R v Dolheguy
[2001] VSCA 50
•27 April 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 222 of 1999
| THE QUEEN |
| v. |
| DARREN WILLIAM DOLHEGUY |
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JUDGES: | PHILLIPS, C.J., BROOKING and ORMISTON, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 7 and 8 February 2001 | |
DATE OF JUDGMENT: | 27 April 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 50 | |
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CRIMINAL LAW: Appeal against conviction – Prosecution case of murder put in several different ways – Allegation of unsafe and unsatisfactory verdict – Independent review of evidence conducted – Weissensteiner v. R. (1993) 178 C.L.R. 217 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Mr P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr O.P. Holdenson, Q.C. | Ronald V. Tait Solicitors |
PHILLIPS, C.J.:
The applicant, who is aged 24, was presented with one Comensoli in the Supreme Court on 26 July 1999 upon a presentment containing four counts. Count 1 charged unlawful damage caused to a building named the Bedrock Motel at Braybrook owned by a man named Francis George Farrugia. Counts 2 and 3 charged the intentional causing of serious injury to Farrugia, and alternatively, the reckless causing of serious injury to him. Count 4 charged his murder. These offences allegedly occurred at Braybrook on 28 February, 2 March and 3 March 1998 respectively.
The applicant pleaded not guilty to counts 1, 2 and 4 and guilty to count 3. Comensoli pleaded guilty to counts 1 and 3, not guilty to count 2 and not guilty of murder but guilty of manslaughter in relation to count 4.
After a trial of a number of days during which neither accused gave evidence or called evidence, on 6 August 1999 the jury convicted both accused of count 1, count 2 and count 4. No verdict was taken on count 3 which had been pleaded in the alternative to count 2. Comensoli was later sentenced to a total effective sentence of sixteen and a half years’ imprisonment and a non-parole period of eleven and a half years was fixed. He lodged notice of appeal against his conviction but later abandoned that application.
The applicant admitted being placed on recognizance upon an assault by kicking charge at the Children’s Court in Melbourne in April 1993 and convictions for discharging a missile and causing wilful damage to property for which he was fined a total of $750 in the Magistrates’ Court at Stawell in January 1996.
After hearing a plea for leniency the learned judge sentenced him to be imprisoned for a total effective term of 15 years’. A non-parole period of ten years’ was fixed. The applicant later lodged notice of application for leave to appeal against conviction pleading the sole ground that the verdict on count 4 was unsafe and unsatisfactory.
It is now necessary to set out in summary form the evidence adduced at the applicant’s trial. By way of background, in about 1996 the deceased Frank Farrugia (born 9 August 1955) purchased some housing commission premises at 339 Ballarat Road, Braybrook, and converted them into a Motel with separate rooms inside. This became known as the Bedrock Motel. Frank Farrugia owned and operated it. He lived there with his son Nathan. There are approximately 6 bedrooms and people stayed there from time to time.
On the night of Saturday 28 February 1998, Teresa Carminati, the sister-in-law of the deceased, heard four bangs from the backyard of her house. They sounded like a gun firing. Her house was positioned approximately 500 metres from the Bedrock Motel.
Wayne Lewis gave evidence that on the Sunday night prior to the deceased’s death, he found a shot-gun cartridge outside the Bedrock Motel. On the following Tuesday, he handed the cartridge to the police who were at the scene at the Motel
The statement of Nathan Farrugia, the son of the deceased was, by consent, read to the Jury. In that statement he said that in March 1998 he was 12 years of age and living with his father. They lived at the Bedrock Motel and had been there for approximately two years. They slept head to tail on a mattress on the floor in Room 4.
On the morning of Monday, 2 March 1998, his father went out at approximately 8:15 a.m. and was away for about five to ten minutes, returning with cuts and bruises on his face. Nathan Farrugia stated that he left for school shortly after, returning to the motel at about 3:20 p.m. He then went to the house where his grandfather and an aunt lived.
Daryl Coswello gave evidence that he was a carpenter working on homes belonging to the Ministry of Housing in Ballarat Road, Braybrook in early 1998.
On Monday, 2 March 1998, he arrived for work at about 7:20 a.m. About ten minutes later he was near 307 Ballarat Road when he saw a man, who looked to be in his mid 30’s, walk out of that house. He was followed by two other men, who looked to be in their mid 20’s. One was taller than the other.
As the men were leaving the house, the witness heard someone in the house say, “We’re not fucking dogs.” A fight erupted between the older man and the shorter of two younger men. There were a couple of punches thrown and they went to the ground. In cross-examination Coswello agreed that the fight consisted of wrestling on the ground for a short time. The taller man then came up and began kicking the older man above the shoulders repeatedly – some 6 to 8 times. Coswello heard no words exchanged between the two attackers.
