Po'oi v The Queen

[2019] ACTCA 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Po’oi v The Queen

Citation:

[2019] ACTCA 13

Hearing Date:

6 May 2019

DecisionDate:

6 May 2019

ReasonsDate:

17 May 2019

Before:

Murrell CJ, Mossop and Bromwich JJ

Decision:

Appeal dismissed. See [38].

Catchwords:

APPEAL – CRIMINAL LAW – Conviction appeal from ACT Supreme Court – whether guilty verdict was unreasonable because it was founded on same evidence and joint liability case as counts in which defendant found not guilty –  whether primary judge erred in directing jury as to recklessness – whether primary judge erred in not giving Markuleski and Murray directions

Legislation Cited:

Court Procedure Rules 2006 (ACT) r 5531

Criminal Code 2002 (ACT) ss 20(1), 45A

Cases Cited:

ED v The Queen [2019] ACTCA 10

R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Murray (1987) 11 NSWLR 12

R v Po’oi [2018] ACTSC 364

Parties:

Daniel Po’oi (Appellant)

The Queen (Respondent)

Representation:

Counsel

K Ginges (Appellant)

T Hickey (Respondent)

Solicitors

Boxall Legal (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 48 of 2018

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Wigney J

Date of Decision:         27 July 2018

Case Title:  R v Po’oi

Citation: [2018] ACTSC 364

THE COURT:

Introduction

1. These are reasons for dismissing an appeal against conviction by Mr Daniel Po’oi on the day of the appeal hearing on 6 May 2019. 

1. Mr Po’oi was convicted of three offences committed during the course of a home invasion, and acquitted on four other offences alleged to have taken place during the same incident.  There was no issue at trial or on appeal that the home invasion took place. 

1. The primary plank of the defence case at trial was that Mr Po’oi was not present at all, and therefore not a participant.  That stance is not maintained on appeal as he does not challenge convictions for aggravated burglary and for aggravated robbery that took place as part of the home invasion.  Rather, his appeal concerns his conviction on one offence of violence, in the context of his acquittal on four other offences of violence.  The acts of violence were carried out by Mr Po’oi’s co-offender, Mr Manoa Chevalier.  He challenges his conviction upon the basis of a joint criminal liability in relation to violent conduct that took place in his absence.  

1. Mr Po’oi was tried before the primary judge and a jury on seven counts.  Each of the seven counts alleged an offence against Mr Adrian Johnson at his residential premises in the early hours of 26 September 2016.  The charges were:

1.Aggravated burglary

2.Aggravated robbery

3.Assault occasioning actual bodily harm

4.Threat to inflict grievous bodily harm

5.Inflicting actual bodily harm

6.Assault occasioning actual bodily harm

7.Intentionally inflicting grievous bodily harm

1. Mr Po’oi was convicted of counts 1, 2 and 7 and acquitted of the remaining four counts.  The basis of liability on counts 1 and 2 was as a principal offender with Mr Chevalier (together, the offenders).  Mr Chevalier was convicted in a separate trial, and gave evidence at Mr Po’oi’s trial.  His evidence was to the effect that Mr Po’oi had not gone with him to Mr Johnson’s premises.  That evidence could not have been accepted by the jury.

1. As to counts 3-7, it was the prosecution case that Mr Chevalier had committed the offences in the absence of Mr Po’oi, but that, pursuant to s 45A of the Criminal Code 2002 (ACT), he was jointly liable in that he was reckless about the commission of those offences.

1. Mr Po’oi appeals on the ground that the guilty verdict on count 7 was unreasonable or could not be supported having regard to the evidence.  He contends that verdict was unreasonable because it was founded on the same evidence and joint liability case as counts 3-6.  The ground remains one of asserted unreasonableness, but with that focus.

1. The appellant also sought, in submissions in reply, to raise additional grounds of appeal concerning directions that he contended should have been given to the jury, but was not permitted to rely upon those grounds under r 5531 of the Court Procedure Rules 2006 (ACT), an ex tempore judgment being given to that effect at the hearing of the appeal.  The revised reasons for that decision are reproduced below.

Prosecution case

1. It is convenient to reproduce from the remarks on sentence the trial judge’s concise summary of the facts, which his Honour found to have been proved beyond reasonable doubt, consistently with the jury’s verdicts at [4]-[26]:

Shortly after 5.00 am on the morning of 26 September 2016, the offender and a co-offender, Mr Manoa Chevalier entered unit 14/6 Beetaloo Court, Beetaloo Street, Hawker, in the Australian Capital Territory.  Mr Adrian Johnson was asleep on the couch in the unit. Mr Johnson was also known by his initials, “AJ”.

