R v De Simone

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 268 of 2007

THE QUEEN
	v
GIUSEPPE DE SIMONE

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JUDGES:	VINCENT, NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 August 2008
DATE OF JUDGMENT:	31 October 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 216

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CRIMINAL LAW – Appeal against conviction and sentence – One count of intentionally causing injury and two counts of resisting a police officer in the execution of duty – Whether trial judge erred in directing jury on requirements of a lawful arrest – Direction that information obtained from ‘Intergraph’ was sufficient to found a reasonable basis for belief that applicant had committed an indictable offence – Whether judge should have told jury that applicant must hear words of arrest, or whether it was sufficient for his Honour to direct that words must be ‘hearable’ – Whether judge adequately summarised submissions of counsel – Whether judge erred in failing to accede to jury request that parts of transcript be read – Appeal allowed.

CRIMINAL LAW – Practice and procedure – Circumstances in which Court may direct a verdict of acquittal.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC with Mr M J Croucher	Peter Lustig

VINCENT JA:

I agree that ground 3(b) of the applicant’s grounds of appeal should succeed for the reasons given by Neave JA in her judgment and the convictions and sentence set aside on that basis.

Like Weinberg JA however and for the reasons he has given I differ from Neave JA with respect to grounds 2A(a) and 2A(b).

I agree that verdicts of acquittal should be entered on all counts.

NEAVE JA:

The applicant, Giuseppe De Simone, was convicted by the majority verdict of a County Court jury on one count of intentionally causing injury (count 2) and on two counts of resisting, respectively, Constable Daniel Baynes and Constable Paul O’Connell, in the execution of their duty (counts 4 and 5).[1] He was unanimously acquitted by the jury of assaulting Paulo Ku, a duty manager at the Coles supermarket in Barkly Square, Brunswick (count 1).[2] His Honour imposed an aggregate fine of $6,000. This is an application for leave to appeal against the convictions and sentence.
[1]See Crimes Act 1958, s 31(1)(b).
[2]No verdict was taken on count 3 (recklessly causing injury), which was an alternative to count 2. A count of theft (count 1) was permanently stayed.

The circumstances of the alleged offences.

The offences were alleged to have occurred on 21 September 2004, when the applicant went to the Barkly Square shopping centre at about 10 pm, to buy some groceries for his family. While he was in the Coles supermarket, two supermarket employees saw him eating an ice-cream in one of the aisles. The ice-cream had been removed from a box of four individually wrapped ice-creams. The applicant went to a cash register and paid for his groceries, but did not pay for the ice–cream he

had eaten.

After the applicant passed through the checkout, he was approached by the store manager, Paulo Ku, who asked him if he was going to pay for the box of ice-creams. The applicant said he thought he had done so and went back into the store with Ku and a Coles security guard, Teshome Tsegaselassie, to look for the box of ice-creams, which he said must have fallen out of his trolley. The ice-cream box was not found.

Shortly afterwards, an argument erupted between the applicant, Ku and Tsegaselassie in the shopping plaza outside the Coles supermarket cash registers. The applicant’s version of events was that when the ice-cream box could not be found in the supermarket, he said he was prepared to pay for a box of ice-creams, to leave one ice-cream at the supermarket and to take the box containing the other three ice creams with him. He was told that he had to pay for the whole box and leave it in the supermarket, because the ice–creams were not sold individually.

Both Ku and Tsegaselassie then tried to stop the applicant leaving the shopping plaza. When the applicant said he was going to leave, Ku asked one of the Coles cash register operators, Panneota Katoumas, to call the police and she did so. Yusuf Balkan, a security guard employed by the shopping plaza, intervened in the dispute and accompanied the applicant to his car and helped him to unload his groceries. They then began to walk back towards the shopping plaza.

At about 10.35 pm, two uniformed police members, Constable Baynes and Constable O’Connell, arrived at the shopping plaza. Their evidence was that they had received a radio call over the Intergraph system asking them to attend Barkly Square because a shoplifter was being aggressive. Shortly afterwards they encountered the applicant and Balkan in the car park pushing a trolley back towards the building and Balkan pointed to the applicant and said ‘this is him’.

Shortly afterwards a fracas erupted between the applicant, Baynes and O’Connell and all three ended up struggling on the ground. It was not contested that during this struggle the applicant bit Baynes on the forearm. The applicant ceased to struggle after he was sprayed with capsicum spray and handcuffed. After an ambulance was called the applicant was taken to the Coburg Police Station, where he declined to answer questions unless his lawyer was present.

The Crown and defence cases

The Crown case was that Baynes and O’Connell had believed on reasonable grounds that the applicant had committed the indictable offence of theft[3] and had arrested the applicant. The applicant had committed the offences of resisting a police officer and intentionally injuring Senior Constable Baynes in the course of that arrest.
[3]Crimes Act 1958, s 459.

The defence case was that the purported arrest was unlawful and the applicant was acting in self-defence. The arrest was said to be unlawful because:

(a) the police did not have reasonable grounds for believing that the applicant had committed an indictable offence when they arrested him: they had unlawfully arrested him for the purpose of questioning him;

(b) the applicant was not told that he was under arrest or of the reason for that arrest; and
(c)excessive force had been used to effect the arrest.

The applicant contended that even if the arrest was lawful, he had bitten Constable Baynes in self-defence. He had had a bad cold and had been unable to breathe, because Baynes’ arm was over his nose and mouth. He had bitten Baynes in order to breathe.

Further evidence relating to these matters is considered in the context of the relevant grounds of appeal.

The grounds of appeal against conviction

The grounds of appeal against conviction were as follows:

Ground 1A:The learned trial judge erred in his directions on the relationship between self-defence and lawful arrest; and in particular he erred:
(a)in directing that (i) ‘a person cannot use force to resist a lawful arrest’ (Charge at 638); (ii) ‘[self-defence] can only arise if the arrest is unlawful because excessive force is used by the police’ (Charge at 638); (iii) ‘to give rise to a plea of self-defence the conduct against which [the applicant] was defending himself, namely arrest, must be unlawful. You cannot use force to resist a lawful act, such as a lawful arrest’ (Charge at 689); (iv) ‘it is only if there was an unlawful attack against which [the applicant] was protecting himself that the question of self-defence arises at all’ (Charge at 689); (v) ‘self-defence does not arise – it is not a defence to a lawful act or to lawful behaviour’ (Charge at 691-692) (see also Discussion at 94-101; Defence Address at 39-40 & 44-45; Discussion at 678-679); and
(b) in failing to leave self-defence on the (additional or alternative) basis that the jury were satisfied that the purported arrest was lawful.

Ground 1B: The learned trial judge erred in his directions on self-defence.
Ground 2A:The learned trial judge erred in his directions on the requirements for a lawful arrest; and in particular he erred:
(a)in directing to the effect that the information obtained by Constable Baynes from ‘Intergraph’ was a sufficient basis on which to found a conclusion that there were reasonable grounds for his asserted belief that the applicant had committed theft (Jury Question at 641-642; Exception at 648-656 & 660-669; Charge at 684-686);
(b)in directing to the effect that, in certain circumstances, it was unnecessary to prove that the applicant heard the words of arrest allegedly uttered by Constable Baynes when that alternative was inconsistent with the prosecution case (Charge at 636; Exception at 643-647; Jury Question at 656-659; Exception at 669-676; Charge at 683-684; Discussion at 725-726; Jury Question at 728; Discussion at 729-731; Jury Question at 733-735, 737 & 739);
(c)in failing to make clear, with the authority of his office and in the course of his directions of law, as opposed to repeating counsel’s argument in the course of his summary of final addresses, that a person cannot be detained for questioning (Exception at 678; Charge at 697).

Ground 2B: The learned trial judge erred in his directions on lawful arrest.
Ground 3: The learned trial judge erred:
(a)in failing adequately to summarize the addresses of counsel and/or the evidence relating to the issues to be determined (Discussion at 618-619; Charge at 694-703); and
(b)in failing to comply with the jury’s request for transcript or a rehearing of certain parts of the evidence concerning the lawfulness of the purported arrest (Jury Question at 733-744).

