R v Aoukar - [2011] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v AOUKAR
[2011] SASCFC 96
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Peek)
26 August 2011
CRIMINAL LAW - EVIDENCE - COMMENT ON FAILURE TO GIVE EVIDENCE - BY JUDGE
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - MISCELLANEOUS MATTERS - JOINT TRIAL
CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction - appellant and co-accused tried for charges of blackmail, assault and theft - prosecution case was that the co-accused committed the offences pursuant to a joint criminal enterprise - appellant was convicted on all counts, with the verdict in respect of the assault charge being reached by majority - appellant had given evidence in his defence in a previous trial but had declined to give evidence in the present trial - appellant's evidence from the previous trial was read to jury - whether direction as to defendant's decision not to give evidence was sufficient - whether directions were sufficient regarding admissibility of evidence if jury found joint criminal enterprise was not proved - whether judge erred in taking a verdict on the assault charge once a verdict of guilty was returned on the blackmail charge - whether unanimous verdict on count 1 was inconsistent with majority verdict on count 2 - whether verdicts unsafe or unsatisfactory.
Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 171, referred to.
Pearce v The Queen (1998) 194 CLR 610, applied.
R v Robinson and Tiplady (1985) 123 LSJS 37, discussed.
R v Machin (No 2) (1997) 69 SASR 403; R v Harbach (1973) 6 SASR 427; Mawaz Khan v The Queen [1967] 1 AC 454; R v Kamleh [2003] SASC 269, considered.

R v AOUKAR
[2011] SASCFC 96
Court of Criminal Appeal: Doyle CJ, Vanstone and Peek JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons given by Vanstone J. There is nothing that I wish to add to those reasons.
VANSTONE J: The appellant and a co-accused, Nicolitsi, were tried in the District Court before a judge and jury on an information charging them jointly with blackmail, assault and theft. The prosecution alleged a joint enterprise in respect of each count. There were convictions on all counts, in the case of the assault, by majority verdicts.
The appellant now appeals, with permission, alleging errors by omission in the summing up, that no verdict should have been taken on the assault because the same conduct was part of the blackmail offence, and that the verdicts are unsafe and unsatisfactory.
Background
The victim of all offences was a Mr Rowan. He was in a relationship with a woman whom I shall call “C”. C’s sister was married to a Mr Clemente, who ran a shop. As will be seen, the prosecution case was rather curious. There was a suggestion of a failed drug venture involving some of the witnesses and persons mentioned in the trial. According to Rowan’s evidence, there was an argument between Rowan and C. Clemente became involved in it. In front of Clemente, C suggested that Rowan’s boss was a motor cycle club member. Clemente reacted very angrily to this suggestion. Rowan was apprehensive because of the way in which Clemente reacted.
A few days later on 25 November 2005 Clemente rang Rowan telling him that there were some men at his shop who wanted to talk to Rowan about Rowan’s boss. He went there. Clemente made a telephone call. Three men arrived shortly afterwards. It was admitted at trial that two of the three men were the accuseds. They were wearing “Hells Angels” shirts. They acted in an intimidating manner towards Rowan and there was talk of whether Rowan’s boss was in fact a motor cycle club member.
Later Clemente told Rowan he was required to go to the shop again. This was 29 November 2005, the date specified in the blackmail and assault charges. Once there, Clemente told him to do whatever was required to co-operate. Again, Clemente made a phone call. Two men arrived. It was admitted that the two men who arrived were the accused men. Only the shorter one –inferentially the appellant – spoke to Rowan. Rowan was intimidated again. He was told “We [are] there for you” and asked how much it was worth to him. Then he said he was punched to the face by the appellant. He was also slapped by the appellant. Eventually Rowan suggested it was worth $10,000 to $20,000. Both men smiled. They focussed on the $20,000 figure and seemed happy with it. Rowan said he did not know why he was supposed to owe this money. The appellant said he wanted it by the following Monday. Afterwards, when Rowan left the premises he saw a parking inspector who asked him “What’s happened to you?”.
