R v Carrodus, Terrence Leslie
[2002] VSCA 83
•27 May 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 234 of 2001
| THE QUEEN |
| v. |
| TERRENCE LESLIE CARRODUS |
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JUDGES: | PHILLIPS, C.J., ORMISTON and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 May 2002 | |
DATE OF JUDGMENT: | 27 May 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 83 | |
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CRIMINAL LAW - Appeals against conviction and sentence - Allegations of misjoinder of counts - Inconsistent verdicts - Unsafe and unsatisfactory convictions - Excessive sentence -
Applications dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr A. Shwartz | Victoria Legal Aid |
PHILLIPS, C.J.:
The applicant, who is aged 35, pleaded not guilty in the County Court at Melbourne to a presentment containing nine counts. These comprised reckless conduct endangering a person (counts 1 and 3), damaging property (counts 2 and 4), intentionally causing injury (count 5), recklessly causing injury (count 6), making a threat to kill (count 7), making a threat to inflict serious injury (count 8) and false imprisonment (count 9).
These offences were said to have been committed at Carrum Downs on 4 March 1997 (counts 1 to 4 inclusive) and on 7 May 1997 (counts 5 to 9 inclusive). Count 6 was pleaded as an alternative to count 5.
After a relatively short trial the jury acquitted the applicant on counts 1, 2, 7, 8 and 9 and convicted him on counts 3, 4 and 5. The maximum penalties available for these latter counts were respectively five years' imprisonment, seven and a half years' imprisonment and seven and a half years' imprisonment. After hearing a plea for leniency during which the applicant admitted 48 previous convictions from 16 court appearances between 26 July 1983 and 23 April 1996, the learned judge, on 27 September 2001, sentenced the applicant to be imprisoned for two years on count 3, three months on count 4 and 18 months on count 5. His Honour directed that 12 months of the sentence on count 5 be served cumulatively on the sentence imposed on count 3, making for a total effective sentence of three years' imprisonment. He fixed a non-parole period of two years and made a declaration of 415 days pre-sentence detention having been served by the applicant.
The applicant later lodged notices of application for leave to appeal against his convictions and sentence. After some amendment, those grounds came to read as to conviction:
"1.That the learned trial judge erred in failing to sever counts 1 to 4 from counts 5 to 9.
2.That the verdicts on counts 3, 4 and 5 are inconsistent with the acquittals on the remaining counts.
3.That the verdicts of the jury in respect of counts 3, 4 and 5 are unsafe and unsatisfactory in all the circumstances."
As to sentence the grounds were:
"1.That the sentence imposed by the learned sentencing judge is manifestly excessive.
2.That the learned sentencing judge gave insufficient weight to factors personal to the accused.
3.That the learned sentencing judge erred in ordering 12 months of the sentence on count 5 be cumulative with the sentence on count 3."
It is now necessary to set out in summary form the evidence adduced at the applicant's trial.
Because of the grounds pleaded and arguments based thereon, this summary will include the evidence which related to the counts upon which the applicant was acquitted. In this exercise, I have had recourse to the summary of evidence supplied to this Court as to which there has been no dispute. The Crown called four witnesses and the applicant gave evidence in his own defence.
The complainant and the applicant were married. They separated around October 1996.
On the evening of 4 March 1997, the complainant said she spoke on the telephone to the applicant about the return of items of their daughter's clothing. She was at home at 2 Bradford Drive, Carrum Downs. They arranged to meet later that night in the car park of the McDonald's restaurant on the corner of Ballarto Road and the Frankston-Dandenong Road. She drove there in her white Camira sedan. They met as arranged, but argued. He was driving a blue Ford utility vehicle. This was not the first time she had seen him in this car. She said: "I just got back into my car, reversed out to leave, and he smashed into - he reversed like into my front end of my car and pushed me into the garden bed. ... I reversed my car into like a line with one of the car washers, to go to the car wash, to take off, you know, from him. He reversed into me, into the back - front - end of my car and pushed me up into a garden bed." At that time, she said, her car was stationary. "He just reversed straight into me, and then he drove forward." In respect of damage she said: "I believe there were dents, it's a long time ago ... and they ended up doing something to the exhaust from being pushed into the garden bed." The applicant then drove forward and the complainant drove out the exit to the left. This evidence related to counts 1 and 2.