Ground 4:The learned trial judge erred in failing to give any or sufficient directions on the forensic disadvantage suffered by the applicant by reason of the following matters:
(a)the failure of the police adequately to investigate or to produce any product of the video surveillance at the shopping centre (Ruling at 168; Evidence at 464-467, 507-510, 523-527, 549, 561 & 563; Discussion at 513-519, 602-605, 608 & 610-617; Charge at 632-633; Exception at 643);
(b)the unavailability of the witness Teshome Tsegaselassie (Discussion at 104, 107, 110 & 121-122; Evidence at 293, 395-396 & 406; Charge at 624);
(c)the unavailability of a recording of the Intergraph call (Evidence at 392-393 & 432; Jury Question at 641-642; Exception at 648-656 & 660-669; Charge at 684-686);

(d) the delay in charging the applicant (Evidence at 470 & 549).
Ground 5:The learned trial judge erred in failing to accede to the applicant’s submission that the jury should be discharged without verdict, given inter alia the apparent confusion and disagreement amongst the jury and the resultant risk of a miscarriage of justice through a compromise verdict (T 725 759).

In my opinion the appeal against conviction on all counts should be allowed, on the basis of grounds of appeal 2A(a) and 3(b). I am inclined to consider that ground 2A(b) is made out in relation to the conviction on count 2 only, though it is unnecessary to decide that matter. My reasons for these conclusions are set out below.

Ground 2A(a)

As I have said, the defence case at trial was that the police did not have reasonable grounds for believing that the applicant had committed an indictable offence when the purported arrest occurred, and that Mr De Simone had been detained for the purposes of questioning. Ground 2A(a) relates to his Honour’s answer to a jury question about whether the Intergraph report provided a sufficient basis for an arrest

The Evidence

One of the issues at the trial was whether the police had spoken to anyone from Coles about the alleged theft, before they purported to arrest the applicant. Constable Baynes’ evidence was that he and Constable O’Connell had received information via Intergraph saying that ‘a shoplifter [was] being aggressive at the Coles supermarket’. He said that they got out of the police car in the shopping plaza car park and ‘walked into the foyer and approached the front of Coles where we were spoken to by staff from Coles’. Baynes said they were then told that a man had gone into the supermarket, bought some groceries and that while inside the supermarket he had eaten an ice-cream. He had paid for the groceries but not for the ice-cream and had become aggressive when he was confronted by Coles staff and ‘put a fist in the face of a Coles staff member’. The man was now in the car park with a security guard.

Constable Baynes said that when he and Constable O’Connell walked back into the car park they saw a man with a security guard (Balkan) who said ‘this is him’. Baynes said he had tried to talk to the man, who was being very aggressive. He had told the man that he wanted to have a chat with him and he had refused. After again asking the applicant to have a chat with the applicant and the applicant refusing, Baynes said he told him that he was suspected of stealing an ice cream and asked for his name and address. When the applicant walked in the direction of the car park, Baynes grabbed his arm and told him he was under arrest for theft. Mr De Simone was unexpectedly aggressive and struggled with the police. As Baynes leaned forward to bring Mr De Simone to the ground, he had bitten Baynes on the arm.

Baynes was cross-examined about the time that had elapsed between the police arriving at the shopping plaza and the arrest of Mr De Simone. In answer to a question from his Honour, he said he could not estimate that time, but he believed that it was longer than ten minutes. He said he had spoken to one person in the shopping plaza, but could not recall what he looked like and did not take his name. This person was ‘a spokesman from Coles staff’, who appeared to be in a position of authority. This person was said to have told Constable Baynes that a customer had eaten an ice-cream but had not paid for it. Baynes said he did not recall speaking to an Asian man from Coles[4] or to a Mr Valentine Fernandez, the night manager of Coles, whose evidence was that he had spoken to police outside the shopping centre.
[4]Mr Ku, the duty manager at Coles, is Asian.

Constable O’Connell’s evidence-in-chief was that the Intergraph call had told them to ‘attend at the Barkly Square Shopping Centre in Brunswick in relation to a male being aggressive with staff’. He said that ‘once we got out of the vehicle we went and spoke to staff at the supermarket and they detailed what had occurred’. The staff had said there had been a dispute about payment for an ice-cream that the man had eaten inside the store but had not paid for, and he and Constable Baynes then walked out into the car park and saw the applicant walking back towards the supermarket with a security guard. Constable Baynes had tried to discuss the matter with the man, who had been verbally aggressive and uncooperative. When he began to walk off, Constable Baynes had told him he was under arrest for theft and grabbed the applicant’s arm; there was a struggle after which all three went to the ground and Constable Baynes was bitten.

In cross-examination, Constable O’Connor said that they had spoken to several males in Coles uniform at the front of the store and that he had seen Baynes speaking to an Asian man. He said he had himself spoken to a Mr Fernandez inside the shopping plaza but outside the Coles supermarket, and that Mr Fernandez had said something to the effect that a man had failed to pay for an ice cream and he was outside. Constable O’Connell said they had been inside the shopping plaza for about 5 minutes. His notes, which were made at the police station during Mr De Simone’s later interview recorded liaising with the manager who stated that ‘male ate ice-cream whilst in shop. Did not pay for same. Male currently speaking with security in car park. Attempt to speak to male who stated, already told security not repeating himself, walked off. Grabbed same on arm to establish ID, resisted, very aggressive, struggle on ground, observations - male bite into Baynes’ forearm with great force. Eventually cuffed male. OC [a reference to capsicum spray] deployed.’

O’Connell reiterated that ‘several staff members’ had said the applicant was involved in an alleged theft, but admitted he had not been inside the supermarket.

Mr Ku testified that he did not see the police inside Coles or inside the shopping centre in the area abutting Coles on the night of the events, though he saw a police car in the car park. He said he had not spoken to a police officer that night. Mr Fernandez said he had been outside the plaza taking a meal break and had seen the police car pulling up in the car park. He said there had been an incident between Mr Ku and the man who was heading back towards the shopping centre. As he approached the police they had asked Mr De Simone if they could have a moment of his time and the next thing that happened was that the three of them were involved in a wrestle. Mr Fernandez did not recall the police going inside the shopping centre.

Mr Tsegaselassie, the Coles security guard, gave evidence at the committal, but could not be found before the trial. His evidence at the committal was read to the jury. It said that he saw the police ‘arrive inside the plaza’ and that after the fracas they came inside and spoke to him and Mr Ku.

At the trial Mr De Simone’s counsel contended that the police had acted solely on the basis of the Intergraph report and that this did not provide sufficient basis for his arrest.

The jury direction

In his jury charge, his Honour told the jury that in order to convict the applicant of the offence of resisting a police officer in the execution of his duty it was necessary to show that the arrest was lawful.[5] He continued as follows:

Next question, what is a lawful arrest? A policeman may apprehend any person whom he believes on reasonable grounds has committed an indictable offence. The allegation here is that Mr Baynes believed that Mr De Simone had committed the offence of theft. That is an indictable offence, I can tell you that. So the question is are you satisfied beyond reasonable doubt that he, Mr Baynes, believed on reasonable grounds that Mr De Simone had committed the offence of theft or shoplifting, whatever you like. If he did not have that belief, then he has not commenced a lawful arrest and therefore he was not acting in the due execution of his duty. So whatever Mr De Simone did to him, he did not do anything to him while he was acting in the due execution of his duty, so he has not committed an offence, simple as that. Unless Mr Baynes is acting in the due execution of his duty, that is attempting a lawful arrest, then Mr De Simone has not committed the offence alleged in paragraph 4.
Let us go back then to consider what has to be done; that is, that Mr Baynes has to believe on reasonable grounds that Mr De Simone has committed theft. What is meant by ‘on reasonable grounds’? This requires you to consider whether his, Mr Bayne’s, subjective belief, if you accept it, whether his subject belief was a belief formed on reasonable grounds. You must consider the grounds for his belief and ask whether a reasonable person placed in the same position and with the same knowledge or information as he, Mr Baynes was, would have regarded his grounds for his belief as reasonably warranting or justifying his belief.