Rowan said he thought the men were Hells Angels. He was very scared. He tried, but could not obtain $20,000 to pay the men. However, a week or so later, he was told by Clemente that he was required to take his green Holden Commodore motor vehicle to the shop. He understood that his car was to be handed over to the two men. He took his car there, as instructed, and left it with the keys in it. He did not see the car again. However, his involvement with the men continued, as he was required to arrange a purchaser for the car by advertising it and he liaised with the appellant for that purpose.
Rowan told the jury that shortly after these events he and C left their home – breaching their lease – and moved away. Rowan changed his name by application to the Registrar of Births, Deaths and Marriages. Sometime later, C reported the matter to police and an “undercover” operation commenced.
The appellant gave evidence in his defence in a previous trial of the charges. The evidence he gave was proved in this trial. His defence was that he was a licensed debt collector and he was asked by Clemente to collect a debt which Rowan owed him.
Arguments on appeal
The first ground of appeal is related to the direction given going to the jury’s use of the appellant’s evidence during the previous trial of these charges. It is suggested that in addition to what was said, the jury should have been told that no adverse inference should be drawn from the appellant’s failure to give evidence in the current trial. Particular reference was made to R v Machin (No 2) (1997) 69 SASR 403 where the direction given in similar circumstances – upheld in this Court – was as follows (at 410):
In this case, we have evidence given on oath by the accused in a previous trial, but, you will not have the same opportunity to test that evidence for yourself. You have not seen the manner in which the evidence was given. I will say something more about that later, but you will have to do the best you can to apply the principles which I have just discussed to the evidence of the accused from the previous trial.
You will have to work out for yourself how his evidence from the previous trial fits in with the other evidence. You will have to consider the inherent likelihood of the story which you have been told via that previous evidence. …
The accused gave that evidence after having sworn before a judge of this court, and the jury, to tell the truth. The accused gave his evidence on that occasion in the knowledge that he would be tested in cross-examination as in fact occurred. However, the accused has chosen not to give evidence before you in the present trial. You will bear in mind that there is no obligation upon the accused to avail himself of the opportunity, which he has, of giving evidence. His decision not to give evidence before you is neither evidence for him nor against him.
However, the fact that the accused chose not to give evidence before you may bear on the probative value, so far as you are concerned, as to what he said at the last trial. You will bear these facts in mind in deciding what weight you will give to what the accused said on oath in the previous trial.
In considering the material, you will be conscious of the fact that you have not had the opportunity of seeing and hearing the accused give evidence. The judge's associates ... read this material to you and, although you have [not] heard the actual words that the accused used, as recorded by the reporting service, you will have to bear in mind that your task in assessing the worth of this material has not been made easier, by the absence of the accused from the witness box on the occasion of the present trial. You have seen the accused in the dock, but you have not had the advantage of observing his demeanour in the witness box.
The prosecution is entitled to put before you all available statements, including the sworn evidence from the last trial. You will make of it what you will. It is up to you what you choose to believe.
(italics added)
The direction given by the judge in the present case was more concise. It was in the following terms:
Finally members of the jury you will recall some evidence given by Mr Aoukar at a previous hearing was read to you. As I mentioned at the time on occasions in a criminal trial there has been evidence given at a previous hearing. It is perfectly normal, you should not speculate about it. When that happens sometimes the prosecution calls that evidence in the coming trial so you can hear it.
That evidence was given on oath and subject to cross-examination on that occasion and you are entitled to give it such weight as you see is appropriate, bearing in mind you have not had the opportunity to see it being given. As with the other evidence, I will not read it out word for word. I will remind you of some of the salient features of it.
That evidence is evidence primarily relevant to Mr Aoukar. It cannot be used against Mr Nicolitsi. However, if there are aspects Mr Aitken has brought to your attention to support his case, you may give it such weight in that regard as you see fit.