The complainant said that, after these earlier incidents, she then took a variety of back streets, until finally she came out on to the Frankston-Dandenong Road. She stated: "I was coming past the milk bar, and ... Terry came out of the bus stop and collided with me there. Terry came out from there and hit me on the passenger side of my car." He struck her with the front right-hand side of his vehicle. She was pushed across the lane into the far lane. Damage to her vehicle, she said, was shown in photographs tendered to the court. This evidence relates to counts 3 and 4.
In the early hours of Wednesday 7 May 1997, the complainant said she was home when she received a telephone call from the applicant. He told her their daughter was "playing up, wasn't settled" and he wanted to bring her home. The complainant agreed that the applicant generally had access on weekends and holidays, but maintained that he also had access on this day for some reason. He called her again the next morning, and then again in the afternoon, saying he was at Dandenong station with the child. She drove to the station and collected the child. The applicant asked her to give him a lift to a friend's home. She gave him a lift and dropped him off on the Frankston-Dandenong Road, near her house. In her first statement it appeared she had dropped him off at her own house. She then went home and started cooking dinner for the child. The applicant then came to the door and forced his way into the house. She stated: "He sort of shoved past me, came into the house, and locked all the windows and the [front] door ... He put a tape on the tape deck and played this one song continuously over." They argued and then, in the kitchen, he slapped her in the face, across her cheek. She "sort of fell backwards" and then he punched her in the head, causing her to fall to the ground. She assumed "sort of like a foetal position" and he started kicking her in the back. Her house had an open plan format, and the kitchen opened up into the lounge. She was by the kitchen bench. During the attack he was "screaming and yelling" at her, accusing her of sleeping with other people. She denied the allegation to him.
After a while he pulled the complainant up by the hair and put her at the table. Standing behind her he put a Staysharp kitchen knife to her throat, and she said, " ... he put Taylor (the child) in front of me and told me I was going to watch my child's eyes as I died ...". She had not mentioned this display in either of her statements. While holding the knife to her throat he also told her he was going to "cut [her] up". After he removed the knife from her throat he slashed her face, leaving her with a long laceration down her face. She indicated a length of approximately 2 inches. The scratch bled and she later showed her treating doctor. After this "it got worse" and there was more argument about her sexual habits. Finally she agreed with him that she had been sleeping with someone else, "just to get rid of him", and he punched her in the head - in the skull rather than the face. He then threw some furniture around and left. He had remained in the house for several hours. One of the telephones had rung in that period, so he "ripped it out of the wall". She could not recall the length of the delay between his departure and the arrival of police and ambulance.
After these incidents, the complainant had a cut on her face, "high bruising" to her back, bruised "handprints" on both arms, a lump on the top of her head, and other bruising all over her body.
In May 1997 a Ms McDonald lived with her cousin, the complainant, and the complainant's daughter. On 7 May 1997 at approximately 6 to 6.30 p.m. McDonald said she telephoned the house. I shall return later to the detail of this call and other associated events.
Ms McDonald said she recalled seeing the complainant the next day. The main thing she recalled was that the complainant had bruises on her arms in the shape of a hand print. The complainant also had bruises running down her arms, and on her stomach. She also had a cut on her face perhaps half an inch long. By this time it had "scabbed up" and there was yellow and purple bruising. McDonald also felt a bump (or "an egg") on the complainant's head.
Sergeant Redley gave evidence that he was the informant in respect of the allegations of 4 March 1997. Some time after 11 p.m. on 4 March 1997 Redley attended the home of the complainant. He spoke to the complainant and then examined her white Camira sedan, registration FRE 044. I shall refer later to his findings.
Redley also attended the carpark of the McDonald's restaurant beside the "My Shiner's" carwash. In one of the wash bays he found what appeared to be the debris of a car accident. This debris included shattered and crushed glass. He examined the garden bed, but found nothing of significance.
Redley made some enquiries and arranged for another crew to attend at Wells Road, Mordialloc. There the applicant was located and arrested. No statement was taken by the arresting officers. Redley then formally interviewed the applicant. An edited version was tendered as Exhibit 4[1]. In that interview the applicant offered limited denials before declining to comment further. Following the conclusion of the interview, while it was still dark, Sergeant Redley attended the Wells Road address and located parked on the nature strip of Beach Avenue a blue Ford utility, registration number CKZ 643. He found what appeared to be new damage to its rear bumper on the passenger side. I shall return later to the detail of his other findings.