[5]The direction that ‘a person cannot use force to resist a lawful arrest’ and that self-defence was only available if the arrest was unlawful was challenged by Ground of Appeal 1.

After his Honour had made these remarks, he was asked the following question by the jury: ‘can a person be arrested using only information received from Intergraph’. His Honour initially responded to that question as follows:

The answer to that is yes, depending. It depends – the fact that it came from the Intergraph is a fact but it is not the crucial matter. The question is whether the information that came in that way was sufficient in your judgment to justify – whether it [constitutes] reasonable grounds for a belief that the person has committed the offence. So it is not a yes or no answer. In a sense it does not matter where the information comes from, it is – well, sorry, it does. Let us assume it is coming – if it came from a baby or a two-year-old or something like that, you know, that is different. But otherwise if it comes from some responsible source, then it does not matter what source it comes from so long as the information itself, taking into account its source, is such that in your judgment it constitutes reasonable grounds for forming the suspicion, et cetera. So that is the answer to that.

Counsel for Mr De Simone took exception to his Honour’s answer to the jury question. He said that there was a dispute between the Crown and the defence as to whether the police had gone into the shopping centre or spoken to anyone about the alleged theft, before the events in the car park occurred. He submitted that the learned trial judge should direct the jury consistently with the way the Crown case had been conducted; that is, that the police had reasonable grounds for their belief because they had made enquiries of Coles staff. His Honour should therefore have told the jury that the message received over Intergraph was insufficient, of itself, to provide the basis for a reasonable belief that the applicant had committed the offence of theft.

The following day counsel renewed his objection and asked his Honour to withdraw the answer he had given to the jury about the Intergraph issue. His Honour declined to do so.

Later his Honour returned to that issue and redirected the jury as follows:

The other question related to the Intergraph information. Now in relation to that – and we are now talking about whether or not Mr Baynes had reasonable grounds for his belief – that is the issue for you, are you satisfied beyond reasonable doubt that he held a belief and held it on reasonable grounds? In order to decide that it is important to know on what ground he formed his belief, that is, what information, et cetera, he had on which to base his belief. He received certain information from Intergraph. You can take into account that he did receive that information, whatever you find it to be, and what that information was, as you find it to be. It does not matter whether or not that information was correct or whether or not it was hearsay, or anything like that, it is the fact that he received that information that is important and the nature and details of the information which he received, and, off course, it is relevant to take into account its source, namely, from the Intergraph machine.
Those things are relevant to your judgment whether the grounds were reasonable but when deciding whether he had reasonable grounds you should consider all of the information that you are satisfied that he had, whether it came from Intergraph or otherwise. In addition to the Intergraph information, he says he got information from the Coles staff when he went inside, and if you were satisfied beyond reasonable doubt that he did then you would take that into account as well in deciding whether or not his grounds were reasonable. The defence contests that he even went inside, let alone got information from the staff member in there, and if you are not satisfied that he did get any information in there, or what it was, then of course you cannot take into account any information that he might have got inside. That is the real essence of the accused’s case on this point, that you should not be satisfied that he went inside and spoke to the staff member in there.
You take into account all the information that you are satisfied beyond reasonable doubt that he had, you take into account all the circumstances as you find them to be, including the fact, which seems to be undisputed, that the person that he approached, Mr Baynes approached, was in fact the accused man, Mr De Simone. It would be open to you I suppose to infer that he must have had some information identifying Mr De Simone as the person in question, unless of course it was just a coincidence that he went straight up to him. So the question for you is whether he had reasonable grounds for his belief. You decide what those grounds were, you decide what information justified them and if you are satisfied they were justified, [whether] they were reasonable grounds in all the circumstances.
So to answer your specific question about Intergraph; if the only information that he had was from the Intergraph, then it remains a question for you whether that constitutes reasonable grounds in all the circumstances for his belief – there is no ‘yes’ or ‘no’ answer that I can give you, it is ultimately a question for you, bearing in mind that the question for you is did he have reasonable grounds for his belief? That is the only assistance further that I can give you in relation to that.

Counsels’ submissions

Counsel for the applicant said that his Honour’s answer to the jury question about information provided by Intergraph was clearly wrong. The Crown case was that Baynes and O’Connell had relied on their enquiries in the shopping plaza, as well as the Intergraph report, as the bases for forming a reasonable belief that Mr De Simone had committed an indictable offence. His Honour should have told the jury that if they were not satisfied beyond a reasonable doubt that Baynes or O’Connell had spoken to Coles staff, there was an insufficient basis on which they could have formed a belief on reasonable grounds that the applicant had committed the offence of theft. His Honour’s answer to the jury question left it open to the jury to take the view that the Intergraph report was itself sufficient to provide the basis for Mr De Simone’s arrest.

Counsel for the respondent said that his Honour had correctly told the jury that they had to be satisfied beyond reasonable doubt that Baynes believed on reasonable grounds that Mr De Simone had committed the offence of theft. He also correctly said that if they were satisfied on reasonable grounds that the police had gone inside the shopping centre and had made enquiries, that would provide a basis for a reasonable belief that the applicant had committed a theft. The jury’s question about Intergraph was a general one about whether reliance on Intergraph could ever provide the basis for an arresting officer to believe on reasonable grounds that a person had committed an offence. His Honour’s answer to the question was simply a response to that hypothetical question and did not specifically relate to the factual issue in this case.

Conclusion on ground 2A(a)

His Honour’s jury direction on this issue could be interpreted as meaning that it was for the jury to decide whether, on the basis of the facts before them, the police had a reasonable belief that the applicant had stolen goods from the supermarket. Standing alone that direction would have been unobjectionable.

On the other hand, his Honour told the jury that if they were satisfied beyond reasonable doubt that Mr Baynes had got information from Coles staff they could take that into account ‘as well’ as the Intergraph report in deciding whether the arrest was lawful. While that may not have been sufficient to suggest to the jury that in the circumstances of this case the Intergraph report alone would have justified the arrest, his Honour went on to say that:

if the only information that [the police] had was from the Intergraph, then it remains a question for you whether that constitutes reasonable grounds in all the circumstances for his belief – there is no ‘yes’ or ‘no’ answer that I can give you.

This direction was given in a context in which the question whether the police went into the shopping mall and made enquiries from supermarket staff had been put in issue by defence counsel. His Honour’s direction left it open to the jury to hold that the Intergraph report, standing alone, could provide a sufficient basis for the arrest. While that message might have given the police the basis for a reasonable suspicion that Mr De Simone had committed an offence, it could not have provided the basis for a belief on reasonable grounds that he had done so.[6]
[6]As to the distinction between a reasonable suspicion and a reasonable belief, see George v Rockett & Anor (1990) 170 CLR 104, 115-116.

The Intergraph message was simply an allegation that ‘a shoplifter’ was being aggressive. In order to form a reasonable belief that Mr De Simone had stolen something from Coles it was necessary for the police to make enquiries about the circumstances of the alleged offence and his Honour’s directions to the jury should have made this clear. In my opinion ground 2A(a) is therefore made out.

Ground 2A(b)

This ground of appeal related to his Honour’s jury directions about whether it was necessary for the applicant to have heard the words of arrest said to have been spoken by Constable Baynes.

The evidence

The defence case was that Constable Baynes had never told the applicant that he was under arrest, or the reason for the arrest.

The applicant’s evidence was that after the altercation between himself and Mr Ku in the shopping plaza outside Coles, he went to his car with Mr Balkan and put his shopping inside it. Mr Balkan suggested he should just pay for the box of ice-creams and fix up the dispute in the morning.