Shortly after 5.00 am, Mr Johnson woke up after someone said “AJ”. Mr Johnson believed it was the offender who had spoken to him.

Mr Johnson saw the offender and co-offender.  The offender was sitting on a coffee table facing Mr Johnson. The offender was armed with a sledgehammer.  The offender put the sledgehammer down.

The co-offender was standing behind the offender and was holding a knife.  The co- offender’s hands were covered with socks.

The offender said, “Don't worry, AJ.  We’re not going to hurt you.  We’re just here for the money and drugs.”

Mr Johnson feared for his safety at the time.

Mr Johnson told the offender that he did not have any money or drugs.

The offender then searched the jeans and bum bag of Mr Johnson.  The offender also told the co-offender to look around.  The co-offender commenced searching the unit.

Mr Johnson asked the offender if he could have a “bumper” cigarette from the table.  The offender told Mr Johnson not to touch anything.

Mr Johnson was the recipient of Centrelink payments. Mr Johnson’s Centrelink payment was due on the same day.  Mr Johnson offered the Centrelink payment to the offender.  Mr Johnson had cancelled his key card the week before. Mr Johnson knew that St George would decline any attempt to withdraw money from his account.

The co-offender asked Mr Johnson if his Centrelink payment was available in his account. Mr Johnson replied that he did not know.  The co-offender asked Mr Johnson, “What bank are you with?”.  Mr Johnson told the co-offender that he banked with St George.  The co-offender then said, “Don't be a smart cunt.  That goes in there at a quarter past 5, or 5.25 am, or something like that, and that should already be there.”

Mr Johnson handed his key card to the offender.  Mr Johnson also provided the PIN for his key card.

The offender then said to the co-offender, “Don’t touch him. Don’t hurt him.”  The co-offender replied, “I won’t – word.”

The offender then left with a key card and an iPhone belonging to Mr Johnson. The iPhone was subsequently located by the police in the bedroom of the offender at the time of his arrest.

It should be noted at this point that the property the subject of the aggravated robbery charge was the key card and the iPhone. Needless to say, the value of the property was not substantial.

The co-offender approached Mr Johnson after the offender had left the apartment. The co-offender said, “I’m leaving with two of your fingers.”

Mr Johnson then attempted to run from the unit. The co-offender stabbed Mr Johnson.

There was medical evidence at trial by Dr Amanda Van Diemen. Mr Johnson’s injuries were described in Dr Van Diemen’s report as follows:

1.Adrian JOHNSON sustained very serious injuries resulting from an alleged assault on 26th September 2016, in which he reported being stabbed in the back with a knife. These injuries included;

a.Penetrating chest injury of the left upper back,

b.Left haemothorax,

c.Left pneumothorax;

d.Wound to left shoulder

…

3.     …

a. … The penetrating chest injuries sustained by Adrian JOHNSON were very serious and without immediate specialist medical intervention may have resulted in death.

Shortly after he left Mr Johnson, the co-offender attempted to withdraw money from the account of Mr Johnson. The transaction was declined.

It is important to emphasise at this point that the Crown case was that the offences of which the offender was convicted were jointly committed by him and the co-offender, Mr Chevalier, pursuant to s 45A of the Criminal Code.

That is particularly significant in respect of the offence of intentionally inflicting grievous bodily harm. That is because, as will have been clear from the outline of the facts, the offender was not directly responsible for the physical act which resulted in grievous bodily harm being inflicted on Mr Johnson.

Section 45A of the Criminal Code relevantly provides as follows:

(1)A person is taken to have committed an offence if—

(a)  the person and at least 1 other person enter into an agreement to  commit an offence; and

(b)  either—

(i)an offence is committed in accordance with the agreement; or

(ii)an offence is committed in the course of carrying out the agreement.

(2)For subsection (1) (b) (i), an offence is committed in accordance with an agreement if—

(a) the conduct of 1 or more  parties  in  accordance  with  the  agreement  makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and

(b) to the extent that a physical element of the joint offence consists of  a  result of conduct—the result arises from the conduct engaged in; and

(c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or  a  result  of  the  conduct  engaged in, happens in the circumstance.

(3)For subsection (1) (b) (ii), an offence is committed in the course of carrying out an agreement if a person is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement.

(Emphasis in original.)

