R v Dammous
[2004] VSCA 62
•28 April 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.150 of 2002
| THE QUEEN |
| v. |
| JUNE DELYNN DAMMOUS |
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JUDGES: | CHERNOV and VINCENT, JJ.A. and BONGIORNO, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 March 2004 | |
DATE OF JUDGMENT: | 28 April 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 62 | |
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Criminal law – Conviction – Conspiracy to defraud – Whether separate trials of two counts on presentment should have been ordered – Admissibility of witnesses’ account of words uttered and acts done by another party said to implicate the applicant – Whether a Jones v. Dunkel direction was required – Whether guilty verdict returned against applicant was unsafe and unsatisfactory – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J. McArdle, Q.C. with Ms C.M. Quin | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr. M. Croucher | Rob Stary and Associates |
CHERNOV, J.A.:
I agree for the reasons given by Vincent, J.A. that the application for leave to appeal against conviction should be dismissed.
VINCENT, J.A.:
On 10 May 2002 the applicant was found guilty on one count of conspiracy (count 1) to defraud the Royal Automobile Club of Victoria Insurance Ltd.
The presentment on which she had come before the Court alleged that she had entered into an arrangement with Elias El’Jarid (“El’Jarid”), Charles Polidano (“Polidano”) and others, between 1 March 1999 and 30 April 1999, in the implementation of which a motor vehicle owned by her and insured by the complainant was burnt and a fraudulent claim under her policy was made on the following day. Polidano, who was also presented on this charge, was acquitted by the jury.
On the same presentment, there was a similar count (not involving the applicant) laid against Polidano and another person, Steven Condie (“Condie”), which asserted they had conspired together and with El’Jarid and others in relation to a separate motor vehicle (count 2). The jury returned a verdict of not guilty in each of their cases.
After hearing a plea in mitigation of penalty, the learned sentencing judge, on 13 June 2002, sentenced the applicant to imprisonment for a period of 12 months, the service of the whole of which was suspended for a period of three years.
The applicant now seeks leave to appeal against her conviction on the grounds:
“1.That the learned trial judge erred in failing to order severance of the presentment.
2.That the learned trial judge erred in failing to order that the applicant be tried separately from Charles Polidano, co-accused
in this matter.
3.That the learned trial judge erred in failing to properly and adequately direct the jury regarding the use to be made of the evidence of a phone call made from a mobile telephone owned by Mr Shane Dammous to the home of Ms June Dammous at 10.43 p.m. on 29 April 1999.
5.That the learned trial judge erred in failing to direct the jury as to the inadmissibility of the following propositions put to the applicant in cross-examination:
…
(b)that the applicant had made a prior inconsistent statement at the time of reporting the theft of her vehicle to RACV Insurance .
…
7.That the learned trial judge erred in failing to direct the jury that the failure by the prosecution to call Cheryl Mitchell enabled them to infer that that witness would not have assisted the prosecution case.
8.That in all the circumstances the applicant’s conviction was unsafe and unsatisfactory.”
Three further grounds (4, 5(a) and 6) have not been pursued and need not be addressed.
The Background
El’Jarid, stated in evidence that he became acquainted with the applicant’s son, Shane Dammous (“Dammous”), in 1998. After a period, Dammous came to live at the home of El’Jarid’s parents in Heidelberg. At that time, Dammous worked at a computer shop owned by Condie and Polidano, the latter being the “boyfriend” of the applicant. Approximately three weeks later, El’Jarid and Dammous visited the applicant at her home in Sunbury. A conversation took place in the living area of the house concerning the applicant’s car. Participating in the discussion were Polidano, Dammous and the applicant. In substance, it was said that the vehicle was no longer needed and was damaged. The possibility of burning it and making a claim under her insurance policy was raised. El’Jarid said that he listened to, but did not otherwise participate in, this conversation which took place between the other persons present. Whilst he accepted more than once in his evidence that he was unable to recall any of the words used or to attribute any specific statement[1] or role to any of those involved, he insisted that its general tenor was clear.
[1]This inability to recall the detail of the conversation and specifically what, if any, contribution was made by Polidano can, I think, be assumed to have possessed crucial importance in the case of that accused.