He was walking back towards the supermarket when the police had approached him in the car park and Constable Baynes said that they wanted to ask him a few questions. He asked what they wanted to talk to him about and they said ‘We have an allegation of theft’. He had said he wanted to talk to a lawyer first and that he didn’t have to answer any questions until he had done so. The police officer then said ‘[why] do you need to speak to a lawyer, why can’t you answer my questions?’ The applicant turned around and began to walk back to his car to get his mobile phone. He was gesticulating at the time and shouted something to the effect of ‘you guys never like it when people ask to speak to their lawyers. Why can’t you just leave us alone’. His left arm was then grabbed from behind.

The other police officer grabbed his other arm and the two men pushed him forward. They were going over a kerb at the time and all three men tripped and stumbled. Mr De Simone’s head hit the edge of a table with considerable force. He was face down on the ground with the police holding him down by the arms and he struggled and thrashed in an attempt to stand up. He shouted ‘let go, get off me’. He said that the police officer’s torch was being held like a baton close to his face and he panicked and grabbed it and put it underneath himself. One of the police officers grabbed the applicant’s hair, lifted his head up and put his arm around his head, over his nose and mouth. Mr De Simone said that he bit the police officer on the arm because he had a bad cold and needed to breathe.

Constable Baynes’ evidence was that he had told the applicant he was under arrest for theft. Constable O’Connell gave the same evidence. However others who were close by when the fracas occurred said they had not heard these words being said.

Mr Fernandez said that he was sitting just outside the front of the shopping centre. He said that the police approached Mr De Simone and asked for a moment of his time and the ‘next moment I know, the two officers and the gentleman are involved in a wrestle’. He did not recall anything else being said, although he was reasonably close to them.

Mr Stephen Denyer, a student, was leaving the shopping centre when he heard saw a man ‘carrying on’. He recalled the police saying ‘Calm down, stop resisting mate’ or words to that effect. He heard them say ‘We just want to talk to you,’ while attempting to restrain the man and the man resisting. He heard the applicant saying ‘Leave me alone. Why can’t you leave me alone. It doesn’t take, you know, two fit police officers to take down a 40-something-year-old-man.’ He did not recall hearing the applicant say that he did not have to answer any questions. He said that the applicant begun to struggle when he was physically restrained by the police. Mr Denyer could not recall whether the police officer had his arm around Mr De Simone’s face.

Mr Balkan, the shopping centre security guard, said he had heard the police telling Mr De Simone they wanted to ask him some questions. He thought that Mr De Simone might have panicked when his arms were grabbed. He did not recall hearing the police say anything else before Constable Baynes grabbed the applicant’s arms and the three men fell to the ground.

Mr Wayne Goods, a loss prevention officer for Coles at the time of the alleged offences, gave evidence that he had seen the police holding down the applicant and the applicant resisting. During the struggle the applicant had asked for a lawyer. He had not seen what happened prior to the struggle between the police and the applicant.

Mr Christopher White, also a loss prevention officer, gave similar evidence. He said that the applicant was thrashing about and trying to get up and that he had helped one of the police members to handcuff him.

The jury direction

In his jury charge his Honour told the jury that in order to effect an arrest it was necessary for the police officer to:

tell the person he is under arrest. Secondly, he must at or within a reasonable time of the arrest tell the person at least the general nature of the alleged offence for which he has been arrested. In other words, he has to tell him he is arrested for theft, he does not have to tell him he has been arrested for pinching an ice cream valued at ten dollars. He has to tell him the general nature of the alleged offence. There is no need to tell him the general nature of the alleged offence if the circumstances are such that the person being arrested must know the general nature of the alleged offence or if the person being arrested himself produces a situation which makes it practically impossible to tell him; for example, a counterattack or by running away or something like that.
… If he does not say, ‘You’re under arrest’, or if he does not tell him the general nature of it, then the arrest is not lawful. He is therefore not acting in the execution of his duty, end of case in relation to Count 4. So whatever Mr De Simone did to such a person, he has not done it to a person acting in the due execution of his duty if that [is] your state of mind at that point.

His Honour repeated a direction to this effect later in his jury charge.

Shortly afterwards, defence counsel took exception to this direction. He said that even though the defence case was that no words of arrest had been spoken, the jury might wonder whether the applicant might not have heard such words. This was particularly relevant because three other witnesses had not heard any words of arrest. In discussion with defence counsel, his Honour said that he was ‘not interested’ in that hypothesis and declined to re-direct the jury on this matter, saying that the issue was whether the jury would accept the police evidence about what they had said to the applicant. Sometime later counsel again asked his Honour to tell the jury that they must be satisfied that Mr De Simone heard Constable Baynes telling him he was under arrest. His Honour said that he considered this was unnecessary.

The jury later asked the learned trial judge to elaborate on the circumstances in which it was not necessary to inform a person they were being arrested or of the general circumstances of the arrest. His Honour re-directed the jury as follows:

To be lawful three things have to be established in the context of this case. One, Mr Baynes must have believed on reasonable grounds that Mr De Simone had committed theft. If you are not satisfied beyond reasonable doubt of that then you must acquit Mr De Simone. Secondly, Mr Baynes must tell Mr De Simone that he is under arrest. If you are not satisfied beyond reasonable doubt that that happened then again you must acquit because the arrest is not lawful. Thirdly, he must tell Mr De Simone the general nature of the alleged offence, and if not then again, if he does not do that, then again the arrest is not lawful and you must acquit.

His Honour went on to say that if the jury members were not satisfied that Mr De Simone was told the general nature of the offence, but Mr De Simone knew in substance why he was being arrested, then the failure to inform him would not make the arrest unlawful.

His Honour was later asked by the jury whether it was necessary for Mr De Simone to hear the words said by the police for the arrest to be lawful. In discussion with counsel he said that, subject to hearing them on the issue, he thought that as long as the words were uttered in a ‘hearable way’ the fact that the applicant had not heard them did not matter. Counsel for the applicant took exception to the proposed direction on the basis that the arrest had to be communicated to the accused. His Honour said that there was no suggestion anywhere in the evidence that Mr De Simone did not hear the words or that they were spoken softly. He answered the question as follows:

The second question is, ‘Is it a requirement that Mr De Simone hears the words uttered by the police for the arrest to be awful?’ I think the answer to that is no, provided that you’re satisfied beyond reasonable doubt that the words, in all the circumstances, the words were hearable, if I can use that expression. It may be that for a particular reason a particular person might not have heard the words because for whatever that reason was. Provided in all the circumstances the words were hearable, they were there to be heard if the fellow was listening, or not concentrating on something else, otherwise there’d be no end to this. So the answer to that is provided the words were hearable in all the circumstances then it’s not a requirement that he actually hears them. Ok?

Counsel’s submissions

Counsel for the applicant submitted that, once the jury question had been asked, his Honour should have directed the jury that if they had a reasonable doubt about whether Mr De Simone had heard Constable Baynes telling him that he was under arrest, they should acquit him of all counts. Counsel relied on the statement by Lord Palmer CJ in Alderson v Booth[7] that:

There may be an arrest by mere words, by saying ‘I arrest you’ without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant’s notice, and did bring to the defendant’s notice, that he was under compulsion. ( Emphasis added)

Counsel said that this required the police to ensure that Mr De Simone heard the words of arrest. If necessary, Constable Baynes should have stood in front of the applicant and told him he was under arrest, rather than detaining him by taking his arm from behind.

[7][1969] 2 QB 216, 220-221.

Counsel for the respondent said that it was never suggested to the police in cross-examination, or asserted by the applicant, that words of arrest were actually spoken but might not have been heard by the applicant. His Honour’s jury direction reflected the defence case and was therefore sufficient.

Conclusion on Ground 2A(b)

A person may be convicted of an offence under s 31(1)(b), even if he or she did not know that the police officer was acting in the execution of his or her duty.[8] It was common ground that if the arrest was lawful, Constable Baynes was acting in the execution of his duty.
[8]See R v Reynhoudt (1962) 107 CLR 381, relating to s 40 of the Crimes Act 1958 ( the previous provision). That case also held that it was unnecessary for the accused to be aware that the person assaulted was a police officer. The offence now contained in s 31(1)(b) applies only if the person resisting the police officer in the execution of duty knows that the person is a police officer.