The Crown case was, in short, that the offender and the co-offender entered into an agreement to commit an offence or offences, being either aggravated burglary or aggravated robbery, and that the offence of intentionally inflicting grievous bodily harm was committed by the offender in accordance with carrying out that agreement. That was because the offender was reckless about the commission of the offence of intentionally inflicting grievous bodily harm that was in fact committed by the co-offender in the course of carrying out the agreement to commit the offence or offences of aggravated burglary or aggravated robbery.

1. In the defence closing address to the jury, Mr Po’oi’s counsel identified what was really in dispute as being whether Mr Po’oi was at Mr Johnson’s premises at any stage during the events in question, and if so, what, if anything was agreed between the offenders.  His case was that the evidence fell short of constituting a sufficient basis for any joint criminal liability.

Appellant’s submissions on the asserted unreasonable verdict

1. Mr Po’oi submits that the prosecution case on counts 3-7 did not permit different verdicts to be reached, except in relation to the threat to inflict grievous bodily harm (count 4), where there was no corroboration of Mr Johnson’s account of events, such as by way of an injury consistent with the threat alleged to have been made.  Counts 3-7 had common features including that they involved the same victim, were committed in quick succession after the appellant had sought verbal assurance that Mr Chevalier would not act violently, and were committed using physical violence or Mr Chevalier’s knife or both.  Each of counts 3, 5, 6 and 7 were supported by evidence of Mr Johnson’s injuries.  The credibility of Mr Johnson was not called into question in relation to each count.  On Mr Po’oi’s case, if there was a reasonable doubt about whether he had been reckless concerning Mr Chevalier committing the less serious assaults comprising counts 3, 5 and 6, then the same reasonable doubt must logically attach to the more serious count 7.

1. In addition, Mr Po’oi submits that (unlike some charges of which the appellant was acquitted), count 7 required the jury to be satisfied beyond reasonable doubt that Mr Chevalier had specifically intended to inflict grievous bodily harm (as opposed to some lesser harm).  Mr Po’oi submits that the evidence in that regard was scant and left open the reasonable possibility that the knife injury had occurred recklessly or accidentally.  In this regard, Mr Po’oi relied upon the fact that the knife injury occurred in the course of a struggle.  At one stage, Johnson was questioned by police as follows:

Question: Was he actually trying to stab you with the knife?

Answer: No, he was just punching me and holding the knife with the other hand

1. Mr Po’oi submits that there should be no retrial as any retrial would permit of a verdict that was inconsistent with the acquittals on counts 3-6 in circumstances where the prosecution may be precluded from adducing the facts in relation to counts 3-6.  Further, by the time of any retrial, the appellant would have served his non-parole period.

Consideration of the asserted unreasonable verdict ground

1. The applicable principles in relation to unreasonable verdicts are well-established.  They are summarised by this Court in ED v The Queen [2019] ACTCA 10 at [43]–[49] and we adopt what is said there.

1. The verdicts of acquittal on counts 3-6 can be logically explained on the basis that Mr Johnson’s evidence about those matters having taken place, and thus giving rise to joint criminal liability arising in the first place, was significantly weaker than his evidence about count 7.  Initially, Mr Johnson gave evidence that, after the appellant left the unit, Mr Chevalier made the threat that constitutes count 4, there was a struggle and then, when Mr Johnson tried to escape, Mr Chevalier kicked him in the head and “put a blade straight in [his] back”.  In other words, initially no evidence was given at the trial in support of counts 3 or 5, and the evidence in support of count 6 was incomplete.

1. As to count 3, Mr Johnson gave evidence of it only after the prosecutor showed him photographs of injuries to his face.  There was no medical evidence confirming the injury of a split lip.  In his closing address, the prosecutor conceded that the absence of such evidence might cause the jury to be concerned.

1. As to count 4, there was no corroborative evidence, such as by way of injury, because the alleged threat of cutting off two of Mr Johnson’s fingers was not carried out.  When speaking to police initially, Mr Johnson did not refer to the threat.  In evidence, Mr Johnson changed his account of what was happening when he said the threat had been made.

1. As to count 5, Mr Johnson did not mention being cut on the hand with a knife until the prosecutor showed him photographs of cuts to his hands.  At that stage, Mr Johnson proffered that he had been cut on his right hand at the beginning of the incident but provided no further detail.  The matter was not the subject of the initial complaint to police.  The prosecutor conceded in his closing address to the jury that the evidence in relation to count 5 was not strong.  The trial judge described the evidence as “fairly vague”.

