R v Brady - [2005] SASC 277

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v BRADY & SMYTHE
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Duggan and The Honourable Justice Sulan)
22 July 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Submission of no case to answer - whether prosecution required to exclude every reasonable hypothesis consistent with innocence to establish case to answer.
R v Prasad (1979) 23 SASR 161; Questions of Law Reserved on Acquittal (No. 2 of 1993) 61 SASR 1; R v Bilick (1984) 36 SASR 321; Attorney-General's Reference (No. 1 of 1983) [1983] 2 VR 410, applied.

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT
Attempted escape from prison alleged - appellants could not have committed the completed offence of escape with available equipment - circumstances did not give rise to supervening physical impossibility.
Criminal Law (Sentencing) Act 1988 s 32(1)(b), referred to.
R v Donnelly [1970] NZLR 980; R v Collingridge (1976) 16 SASR 117; R v Kristo (1989) 39 A Crim R 86; R v Gulyas [1985] 2 NSWLR 260, applied.
Haughton v Smith [1975] AC 476, discussed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - ALTERNATIVE VERDICTS
Plea of guilty to damaging property in course of escape attempt - held that offence of damaging property not an alternative or lesser offence in relation to offence of attempted escape - discussion as to appropriate procedure where trial proceeds on one offence when plea of guilty to another offence charged in the same information.
R v Perdikoyiannis (2003) 86 SASR 262; R v Salisbury [1976] VR 452; Gilson v The Queen (1991) 172 CLR 353; R v Murphy (1988) 52 SASR 186; R v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219, discussed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - whether trial judge required to take into account fact that appellants detained in solitary confinement subsequent to offences.
R v Liddy (No. 2) (2002) 84 SASR 231, discussed.

R v BRADY & SMYTHE
[2005] SASC 277
Court of Criminal Appeal: Perry, Duggan and Sulan JJ

PERRY J. In my view, the appeals by both appellants against conviction and sentence should be dismissed.
I agree with the reasons of Duggan J.
DUGGAN J. The appellants were charged jointly with attempted escape from lawful custody and damaging property. They pleaded guilty to the offence of damaging property and were convicted by verdict of a jury of the offence of attempted escape. They have appealed against conviction and sentence.
At the time of the alleged offences the appellants were detained as prisoners at the Adelaide Remand Centre (the ARC) where they shared a cell. On 2 and 3 April 2003 Correctional Service Officers attempted to inspect the cell but, according to the prosecution case, the appellants adopted various ruses to avoid cell inspection. However, on 4 April, the officers became suspicious and entered the cell.
The cell had been fitted out for use, if necessary, by handicapped prisoners. Metal bars had been installed in the toilet area for this purpose. When the officers entered they noticed that these bars had been pulled from the wall of the cell and covered by a blanket.
The officers turned their attention to the window in the cell. The window frame is constructed of iron and is divided into halves by a vertical iron strut or “mullion” which is welded to the top and bottom sections of the window frame. Sheets of glass for each side of the window are positioned against the frame and held in place by four pieces of angle iron. A sheet of perspex covers the entire window on the inside.
The perspex was in place when the officers entered the cell. However, they discovered that it had been removed from its position over the window and then replaced in a makeshift fashion. The officers observed that the two sheets of glass had been removed from the window, placed against a wall of the cell and covered with a blanket. The panes of glass had been shattered. There was a considerable amount of damage to the window frame, and metal which was previously attached to it had been removed. According to the prosecution case, the appellants damaged the window by using the metal bars which had been removed from the walls.
In one part of the cell there was a long piece of string with a magnet attached to one end. Items of bedding in the cell had been ripped and then joined end on end to form two sections measuring 4.2 and 4.3 metres respectively. With the perspex removed, only the frame remained. However, the location of the mullion down the centre of the frame prevented persons of the size of the appellants from climbing out through the window. The window overlooks a bus depot. The distance from the cell window to the ground outside the window is approximately 5.5 metres.
Appeals against conviction
Upon arraignment at the commencement of the trial the appellants pleaded guilty to the offence of damaging the window. However, at the conclusion of the prosecution case counsel for the appellants submitted that there was no case to answer on the charge of attempted escape. According to the submission, the prosecution case raised two competing hypotheses, one of attempted escape and the other of creating a means of bringing contraband into the cell. The learned trial judge ruled against the submission and the appellants have challenged that ruling on appeal.