The older man was bleeding. He got up and walked out of the front driveway. As this was happening Coswello heard Janice Dolheguy (the applicant’s mother) call out from inside the house, “Fuck off out of Braybrook, Frank.” The two younger men went back into the house.
Justen Eischeid gave evidence that he is a plasterer. In February and March 1998 he had been working on houses in Ballarat Road. He met the applicant and his mother through that work.
On Monday 2 March 1998, shortly after 8:00 a.m., Eischeid pulled up in his vehicle outside 315 Ballarat Road, to speak to another worker. His attention was drawn to what looked like blood on the footpath, moving in an east/west direction. He stated that Darryl Coswello came up to and spoke to him also.
Eischeid said that when they were talking, the applicant came out of the house at 307 Ballarat Road and spoke to them. The applicant asked if they were coming to work at number 307 Ballarat Road that day, as his mother wanted the work completed. The applicant referred to a fight that had taken place with someone and was concerned that it had scared the workers away. The fight, he said, was about the selling of “smack” and, as he spoke, the applicant indicated that the person involved had come from premises to the west. He added that he did not want that happening around his young brother and other young children in the area, saying, “that if it kept going, he was going to sort this other guy out”. He also said he had put a shell through the man’s window the night before with an automatic shotgun he had at home.
In 1998 Alfredo Trigueros was minding his mother’s house in Menzies Street, around the corner from Ballarat Road, Braybrook. While he was living at that house with his wife, Karolina, and family, they met various members of the Dolheguy family. The witness visited them regularly, more than once or twice a week. He also met Comensoli, or “Commo”. He had heard of the name Frank Farrugia. He was familiar with the Bedrock Motel, for a friend named “Nasser” lived there.
The witness stated that he could remember the time when the deceased was killed. On the Monday afternoon, he had visited the applicant, who told him that he had been in a fight with Farrugia.
Another witness, Teresa Carminati, stated that on Monday, 2 March 1998, in the mid-morning, she went into the lounge room of her home and found Frank Farrugia sitting on the couch. He was bloodied and his nose was deformed. His head was “very out of shape”. She took him to see a Doctor Martyn at the Western Region Health Care Centre, Footscray.
Doctor Gavan Martyn gave evidence that he treated the deceased on 2 March 1998. He had been assaulted earlier that day and was suffering from an apparent broken nose, swelling of the left check bone and nasal bone and bruising to the head. He arranged for X-rays to be done and referred the deceased to a specialist who saw him later that day when he was accompanied by Teresa Carminati. The witness did not describe the results of the X-rays.
Teresa Carminati’s son, Max, gave evidence that he returned home from work at approximately 5:30 p.m. and saw the injuries to the deceased’s head, including swelling of the face. Teresa Carminati stated that the deceased left with his son, Nathan, at approximately 6:00 p.m.
At approximately 7:00 p.m., according to the statement of Nathan Farrugia, he left Teresa Carminati’s house and went with his father to the home of a friend.
Robyn Bate, the mother of a school friend of Nathan Farrugia, stated that on 2 March 1998 Frank Farrugia came to her place at approximately 7:30 p.m. He had a bruised face and left eye and a swollen head. Following her advice, he went to the Sunshine Police, taking Nathan with him.
Senior Constable Leigh O’Connell was on duty at the Sunshine Police Station on the evening of 2 March 1998. At about 9:00 p.m. a man going by the name of Frank Farrugia attended at the Police Station. He had facial injuries, including bruised eyes and a swollen nose.
Robyn Bate also gave evidence that Farrugia and his son arrived back at her house at approximately 9:15 p.m. He stayed there until 11:00 p.m. and then left, taking his son with him, after having a heated conversation on his mobile telephone.
Nathan Farrugia stated that he and his father stayed with Robyn Bate until approximately 10:30 p.m., when they returned to the Bedrock Motel and he went to sleep.
Alfredo Trigueros gave evidence that the applicant returned to his home on the Monday night. His wife was also present at the time. The applicant was in a rush and told him they were going to the motel to have a fight with Frank. Karolina Trigueros said that the applicant asked her husband if he wanted to go with him to start a fight with Frank - to have a punch-on with him. Alfredo Trigueros did not want to go with the applicant and he left.