Two or three weeks after the conversation, El’Jarid received a telephone call from Dammous asking him to meet him at the applicant ‘s home. This call was received at about 7.30 to 8 p.m. When he arrived at the house, he saw Dammous seated in the applicant’s vehicle which was parked in the driveway. The witness then signalled to him with his high-beam lights. Dammous drove off with El’Jarid following in his car. They travelled to a picnic area in the Mt Macedon region where Dammous smashed the applicant’s vehicle into a tree, before driving it up onto gravel and then onto a park bench. After some initial difficulty, the two men set the car alight and it began to burn readily. They then returned to El’Jarid’s home. According to the El’Jarid, on their return journey, Dammous either made or received a call on his mobile phone. He recalled Dammous speaking to the applicant, saying “It’s done, it’s finished and that’s it.”
El’Jarid was extensively cross-examined about this version of events. With respect to the conversation alleged to have taken place earlier at the applicant’s home, as earlier mentioned, he accepted that he could not recall any part of what was said or attribute particular comments to any of those present. However, he maintained that the applicant was involved in it and that it concerned her car in the general fashion indicated. Similarly, he said, at different stages, that he was not able to say with certainty that Dammous did in fact speak to the applicant on the return journey after the car was set alight, but he asserted that he was confident that Dammous did engage in a telephone conversation at this time of the general kind outlined.
With regard to his own credibility and reliability, he said that there was much that he could not recall with respect to the matters about which he gave evidence, attributing his difficulty to memory problems and the passage of time since the events occurred. He conceded that he had appeared at the County Court on a number of unconnected charges for which he received a community based order, and that, during the hearing, he had undertaken on oath to give evidence in accordance with a statement that he had made to the police in relation to this matter. He agreed that he understood that, if he failed to do so, he was at risk of being re-sentenced for the offences dealt with in the County Court. He accepted that, although he had been originally charged with an offence relating to the applicant’s car, the charge had not been pursued. He further agreed that, when he made his statement to the police, he was terrified about the possibility of going to gaol and had already obtained legal advice to the effect that a term of actual imprisonment could have been imposed upon him for his part in the enterprise.
El’Jarid was also cross-examined by counsel appearing for Polidano and Condie respectively, essentially in relation to the charge against each of them (count 2). With respect to the applicant’s matter, he agreed that, at the committal hearing in the Melbourne Magistrates' Court, he had accepted that he could not recount any part of the conversation concerning the vehicle. He also conceded that he had expected to receive a benefit on sentence in relation to his own offences for giving evidence against the applicant and the other two men. He stated that, whilst he could not recall clearly whether or not he had done so, he probably did take some items, including a CD player, from the applicant’s vehicle before it was destroyed.[2]
[2]It was asserted by the defence and denied by El’Jared that Dammous and he stole the car in order to secure these parts and were, in effect, on a “frolic of their own”.
Detective Senior Constable Hall gave evidence that he had interviewed the applicant, Condie and Polidano and he produced a tape-recording of the interview with the applicant. In that interview, she denied any wrongdoing whatever. Enquiries he said, revealed that the applicant had no prior convictions. Telephone records relating to El’Jarid’s mobile phone, the mobile phone used by Dammous and phone records relating to the applicant’s home number and that of El’Jarid had been secured and the telephone records relating to the applicant were tendered.
A tape-recorded interview of the applicant had been conducted by Detective Senior Constable Hall at the Sunbury police station on Wednesday 9 June 1999. In the course of that interview she said that she initially had two keys for her vehicle but had lost one about two-and-a-half years prior to the interview. She had insured the vehicle for $33,250. Her financial situation was not good as she was in receipt of a pension. At the time it was taken, she had an outstanding amount of $16,500 owing on the car. She told the police that she had informed the insurance investigator that she had experienced trouble with her car alarm three nights before the vehicle was stolen.
The applicant also gave evidence in the trial. She denied participating in any attempt to defraud the insurance company or having had any involvement in the destruction of her vehicle. She further denied that she had any prior knowledge that it was to be done and said that, when she found that her car was missing, she believed that it had been stolen. Specifically, she denied that any conversation took place in her kitchen or living room in which she was a participant wherein it was suggested that her car should be destroyed for insurance purposes. She said that Polidano and she were not living together at the time that the car was taken and destroyed and he did not suggest to her that this should be done for the purpose of making an insurance claim.
She stated that she had compiled a chart indicating that there were telephone calls between Dammous and herself over the period of 31 March 1999 to 30 June 1999. Calls made by her to the home of El’Jarid or to him on his mobile number would have been as a means of contacting her son.