[1]T.59.
Redley produced a VicRoads certificate which indicated that the registration number CKZ 643 had applied to a 1967 Chrysler sedan owned by Terry Carrodus, 21 Truscott Road, Moe, which registration had expired in May 1987.
Sergeant Redley also patrolled the location on the Frankston-Dandenong Road described by the complainant as the scene of the second collision. He found no physical evidence to support her account.
Detective Senior Constable Mark Simms was informant in respect of the allegations of 7 May 1997. In the period "afternoon towards evening" of 7 May he attended the complainant's home. He dusted two knives for fingerprints, but there were no prints found. The complainant was not present when he first attended, and he did not see her until 15 May 1997. At that time she still presented with some faded bruising above one eye and a slight scab on an inch-long scratch on her face, on the cheek near her mouth. Following her admission to hospital the complainant had been treated by a doctor who was an overseas student. He had subsequently returned home to India, and investigators had been unable to trace him.
The applicant made a formal admission in the following terms: That Rhonda Carrodus attended the Emergency Department of the Frankston Hospital by ambulance on 7 May 1997 at 20:10 hours. The treating doctor recorded the following injuries:
(1) A 2.5 centimetre circular area of bruising, medial and above the left eyebrow.
(2) An area of about 4 centimetres abrasion on the auxiliary aspect of the left breast.
(3) A two-centimetre abrasion on the left breast.
(4) There were four 2-centimetre bruises on the back of the left upper arm.
(5) A two-centimetre abrasion on the back of the right elbow.
(6) Various bruises on the back of the left thigh and at the level of the knee.
She was discharged on 7 May 1997 at 23:30 hours.
The applicant gave evidence in his own defence. He stated that in 1997 he resided with the complainant and their daughter Taylor at 2 Bradford Drive, Carrum Downs. He left that address around 1 March, and on 4 March he arranged to meet the complainant as described by her. He was driving a maroon HQ Holden utility. At the McDonald's they had not remained in the carpark but had gone inside for 10 or 15 minutes where they ate and she told him she wanted to get back with him. He refused her offer, and she became upset, and started "ranting and raving". He left and returned to his car, but had a problem with his car door. He drove around to the car wash beside the restaurant to examine the problem in the light.
As he was repairing the door, the complainant rammed his vehicle from behind, her front end making contact with the rear end of his vehicle. He stated: "I just started laughing ... Because her car didn't do any damage to mine, because she was hitting the undercarriage of my car." She then reversed up "and had another go". He then got in his vehicle "and took off". He drove to his work address at Beach Road, Mordialloc, parked next to the gates, set his sleeping bag up, and went to sleep. He was woken in the middle of the night by the police and arrested. He did not drive at the complainant in the vicinity of the Carrum Downs Primary School, and had not seen her that night after he left the carwash and restaurant carpark. There was damage done that night to the applicant's Holden ute, but as it was already damaged, he did not take steps to repair it. It had previously been put off the road as unroadworthy, and he should not have been driving it.
The applicant also conceded that the registration plates CKZ 643 had belonged to his father, and at one time he had possession of them. He had last seen them in the shed of the house in Carrum Downs. He did not take them with him when he left on 1 March 1997. He had never owned or driven a blue Ford utility, and he did not remove the blue Ford utility from the location in Beach [Avenue], Mordialloc. It was a coincidence that this number plate was seen on a vehicle at the location of his arrest that morning.
On 6 May 1997 the applicant and complainant both attended the Family Court. He told her then that he was "heading up north" to Darwin the next day and she became "a little bit upset" with him. (I here interpolate that the complainant agreed that there had been a hearing, but denied that this conversation had occurred.) The applicant then took the train back to Moe. On 7 May 1997 he returned by train to Melbourne, and then caught the train to Adelaide. He did not see the complainant that day. He did not have parental access to Taylor on 7 May 1997, and did not attend the house in Bradford Drive or commit any of the offences alleged against him that day. There were people who could support his alibi, he said, but he had not asked them to give evidence on his behalf.
There were no other witnesses called in support of the defence case.
I now turn to the arguments of counsel.
Mr Shwartz, for the applicant, began his submissions by pointing out that there was a gap in time of some two months between the events alleged to constitute counts 1 to 4 and those relating to the following counts.