1. As to count 6, initially Mr Johnson said that he had been kicked in the head.  The police officer recalled that Mr Johnson had complained about being punched in the head.  When shown photographs of abrasions and bruises to his head by the prosecutor, Mr Johnson said that he presumed that they had been caused when he was punched in the mouth and kicked in the head.

1. The above brief summary indicates that it was entirely open to the jury to harbour doubts as to whether the events forming the basis for each of counts 3 to 6 had taken place as described by Mr Johnson, and therefore not to be satisfied beyond reasonable doubt that they had occurred as alleged by the prosecution and deposed to, somewhat unreliably, by Mr Johnson.  In those circumstances, Mr Po’oi’s acquittal on those counts could be explained by a weakness in the event evidence, not in the agreement evidence.

1. There was no reasonable scope for the jury having a reasonable doubt as to the event constituting court 7 having taken place.  First and foremost, there was no basis for any doubt that Mr Johnson had been stabbed.  The examining doctor found an incised wound in Mr Johnson’s mid-back that was consistent with both the fact of the stabbing and where it had taken place.  The medical evidence was therefore incontrovertible.  Moreover, Mr Johnson made an immediate complaint to police that he had been stabbed in the back in the stairwell and made a similar complaint at the hospital.  Mr Johnson’s evidence about the stabbing was volunteered (rather than prompted by seeing photographs) and largely consistent even though not all the surrounding circumstances were unchanged.  Further, Mr Chevalier was wielding the knife in his hand when he entered the unit with Mr Po’oi.  As he was leaving, Mr Po’oi asked Chevalier to desist from injuring Mr Johnson.  It followed that there was a readily available inference that Mr Po’oi foresaw a substantial risk that Mr Chevalier would injure Mr Johnson with the knife.

1. It was well and truly open to the jury to have concluded that Mr Johnson had a vivid and reliable memory of having been stabbed, while his memory of other, less traumatic aspects of the assault was less clear and less reliable.  Further, the jury must have concluded that Mr Po’oi foresaw a substantial risk that Mr Chevalier would injure Mr Johnson with the knife.  Despite submissions to the contrary in support of the appeal, there was no serious basis for concluding that the stabbing was other than intentional; but in any event, there was ample evidence for the jury to reach that conclusion.

1. It follows that Mr Po’oi’s case that the verdict on count 7 was inconsistent with the not guilty verdicts, especially as to counts 3, 5 and 6, cannot be accepted.  For these reasons, the appeal was dismissed at the time it was heard on 6 May 2019.

The additional grounds sought to be relied upon

1. The following are revised reasons, given ex tempore at the hearing of the appeal, for not permitting Mr Po’oi to rely upon the absence of directions to the jury that were not sought at the trial.

1. In this appeal, the counsel who appeared for the appellant at trial, and also the successor counsel who prepared the original submissions for the appellant, both became unavailable by reason of the taking of appointments to the Magistrates Court of the Australian Capital Territory.  On late notice, replacement counsel, Mr Ginges, stepped in to both appear for the appellant and also to provide submissions in reply.  The court should acknowledge, at the outset, its gratitude for Mr Ginges in coming in on such short notice and getting across the material in the case.

1. In those submissions in reply, in addition to adhering to the existing ground of appeal, which had already been narrowed to rely upon an assertion of inconsistent verdicts in relation to count 7 only, counsel sought leave to appeal, or permission to appeal, depending on how that is styled in relation to r 5531 of the Court Procedure Rules 2006 (ACT), to advance grounds of appeal on matters concerning directions that were not given by the learned trial judge at the trial.

1. Rule 5531 provides as follows:

Appeals to Court of Appeal—grounds of appeal against conviction or sentence

Unless the Court of Appeal otherwise orders, the following must not be allowed as a ground for appeal against conviction or sentence unless objection was taken at the trial by the party appealing:

(a)a direction given by the trial judge;

(b)the trial judge’s failure to give a direction;

(c)the trial judge’s decision about the admission or rejection of evidence.

…

First additional ground: trial judge’s directions as to the meaning of recklessness

1. The first of the additional grounds concerns the summing up that the trial judge gave as to the meaning of recklessness. The particular issue concerns the test of recklessness and the particular test in question, in s 20(1) of the Criminal Code 2002 (ACT), was that a person was reckless in relation to a result, if “the person is aware of a substantial risk that the result will happen.” (Emphasis added).  The learned trial judge, in giving a direction to the jury, at several points, in relation to count 7 and in relation to the Crown's grounds more generally, referred to a substantial risk that a result “might” happen.