The applicant said that she made a statement to an insurance investigator, Sharon Stone, about two weeks after she discovered that her car was missing. A previous claim on the vehicle which had been made in 1998 was incorrectly recorded by the investigator as having been made in 1995. On that occasion the car, which had been scratched by a key, was repaired and repainted. There was also work done to repair some damage to the back panel and a small dent on each side. The vehicle looked brand new after this work was done, she asserted.
Her statement to the investigator was incorrect in that she had re-financed a loan for the car at the end of 1996. The amount of the loan which was effected by means of an overdraft with her credit union was $22,000 and had been secured partially for business purposes.
The witness accepted that the time recorded by the investigator as the time at which she stated that she went to bed on the night that her car was taken was 11 p.m. That was only an approximation and, although she was unable to give a precise time, that it would not have been as late as that.
The investigator also recorded that she had said she had rung a friend, Cheryl Mitchell, on the following morning when in fact Ms Mitchell had called her.
The statement, she stated, was otherwise correct, including a reference to her having reversed her car into the driveway and unloaded groceries at about 3.15 p.m. on the day before she discovered that it was missing.
On 29 April she was at home alone. She would normally spend her time in the family room, kitchen and bedroom areas of the house. The formal lounge room in the front of the premises was rarely used. She would generally hang her keys next to the front door. During the evening, she spoke to Ms Mitchell and made arrangements with her to go shopping on the following day. She agreed that she made a call to her ex-husband’s home at 9.13 p.m. and she then called the home of El’Jarid at 9.16 p.m. She explained that she wanted to contact her son concerning the storage of some of his belongings at her house. They were having discussions about the possibility that he would return to live with her. It was contemplated that he would bring some of his belongings to the house and so she rang him to inform him that she would be out the next day. She did not speak to him in that call. However she rang her son’s mobile number at 9.17 p.m. and they conversed about the proposed arrangement. After the calls were made, she prepared for bed and retired at between 10 and 11 p.m. By reason of medical conditions from which she suffered, she was on medication at the time and slept heavily. She did not speak to him at 10.43 p.m. and did not subsequently check her messages in relation to that call. She spoke to her son at 9.18 a.m. on the next day about bringing his belongings to the house.
She discovered that her car was missing on the morning of 30 April. She rang the Sunbury police at 9.27 a.m. and the RACV Insurance Co. at 10.04 a.m. Later, she rang her ex-husband’s workplace and a call was made to Polidano at his shop. At 11.06 a.m. she called Ms Mitchell to tell her that she would not be going on their proposed shopping trip.
In cross-examination she stated that her son did not in fact bring any of his belongings to her house as earlier planned. I observe that at another point in her evidence she said that her relationship with her son was “rocky at best” and that although she had frequent contact with him, she was a little afraid of him. In view of this evidence, her evidence that she had spoken to Dammous at 9.17p.m. on 29 April, and her admission that nothing was brought to the house, the jury would have been entitled to be sceptical concerning the purpose of the telephone calls made on that night was to discuss the storage of his belongings at her home.
She accepted that two weeks after the event that she had told Sharon Stone, the insurance investigator, that she went to bed at 11 p.m. but said that she was always in bed before that time. She agreed that the pre-recorded message that she had on her message bank facility at the time would take about 15 seconds to play. She also admitted that she knew from telephone records that the call at 10.43 p.m. went for one minute and eighteen seconds, but she denied that she spoke to her son at that time.
There was a double garage at the house and room for her to park her car in it. She did not recall any incident, on the night of 29 April 1999, in which someone drove into her driveway and flashed their headlights on high beam. There was only one key to her car and she gave that to the insurance investigator. There had been another key but it had been lost quite some time earlier. She accepted that there was no sign in the driveway that her vehicle had been damaged and she agreed that she was present when the police were looking for any such indication. She did not hear an alarm go off and she had made enquiries of her neighbour and they had not heard any alarm sound, although the car was fitted with one. She had insured the car for an agreed value of $32,500 but accepted that it may possibly have been over-insured by $7,000.
Asked to explain why in the telephone report made to the insurance company on 30 April 1999, it was recorded that she had said that the last time the vehicle was driven was at 10.30 p.m. on 29 April. She stated that she did not believe she did say 10.30 but rather 3.30. I will return to this evidence as it is the subject of ground 5(b) of the application.
