seeks to put another person in fear that he or she or anyone else will then and there be subjected to force).[9] And a person commits aggravated carjacking if, when committing carjacking, he or she has with them a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive; or causes injury to another person in the course of the carjacking.[10]
[9]Crimes Act 1958, s 79(1).
[10]Crimes Act 1958, s 79A.
To observe that the applicant and Harrison had a joint motive to evade police; that there was no evidence that the applicant withdrew from his association with Harrison; that the two were acting in tandem; and that they were trying to secure an alternative vehicle; tends to obscure the critical question: did the evidence establish to the criminal standard that the applicant intentionally assisted or encouraged Harrison to steal a vehicle by using force in order to do so, or acted in support of an agreement or understanding to steal a vehicle by using force in order to do so? Nowhere in her reasons does the judge spell out the evidence from which she was capable of resolving that question in a manner adverse to the applicant. Nor does she spell out her reasons for doing so.
As an ordinary incident of the judicial process, judges have an obligation to provide adequate reasons for decision. Although the content and extent of a judge’s reasons will necessarily be dictated by the nature of the matter under consideration, and the evidence and the issues raised, a mere recitation of the evidence, accompanied by a bald statement of conclusions, will generally not be sufficient. Depending on the nature of the case, and the issues to be determined, a judge’s reasons need not necessarily be elaborate. But in any disputed case, a judge should set out any material findings of fact, together with any ultimate conclusions or findings reached. He or she should provide reasons for arriving at the relevant findings of fact and the conclusions based on those findings, and should give reasons applying the law to the facts as so found.[11]
[11]Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 442 (Meagher JA); Makeham v Sheppard [2020] VSCA 242, [38] (Priest JA) (‘Makeham’).
As Weinberg JA observed in Makeham (after citing Soulemezis[12]):[13]
What is clear is that a bald statement of an ultimate conclusion, even by reference to the evidence that is said to support that conclusion, is unlikely, by itself, to be sufficient. The process of reasoning which enables the path by which the conclusion has been reached must be able to be clearly discerned.
Of course, a judge, though obliged to give reasons, is not required to address every submission advanced during the course of a hearing. Nor are judges expected to deal specifically with every consideration that passes fleetingly through their minds as they proceed to their ultimate determination.
If it is not possible to discern from the reasons given how the conclusion was reached then those reasons will ordinarily be inadequate. Reasons should, at least, trace the major steps in the reasoning process so that anyone reading them can understand, at least in broad terms, how the judge arrived at his or her conclusion. Importantly, reasons must demonstrate that findings of fact were based upon logically probative evidence.
The content of the duty to give reasons will, of course, vary. The obligation that rests upon a busy magistrate, hearing perhaps dozens of summary matters in a day, will obviously be far less onerous than that which rests upon a judge in the County or Supreme Court. Nonetheless, there must be an irreducible minimum below which no set of reasons given by a judicial officer, in the exercise of judicial power, can fall.
[12]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279 (McHugh JA).
[13]Makeham, [77]–[80].
In the present case, the reasons contained bald statements of ultimate conclusions without appropriate analysis. Although, in broad terms, the judge referred to the evidence which underpinned her conclusions, an explanation of the reasoning process which led to those conclusions being arrived at is largely absent.
We do not consider that the judge’s reasons in this case needed to be particularly elaborate, since the video footage did, to a significant extent, ‘speak for itself’. But the judge’s reasons needed to disclose with clarity how what could be observed in the footage – taken with the other evidence – informed her ultimate conclusions as to the applicant’s complicity with Harrison. They did not. Consequently, they were inadequate. Ground 1 therefore is made out.
In our view, the inadequacy of the judge’s reasons has occasioned a substantial miscarriage of justice, since the applicant’s conviction for aggravated carjacking was not inevitable.[14] Ordinarily, that conclusion would lead to an order for a new trial. In the unusual circumstances of this case, however, we are, for the reasons discussed below, persuaded that we should instead substitute a verdict of theft of a motor vehicle.[15]
[14]See Baini v The Queen (2012) 246 CLR 469, 480 [28] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Andelman v The Queen (2013) 38 VR 659, 681–2 [102]–[104] (Maxwell P, Weinberg and Priest JJA).