The decision in Aldersonv Booth, relied upon by the applicant’s counsel, was distinguished in Wheatley v Lodge,[9] where a police officer arrested a man who was deaf and unable to lip-read. The arresting officer was unaware of the man’s deafness and had done all that would have been required to communicate the fact of arrest to a person who could hear what he said. Browne J, with whom Lord Parker CJ and Ashworth J agreed, referred to the Court of Appeal and House of Lords decisions in Tims v John Lewis & Co[10] and said that a police officer was required to take reasonable steps to communicate the fact of an arrest to the defendant. An arrest would be lawful if this requirement was satisfied, even if a defendant was not aware he or she was being arrested because of deafness or an inability to understand English.[11]
[9][1971] 1 WLR 29.
[10][1951] 2 KB 459, sub nom Lewis (John) & Co Ltd v Tims [1952] AC 676.
[11]Query whether this conclusion could be challenged under the Charter of Human Rights and Responsibilities Act 2006.

The hypothesis put forward by defence counsel was that Mr De Simone may not have heard any words of arrest which may have been spoken; it is not claimed that he is hard of hearing. If the jury had not asked a question about whether Mr De Simone had to hear the words of arrest it would have been unnecessary for his Honour to direct them on the matter. However, once this question was raised, his Honour was required to tell them that, for the purpose of counts 4 and 5, the arrest was lawful if Senior Constable Baynes took reasonable steps to bring the fact that he was being arrested to the applicant’s notice.

His Honour did not use this precise formulation in answering the jury’s question, but said that the words spoken by Baynes had to be ‘hearable’. I consider that this answer conveyed the essence of the requirement that reasonable steps be taken to communicate the fact of the arrest to Mr De Simone. His Honour’s jury directions on the requirement that Mr De Simone be told that he was being arrested and the general reasons for the arrest were otherwise unexceptionable. In my opinion, therefore, ground 2A(b) is not made out so far as it applies to counts 4 and 5 are concerned.

Because I consider that grounds 2A(a) and 3(b) are made out in relation to the convictions on all counts, it is unnecessary to consider whether ground 2A(b) is made out in relation to the conviction on count 2.

I note however that his Honour’s direction about the ‘hearability’ of the words of arrest may not have been sufficient for the purpose of that count. If Mr De Simone did not hear the words of arrest, he may have believed he was warding off an unlawful attempt to restrict his movement. In these circumstances he could only be convicted of count 2 if the bite he inflicted on Baynes was an excessive response to what he believed was an illegal attack upon him. This would have been the case even if the arrest was, in fact, lawful.

Ground 2A(c)
The Evidence

As I have said, Mr De Simone’s evidence-in-chief was that he was never told that he was being arrested. He said that one of the officers asked if they could ask him a few questions about an incident and that they said they had an allegation of theft. He said that he had told them ‘I don’t have to answer any questions until I’ve spoken to a lawyer’ and suggested that they speak to the security guard while he went to call his lawyer. The police repeated their statement that they wanted to ask him a few questions about the theft and he repeated his statement that he wanted to talk to his lawyer. The police officer then said ‘Why do you need to speak to a lawyer? Why can’t you answer my questions’. Mr De Simone said that he had told the police that his mobile was in the car and he would go and call his lawyer. One of the police officers then said something and Mr De Simone was waving his hands and shouting something to the effect of ‘You guys never like it when people ask to speak to their lawyers. Why can’t you just leave us alone. I don’t want to answer any questions’. The melee occurred shortly afterwards.

As I have said, the evidence of Baynes and O’Connell was that they had not detained the applicant in order to question him, but had arrested him because they had a reasonable belief that he had committed a theft.

Jury Directions

During the learned judge’s jury charge, counsel for Mr De Simone asked his Honour to tell the jury that ‘no man or woman is under an obligation to answer questions.’ His Honour said that he was intending to do so and also intended to tell the jury that they could not draw any adverse inference from the fact that he failed to answer police questions and that he was entitled to do so. The matter was pressed by defence counsel, who said that Mr De Simone’s case was that the police had sought to obtain reasonable grounds for ‘their suspicion’[12] by ‘grabbing him and seeking to question him’ and that his Honour should tell the jury that ‘you can’t just detain a person for questioning’.
[12]This would have been more appropriately described as reasonable grounds for their belief.

Later in his jury charge his Honour referred to the Crown case relating to counts 2, 3 and 4 and made the following remarks about the defence case. He said:

Now the accused’s case is to start with he says, ‘Look, they had no reasonable grounds to suspect that I had stolen anything’. We have been through all that. You have heard counsel one way and another about it, but that is the first issue that is taken in the case and you have to resolve that. His case is, ‘Look, I didn’t have to talk to the police and, in fact, I refused to talk to them’, and the law is a person does not have to talk to the police if he does not want to. But he says, ‘That’s what happened. I didn’t want to talk to them and I refused to talk them and they didn’t like that and they decided then to grab me whether because they wanted to interview me, or whether they wanted to teach me a lesson, or whether because they were unhappy, or whatever, they grabbed me and that was not a lawful arrest because they did not have grounds.’ They did not have grounds. ‘They didn’t tell me I was arrested and they didn’t tell me why I was arrested’, and in those circumstances that was an unlawful attempt at arrest. ‘I was entitled to resist and I did, and I did it pretty violently because they were very violently trying to arrest me. Such force that I used might have been violent, but it was no more than it was necessary in order to prevent them carrying out this unlawful arrest, and at a certain stage during that I find myself in this face lock, mouth lock, I can’t breathe. What’s a man to do except bite the arm in order to get it away so that I can breathe again and that’s why I bit him, and I bit him in self-defence’. That is it, that is really as I understand it.
When I say that, that is not all because you have heard the way in which it was put by [Counsel], but I cannot reproduce that adequately for you.
He was taken to the police station and questioned and he declined to answer most of the questions there. He is perfectly entitled to. You cannot draw any inference against him, any adverse inference from the fact that he did not answer questions at the police station, nor from the fact that he did not answer questions when they first approached him at the scene if you are satisfied that he did not answer questions. That is his right.

His Honour went on to say that if the jury members were not satisfied beyond reasonable doubt of the substance of the police evidence, they could not convict Mr De Simone on any of the counts. He then summarised Mr De Simone’s evidence about the events of the evening.

Counsel’s submissions

Counsel for the applicant submitted that his Honour’s direction did not adequately address the issue raised by defence counsel. His Honour had simply repeated the submissions made on behalf of Mr De Simone by his counsel. He had not directed the jury, with the full authority of his office, that it was unlawful for the police to apprehend the applicant for the purposes of questioning him, in order to provide the basis for a reasonable belief that he had committed the offence of theft.

Counsel for the respondent said that his Honour had adequately directed the jury of the necessity to be satisfied beyond reasonable doubt that Constable Baynes had believed on reasonable grounds that Mr De Simone had committed the indictable offence of theft before he arrested him. Once Mr De Simone was arrested, Constable Baynes was entitled to question him about the alleged theft.

Conclusion on Ground 2A(c)

In my opinion this ground is not made out. His Honour directed the jury several times about the requirements which must be satisfied in order to effect a lawful arrest and told the jury that ‘the law is a person does not have to talk to the police if he does not want to’. Although his honour did not specifically tell the jury that a person could not be arrested for questioning, when the jury direction is read as a whole, it is inconceivable that the jury could have been left with the impression that Constable Baynes could have lawfully arrested the applicant solely for this purpose.

The reasons discussed above also dispose of ground 2B.

Ground 3(a)

This ground alleges that his Honour failed to adequately ‘summarize the addresses of counsel and/or the evidence’.