John Gerard McKay, an administrative officer employed by Telstra, stated that the maximum length of a pre-recorded message for message bank purposes at that time was 30 seconds and the maximum period available to a caller to leave a message was 60 seconds. He said that Telstra did not keep messages and once erased they would be gone forever. This evidence assumes relevance when considering ground 3 of the application.
The co-accused Polidano also gave evidence in the trial. He said he was currently residing with the applicant. They had met in 1996, but he did not see her again until around March 1999. He was not living with her on 29 or 30 April of that year. He employed Dammous in his computer shop at times when he was busy. It was there that he met El’Jarid. He did not have any conversation with El’Jarid and could not recall him visiting the applicant’s home. He denied any involvement in a discussion with the applicant to dispose of her vehicle by fire or any other manner. The applicant was devastated by the destruction of the vehicle. He was not present at her home on 29 April. He moved in to live with her a month or so after the destruction of her car; part of his motivation for doing so being that she no longer had a motor vehicle and the use of his was a benefit to her. He agreed that it was possible that there could have been occasions on which El’Jarid was at the applicant’s home at the same time as Dammous, the applicant and himself.
In cross-examination he conceded that in his evidence-in-chief he had stated that the burning of the applicant’s car had nothing to do with the fact that he moved in with her. He said that that was a mistake.
Grounds 1 and 2
Prior to the empanelment of the jury, counsel for the applicant submitted that there should be separate trials of the two counts on the presentment. Essentially four propositions were advanced –
1.That evidence to be led in the cases of Polidano and Condie which was inadmissible against the applicant might improperly be used by the jury to her prejudice.
2.That by reason of the possibility that statements made by Polidano and Condie in relation to the incident giving rise to count 2 might be accepted by the jury as a lie indicating consciousness of guilt in each case. In view of the relationships which existed between the applicant, Polidano and the applicant’s son, her case might well, it was said, be compromised by the association of time and circumstances and the fact that persons close to her were involved in that count.
3.That in considering the uncorroborated evidence of El’Jarid in the applicant’s case it would be impossible for the jury to ignore the fact that there was evidence corroborative of his account in the cases against Polidano and Condie on count 2.
4.That there would be very little administrative inconvenience in the separation of the two counts.
This application was opposed by the prosecutor and refused by the trial judge. In his ruling on this matter his Honour said:
“There is in my view no reason why the jury should not be able to follow the standard direction that they must consider each count separately and the evidence against each accused person on each count separately. I can see no reason why such directions in the circumstances of this case should not be applied and should not be followed by a jury. Our whole system of criminal justice relies on the consideration that juries are capable and do in fact accept the directions of law given by a trial judge.”[3]
[3]T49
There is nothing in the material before this Court which would give rise to any reasonable concern that the Judge’s discretion in refusing the application may have miscarried or that, in the circumstances of the particular matter, the manner of its exercise resulted in an unfair trial or a miscarriage of justice. On the contrary, it appears to me to be apparent that his Honour’s assessment of the situation was vindicated. The jury obviously complied with the instructions given to them to consider each count and the case against each accused separately.[4] Polidano was found not guilty on count 1. Both Polidano and Condie were acquitted on count 2. It follows from their verdict that the jury did not act on the basis of the evidence of El’Jarid in the cases of Condie and Polidano, nor could they have treated the alleged lie told by each of those persons in relation to the matters ecompassed by count 2 as indicative of a consciousness of guilt, as the acquittal of each of those persons demonstrates. There is no reason to suppose that any of the specific concerns expressed by counsel for the applicant in his submission to the trial judge may have affected the outcome of his client’s case.
[4]No complaint has been advanced about the adequacy of those instructions.
Shortly put, there is no substance whatever in this ground in my view.
Ground 3
As earlier indicated in his evidence-in-chief, El’Jarid stated that, when driving towards his home after the burning of the applicant’s vehicle on the evening of 29 April 1999, he observed Dammous speaking on his mobile phone. He said that he heard the voice of the person to whom Dammous was speaking, but could only identify that person because Dammous used their name. In that telephone call Dammous said “You can - basically it’s done it’s finished and that’s it - sort of thing”.