The test to be applied in determining whether the prosecution evidence establishes a case to answer was referred to by this court in R v Prasad (1979) 23 SASR 161 at 162:
It is fundamental to trial by jury that the law is for the judge and the facts for the jury. If there is no evidence which would justify a conviction then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts.
As the court pointed out in Questions of Law Reserved on Acquittal (No. 2 of 1993) 61 SASR 1 at 4, this view of the law was endorsed by the High Court in Doney v The Queen (1990) 171 CLR 207.
In R v Bilick (1984) 36 SASR 321 at 337 King CJ adapted the test to a circumstantial case:
Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?
Further guidance was provided by King CJ in Questions of Law Reserved on Acquittal (No. 2 of 1993) (supra) at 5 when he said:
It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence: Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410; Thorp v Abbotto (1992) 34 FCR 366. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
The condition of the window and the tying together of the pieces of bed clothing point clearly to an attempt to escape from the cell. The fact that the appellants could not fit through the apertures which had been created gives rise to an explanation as to why the attempt was not successful. The defence put forward the suggestion that the appellants merely attempted to smuggle contraband into the ARC as a possible hypothesis consistent with innocence. However, the existence of a possible hypothesis consistent with innocence does not require a finding of no case to answer. As the Full Court said in Attorney-General’s Reference (No. 1 of 1983) [1983] 2 VR 410 at 415:
. . . a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude.
The question at this stage of the case is whether the prosecution evidence is capable of supporting a conclusion of guilt beyond reasonable doubt. This is a question of law: Zanetti v Hill (1962) 108 CLR 433 at 442. The question which arises at the conclusion of the evidence is whether the Crown has excluded every reasonable hypothesis consistent with innocence. This is a question of fact for the jury.
In my view the evidence led by the prosecution was of such weight as to be capable of establishing guilt beyond reasonable doubt in accordance with the stated test. In my opinion the finding of the trial judge that there was a case to answer should be upheld.
Next it was argued that the trial judge misdirected the jury in relation to the issue of impossibility raised by the defence. According to the defence argument, the appellants could not have escaped from the cell because they were unable to fit through the apertures which had been made in the window as a result of the damage caused to it; nor could they have created an aperture large enough to permit escape with the tools available to them at the time the officers entered the cell. This, so it was said, gave rise to a supervening physical impossibility of committing the offence which, in accordance with the authorities binding on this court, would lead to an acquittal. It was argued that the trial judge erred in not directing the jury in accordance with this view of the law.
In order to deal with the argument it is necessary to refer to some of the authorities which deal with impossibility and the law of attempt.
In R v Donnelly [1970] NZLR 980 the New Zealand Court of Appeal held that a person could not be convicted of an attempt to receive stolen property which had already been recovered by the police. Turner J identified various circumstances in which a person intent on committing a crime might fail to do so:
First, he may, of course, simply change his mind before committing any act sufficiently overt to amount to an attempt. Second, he may change his mind, but too late to deny that he had got so far as an attempt. Third, he may be prevented by some outside agency from doing some act necessary to complete commission of the crime – as when a police officer interrupts him while he is endeavouring to force the window open, but before he has broken into the premises. Fourth, he may suffer no such outside interference, but may fail to complete the commission of the crime through ineptitude, inefficiency or insufficient means. The jemmy which he has brought with him may not be strong enough to force the window open. Fifth, he may find that what he is proposing to do is after all impossible – not because of insufficiency of means, but because it is for some reason physically not possible, whatever means be adopted. He who walks into a room intending to steal, say a specific diamond ring, and finds that the ring is no longer there, but has been removed by the owner to the bank, is thus prevented from committing the crime which he intended, and which, but for the supervening physical impossibility imposed by events he would have committed. Sixth, he may without interruption efficiently do every act which he set out to do, but may be saved from criminal liability by the fact that what he has done, contrary to his own belief at the time, does not after all amount in law to a crime.
In the first of the cases which I have supposed above – where he changes his mind in time – our hero has neither committed an offence, nor has in law attempted to commit one, for repentance has come in time. In the second he is not guilty of the crime, but is guilty of an attempt. So also in the third case. It is no defence to a charge of attempt that he was prevented by an outside agency from completing the crime, for this is the usual case in which an attempt is charged. In the fourth case, where the means employed were inefficient, the same result must follow. The fifth case, that of supervening physical impossibility, has been expressly provided for by s 72(1) of the Crimes Act 1961 which says:
“Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.”