Another witness, Donna Stewart, was friendly with the deceased and a man named "Mick", a resident at the Bedrock Motel. She stated that at approximately 12.30 a.m., on Tuesday, 3 March 1998, she finished work and went to the motel and parked her car in the font yard of the premises, arriving at about 1:00 a.m. The lights were all out and the doors were locked. She knocked on the front door, on Mick’s bedroom window around the side of the premises and on the backdoor. There was no response. A number of men, approximately five, came up to her. She was asked if she was there to score heroin. She replied that she was there to get "choof", meaning marijuana. She stated that one of the men was wearing overalls. A tall man carried a long gun covered by a dark coloured towel. She could only see the butt of the gun. She was told that the place was going to be closed down and turned into an “whorehouse”. She was told that “the place was going to be shot up”.
Believing that no one was home, Stewart went off to move her car. As she was doing so, she heard two loud bangs; one of which may have been a shot and one of which may have been the sound of a door being kicked in. She then saw the men, who had been at the backdoor of the motel, run past and get into a light blue Holden. The car screeched off with no lights on, going up Commerce Street and turning into Carlton Street, out of her sight. Donna Stewart then entered the Motel via the backdoor, which was already opened. The lights in the house were now on.
Nathan Farrugia stated that he was awakened from sleep by his father screaming. His father said he had been shot. The bedroom light was on and his father was standing in front of the bedroom door at the time. The deceased got his mobile phone and called the police and ambulance. After that, Nathan heard what sounded like nearby shots. Nathan was talking on the phone to the police when Donna Stewart walked into the motel.
As she entered the motel, Donna Stewart noticed that the door to Mick’s room was open and the lights were on. She turned left and saw the deceased standing, holding his stomach. He was standing crouched outside the door to his room. Nathan was on the telephone, hysterical. She took the phone and spoke with the “000” operator. She made the deceased lie on his bed, with his legs raised and pressure applied to the wounds.
On 19 March 1998, at the St. Kilda Road Police Complex, Donna Stewart identified a Holden HT vehicle, from a number of vehicles, as being the same as the Holden the men were driving that night. Ms. Stewart identified Comensoli as the tall man carrying the gun, but could not identify the applicant “as being present”.
Antonia Juratovac gave evidence that on 2 to 3 March 1998 she was working at Speedy's Pizza in Ballarat Road, Braybrook. She went outside for a break at approximately 1:00 a.m. From outside the Pizza Shop, Juratovac heard a couple of bangs, like shots, which came from the west - from the direction of the Bedrock Motel. Straight after, she saw a dark blue Holden speeding towards and past the pizza shop. The driver did a U-turn and went back past the motel to 307 Ballarat Road and stopped. A man got out of the passenger's side of the car and ran into the house. He was of medium height to tall, had short hair and was wearing white shorts, a dark top and runners.
Later that night, as she was going to bed, Karolina Trigueros heard one or two loud sounds, like a shotgun, from inside her house. Her husband went outside to investigate. Alfredo Trigueros stated that he went out to the front of his house and there were people about.
Karolina Trigueros stated that approximately one and a half to two hours later, she was woken by knocking. The applicant was let into the house. He was quiet for a while and looked pale, shaken up and distressed. Her husband stated that the applicant looked nervous, shocked and somewhat distressed. After some time, he slowly began to tell Mr Trigueros that “Commo” had shot Frank. Mr and Mrs Trigueros told him to go home, but he was too scared to go home because the police would be there. Not much other conversation took place. They went to bed and the applicant stayed. When Karolina Trigueros left for school the following morning, he was still present. Alfredo Trigueros stated that the applicant went home first thing in the morning.
At about 1:25 a.m. on 3 March 1998, Senior Sergeant Douglas Tanner and Senior Constable John Hageman went to the Bedrock Motel and spoke with the deceased, who was lying on the floor under a doona.
The door to Frank Farrugia’s room had a hole in it. Senior Sergeant Tanner coordinated the crime scene and commenced a Crime Scene log.
James Spanswick, an Ambulance Paramedic attended to the deceased at the Bedrock Motel. He and another officer arrived at approximately 1.26 a.m. and found the deceased conscious and in pain. He had a broad pellet wound across the abdomen with splinters of wood, consistent with being shot through a door. There was minimal external bleeding. The witness observed a hole in the bedroom door. They administered morphine. The ambulance arrived at the Western Hospital, Footscray, by 1.48 am.
Detective Senior Constable Peter Malley was a member of the Victorian Police Force in March 1998. On 3 March 1998, in company with a Senior Constable Godfrey, at about 2:30 a.m. he went to the Western Hospital where he spoke with the deceased.
Dr. Rodney Jacobs, a Surgeon at the Western Hospital, carried out an operation on the deceased in the early hours of 3 March 1998. There were multiple pellet marks in the abdomen, the lower chest and isolated wounds on both arms. There was damage to the liver, the stomach and the large and small bowel. At approximately 10.30 am, at the end of the operation, the deceased died.