There was a record of a call being made from Dammous’ mobile phone to the applicant’s home phone which lasted for 78 seconds at 10.43 p.m. The applicant denied that she had received any such call and said that she did not speak to her son at that time. The evidence of the Telstra administrative officer was to the effect that the message bank facility on landlines allowed a maximum of 30 seconds for a pre-recorded greeting and the caller to such a service had 60 seconds within which to leave a message after hearing the greeting. It was in that situation, the argument proceeded, possible that Dammous left a message that the applicant did not receive. In those circumstances, it was contended, the jury had to be instructed that there was no adequate evidence that the applicant had participated in the phone call and therefore that it could not be used as evidence of her involvement in the conspiracy.
There was no argument presented in the course of the trial, nor was the contention made in this court that the evidence of the telephone call was inadmissible. However, exception was taken by counsel at the trial concerning the manner in which this matter was put before the jury by the trial judge. But the particular complaint made did not raise the issue argued in this court at all.[5]
[5]It was expressed as follows:
“COUNSEL:The second exception is a factual one. It relates to a comment made by Your Honour at the time that the separate case relevant to that of [the applicant] was put. As to the phone call at 10.43 on the night of the 29th, Your Honour said that her evidence was that no such message, as far as she could recall, was received. Her evidence is that she didn’t speak with him on the phone. Then her evidence is that on the following morning she didn’t remember checking the messages.
HIS HONOUR: The message stays there for 14 days we were told.
COUNSEL:That’s right, Your Honour, but that’s the evidence. It’s not put that she didn’t receive the message. That’s not her evidence. Her evidence is that there is a message bank facility to take the message, and the evidence is actually silent on whether at some later point she did check that message. I must say I didn’t ask her that, and I don’t believe that [the Prosecution] cross-examined on it.
That’s the state of the evidence, Your Honour, it’s not that she asserts no such message was left. That’s the concern I raise.”
At T942-943.
There was seen to be no doubt that, immediately after the destruction of his mother’s vehicle, Dammous rang his mother and, as a matter of inference, either spoke to her or left a message, indicating that “it’s done”. That call was made against the background of evidence of a conversation, in which Dammous and the applicant participated, concerning the possibility of destroying the vehicle in order to make a claim under her insurance policy and in circumstances where there was not the slightest suggestion that either El’Jarid or Dammous had any motive to harm the applicant or to gratuitously destroy her motor car. There was evidence, however, capable of supporting the finding that the applicant possessed a powerful motive to enter into such an arrangement, namely to rid herself of a substantial financial liability.
According to the evidence of El’Jarid, the car was taken from the applicant’s driveway by her son at a relatively early hour of the night. No car alarm was heard, nor was there any indication in the driveway that the vehicle had been broken into and taken away. A jury would be entitled to consider the applicant’s explanation as to why she may not have heard the sounds of the vehicle being moved, if that had occurred, as contrived and unlikely to be true.
According to the insurance investigator, Sharon Stone, she was initially told by the applicant that she had retired for the night at 11 p.m. However the applicant later asserted that, although she made that statement, she was only providing an approximate time and that she would have been in bed for a while at that stage. The jury were entitled to conclude that her change in position was effected in order to provide a basis for her denial that she possessed any knowledge of the call made by her son at 10.43 p.m.
The fact that a call was made at all at that time on that evening and whether or not a conversation was conducted, presented a serious problem for the defence. It constituted evidence of conduct supporting the inference that a relevant connection existed between the applicant and the two men who, according to El’Jarid, had just destroyed her car and, accordingly was another circumstance pointing to the existence of a conspiracy to which she was a party to defraud the insurance company. According to the applicant she had already spoken to her son at 9.17 p.m. about the storage of his belongings at her home and they later conversed at 9.18 a.m. on the following morning about the same subject. The jury would have been justified in possessing grave doubts concerning her evidence on this aspect, and asking themselves why, if her version was true, the call at 10.43 p.m. was made.
In Ahern[6], the High Court addressed the questions of the extent and manner in which the separate acts of alleged co-conspirators may be employed to establish the existence of a conspiracy and, where it arises as a separate issue, the participation of the particular accused in it. The Court there stated:
“Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.
Thus it was said in Tripodi[7] that proof of the crime of conspiracy ‘may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment’.
[6]Ahern v. The Queen [1988] 165 C.L.R. 87 at 93-94.
[7](1961) 104 C.L.R. 1 at 6.