The appellant’s complaint related to the absence of a direction along the lines of the italicised words above. It is true that, unlike the Machin direction, there was no reference in the above passage to the accused’s right not to give evidence in the current trial. However, a direction in unexceptional terms had already been given on that topic. The argument of Mr Crocker, for the appellant, amounted to a complaint that the judge had not reminded the jury at the time he was dealing with the evidence from the first trial that no adverse inference arose in the current trial by reason of the accused’s absence from the witness box.
In my view there is no reason to apprehend that the jury overlooked the earlier direction. It is for a judge to decide how a summing up is to be constructed. This one ran for about one and a half hours with a 20 minute break in the middle. Much of it dealt with the facts of the matter. There is no reason to think that the jury was incapable of understanding and recalling all the directions given.
Ground 2
The next complaint is that the judge failed to direct upon what evidence was admissible and inadmissible against the appellant, and indeed each accused, assuming no joint enterprise were proved. It was put that there was evidence which concerned only the co-accused, Nicolitsi. It was evidence of intercepted telephone conversations in which Nicolitsi spoke with third parties, as well as evidence of his efforts to register Rowan’s Commodore and his use of it. It was said that this body of evidence was “inadmissible” against the appellant if the prosecution case on joint enterprise failed.
Reference was made to R v Harbach (1973) 6 SASR 427 and R v Robinson & Tiplady (1985) 123 LSJS 37.
Where, in a trial of more than one accused person, evidence is given of out of court statements by one of them which are of a narrative or assertive nature, perhaps, as here, in the form of an interview with police or telephone conversations with third parties, that evidence is, in the absence of a special rule, not admissible against the other accused person. (Relevant special rules would include those applying to statements made in furtherance of a joint enterprise; and to a joint attempt to fabricate, as in Mawaz Khan v The Queen [1967] 1 AC 454; R v Kamleh [2003] SASC 269.) The trial judge must instruct the jury to that effect. Harbach’s case provides clear authority for that proposition. In that case the co-accused, Monika Munroe, had made a confession to police which implicated Harbach in the killing. She had also implicated Harbach in statements made to civilian witnesses prior to being charged. Plainly, her out of court assertions were not admissible against Harbach. Directions to that effect were given.
However, the situation with statements of the co-accused which are not of a narrative or assertive nature, and with evidence of his acts, is not necessarily the same. Assume A and B are charged jointly with a crime. Evidence of observations made of B’s activities, including non-narrative statements which accompany those activities or objective matters connecting B to the crime, is evidence which concerns only B, but it is admissible for all purposes. Often there will be no need to warn the jury against using it against A, because, logically, it will not be capable of such use, at least in a direct sense. Indeed it will often be of use to A, inasmuch as it will implicate B and not A. Ordinarily, no direction about it will be required.
Robinson & Tiplady was, in some respects, an unusual case and provides an example of a situation where directions about such evidence are required. There, the two appellants were each charged with offences of rape against a young woman. There was no allegation of joint enterprise, or of aiding and abetting. It was a matter of dispute whether the accused men were together when any of the acts of intercourse occurred. The appeals were allowed by reason of a number of defects in the summing up. One of those was that no direction was given prohibiting the use against Robinson of what Tiplady said to police in an interview. Another was that no caution was issued to the effect that events occurring between the victim and one or other accused man could only be used against the other if he were either present, and would have seen those events, or was otherwise apprised of them. King CJ said this (at 40):
There is, I think, a real danger in the circumstances of this case that each appellant might have been prejudiced in the minds of the jury by the evidence of what other people did in the absence of the particular appellant and without his knowledge. The jury should have been instructed that before using such material against a particular accused they should first be satisfied that he was either a party to the particular event or at least was affected by knowledge of it.
