R v Akers
[2003] VSCA 159
•10 October 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 143 of 2001
| THE QUEEN |
| v. |
| CHRISTY LEA AKERS |
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JUDGES: | WINNEKE, P., ORMISTON and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 October 2003 | |
DATE OF JUDGMENT: | 10 October 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 159 | |
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Criminal Law – Counts of intentionally and recklessly causing injury to police, assaulting and resisting police in the execution of their duty – Whether inconsistency in verdicts and whether verdicts unsafe and unsatisfactory.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, S.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr T. Alexander | Essendon Community Legal Centre |
WINNEKE, P.:
I will invite Buchanan, J.A. to give the first judgment in this matter.
BUCHANAN, J.A.:
The applicant seeks leave to appeal against convictions on two counts of recklessly causing injury and two counts of resisting members of the police force in the due execution of their duty.
The convictions arose from a fracas which occurred on 4 August 1997 when the applicant attended at the Sunbury police station. Senior Constable Peters was behind the watch-house counter when the applicant arrived. Peters was the applicant for an intervention order on behalf of the mother of the applicant against the father of the applicant. The application for the intervention order was due to be heard that day. The applicant attended the police station for the purpose of informing Peters that her mother would not attend the court to give evidence against the applicant’s father.
In her sentencing remarks, the sentencing judge described Peters’ reaction to the information as “very strong and aggressive”. Peters herself said in evidence that she told the applicant that it was “pathetic that she wasn’t doing anything to help her mother”. According to the evidence of the police at the trial the applicant challenged Peters to “take off her uniform” and swung a punch at her, which missed. The applicant then grabbed Peters by the neck and pulled her towards the counter, at the same time punching Peters in the eye with her right fist. Peters and a sergeant of police restrained the applicant, but as they did so the applicant pulled Peters by the hair. A number of police officers were attracted by the noise. The applicant was told that she was under arrest. The applicant refused to move, and held onto a door at the police station. As her grasp of the door was released the applicant elbowed Senior Constable Neyland in the chest. The applicant was then placed in an interview room. Neyland entered the interview room to speak to the applicant. As Neyland turned to leave the room the applicant lunged at her and had to be restrained again.
The applicant was arraigned in the County Court and pleaded not guilty to one count of intentionally causing injury, two counts of recklessly causing injury, two counts of assaulting members of the police force in the due execution of their duty, two counts of resisting members of the police force in the due execution of their duty and two counts of unlawful assault. The Crown case consisted of the evidence of members of the police force present at Sunbury police station on 4 August 1997. The defence led evidence from a physician who treated the applicant and the applicant’s sister who attended at the Sunbury police station with the applicant on 4 August 1997. The applicant did not give evidence, but relied on the account which she gave in a record of interview. At the conclusion of the trial the jury returned verdicts of guilty on each of the counts of recklessly causing injury and resisting arrest and returned verdicts of not guilty on all the other charges.
The grounds of the application are as follows:
“1.The verdict of guilty on count 7 is unsafe and unsatisfactory; and in particular –
(a) the conviction is attended by latent duplicity;
(b)the factual basis upon which the count was left to the jury was uncertain;
(c )the prosecution did not particularize sufficiently or at all the factual basis of the count.
2.A miscarriage of justice has been occasioned in that the verdict of guilty on count 2 is inconsistent with the verdicts of not guilty on counts 1 and 3.
3.In all the circumstances the verdicts of guilty on counts 2, 4, 7 and 8 are unsafe and unsatisfactory; and in particular, a reasonable jury ought to have entertained a reasonable doubt concerning the applicant’s guilt on each count.
4.The trial judge misdirected the jury as to the burden of proof; and in particular, the directions were apt to reverse the burden.
5.An aggregate of errors caused the trial to miscarry.”
Count 7 alleged that the applicant recklessly caused injury to Senior Constable Neyland. Counsel for the applicant submitted that the count could have been based on the allegation that the applicant assaulted Neyland when Neyland took her to the interview room or the allegation that the applicant lunged at Neyland in the interview room, and that the prosecutor failed to make clear which was intended until his final address, when he said that the assault giving rise to the counts relating to Neyland occurred in the interview room. After the evidence concluded and before she charged the jury the trial judge said of the matter that “It certainly wasn’t made very clear”. It was submitted that the applicant’s case suffered because her counsel at trial in cross-examination concentrated on the circumstances in which the applicant was taken to the interview room rather than upon the events which occurred in the room. The transcript reveals, however, that after the prosecutor opened the Crown case to the jury, the position was made clear by the following exchange:
“HER HONOUR: Just before you do that, in relation to the opening, Mr Slim, you described two occasions on – I think what you said was that the accused had a go at Officer Neyland. Can you tell me which of those relates to counts 6 and 7?