The admission of the evidence of the telephone call in the circumstances of a case such as the present one presented no complex issue of law or fact, involved no hearsay assertion or implied admission that needed to be addressed and required the provision of no special directions in order to avoid a miscarriage of justice. Its significance was obvious and the uses to which the evidence could be put, it seems to me upon perusal of the transcript, were apparent to all involved in the trial. I fail to see how any serious potential for misuse could have existed.
This ground, in my opinion, must fail.
Ground 5(b)
In the course of the cross-examination[8] of the applicant, the following exchange occurred:
[8]T762-763.
“They [the police when the matter was initially reported] said ‘Ring the insurance company’ and you did so; correct? ‑‑Yes.
And you were asked some questions by the representative of the insurance company when you were reporting it on the phone? –Yes.
…
‘What was the last time the vehicle was driven?’ and you said ’10.30 on 29 April 1999, p.m.’; didn’t you?---That’s what it says, yes.
How do you know that’s what it says?---I was told.
By your legal representative?---Yes.
You made this report the next day, 30 April 1999; didn’t you?---Yes.
…
I don’t want you to guess. I want you to tell me why you would say, when you’re reporting your vehicle stolen, that the last time it was driven was 10.30 p.m. on 29 April 1999?---I don’t believe I did say 10.30.
What do you believe you said?---3.30.”
She agreed that in her statement to Sharon Stone, she said:
“I went – I returned to the subject vehicle at about 3 p.m. and drove directly home. After unloading the groceries I locked the car with the remote. This would have been at about 3.15 p.m.”
Following the prosecutor’s final address, counsel for the applicant complained that the prosecutor had asserted the applicant had stated in her initial telephone report to the insurance company that the car had been last driven at about 10.30 p.m. when there was no evidence to that effect before the jury. His Honour (apparently without reference to the actual transcript) responded:
“Can I just comment that I think that there was an acceptance of the ten-thirty p.m. but she then goes on to say that that was a mistake that she didn’t say that, she gives another explanation. I think these are matters, [Counsel], that you can make what you wish to make of them but then within the confines of the transcript obviously. Provided you accurately let the jury know what was there then it is open to you to add your comments.”[9]
[9]T893.
It seems to me upon perusal of the transcript that his Honour’s recollection was faulty and that the applicant’s answers could not be fairly interpreted as involving acceptance of the proposition put to her. However, precisely what was said by the prosecutor in his address and what, if anything, was said or done by counsel for the applicant in response to the trial judge’s invitation to take up the matter, if he deemed it appropriate to do so, are unknown. No further reference to it appears in the transcript and the addresses of counsel have not been recorded.
Considered in the context of the particular trial, even if nothing further were said to correct what could have been a misstatement of this part of the evidence by the prosecutor in his address, there is no reason to suppose that the jury did not comply with the instructions given to them by the trial judge and act on the evidence given by the witness, not on counsel’s interpretation of it. His Honour dealt with their role in this respect at more than one point in his charge, saying (inter alia):
“You members of the jury are the only judges of the facts in this case and as judges you are bound to decide the case upon the evidence. The oral evidence from the witnesses, and the documentary and real evidence that has been admitted before you, items such as the photographs, the tape recordings of the record of interview, the plans, and other documents. Any comment or argument made to you by counsel or by me is intended to help you form a view of the evidence, but no more. If you disagree with it you are obliged to discard it. It is your view which matters, not ours. You are the judges of the facts.”[10]
And later:
“The evidence is what you hear on oath form the witnesses, what you observe of their demeanour and personality, and the exhibits that I have already referred to. You consider all the evidence in the case, give each part of it the importance which you, as a judge, think that it should be given. Accept what you believe is true and should be accepted. Reject what you disbelieve. And in accordance with the weight you give to such evidence as you accept, you determine what in your judgment are the true facts.
You may accept part of one witness’s evidence and reject other parts of the evidence of that same witness. Your role is to assess not only the honesty of a witness, but also his or her reliability in the sense as to whether or not they are good and careful observers of events, do they have good memory recall, and to make allowances for the circumstances in which they made their observations.”[11]
[10]T905.
[11]T907.
His Honour provided a conventional instruction with respect to the comments of counsel and the use to which prior statements which the jury considered to be inconsistent with the evidence given by witnesses in the court could be put. In any event, even if these instructions had not been given, in the context of the particular trial and attributing to the jury the exercise of a modicum of commonsense, the failure to correct a possible misstatement of a relatively minor part of the evidence may seem to possess any significant potential to occasion a miscarriage of justice.