In the illustration which I have supposed the would-be criminal is guilty of attempting to steal the diamond ring, though the theft was a matter of fact physically impossible. R v Austin (1905) 24 NZLR 983 is an authority in this country on the application of this provision.
Turner J then held that the case before the court came within the sixth category so that the appellant could not be convicted of a criminal attempt “simply because of his erroneous belief that what he was attempting to do was an offence in law, when actually it was not one”.
Haughton v Smith [1975] AC 476 was another case in which the respondent handled goods which, although they had been stolen, had been recovered by the police at the time of the handling. At least three of the law lords gave general approval to Turner J’s classification in Donnelly’s case and held that the circumstances came within Turner J’s sixth class with the result that no offence had been committed.
In R v Collingridge (1976) 16 SASR 117 the appellant was found guilty of the attempted murder of his wife by placing a live electric wire in a bath of water in which she was bathing. There was evidence that the current passing through the wire was insufficient to kill or injure the victim although if it had come into contact with her body she may have been killed. Bray CJ followed Haughton v Smith. Bright J stated that he did not wish to challenge the approval of Donnelly’s case which had been expressed in Haughton v Smith. He said that the characterisation proposed by Turner J in Haughton v Smith would assist trial judges but he expressed concerns about the phrase “physical impossibility” because of its ambiguity. In the end result the argument based upon impossibility was rejected and the conviction upheld on the basis that the appellant’s conduct came within the fourth category of Turner J’s classification in that the appellant failed to commit the completed offence because of insufficient means. There was no evidence to support a conclusion that the appellant was attempting to do something which was physically impossible.
Finally, in Kristo (1989) 39 A Crim R 86 the appellant was convicted of attempting to obtain a benefit by false pretences. He presented a winning Cross-Lotto coupon for payment but the receipt indicated that he had not filled in that coupon when he paid for the game. The appellant raised a defence of impossibility which was rejected by the court. Cox J held that if it was necessary to assign the case to one of Turner J’s categories it came within the fourth, an attempt to commit a crime that failed because of ineptitude or insufficient means: ibid at 100.
Turner J’s categories should not be treated as exhaustive and, as Cox J pointed out in Kristo at 93, Haughton v Smith was a controversial decision, particularly in the light of the result in that case. The law has since been amended in the United Kingdom and in some other jurisdictions so as to render physical impossibility irrelevant. However, as Cox J pointed out in Kristo, this court has regarded Haughton v Smith as accurately stating the law applicable in South Australia.
There was evidence in this case that the mullion could have been distorted or removed after being cut through with a hacksaw blade or by being forcibly moved to one side with appropriate equipment. In either case an aperture wide enough to permit the escape of the appellants could have been created.
The defence argument as to why this case does not come within the fourth category in Donnelly’s case is not altogether clear, but it appears to be based on the proposition that, at all relevant times, it was impossible for the appellants to escape from the cell because the equipment they had at their disposal could not have been used in such a way as to provide a means of access through the window. The argument seeks to remove the case from the fourth category by asserting physical impossibility based upon the assumption that at no stage would adequate means to widen the aperture have been available to the appellants by reason of their incarceration.
This argument overlooks the fact that impossibility in this context is to be assessed objectively and not by reference to the means available to the perpetrators at the time of the alleged attempt. In R v Gulyas [1985] 2 NSWLR 260, a case factually similar to Kristo, Street CJ commented on the Donnelly classification in the following passage at 263:
In the course of argument there was an analysis of the present factual situation to see how it matches against the fourth and fifth classes. In the view that I have formed the present factual situation falls more naturally within the fourth class. It is plain both from the distillation in which the fifth and sixth classes are expressed, as well as from the trend of authority, that in order to introduce such an element of impossibility as will deprive an attempt from the character of a criminal offence there needs to be an element of objective absolutism in the impossibility of accomplishing the intended objective. This might alternatively be described as an element of unconditional impossibility. This I take it to be the concept expressed in the words of the fifth class as an act which is impossible because it is for some reason physically not possible whatever means be adopted.
The present case is one in which the method chosen to achieve the intended objective was simply not good enough to circumvent the intended operation of the inbuilt safety system protecting Lotto from the risk of being defrauded. The intention or the attempt was impossible of being accomplished if that inbuilt safety system operated in the intended manner. It is by no means beyond the bounds of possibility that it may not have operated in the intended manner notwithstanding the evidence that it had been unfailingly effective and unfailingly observed on every occasion heretofore.