He submitted that the only commonality between the two sets of events was that the applicant's wife was the alleged victim and he was the alleged perpetrator; otherwise, there were no features of similarity in relation to the respective events; nor were there any connecting links between the first set of alleged offences and the second. There was no suggestion of system in the applicant and no evidentiary overlap between the two sets of offences.
Mr Shwartz also submitted in relation to the first group of offences that the gap in time between counts 1 and 2 on the one hand and counts 3 and 4 on the other was, according to the complainant, "A couple of minutes, five minutes, ten minutes, maybe; I can't be positive, no." All of these counts were essentially based on the complainant's evidence, counsel contended, yet the jury had acquitted on the first two and convicted on the balance.
Counsel then turned to develop what he acknowledged was a "scenario" and which amounted to an implication that the complainant had in some way "set up" the applicant as to these 4 March 1997 matters. It is sufficient to say that after some argument this matter was not pursued. If I may say so, counsel's judgment in this respect appears to me to be a sound one.
Argument then turned directly to ground 1. Although he had cited several well known authorities, including R. v. Jolly[2], R. v. TJB[3] and de Jesus v. R.[4], Mr Shwartz accepted that at the applicant's trial an application to sever counts 1 to 4 from the balance was not based on a submission that their joinder was contrary to the Presentment Rules. Rather, it had been put to the learned trial judge that the joinder, while within the Rules, brought about prejudice to the applicant which prejudice could not be cured by directions to the jury. Accordingly, although initially inclined to argue non-compliance with the Rules, Mr Shwartz took up the same position on this application, arguing that the real question for this Court was whether or not his Honour had erred in concluding, as he did, that appropriate directions would suffice to remove the prejudice and afford a fair trial to the applicant.
[2](1998) 4 V.R. 495.
[3](1998) 4 V.R. 621.
[4](1986) 68 A.L.R. 1.
The prejudice accruing to the applicant, said counsel, lay in an unacceptable risk that the jury, in considering the May counts, may well have viewed the applicant as an offender in relation to the March ones, although his Honour had given a direction (107) that each count must be considered separately and in the light of the evidence that relates to it, this direction was, in all the circumstances, inadequate. Alternatively, it was submitted that the verdicts of acquittal necessarily demonstrated that the jury was influenced by the presence on the presentment of the second set of offences. This was evidenced by the degree of doubt experienced by the jury in respect of counts 1 and 2 in contradistinction to counts 3 and 4.
Counsel then turned to ground 2, submitting that there was no discernible difference between the nature and quality of the evidence given by the complainant in respect of the incidents touching counts 1 and 2 on the one hand and 3 and 4 on the other, such as might make the differing verdicts understandable or consistent. He also contended that no jury conscientiously applying their minds to the facts could have arrived at such verdicts. Alternatively, he said, if the jury found the evidence of the complainant lacking with respect to the first two counts, then it was not rationally open to them to find her evidence sufficient to justify convictions on the remainder. In relation to these submissions, counsel cited R. v. Nanette[5] and Jones v. R.[6] and other like authorities.
[5](1982) V.R. 81.
[6](1997) 191 C.L.R. 439.
As to ground 3, Mr Shwartz accepted that he was asking this Court, consistently with long established authority, to conduct an independent review of the whole of the evidence. But he also included consideration of prejudice to the applicant by the joinder as part of his submission. Put another way, a combination of apparent non-acceptance of the complainant touching counts 1, 2, 7, 8 and 9, plus an improper joinder, rendered the guilty verdicts unsafe and unsatisfactory. Plainly, he urged, the acquittals indicated that the jury was not prepared to accept the totality of the evidence of the complainant.
Mr McArdle for the Crown submitted, as to ground 1, that the offences alleged clearly came within Rule 2 of the Presentment Rules and that it was within the proper exercise of his Honour's discretion not to sever the presentment. The direction as to separate consideration of counts, he contended, was orthodox and no complaint as to it had been made at trial. Indeed, he argued, the acquittals themselves were evidence that the jury had faithfully followed his Honour's direction. As to ground 2, he submitted there was no inconsistency of verdicts. Plainly, the jury looked (as was thoroughly good common sense in a case involving a history of marital discord) for some external support in the evidence for the accounts of the complainant. Such support existed, counsel contended, in relation to the counts upon which the jury convicted.
As to ground 3, Mr McArdle relied on his earlier submissions.
I now turn to my conclusions as to the application touching the convictions.