1. Dictionary definitions are provided as to the distinction between “will” and “might” and there is no question that as a matter of ordinary language, there is a distinction between the two.  However, the very purpose for having r 5531 is to ensure that trials are conducted and, subsequently, appeals conducted, on the basis of the real issues at the trial.  In this case the defence counsel made it abundantly clear that the two live issues in the trial were, firstly, whether or not Mr Po’oi was at the premises at all on that day; and, secondly, what, if anything, was agreed between the appellant and the person who remained at the premises and inflicted the injuries on the complainant.

1. In those circumstances those two real issues were the matters that were agitated.  Alibi evidence was run as to Mr Po’oi not being present and if the jury were not satisfied beyond reasonable doubt as to that, all seven counts had to result in “not guilty” verdicts.  It was only if they were satisfied beyond reasonable doubt as to his presence that they would proceed on to consider the individual elements for each alleged offence.

1. When one has regard to those circumstances and to the real issue in the trial, whilst there is a theoretical distinction between the use of the word “might” and the use of the word “will”, in the reality of this trial and in the circumstances of the issues in the trial, it is doubtful that there was any material distinction at all.  But even if that were not right and there was some material distinction capable of existing in a theoretical setting, in the circumstances of this case it was quite impossible to conclude that there would have been any miscarriage of justice arising from it.  Nor is there scope for any miscarriage of justice to have occurred.  Accordingly, Mr Po’oi should not be allowed by an order under r 5531 to advance this ground of appeal.

Second additional ground: alleged failure to give “Markuleski” and “Murray” directions

1. Turning then to the second alternative ground of appeal, to the effect that two directions should have been given by the trial judge pertaining to aspects of Mr Johnson’s evidence not being accepted in order to return not guilty verdicts in relation to counts 3, 4, 5 and 6, whilst finding a guilty verdict in relation to count 7.

1. The essence of the argument is that there needed to be a clearer explanation to the jury that, if they were not to accept the evidence of Mr Johnson in relation to those acquittal counts 3-6, then they should have been directed as to whether or not they should carry through that doubt in relation to count 7.  This is commonly known as a “Markuleski” direction: R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82.

1. There are two difficulties with that approach.  The first difficulty is the one that has already been adverted to in relation to the first proposed additional ground sought to be run on appeal, and which has already been referred to, and that is the true issue and atmosphere of the trial. 

1. The second, though, and perhaps more fundamental difficulty is that, even if that first gateway was somehow to be passed through, the trial judge firstly was not asked to give any such direction; and secondly, gave the substance of that direction, perhaps not in letter and verse, but tailored to the circumstances of this case, where his Honour said the following to the jury, reproduced at [18]-[26] of page 266 of the trial transcript:

If you find upon considering a witness's evidence that the witness was not being truthful and honest about some or all of the matters in their evidence, it almost goes without saying that you would have some doubts about the reliability of the evidence they gave, and I'll say a little bit more about honesty in a moment.  But that of course is not the only thing you need to assess, because the evidence of even the most honest witness may not necessarily be reliable or entirely reliable, because self-evidently, their memory of the events may be poor or perhaps there may be other reasons why they may have been mistaken.

1. In those components of the learned trial judge's summing up, his Honour made it abundantly clear that the jury, whether it be by reason of truthfulness or honesty, or by reason of reliability, could first accept some parts of the evidence of any witness (relevantly, Mr Johnson) and reject others.  Most importantly that if there were such doubts about reliability, that could cause doubts about the reliability of the balance of the evidence.  In those circumstances, that aspect of the second proposed additional ground should not be permitted to be run on appeal. 

1. The same argument relates to the second limb of the second proposed ground, which refers to a “Murray” direction: R v Murray (1987) 11 NSWLR 12. That direction largely occurs in sexual matters and reiterates that the jury need to be satisfied that a complainant had been honest and accurate in reporting complaints before they could return a guilty verdict and they had to examine the evidence very carefully. As with the first aspect of this second proposed ground, adequate directions were given on the approach to be taken to Mr Johnson’s evidence; and secondly, no issue was taken at the time the directions were given. It follows that in relation to the second additional proposed ground of appeal, first of all, there is an insufficient basis to be satisfied there is any real error. In any event, there is an insufficient basis to be satisfied that there would be any miscarriage of justice based upon those issues that are sought to be raised. Accordingly, on neither basis should that additional ground of appeal be permitted to be run pursuant to r 5531.

Conclusion

1. For the foregoing reasons, the appeal was dismissed.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 17 May 2019