MR SLIM:In the interview room when she is alleged to have lunged at her with arms outstretched and then they went to the floor.”
In the light of that exchange, I do not think that the first ground can be sustained.
Ground 2 concerned the verdict of guilty on the charge of recklessly causing injury to Peters and the verdicts of not guilty on the charges of intentionally causing injury to Peters and assaulting Peters.
Pursuant to ground 2 it was submitted by counsel for the applicant that the evidence of Peters was that the applicant threw a right clenched fist towards her head and forcibly pulled her forward. It was submitted that those actions necessarily connoted that the applicant intended to cause injury to Neyland, and if the jury found that there was an assault upon Neyland, it was not open to them to find that it was committed recklessly.
In my opinion, there were two bases on which the jury could properly have reached verdicts of guilty of recklessly causing injury and not guilty of intentionally causing injury and assault. The first is that the jury could have viewed the melée in which Peters was injured as a fast scramble in respect of which it could not be positively ascertained that the applicant deliberately caused injury to Peters but rather was reckless as to whether she did or not. The jury was not bound to accept all of Peters’ evidence. The second possible basis is that the jury may have thought that the incident did not warrant a large number of serious charges being laid against the applicant and may have selected some only of the charges on the basis that that was a fair and just result. See R. v. Kirkman[1]; MFA v. R.[2] I do not view the verdicts as necessarily the product of legal or technical inconsistency so that they cannot stand together.
[1](1987) 44 S.A.S.R. 591 at 593 per King, C.J.
[2][2002] HCA 53 at [34] per Gleeson, C.J., Hayne and Callinan, JJ. and [85] per McHugh, Gummow and Kirby, JJ.
In support of the third ground counsel submitted that the offences were inherently improbable, for the Crown case was that the applicant entered the police station, assaulted a police officer in front of another police officer and attempted to walk away, and then while being held for interview lunged at another officer. Counsel also relied upon the surrounding circumstances that he characterized as the singular pursuit by Peters of the intervention order despite the lack of co-operation by the applicant’s mother, Peters’ inflammatory conduct towards the applicant, the arrest of the applicant to prevent her from leaving the scene, the covert taping of the applicant by Neyland, the refusal to allow the applicant to see a doctor, or speak to her mother, and the fact that the record of interview was conducted by Neyland, a victim.
In my opinion, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The events described by the Crown witnesses were not inherently improbable and their evidence was not attended by any circumstances which must have led to the conclusion that the evidence lacked credibility. The particular circumstances relied upon by counsel for the applicant do not lead to the conclusion that the Crown witnesses could not be believed. They may found criticisms of the police; they do not exonerate the applicant. I would not conclude that the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the applicant.
Ground 4 is based upon a comment made by the trial judge towards the conclusion of her charge. Her Honour referred to submissions by the prosecutor and counsel for the applicant each criticizing his opponent’s version of the events as implausible and said:
“In relation to all of that ladies and gentlemen, it is a matter for you as to what you think actually happened on the day, both – and this is a comment of mine – both versions seem to have the same inherent implausibility, ultimately you have to determine it.”
Counsel for the applicant submitted that the trial judge invited the jury to choose between two implausible, competing accounts and said that the jury should have been told that if they thought both accounts were implausible, they should acquit the applicant. He said that the Crown version might be chosen without the jury being satisfied of its veracity beyond reasonable doubt.
I do not think there was any real risk that the jury may have mistaken its task. The trial judge earlier in her charge gave a full and accurate account of the burden of proof which the Crown bore. On no fewer than 23 occasions her Honour told the jury that on particular issues the onus of proof lay upon the Crown. In re-directing the jury after a question as to the meaning of intentional and reckless acts, the trial judge reiterated that the onus borne by the Crown was to prove its case beyond reasonable doubt. When the impugned comment is seen in context, in my view the jury was told that they were to resolve the question of which version of the events they accepted having regard to the burden of proof which lay upon the Crown; they were not simply invited to choose between two competing versions.
The final ground supposes that there were errors made in the course of the trial. For the reasons I have stated, I consider that no errors have been identified.
I would refuse the application.
WINNEKE, P.:
For the reasons given by Buchanan, J.A., I too would refuse this application for leave to appeal against conviction.
ORMISTON, J.A.:
I also concur in the reasons of Buchanan, J.A.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against conviction is dismissed.
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