The jury direction

His Honour’s jury charge referred to a number of factual matters in dispute, in the course of directing the jury on the relevant legal principles. He went on to describe the Crown case as follows:

… the Crown says that Mr De Simone on this night was in a shocking mood, aggressive and you name it, angry, and there are a dozen adjectives that have been used even by Mr De Simone himself. The Crown case is that the police received a message, they came there and formed the belief that Mr De Simone was suspected of theft and had reasonable grounds for it, and we have been through all that. They then told him that he was under arrest and in fact told him he was under arrest for theft. At that point the Crown case, as I understand it, is he just lost it. Someone said he carried on like a pork chop, he fought and bit and wrestled and kicked and wriggled, and did all of those things, and in effect left the police no choice but to use such force as they did in order to subdue him and that the force used was no more – it might have been pretty severe but it was no more than was proportionate to the force that he was using in resisting the arrest, which he was not entitled to do.
The Crown says therefore he is guilty of resisting the arrest of either, or both of these officers. As to the injury counts, intentionally or recklessly causing injury, the Crown case is he has told you a cock and bull story about how that came to be. There is no doubt he bit. There is also no doubt that he did not bite in the circumstances that he described, self-defence has got nothing to do with it. He is clearly guilty of one or other of Counts 2 or 3 depending on your satisfaction as to his state of mind. I have not done them justice, but that is roughly what the Crown case is.

He went on to describe the defence case in the manner described in paragraph [65] above.

His Honour then referred to the evidence of Mr De Simone. He said:

[n]ow I am not going to worry about the earlier part, he is aged 48, et cetera, [or] about what happened in the shop, ‘eating the ice-cream’ and the dispute with Mr Ku about whether he has got to pay for it. I am not even going to worry you about the – well, I had better tell you, I had better read what he said about Count 1.

His Honour also referred to Mr De Simone’s evidence about his argument with Mr Ku before the police arrived and continued as follows:

In respect of the others, he says, ‘There were a lot of people seated around outside and I’ – yes, that is right, he was coming back with Mr Balkan from the car where he had unloaded everything. He saw two police. ‘When I saw the police I slowed down. They were in front of me. Mr Balkan took a step away to my right. The police came towards me and said, ‘Can we ask you a few questions?’, and I said, ‘What about?’ The trolley at this stage was between me and the police, and the police said, ‘About an incident’– and I said, ‘What sort of incident?’, and they said, ‘We had an allegation of theft’, and I said, ‘I don’t have to answer any questions until I’ve spoken to my lawyer.’ And I said, ‘Why don’t you speak to the security guard here? He knows all about it, while I go and call my lawyer’.
Then they said, ‘We’d like to ask you a few questions about the theft’, and I said, ‘I don’t have to answer your questions’, and they said, ‘Why do you need to speak to your lawyer? What have you got to hide? What have you done wrong Why can’t you answer our questions?’ And their tone of voice was accusative, so to speak, and I said, .I’m not repeating myself. What part of – I don’t want to answer your questions, don’t you understand. My mobile is in the car. I’m going to call my lawyer now’, and I turned to go. I let go of my trolley and started to walk towards my car to get the mobile so I could call my lawyer. I was saying things and waving my arms around and I was saying things like, ‘I don’t know what youse guys are doing; bloody police, they never let you talk to your lawyer. Why can’t you just leave us all alone?’ I was waving my hands gesticulating out of frustration. My hands were up in the air. My voice was quite raised. It was a loud voice.
I’d taken only one or two steps when somebody grabbed my left arm while it was up here and brought it down quite forcefully. I don’t know which one did this. They were behind me and as I was sort of turning, or pulled around, someone grabbed my other arm. I don’t know which one of them grabbed that. They pushed me forward with a lot of force. They were holding both my arms and pulling down and pushing me forward. We stepped over a step and we all tripped together and my head hit the edge of a table with a lot of force. As a result I suffered the injuries shown in the photos. I was dazed. I suppose, I saw stars.
I finished up on the ground, chest down with my head to the side. They were then on top of me. My right arm was still being held, not my left arm. My head was facing left towards the glass doors. I was struggling, thrashing, yelling ‘Let go, get off’, et cetera.
I screamed loudly with pain from the wound to the head. Next I saw one of the police, or the policeman on my left had taken his torch and was holding it like a baton close to my face, right next to me, and he was on his knees and I panicked. I grabbed the torch and obtained it and put it underneath me and I went down on it. Mr Balkan then came up and said, ‘Give us the torch’ and I gave it to him, Mr Balkan. The policeman who was on my left was on top of me with his knee between my shoulder blades and he grabbed my hair with his left hand and pulled my head back and put his right hand around like that’ – and he demonstrated – ‘It was over my mouth and I couldn’t breathe. As the arm was in that position I bit the arm.’ He demonstrated that. ‘I couldn’t breathe. He was pulling my hair and he had his knee in my back. I wasn’t thinking. I was reacting to the need to breathe.
I recall being hit and kicked in the head. I was dazed. I don’t know who hit my head. I was hit on the right side of the head. I was on the ground. I was stomach down. I don’t know whether I was hit, or kicked to the head. Next thing, I believe others had got involved. My recollection is Mr Balkan saying to me something like, ‘Give us your arm.’ He was trying to calm me and soothe me. I think I [was] sprayed at some time as sometimes my hair was being pulled, but it must have been after that. I didn’t feel the spray until the water washed it down from my head to my eyes. It made my eyes burn terribly.
I kept saying, ‘Get off, let me go, I want a lawyer’, and then the water was put on a couple of minutes after I was sat up. I don’t know that you want too much of that, the rest of it.
He was cross-examined and, well, you have heard the cross-examination. I am not going to take you through all of that.

The common law requires a trial judge to direct the jury on the issues which have arisen in the trial, to summarise so much of the evidence as is relevant to the facts in issue, and to relate that evidence to the factual issues in dispute.[13] However in R v Zilm[14] Eames JA recognised that:

the extent to which evidence will need to be summarised will depend on a range of factors, including the duration of the trial, the importance of the evidence of a witness to the issues in the case, the complexity of the evidence, the lapse of time between the giving of the evidence and the jury’s deliberations, and the comprehensiveness of the addresses of counsel. In some instances the jury will need to be reminded of substantial portions of the transcript of evidence of a witness, but other witnesses may merit only a brief summary, if any reference at all.[15]

[13]R v AJS (2005) 12 VR 563, 577 [55] (Maxwell P, Nettle JA and Redlich AJA).

[14](2006) 14 VR 11.

[15]Ibid, 29–30 [79] (citations omitted).

So far as the failure to summarise the arguments of the parties is concerned, in R v Sermet Demiri,[16] Redlich AJA (as he then was)[17] commented as follows:

The failure to summarise the arguments of the parties will frequently be viewed as a deficiency. But there is not, nor can there be, an inflexible rule as to when a failure to do so will give rise to a miscarriage of justice. Where it is not done the obligation to refer to the essential features of the defence, and the evidence which relates to it, assumes even greater importance in the charge. In Domican v. R. the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:
‘ … [T]he requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it ‘is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities’. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.’[18]
[16][2006] VSCA 64; BC200601342.
[17]With whom Maxwell P and Buchanan JA agreed.
[18]R v Sermet Demiri [2006] VSCA 64; BC200601342 [26] (citations omitted).

Conclusion on ground 3(a)

The Crown and defence cases raised a number of legal issues, which his Honour explained to the jury. The facts in dispute were not complex. The questions which the jury asked his Honour during the course of his charge showed that they understood the facts in dispute and wanted guidance on their legal significance.[19] Defence counsel did not take exception to the charge on the basis that his Honour had inadequately summarised the evidence or the defence case. In my opinion ground 3(a) is not made out.
[19]The jury questions raised on appeal concerned the following matters: whether a person could be lawfully arrested on the basis of an Intergraph report alone; the circumstances in which an arrest might be lawful, notwithstanding that the arrestee had not been informed that they were being arrested or of the reason for the arrest; whether the arrestee had to hear that he was being arrested in order for the arrest to be lawful; and whether the evidence of a police officer could (in the absence of contrary evidence) be proof beyond reasonable doubt of the lawfulness of an arrest.