[15]See [61] et seq.
Ground 3: The verdict is not unsafe and unsatisfactory
The submissions of the applicant’s counsel under cover of ground 3 focused on the inadequacies of the judge’s reasons.
Where, however, it is contended after a judge-alone trial that the verdict is unsafe and unsatisfactory – or, to use the language of the statute, ‘is unreasonable or cannot be supported having regard to the evidence’[16] – the focus must be on the verdict, not the judge’s reasons for it. The question this Court must ask itself in light of M[17] is whether we think that it was open to the judge – standing in the shoes of a jury – to be satisfied beyond reasonable doubt upon the whole of the evidence that the applicant was guilty.[18] Thus, the High Court said recently in Dansie[19] that
as the decision under appeal illustrates, undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty can distract the Court of Criminal Appeal from the proper performance of the assessment required of it by [the equivalent of s 276(1)(a) of the Criminal Procedure Act 2009 (Vic)] when determining on an appeal against conviction whether the verdict ‘should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence’. That is because the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.
That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being one of fact which the court must decide by making its own independent assessment of the evidence’.
[16]Criminal Procedure Act 2009, s 280(1)(a).
[17]M v The Queen (1994) 181 CLR 487, 493–5 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’).
[18]M, 493 (Mason CJ, Deane, Dawson and Toohey JJ). See also Filippou v The Queen (2015) 256 CLR 47, 53–4 [11]–[12] (French CJ, Bell, Keane and Nettle JJ) (‘Filippou’); Henshaw (a pseudonym) v The Queen [2021] VSCA 356, [111] (Priest and Kyrou JJA); Snyder (a pseudonym) v The Queen [2022] VSCA 140, [126] (Priest, Kyrou and T Forrest JJA).
[19]Dansie v The Queen [2022] HCA 25, [7]–[8] (Gageler, Keane, Gordon, Steward and Gleeson JJ) (‘Dansie’) (citations omitted; emphasis added).
The Court in Dansie also observed:[20]
Filippou confirmed that the function of a court of criminal appeal determining an appeal on the unreasonable verdict ground is to be performed under the guidance of M in exactly the same way where the trial has been by judge alone as where the trial has been by jury.[21] In each case, the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In each case, the court ‘will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal’s advantage in seeing and hearing the evidence is capable of resolving that doubt’.[22]
[20]Ibid [15] (citations as in original).
[21](2015) 256 CLR 47 at 54 [12], 75 [82].
[22](2015) 256 CLR 47 at 75 [82], citing M v The Queen (1994) 181 CLR 487 at 493‑494 and SKA v The Queen (2011) 243 CLR 400 at 405-406 [11]- [14]. See also (2015) 256 CLR 47 at 53-54 [12].
As we have endeavoured to make clear when dealing with ground 1, we consider the judge’s reasons to have been inadequate. It does not inevitably follow, however, that the verdict on charge 7 was not one that was open to the judge on all of the evidence.
Having conducted our own independent review of the evidence, we are not persuaded that the judge, standing in the shoes of the jury, must – as opposed to might – have had a reasonable doubt of the applicant’s guilt of carjacking.
In our opinion, the critical issue is very narrow, and turns on the inferences that a fact-finder is capable of drawing from the applicant’s actions closely proximate to Harrison’s carjacking (informed, as that exercise must be, by a consideration of the whole of the evidence, including the inferences that might be drawn from their joint criminal activities earlier in the day). As we have observed, although the applicant is seen to exit Mr Broadby’s silver station wagon at a moment closely proximate to the point at which Mr Baker surrenders his vehicle to Harrison by vacating its driver’s seat, we consider there to be a live issue as to whether the carjacking committed by Harrison was not in fact complete by the time the applicant got out of the station wagon and ran to join Harrison at the utility (and thus whether the applicant could not be said to be complicit with Harrison in any of the ways contemplated by s 323(1) of the Crimes Act 1958). The timing of the incident – and what a fact-finder makes of the actions of the participants at critical moments in the space of a few seconds – is crucial.