Ground 7
It appears that in the course of his address to the jury, counsel for the applicant argued that it was unlikely that his client would have made arrangements to meet her friend Cheryl Mitchell on the following day if she was aware that her car would be destroyed in the meantime. Again, counsel’s addresses were not recorded, precisely what was submitted by him is unknown. His Honour interpreted the argument as raising the suggestion that the prosecution should have called Ms Mitchell. At the completion of the address, he asked counsel whether it was contended that a Jones v Dunkel[12] instruction was required. Counsel initially responded – “Yes”. A little later, the following exchange took place:
[12](1959) 101 C.L.R. 298.
“COUNSEL: What’s in issue is this, Your Honour, that in the statement of 13 May the issue is raised fairly and squarely. There the accused asserts that an arrangement was in place with the witness to pick her up the next day with the car. So it’s not just the fact of the call. It is the arrangement. That’s the relevant issue in this trial because as it was put to the jury, she wouldn’t be making those arrangements if the car was to be stolen. The witness was on the presentment.
HIS HONOUR: But it hasn’t been challenged, has it, that there was this conversation? Has your client given evidence? Yes she gave evidence about the arrangement.
COUNSEL: Yes, indeed. Although it wasn’t challenged, by implication the case is that she knew that the car was to be stolen and our argument, Your Honour, is that she made this arrangement and that that is inconsistent with the prosecution case.
HIS HONOUR: Well, [counsel], I should warn you that I propose to add the comment that it could well be that a person who is going to have a car stolen could arrange appointments as a sort of future alibi or a cover up. I think it cuts both ways.
COUNSEL: Well, Your Honour, might I consider that overnight?”[13]
On the following day, counsel indicated that he no longer sought the provision of the direction.
[13]T902-903.
When summarising the evidence of the applicant in his charge, his Honour said:
“She was later asked, she said she went out that morning, found her car was gone, that what happened the night before was of no particular importance to her, and she referred to that call that she had made to a Cheryl, and that she had made the arrangements to see her friend Cheryl to travel by car. [Counsel] suggested that if her car was to be burnt she would not have made the arrangement. Perhaps a contrary comment can be made. It is only a comment, but equally the arrangement could be made as a cover up of something that was to happen, but that is a comment only, members of the jury. It is for you to consider these comments that are made to you”.[14]
[14]T974
It is, I consider, clear that in a situation in which the evidence of the applicant that she had made arrangements to meet Ms Mitchell was not challenged, no Jones v Dunkel direction was required. Whether or not any had been provided, his Honour was entitled to make a comment of the kind that he did. It was moderate in tone and did nothing more than present the jury with an alternative possibility that they could consider. I do not understand his Honour’s remarks to counsel to carry the implication that he would refrain from a reference to this matter in the event that the application was withdrawn and, of course, a comment made in the course of the provision of an elaborate direction may well have been reasonably perceived by counsel as likely to have significant impact in the circumstances.
This ground also must fail.
Ground 8
It was argued in support of this ground that, on the whole of the evidence, no properly directed jury acting reasonably could have convicted the applicant. Reliance was placed upon the asserted unreliability of the evidence of the alleged accomplice El’ Jarid, the acquittal of Polidano and his evidence supporting the applicant. It was pointed out that the applicant, a person of previously good character, gave evidence, in her own defence and, although there were no grounds of appeal asserting deficiencies in the charge, the claim was made that it was nevertheless inadequate in the circumstances. Finally the submission was advanced, that collectively considered, these features of the trial have resulted in a verdict that must be regarded as unsafe.
I have set our earlier, in broad outline, the case presented against the applicant and it is clear enough that the evidence of El’Jarid was of crucial importance to its acceptance by the jury. His version of events was the subject of considerable criticism in the trial. He was, on his own account, an accomplice who had received a benefit which could be withdrawn from him, for cooperating with the authorities by the giving of evidence against the applicant and, in more than one respect, there were problems associated with his description of what had taken place. All of these matters were, I am confident, well appreciated by the judge, counsel and jury alike.