Ground 3(b)

The jury retired to consider its verdict at 11.30 am on 24 August 2007. On 27 August, when it had not reached a verdict, the foreman told his Honour that they ‘were looking to understand their notes of the encounter between the police and Mr De Simone before the alleged arrest and wanted to hear transcripts of the evidence of witnesses’. His Honour said that the transcript would be provided. A juror then told his Honour that he wanted to hear the evidence ‘from the people independent to that encounter, not Mr De Simone’s’. His Honour confirmed that the juror ‘[wanted the evidence of ] everyone … Mr Denyer, Mr Balkan, Mr Fenandez, Mr Baynes, Mr O’Connell and Mr De Simone’ dealing with matters around the time of the alleged arrest. After the jury retired, defence counsel said that the jury had indicated the possibility of disagreement and asked his Honour to give a perseverance direction. His Honour said that he was contemplating doing so.

Before the requested part of the transcript had been read out the jury, his Honour was asked the following additional jury question:

[i]n the issue of lawful arrest: is police statement under oath sufficient to provide proof beyond reasonable doubt? in the absence of evidence to the contrary?

His Honour then told counsel that he was inclined to give the jury a Black direction and tell them they could reach a majority verdict.[20] If they did not do so in a short space of time, he would bring them back and discharge them. Counsel for the Crown agreed with the proposed course of action but counsel for Mr De Simone said that the jury should receive the transcript as that was what they had asked for. His Honour suggested that the later question superseded the jury request for the transcript and that he should simply answer the question which had been put to him.
[20]Black v R (1993) 179 CLR 44. In that case, the High Court (Mason CJ, Brennan, Dawson and McHugh JJ) set out a model ‘perseverance’ direction to be given when a jury is experiencing difficulty reaching a verdict. The direction refers to each juror’s obligation to reach a true verdict according to the evidence, having listened to and objectively considered the views of fellow jurors. The jury is asked to re-examine the matters about which there is disagreement, mindful that a juror should only change his or her view if honestly persuaded of an alternative view. In R v Mackrae-Bathory [2006] VSCA 179; BC200606918, the Court (Chernov, Nettle and Neave JJA) stated, [58] that the giving of a Black direction is a ‘precondition to the acceptance of a majority verdict pursuant to s 46 of the Juries Act 2000’; see also R v Muto and Eastey [1996] 1 VR 336 at 342 and R v Di Mauro(2001) 3 VR 62, 64.

His Honour exhibited some impatience with the jury’s failure to reach agreement and counsel for Mr De Simone again repeated his view that the requested evidence should be read to the jury. He said that if his Honour considered that the jury was unable to reach a verdict, he should discharge it immediately.

The jury was then brought back into Court. His Honour said that they had asked him another question which seemed to him to be a restatement of, or to supersede, the request for repeating evidence relating to the issue of the lawfulness of the arrest. His Honour then said the following:

This case was fought on the basis that the police did and said certain things. The police have given evidence on oath that they did and said certain things. If you accept that evidence on oath and if it satisfies you beyond reasonable doubt, taking into account all the evidence, that a certain result should follow, then that’s the result that should follow. If you are not satisfied beyond reasonable doubt that certain things were said and certain things were done, then you are not satisfied beyond reasonable doubt that the arrest was lawful. Only one conclusion follows from that. It is as simple as that.
There’s no point in reading evidence to you backwards and forwards, or answering questions like. ‘Does such and such provide proof beyond reasonable doubt ?’ I can’t tell you what will satisfy you beyond reasonable doubt. You tell me that you are satisfied beyond reasonable doubt by the evidence of something and therefore this follows, or you’re not, and therefore something else follows.

His Honour asked the jury to make a further attempt to reach a unanimous verdict but said he was now able to accept a majority verdict. The jury left the court at 2.37 pm on 27 August to further consider its verdict. A number of other questions were asked of his Honour and at 4.27 pm on that day the jury returned a unanimous verdict of not guilty on count 1 and guilty by majority on counts 2, 4 and 5.

Counsel’s submissions

Counsel for the applicant said that his Honour’s failure to have parts of the transcript read to the jury as they had requested had occasioned a miscarriage of justice. The respondent’s counsel contended that the jury’s request had been overtaken by the events that followed and that his Honour had acted properly in declining to reread the requested sections of the transcript to them.

Conclusion on ground 3(b)

I consider that his Honour’s failure to accede to the jury’s request, combined with his statement that ‘there’s no point in reading evidence to you backwards and forwards’ is likely to have discouraged some jurors from pursuing their original request to have parts of the transcript read to them. The jury members were thus placed under inappropriate pressure to reach a verdict, without satisfying themselves about matters which might have been resolved, had they heard the requested sections of transcript. This approach also deprived the juror or jurors who were not convinced beyond reasonable doubt of Mr De Simone’s guilt of the opportunity to rely on passages in the transcript to persuade other members of the jury to their views. His Honour was not entitled to assume that the request for the transcript had been superseded by the subsequent jury question, without confirming that the jury no longer needed the transcript. In my opinion, his Honour’s failure to satisfy the jury request was therefore productive of a miscarriage of justice.

As I have found that grounds 2A(a) and (b) and 3(b) are made out, it is unnecessary to discuss the remaining grounds of appeal.

Retrial or verdict of acquittal

When the Court allows an appeal against conviction it has a broad discretion as to whether to order a re-trial or direct a verdict of acquittal.[21] In DPP (Nauru) v Fowler[22] the High Court (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ) established a two-stage test for determining how to exercise this discretion:

[T]he Court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case … Then the Court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.[23]

[21]R v De’Zilwa (2002) 5 VR 408, 424 (Charles JA, with whom Ormiston JA and O’Bryan AJA agreed).

[22](1984) 154 CLR 627.

[23]Ibid 630.

In Dyers v R,[24] Kirby J declined to set out fixed rules governing the exercise of the discretion. Instead, his Honour referred to a number of instances in which the High Court had not ordered a re-trial, including:

where the length of time that has elapsed since the events giving rise to the charges is great. That consideration, together with others, may be determinative against an order for a new trial.[25]

[24](2002) 210 CLR 285, 313 [80].

[25]Ibid 314.

Although I consider that there was evidence on which a jury could have convicted Mr De Simone, in the particular circumstances of this case I would direct a verdict of acquittal, rather than remitting the matter for retrial. I am satisfied that, under the second limb of the test in DPP (Nauru) v Fowler, it would be unjust to require the applicant to stand trial again, having regard to the time that has passed since the events in issue and concerns regarding the ability of witnesses to give reliable evidence regarding those events.

The alleged events occurred four years ago. At the time of the trial one of the witnesses, Mr Tsegaselassie, could no longer be found and a number of the witnesses had difficulty recalling the events of 21 September 2004. It is likely that the memory of witnesses will have declined further in the period between the trial and the hearing of the appeal. In these circumstances, it would be inappropriate to remit the matter for retrial.

For these reasons I would grant the application for leave to appeal against conviction, allow the appeal and direct that a verdict of acquittal be entered on counts 2, 4 and 5.

WEINBERG JA:

I have had the advantage of reading in draft the reasons for judgment prepared by Neave JA. I agree with her Honour that the applicant should be granted leave to appeal, and that the appeal should be allowed. I also agree that the public interest would not be served, in the particular circumstances of this case, by ordering a new trial. That leads to the conclusion that a verdict of acquittal should be entered on all counts.

My reasons for allowing the appeal differ in some respects from those of Neave JA. I consider that ground 3(b) is made out, and for that reason alone, the appeal must succeed.