Ultimately, we consider that although a jury might have entertained a reasonable doubt about the applicant’s complicity with Harrison, they would not have been compelled to have done so.
We would not uphold ground 3.
Conclusion: A conviction for theft of motor vehicle should be substituted
The respondent’s counsel submitted that, should we uphold the first ground, we should substitute a conviction for theft of a motor vehicle for that of aggravated carjacking on charge 7 on the trial indictment, and re-sentence the applicant accordingly.[23] Counsel for the applicant did not demur. In the circumstances, we consider the adoption of that course to be proper. Hence, we will grant leave to appeal against conviction, allow the appeal and make the consequential orders set out hereafter.
[23]See Criminal Procedure Act 2009, s 277(1)(c).
On 20 August 2021, the judge sentenced the applicant in accordance with the following table:
Charge Offence Sentence Cumulation Plea Indictment – K10845986.1 1 Theft of motor vehicle 3 months 1 month 2 Theft of motor vehicle 5 months 1 month 3 Obtain property by deception 1 month — 4 Theft of motor vehicle 5 months 1 month 5 Theft 1 month — 6 Theft 3 months 1 month 7 Obtain property by deception 1 month — 8 Burglary 12 months 4 months 9 Theft 9 months — 10 Theft 3 months 1 month Related Summary Offences 35 Drive whilst disqualified 6 months (aggregate) 2 months 38 45 Trial Indictment – K10845986 1 Burglary 10 months — 2 Theft 10 months 4 months 3 Theft 5 months 1 month 4 Burglary 10 months 4 months 5 Theft 10 months — 6 Arson 12 months 4 months 7 Aggravated carjacking 4 years Base 8 Possess drug of dependence (methylamphetamine) 1 month — 9 Handling stolen goods 2 months 1 month Related Summary Offences 18 Deal with suspected proceeds of crime 2 months 1 month 19 Possess prohibited weapon 14 days — 20 Possess controlled weapon 14 days — Total Effective Sentence: 6 years and 2 months’ imprisonment Non-Parole Period: 4 years Pre-sentence Detention: 408 days Section 6AAA declaration: Plea indictment and related summary offences – 4 years’ imprisonment 2 years non-parole
Trial indictment and related summary offences – 4 years’ imprisonment with 2 years non-paroleOther orders: All drivers licences or permits suspended for a period of 4 years from 20 August 2021
As we have said, we will substitute a conviction for theft of motor vehicle on charge 7 of the trial indictment, and impose a sentence of two years and six months’ imprisonment on that charge. We will make the sentence on that charge the base sentence, and not disturb any of the sentencing judge’s orders for cumulation of the other sentences she imposed. The new total effective sentence will thus be four years and eight months’ imprisonment, upon which we will fix a new non-parole period of three years. We will make an appropriate declaration of pre-sentence detention.[24] Although we will not disturb the other orders touching the applicant’s drivers licence, on charge 7 we will cancel any licences held by the applicant, and disqualify him from holding any other licence for two years.
[24]As at 5 August 2022, pre-sentence detention was 758 days (not including that day).
The sentence we have selected on charge 7 reflects our view that the applicant’s was an extremely serious example of the offence of theft of a motor vehicle, meriting stern punishment. In fixing sentence, we have endeavoured to take into account all mitigating features urged upon the sentencing judge by the applicant’s counsel (including the applicant’s youth). We would also indicate that we have also taken into account for the purposes of totality what we regard to be the relatively lenient sentences imposed on all other charges (including the very lenient sentence imposed for arson on charge 6 of the trial indictment). Further, we have taken into account all relevant features in mitigation in arriving at the new non-parole period. Given the leniency of the sentences imposed in the County Court, we see no reason to make any change to the declarations made by the sentencing judge under s 6AAA of the Sentencing Act 1991.
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