In the present case, recordings of 63 intercepted telephone calls were played to the jury. They occurred within the period 15 to 23 December 2005. Fifteen of the 63 did not involve the appellant. Most calls concerned arrangements or plans in relation to the sale of the Commodore motor car. To that extent, the prosecution argued they were statements in furtherance of the joint enterprise. The calls in which the appellant did not take part were quite benign insofar as his involvement with the charges was concerned. There was no assertion made about the appellant’s involvement in the charges. The calls as a whole tended to demonstrate the dealings which both accuseds had in relation to the car. As to Nicolitsi’s use of the car and his efforts to effect its re-registration, that could have no impact on the appellant, except insofar as it might throw light on the earlier events. Indeed, the calls were more harmful to Nicolitsi, because they tended to rebut any suggestion that he was present at Clemente’s shop on 20 November as a bystander only. I consider that that material was available for use against either accused.
In relation to the telephone calls the judge told the jury that only statements of one or other accused in furtherance of a joint enterprise could be used against both of them. He said:
Members of the jury, I will mention the phone calls simply by number. There are 63 calls made variously by the two accused that are before you in evidence on that disc … I do need to direct you as to how you use this evidence. Again I remind you anything an accused person says is evidence against that accused person, the same goes for evidence said in that person’s presence, for example where both accused are speaking to each other. All of those conversations they have with each other is evidence against each.
Further, when only one accused is present but what he is saying or doing you are satisfied is in furtherance of a plan that both accused have again it is evidence against both of them.
Finally however, if an accused person is having a conversation out of the presence of the other accused, that is unrelated to any plan it is only evidence against that accused person. In this case members of the jury discussion of that nature is likely to be irrelevant to the case anyway. You will see in those phone calls there is discussion about going to pizza bars and whatever it might be, irrelevant you might think in the general sense, in any event.
So in short members of the jury where both accused are talking, evidence against both; where one or other is talking to someone and the plan is being pursued whether that is arrangements with Mr Rowan, whether that is dealing with the car, whether that is lending the car to Nina, whether that is talking about how much he can come up with, or what he did, or he was being told to shut up on the phone, all of those things, if you find they are part of the plan, then they are evidence against both accused no matter who said them, and that is no matter which of the accused said them and to who.
There was no complaint about these directions so far as they went.
Although the judge’s summing up did not initially address in any detail the situation where no joint enterprise was proved, a jury question asking whether the two accused men stood or fell together elicited a further direction from the judge. It was to the effect that in the absence of a joint enterprise the case against each accused fell to be determined “in terms of that person’s behaviour only”. He said:
In particular, what they might say or do outside the presence of the other is not evidence against the other person in that situation; there you just assess the evidence of what that person did or said.
I consider that counsel’s criticisms of the directions are not warranted. On Rowan’s account, the appellant was the principal actor in the events on which the blackmail and assault charges were based. He was at least as involved in the subsequent events as the co-accused. If no joint enterprise were proved the case against him would be little changed. If the jury accepted Rowan’s evidence then certainly it would have convicted the appellant of counts 1 and 2, at least. Any doubt about the existence of a joint enterprise on those counts could only arise from doubt about the extent of Nicolitsi’s role, having regard to the fact that he said and did nothing during the two meetings at Clemente’s shop.

The only evidence which touched Nicolitsi but not the appellant was properly admitted as relevant to Nicolitsi’s alleged role in the events. It was not such as to incriminate the appellant. The question which arises on the appeal is not one related to admissibility, but is rather related to what, if any, use the jury might make of that evidence against the appellant.
In my view the excerpts from the summing up which I have reproduced above make it plain that the jury was told not to use out of court statements by either accused against the other unless satisfied they were statements made in furtherance of a joint plan. Whether the absence of such a direction would have mattered is doubtful in any event. As I have said, the out of court statements were not such as to implicate the other accused and, in fact, might have been very helpful to the other accused. So far as observations of Nicolitsi’s dealings with the Commodore car are concerned, I consider that no direction of the type suggested was required. Indeed, that objective evidence of Nicolitsi’s use of the car provides a good example of evidence which relates to one accused only, but helps to build a picture of the events and can be used for or against any of those charged.