The jury had been deliberating for several days, and had been unable to reach a verdict, when the foreman of the jury told the trial judge that they ‘were looking to understand their notes of the encounter between the police and Mr De Simone before the alleged arrest and wanted to hear transcripts of the evidence of witnesses’. His Honour told them that the transcript would be provided. A juror next clarified the request by informing the judge that they wanted to hear the evidence ‘from the people independent to that encounter, not Mr De Simone’s’. The trial judge then confirmed that the juror wanted the transcript of the evidence of everyone connected with the alleged arrest.

As Neave JA has noted, after the jury retired but before any steps were taken to provide them with the transcript that they had sought, the question of a Black direction was raised.[26] The trial judge indicated that he was contemplating giving such a direction.
[26]Black v R (1993) 179 CLR 44.

The next thing that happened was that the jury asked an additional question concerning the weight to be given to police evidence on oath, and whether that could provide proof beyond reasonable doubt.

By this stage, his Honour was plainly becoming impatient with the slow progress of the jury deliberations. He told counsel that he was minded to give the jury a Black direction and also tell them that they could now reach a majority verdict.[27] The prosecutor agreed with that proposed course but counsel for the applicant did not. He submitted that the jury should first be provided with the transcript that they had requested.
[27]See s 46 of the Juries Act 2000.

The trial judge determined that the later question asked by the jury had superseded their earlier request for transcript. He decided that he should simply answer that later question and not provide the transcript. He did so in the face of a further submission by the applicant’s counsel that the requested evidence should still be provided to the jury.

What followed is set out in [81] of Neave JA’s judgment. The trial judge informed the jury that he regarded their later question as having superseded their request for transcript. Importantly, he added:

There’s no point in reading evidence to you backwards and forwards …

In my view, his Honour’s entire approach to this issue led to a miscarriage of justice. There was nothing to suggest that the jury’s request for transcript had been overtaken by their later question, which, it will be recalled, simply concerned the weight to be given to a police statement under oath. The two matters were separate and distinct. His Honour’s assumption that the jury had, for whatever reason, lost interest in having the transcript provided to them was unwarranted. The better course would have been to ask the jury whether, having regard to their later question, they still wished to have the transcript made available to them.

I agree with Neave JA that his Honour’s failure to accede to the jury’s request, coupled with his dismissive statement that there was no point in reading evidence to them ‘backwards and forwards’, may have discouraged some jurors from pursuing their original request. The jury were therefore put under significant pressure to reach a verdict without satisfying themselves about matters which seemed important to them and were, after all, pivotal to this case.

I also agree with Neave JA, for the reasons that her Honour gives, that grounds 2A(c) and 3(a) are not made out.

I would not, however, join with Neave JA in upholding ground 2A(a). In my view, the trial judge’s direction to the jury, in answer to their question whether the Intergraph report provided a sufficient basis for an arrest, namely, ‘yes, depending’ (together with a detailed explanation of what was meant by that answer) was appropriate in the particular circumstances of this case.

Neave JA has concluded that the Crown was not entitled to rely upon the Intergraph report as the basis for any reasonable belief on the part of the police that the applicant had committed the offence of theft. She relies, in part, upon the fact that the Crown case was that the two police officers had relied on their enquiries in the shopping plaza, as well as the Intergraph report, as the bases for forming a reasonable belief that the applicant had committed an indictable offence.

Her Honour reasons, therefore, that the trial judge should have told the jury that if they were not satisfied beyond reasonable doubt that Constables Baynes and O’Connell had spoken to Coles staff, there was an insufficient basis on which they could have formed that belief. Instead, the trial judge’s answer to the jury question left open the possibility that the jury might have taken the view that the Intergraph report was sufficient, standing alone, to provide the basis for the applicant’s arrest.

In my view, the Crown’s submission regarding this matter should be accepted. The jury’s question about Intergraph was cast in the most general of terms. It was phrased in such a way as to invite precisely the reply that his Honour gave.

Information provided by Intergraph might, or might not, in any given case, be sufficient to ground a reasonable belief of the kind required to justify an arrest. It would depend upon what that information contained. That was what his Honour told the jury in answer to their question.

I accept, of course, that his Honour’s response to the question asked by the jury was given in circumstances where there was a live issue as to whether the police were being truthful when they said that they had received some additional information from the supermarket staff after they entered the shopping mall. Nonetheless, the ultimate question to be determined was whether the police had the requisite belief, as they claimed, regarding the applicant’s involvement in unlawful conduct, or whether there was a reasonable doubt about that matter.

It must be remembered that according to Constable Baynes, the information that he and Constable O’Connell had received via Intergraph was that ‘a shoplifter [was] being aggressive at the Coles supermarket’. It may be that this information conveyed not merely an allegation of theft but also perhaps of some level of violence. It does not follow that there was insufficient material contained therein to allow a reasonable belief to be formed that a theft had been committed.

The police claimed to have been given some additional information by supermarket staff when they attended. None of the staff who gave evidence had any particular recollection of what might have been said to the police upon their arrival. That allowed the applicant to mount a serious challenge to the credibility of the police regarding that supposed additional information.

Nonetheless, it is patently clear that someone must have said something to the police to cause them to approach the applicant who, by that stage, had moved into the car park. In other words, some member of the supermarket staff, or some bystander, must have identified the applicant as the person who was the subject of the Intergraph report.

I see little difference between an identified person having described the applicant as a ‘shoplifter’ who was being aggressive and substantially the same information having been conveyed over the Intergraph. It is true that the Intergraph report did not purport to identify the applicant as the alleged offender. However, that is of no consequence given that someone must have pointed him out to the police upon their arrival.

I am unable, with great respect, to accept Neave JA’s conclusion that the Intergraph message in this case could only have given the police the basis for a ‘reasonable suspicion’ that the applicant had committed an offence, but not the basis for a ‘reasonable belief’ that he had done so. In the general context of the evidence taken as a whole, it could have done both.

If I am wrong in my overall assessment of this matter, I would still say that the answer given by the trial judge to the question asked by the jury was wholly innocuous. In my opinion, it did not give rise to a miscarriage of justice. For that reason, I would not uphold ground 2A(a).

Neave JA also indicates that, although it is unnecessary to reach a final conclusion in relation to ground 2A(b), she is inclined to the view that the trial judge’s direction to the jury regarding ‘hearability’ of the words of arrest may not have been sufficient for the purpose of the conviction on the count of intentionally causing injury, count 2. Her Honour distinguishes between that count and the two counts of resisting the police in the execution of their duty, counts 4 and 5.

I agree, with respect, with her Honour’s analysis in relation to counts 4 and 5. However, I wish to avoid stating any conclusion as to whether a direction such as that given in this case, which focuses upon whether the words of arrest were reasonably capable of being heard, as distinct from whether those words were in fact heard, is necessarily inadequate in the context of a charge such as that brought under count 2.

To her Honour’s analysis of the relevant authorities, I would add the decision of the New South Wales Court of Appeal in State of New South Wales v Delly.[28] In that case, it was held that the exception to the requirement that a person, when arrested, should be informed of the reason why they have been arrested, unless the circumstances are such that they must know the general nature of the alleged offence for which they have been detained, did not apply in the particular circumstances there present.
[28](2007) 70 NSWLR 125.

In the present case, the applicant had been accused of shoplifting by the supermarket staff. The police were called. He must have known that at least one reason why they wanted to speak to him was because of the allegation that had been made that he had taken the ice cream without paying for it. To what extent, if at all, it was necessary in those particular circumstances to identify with precision the reason why he was being detained is something of an open question. This case is not like Delly, where there was genuine doubt on the part of the person being arrested as to why she was being taken into custody.

For the reasons set out above, I join in the orders proposed. I would add only one comment. Although the applicant is to be acquitted on the counts set out, this judgment is not to be understood as any finding on the merits. The only reason that I would not order a new trial is because it would be a scandalous waste of public money to do so. On any view, and on the applicant’s own version of what took place, he behaved in an extraordinarily foolish manner. The exercise has been costly to him and to the community as a whole.

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R v De Simone [2008] VSCA 216

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[2008] VSCA 216

31 October 2008