Appropriate instructions, in relation to which no complaint has been made, were given to the jury with respect to each of them. At one stage, for example, when dealing with the evidence of El’Jarid, his Honour said:
“Accordingly there is a rule of law which applies in this case. You should consider that it is dangerous to convict an accused upon the uncorroborated evidence of an accomplice. It follows that you should first look for corroboration of the evidence of the accomplice. Corroboration is evidence from a source independent of the accomplice which implicates the accused in the crime charged by tending to show both that the crime was committed and that the accused committed it”.[15]
…
“Now with respect to Mr El’Jarid, he is the only witness before you that establishes that any of the accused were parties to the alleged conspiracies. If you are not satisfied beyond reasonable doubt that his evidence establishes that a particular accused was a party to the conspiracy to defraud then I direct you that you must acquit that particular accused with respect to that particular account.
Now with respect to count 1, there is no corroborative evidence. No evidence to corroborate the El’Jarid account that Mr Polidano and [the applicant] were parties to the alleged agreement or conspiracy to defraud. You will recall that his own evidence was that in 1999 he was out of control. He admits theft. He admits the stealing of the Mercedes Benz and the burning of that car, the wanton destruction of that car, and he also admitted that he offended in relation to other matters.
You are to consider, in relation to the first account, whether [Dammous] and Mr El’ Jarid were in fact operating on a frolic of their own, as the defence have submitted to you, and you are in that connection to take into account the fact that Mr El’Jarid has pleaded guilty to a series of offences, but also that he undertook to give evidence in this trial on behalf of the Prosecution and, as the defence have pointed out to you, he did that having an interest in obtaining a lesser sentence than he thought he otherwise would receive and that in fact he was sentenced to do a period of community service and thereby it is suggested that he avoided the unpleasant experience of a gaol term”.[16]
[15]T936-937.
[16]T937-938.
The proper approach to be adopted by the appellate court when considering a claim that a jury verdict should be regarded as unsafe by reason of the inherent unreliability of the evidence on which it must have rested was the subject of attention by the High Court in M v R where it was stated:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty… . But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations … (footnotes omitted)”.[17]
However:
“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence … . In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty … (footnotes omitted)”.[18]
[17](1994) 181 C.L.R. 487 at 493 per Mason, C.J., Deane, Dawson and Toohey, JJ.
[18]At 494-495.
In my opinion it was open to the jury to accept the evidence of El’Jarid that the applicant was present when a conversation involving the applicant was conducted concerning the destruction of her motor vehicle in order to relieve herself of a significant financial liability, that he participated with the applicant’s son in setting fire to the car and that, on the journey homeward, Dammous rang the applicant to inform her that “It’s done”. They had ample opportunity to observe him in the witness box and to make their assessment of his credibility and reliability. There is no reason to suspect that they may have failed to comprehend the force of the various criticisms that were made of his evidence or comply with the instructions given to them by the trial judge.
As I have earlier mentioned, it was open to the jury to regard the making of a telephone call by Dammous to his mother’s home very shortly after the destruction of her vehicle, as a significant circumstance when considering her possible involvement. They were certainly entitled to reject her version of the purpose for the various telephone calls made at around that time and generally of what had occurred. Taken in conjunction, these pieces of evidence were sufficient to support a finding, by a jury acting reasonably, of guilt of the applicant on count 1.
The further contention that the acquittal of Polidano and Condie can be seen to cast doubt on the verdict of guilty returned against the applicant also lacks substance in my opinion. Without setting out the differences, it is apparent that the cases against them rested on more limited evidentiary foundations than that presented against the applicant. The claim of inconsistency was not presented as a separate ground nor was there more than a passing reference to it in the written or oral submissions presented to us by senior counsel for the applicant. As I
understand the thrust of the argument, it was submitted that viewed against the background of the acquittal of each of these persons, the verdict returned against the applicant was surprising and required careful scrutiny[19]. As I have indicated, the verdict of guilty in the applicant’s separate case was open and the acquittal raises no question of inconsistency of verdicts.
[19]The principles to be applied in considering a claim of inconsistency were set out by the High Court in McKenzie v. The Queen (1996) 190 C.L.R. 348 at 366-368 as per Gaudron, Gummow and Kirby, JJ; and MFA v. R (2002) 193 A.L.R. 184 at 192 as per Gleeson, C.J., Hayne and Callinan, JJ.
In summary, I do not consider that the verdict of guilty returned against the applicant can be properly regarded as unsafe and unsatisfactory in the circumstances.
In view of the above, this application for leave to appeal against conviction should be dismissed.
BONGIORNO, A.J.A.:
I have read the judgment of Vincent J.A. I agree and have nothing further to add.
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