Ground 3
The third ground of appeal was that since the assault on Rowan was the menace alleged as a basis of the blackmail charge, once a verdict of guilty of blackmail was returned, no verdict should have been taken on the assault charge.
The appellant’s argument depends on the elements of assault being wholly included in the elements of the blackmail charge: Pearce v The Queen (1998) 194 CLR 610. However, assault is not an element of blackmail. What is required is proof of a “menace” accompanied by the intention to “get the other to submit to a demand”: s 172(1) Criminal Law Consolidation Act 1935. The word “menace” is defined in s 171 of the Criminal Law Consolidation Act. I reproduce the definition:
171—Interpretation
(1) In this Part—
…
menace—a person who makes a threat menaces the person to whom the threat is addressed (the victim) if—
(a)the threat is a threat of harm to the victim or a third person (to be inflicted by the person making the threat or someone else); and
(b)the threat is unwarranted; and
(c)either—
(i)the threat would be taken seriously by a reasonable person of normal stability and courage; or
(ii)the victim in fact takes the threat seriously because of a particular vulnerability known to the person making the threat;
In this case the assault charged as count 2 certainly added to the proof of the menace. It tended to reinforce the threat of future harm. However, an application of force was not required in terms of proving the offence of blackmail. As I said, it was, rather, the threat of future violence which tended to satisfy the element of menace.
Consequently, there was no impediment to proceeding to take a verdict on count 2.
Ground 4
This ground sought to attribute inconsistency to the verdicts on counts 1 and 2 based on the fact that, while the verdict on count 1 was unanimous, that on count 2 was by majority. It was argued that if one or two jurors were not satisfied of the assault as charged by count 2, then it was illogical that the same juror or jurors were so satisfied for the purposes of count 1.
I have already observed that assault was not an element of blackmail.
In my view nothing can be made of the fact that the jury was unanimous on the one charge and not on the other. In any event, there is at least one plausible reason why one or two jurors might not have wished to find the appellant guilty of count 2 as well as count 1, and that is they might have seen the assault as being subsumed into count 1. Anyway, as was pointed out during the hearing of the appeal, the logical end point of this argument is that, to be consistent, the one or two disagreeing jurors should have not joined in the verdict on count 1. That would still have left the appellant being found guilty of both counts.
There is no relevant inconsistency.
Ground 5
All verdicts were said to be “unsafe or unsatisfactory” for more general reasons. It was asserted that the question of whether Rowan was assaulted on 29 November was the central forensic issue in the trial. According to Rowan the assault consisted of “punching” and “slapping” of his face by the appellant. There were no photographs of any injury to Rowan’s face. I mentioned earlier that a parking inspector, Mr Screen, had spoken to Rowan soon after he left Clemente’s shop on the occasion giving rise to the charges. Mr Screen gave evidence at the trial. He described Rowan as looking as if “he had been crying, he was all scruffed up and crying … he looked distressed, looked like someone had just died … tears in his eyes, scruffy, a little bit limp … very distressed”. However, he saw no injuries to Rowan’s face. It was argued in that respect that Mr Screen’s evidence contradicted that of Rowan.
The woman C said she observed injuries to Rowan’s face, but she described injuries to the left side of his face rather than to the right side. Also she linked her observation of his injuries to an event which occurred days prior to the alleged assault.
Counsel for the appellant also pointed to other matters which he suggested gave rise to doubts about the reliability, if not honesty, of Rowan. In my opinion these further matters are very much matters of detail.
I have considered all of the arguments put by counsel in support of this ground. They were questions for the jury to consider and they were put to the jury by counsel then acting. None of these raises disquiet about the verdicts. Having considered the arguments in the light of the whole of the evidence, I am satisfied that the jury was entitled to act upon the evidence of Rowan and that the verdicts rendered were reasonable ones.
Conclusion
None of the grounds of appeal has been made good.
I would dismiss the appeal.
PEEK J: I would dismiss the appeal against conviction. I agree with the reasons of Vanstone J.