It is not to the point that adequate means were not available to the appellants. The relevant consideration is that an escape was possible if the necessary equipment had been available, but that the attempt failed because the makeshift implements in the cell were inadequate. This was not a situation in which the appellants were attempting to do something which was not possible whatever the means adopted. All of these matters were explained to the jury in unexceptionable terms.

In my view this was a straightforward instance of an attempt by inadequate means to do that which could have been achieved if other equipment had been available.
I am of the opinion that this ground of appeal must fail.
A further ground of appeal argued by both appellants was that the verdict of the jury was unsafe and unsatisfactory. Again the submission was made that, although the appellants did not give evidence, there were two conflicting hypotheses on the prosecution evidence and the prosecution were unable to exclude a hypothesis consistent with innocence, namely, that the intention of the appellants was to smuggle contraband into the cell. In my view the circumstantial evidence was of sufficient strength to enable the jury to draw the conclusion beyond reasonable doubt that the intention of the appellants was to escape. The extent of the damage, the tying together of the sheets in the manner described and the unlikelihood that the appellants would have created such extensive damage in the face of certain discovery by the correctional officers simply to smuggle contraband are factors which, in their combined effect, amount to a strong circumstantial case of attempted escape.
There was evidence to support each element of this offence. The submission that proximity was lacking can be readily dismissed. The appellants had obviously gone to considerable lengths to pursue their intention to escape.
After a review of the evidence I am satisfied that the verdict was not unsafe or unsatisfactory.
Both appellants have appealed against conviction on the offence of damaging property. The ground of appeal put forward by the appellants states:
The learned sentencing judge erred in law in imposing a conviction for the offence of damaging property, being count 2 on the information dated 7^th February 2005.
I have said that upon arraignment at the commencement of the trial both appellants pleaded guilty to the offence of damaging property. The trial proceeded in relation to the offence of attempted escape from lawful custody and the verdict was taken in relation to that offence alone. The allocutus was then given in relation to both counts.
During submissions on sentence the prosecutor submitted that it was appropriate to disregard the offence of damaging property because it was charged as an alternative offence and the plea of guilty was not accepted by the prosecution as an answer to the indictment. The trial judge disagreed with this submission and stated that, in his view, the offences were not alternatives.
In my view the approach taken by the trial judge was correct. If the offence of attempted escape had been the only offence charged it would not have been open to the jury to return an alternative verdict of damaging property. A verdict of guilty of an alternative offence can only be returned if the verdict is authorised by statute or the offence answers to the test for an alternative offence at common law. In the latter case a lesser or alternative offence is an offence of the same character as the offence charged and where the offence charged necessarily includes all the elements of the alternative offence: R v Perdikoyiannis (2003) 86 SASR 262 at 269. This test is applied to the terms in which the offence is laid and not by reference to the evidence led at trial: R v Salisbury [1976] VR 452 at 454.
There are some situations in which it is appropriate to include a specific count relating to a lesser or alternative offence in the information: Gilson v The Queen (1991) 172 CLR 353 (larceny and receiving); R v Murphy (1988) 52 SASR 186 (rape and unlawful sexual intercourse). However, whether the offences are true alternatives will again depend upon statutory provisions or common law principles.
In the present case the offence of damaging property was not an alternative offence in the sense discussed. The elements of this offence were not wholly comprised within the elements of the offence of attempting to escape from custody. Furthermore, there was not sufficient identity between the acts constituting the two offences to render convictions on both inappropriate: R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219.
If a lesser offence is charged and the accused pleads guilty to that offence at the commencement of the trial the procedure which is followed in this court is that which was approved by White J (Perry J concurring) in R v Murphy at 189:
With respect, I agree that the correct procedure is that set out in J F Archbold, Pleading Evidence and Practice in Criminal Cases (42nd ed, 1985), p 267, par 4-61 which reads:
"Where, for example, two offences, one serious, the other less serious are alleged in separate counts in the indictment a different procedure must be followed: R v Cole [1965] 2 QB 388; and see R v Hazeltine [1967] 2 QB 857 applied in R v Thompson [1980] Crim LR 188.”