In my opinion, the submission touching severance being couched in terms of prejudice accruing to the applicant, it was, in the circumstances, open to the learned judge to conclude that a fair trial for the applicant could be secured by the giving to the jury of appropriate directions. As my subsequent conclusions will show, I do not accept that the result of the trial provides any evidence to the contrary. There was, I have come to conclude, no inconsistency between the verdicts: that is, no inconsistency between the verdicts on counts 1 and 2 and those on counts 3 and 4, and no inconsistency between the verdict on count 5 and other acquittals.
I would accept Mr McArdle's submission that there was as to each conviction reliable external support for the complainant's evidence and those verdicts are explained by the jury looking for such external support and, upon finding it, reaching satisfaction beyond reasonable doubt as to the applicant's guilt on those counts.
As to counts 3 and 4, there was evidence as to paint scrapings to the passenger side of the complainant's car. Sergeant Redley, it will be recalled, had viewed the complainant's vehicle somewhat after 11 p.m. on 4 March 1997. He described damage to the left-hand front quarter panel just above the wheel arch, and some other scrapes "down that side". He said photographs taken the following day depicted what he had seen. Looking at photograph 11 of "Exhibit 2" tendered at the trial, this witness said, "the scrapings there that shows - indicates some blue paint on the white duco". Plainly, this evidence was consistent with an impact as described by the complainant in her account touching counts 3 and 4. (I here interpolate that the applicant's evidence was that in effect this incident never happened.) Mr Redley had also examined the blue Ford utility after interviewing the applicant finding "scrapes and small dents" and "white paint on that fender as well".
On the other hand, in relation to counts 1 and 2, other damage to the complainant's car was consistent with both versions touching those counts.
As to count 5, there was in my opinion external support for the complainant's evidence in relation to her injuries. Further, Ms McDonald, who in May was living with the complainant and her child, gave evidence that at about 6 o'clock to 6.30 p.m. on 7 March 1997 she telephoned the complainant's residence. The applicant answered the phone, told her he was visiting and hung up. "Straight away" she phoned again and the complainant's daughter answered. The witness said she heard a lot of noise, crying and the complainant calling out, "Ring the police", together with "a lot of kerfuffle going on in the background". The phone then went dead.
This witness was cross-examined as to her saying to the police "I can't remember speaking to Terry on the night, but I may have". She agreed she had said this, but explained that a police officer told her that if she was unsure of anything to put that down as "I do not remember". It was put to her directly that she had not spoken to the applicant, but she reiterated that she had. Significantly, no challenge at all was made in cross-examination as to her evidence of the date and time of her phone calls and her evidence of the "kerfuffle" and the complainant crying for the police to be called, nor was there any challenge to her evidence that she drove straight home after the second phone call and found the house in a mess as shown in an exhibit photograph. (I again interpolate that the applicant's evidence was that the incidents touching count 5 never occurred.)
Again, on the other hand, there was no such external support in the evidence touching Counts 7, 8 and 9.
I would dismiss this application.
The application touching sentence
Mr Shwartz submitted that in all the circumstances the sentence imposed on the applicant was manifestly excessive. Further, he contended, the learned judge gave insufficient weight to matters personal to the applicant and his discretion miscarried in relation to his direction as to cumulation. As to the last of those matters, counsel allowed that some cumulation was open, but argued that that directed was excessive. It is true that his Honour's reasons for sentence were economically expressed. On the other hand, the learned judge may have thought it was unnecessary to go through the background of marital discord which the applicant conceded. Further, it must be said that his Honour had obviously read the victim impact statement and formed a view of it not unfavourable to the applicant. In order to succeed on the first ground pleaded, it is for the applicant to show that the sentence imposed fell altogether outside the range of those properly available to the learned judge. I am unpersuaded that it did. Nor do I accept that the judge gave insufficient weight to matters personal to the applicant. The amount of cumulation directed, in my opinion, has not been shown to be excessive. Had I sentenced the applicant, I should have regarded the offence constituted by count 5 as the most serious and cumulated upon it, but nothing here turns on that. After giving due consideration to matters personal to the applicant, the plain fact is that he has a very bad record over a deal of time for offences involving violence. I would dismiss this application.
ORMISTON, J.A.:
I agree.
VINCENT, J.A.:
I agree.
PHILLIPS, C.J.:
The order of the Court is that the application for leave to appeal against conviction and the application for leave to appeal against sentence each stands dismissed.
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