In Cole (supra) the defendant pleaded not guilty to a count alleging conspiracy to rob, not guilty to count two which alleged robbery with violence but guilty to count three which alleged he received part of the proceeds of the robbery. On the appeal, the court was invited to lay down what the proper practice is in such circumstances. Lord Parker CJ said (at 394; 203-204):
“... in the ordinary case, a judge should allow the plea of guilty to stand. In those circumstances, the defendant will be put in charge of the jury only on the serious charge, in this case the armed robbery. If he is acquitted of the armed robbery, then he can be sentenced on the count to which he has pleaded guilty. If on the other hand he is convicted of the armed robbery, then the proper course for the judge is to allow the count to which he pleaded guilty to remain on the file and not to proceed to sentence him.”
A plea of guilty ranks as a conviction not when it is recorded but when the defendant is sentenced: Cole.
However, where the offence to which the accused pleads guilty is not a lesser offence in the strict sense, the correct procedure is that which was followed in the present case. The trial proceeds in respect of the other offence charged in the information and the accused is sentenced after the trial on the offence to which the plea of guilty was entered irrespective of the verdict in relation to the other offence.
As was pointed out in the passage cited from the judgment of White J in R v Murphy, the conviction takes effect by virtue of the act of sentencing. For the reasons which I have given there was no bar to the judge sentencing the appellants for the offence of damaging property to which they had pleaded guilty.
Appeals against sentence
At the time the appellants were sentenced Mr Smythe was serving a sentence of imprisonment for five years with a non-parole period of three years which took effect as from 20 March 2003. Mr Brady completed the sentence he had been serving at the time of the attempted escape from custody approximately three months before being sentenced on the present matters. He was in custody solely on these matters during that period.
The learned judge stated that he proposed to deal with the appellants on an equal footing. He sentenced both to imprisonment for two years. In the case of Mr Brady he imposed a non-parole period of 18 months to date from 14 December 2004, the date on which that appellant completed his previous sentence. He then sentenced Mr Smythe to imprisonment for two years and extended his non-parole period by 15 months to four years and three months.
It would appear that the sentences were not inflated by reason of the offence of damaging property. In his sentencing remarks the trial judge said:
To my mind they are separate matters. There must have been some property damage before the attempt was embarked upon. Put another way, all of the property damage, on the facts of this case, cannot be referrable to the attempt, because some must have occurred in preparation.
In any event, there cannot be any doubling up of penalty. Any penalty for damaging property would relate to a small proportion of the overall damage. I propose to use section 18A of the Criminal Law (Sentencing) Act. If I had imposed a separate penalty on count 2, it would have been concurrent and would not have increased the overall penalty.
The appellants complain that their sentences were manifestly excessive.
In my view the head sentence imposed on each appellant of imprisonment for two years was within the range appropriate for this offence. The learned judge correctly pointed out that general and personal deterrence were important considerations. Furthermore both appellants have lengthy records of previous convictions for serious offences.
It was also argued that the judge did not give sufficient weight to the fact that both appellants were detained in solitary confinement for a period of two months after the attempted escape. In some limited circumstances the sentencing court may make allowance for the fact that a prisoner will face a more onerous time in prison than other prisoners. The strict confinement of informers provides and example. A number of relevant authorities are discussed in R v Liddy(No. 2) (2002) 84 SASR 231. However, the detention of the appellants in solitary confinement in the present case was an administrative action which resulted from their own conduct. In my view this was not a matter which the sentencing judge was required to take into account: cf. R v Liddy (No. 2) at [119].
The non-parole period of 18 months imposed in relation to the appellant Brady was appropriate, particularly in the light of the judge’s view, which I share, that both appellants had poor prospects of rehabilitation. In the case of the appellant Smythe who was serving a sentence of imprisonment at the time of sentencing, the judge was required to review and extend the non-parole period: Criminal Law (Sentencing) Act1988 s 32(1)(b). As has been pointed out, it was extended by 15 months to a period of four years and three months. The judge did not indicate why the extension was three months less than the non-parole period imposed in relation to the appellant Brady. It may have been because of the lengthy non-parole period which resulted from the extension. However that may be, I do not think it has resulted in a discrepancy of such a nature as would require the intervention of this court. I also reject the submission that the extended period of Mr Smythe’s non-parole period was manifestly excessive.
Mr Smythe also complained that the judge failed to have regard to the fact that the offence of attempted escape was futile. However, the fact remains that the intention to escape was accompanied by an extensive effort to do so. The appellants are not entitled to leniency by reason of the fact that their efforts proved futile in the end.
I would dismiss the appeals by both appellants against conviction and sentence.
SULAN J. I agree with the reasons of Duggan J. I would dismiss the appeals against conviction and sentence of each appellant.