On 3 March 1998 at about 1:33 a.m., Detective Sergeant Andrew Todorov attended the Bedrock Motel and noted two holes in the door to Room 4, about 6 inches and 5 feet, respectively, from the ground. He observed small fragments of timber around the door and in the room.
On 3 March 1998 at about 11:45 a.m., Senior Sergeant Gavan Ryan attended at the Bedrock Motel and that day arranged for some shotgun pellets to be examined by Senior Constable Henry Glaser, a Firearm Examiner with the Victoria Forensic Science Centre. Senior Constable Glaser attended at the Bedrock Motel. Glaser examined damage caused by pellets from a shotgun in several places around the motel. A windowpane near the front entrance was missing, and there was a spread of shot damage to the wall below the window frame, which had been caused by a discharge of a shotgun from the direction of Ballarat Road. Lower windowpanes were missing from other windows facing Ballarat Road, and there was some shot damage to the frames and the walls below. Shot was recovered from the putty holding some frames together. The damage had been caused by a discharge of a shotgun at an angle of about 45 degrees from the direction of intersection of Ballarat and Commerce Roads. A letterbox was also damaged by shot.
Senior Constable Glaser observed that the plywood door to Room 4 had been damaged in about the middle. There was a hole consistent with a shotgun blast, projecting inwards into the room, and damage consistent with kicking. Inside the room, there was much splintered wood. He also examined pellet damage to a wardrobe in the room. He collected a fired wad from the floor behind the door.
Senior Constable Glaser collected shot from various places, including from the autopsy. All the shot collected was No.4 shot. He also collected the cartridge cases. All but one of the cartridge cases had been fired from the same firearm. As to the remaining cartridge, there were not enough characteristics viewable by microscope to make any conclusive findings about whether it had been fired from the same firearm as the other cartridge cases.
Detective Senior Constable Kerin Moloney attended at an address in West Sunshine where he located a blue Holden. Although the number plates had been removed, the registration label stated the number CZN395. Moloney was given the keys to the Holden, which was said to be owned by an Aaron Rainbow. Detective Senior Constable Maloney arranged for the car to be towed to the Victoria Police Centre where it was secured.
Doctor Stephen Cordner, a Forensic Pathologist, gave evidence at the applicants’ trial in lieu of the autopsy Pathologist, Doctor Michael Burke, of the Coronial Services Centre who was apparently unavailable to give evidence.
The deceased had suffered injuries to the head, including two black eyes, abrasions over the bridge of the nose and pattern bruising, or lines of bruising, to the left forehead and to the right side of the top of his head. The pattern bruising was consistent with him being kicked by someone wearing running shoes within 24 hours of the time of death. There was also bruising to the inside of the upper lip.
There were multiple shotgun pellet wounds to the abdomen and chest, with a shotgun wound of entry to the upper and slightly left abdomen. X-rays of the deceased showed that there were still a large number of shot widely scattered throughout the abdomen. Pellet wounds were observed on his lower right forearm, consistent with it being held by the victim, across his body, as a shot was fired. He suffered damage to the stomach, chest, liver and the large and small bowel. The cause of death was a shotgun injury to the abdomen.
Mr Harold Wrobel, a Forensic Officer with the Victoria Forensic Science Centre gave evidence that he had extensive experience in the fields of microscopy and gunshot residues. He took samples from various places in the blue Holden that was seized. He located a particle of gunshot residue on the interior of the passenger's side front door, 100 mm below the window. A shotgun cartridge was located in the car.
Detective Senior Constable Maloney executed some search warrants and seized a pair of blue Yakka overalls and blue and white North Melbourne Football Club doona in a shopping basket from an address in Braybrook.
Sergeant Paul Tremain gave evidence that on 3 March 1998, at about 11:45 a.m., along with other police officers, he went to the motel and was briefed by Detective Senior Sergeant Charlie Bezzina. At about 9:04 p.m. he executed a search warrant at 307 Ballarat Road and located Comensoli, who was wearing running shoes and a tracksuit. Police seized a red towel from the applicant’s bedroom. Tremain escorted Comensoli to the Sunshine CIB offices and commenced a tape-recorded interview. Comensoli was later charged with the murder of the deceased.
On 4 March 1998 Detective Senior Sergeant Charlie Bezzina spoke to the applicant at the Sunshine CIB offices and interviewed him that day on tape. At about 1:40 p.m., at the Homicide Squad offices, Senior Sergeant Gavan Ryan, with Senior Constable Tremain, took part in a video tape-recorded interview with the applicant. The interview was concluded at 6:45 p.m.
The applicant denied any involvement in the drive-by shooting on the Saturday night. In relation to the fight with the deceased on the Monday morning, the applicant admitted that he wrestled him on the lawn but stated that there was no blood and no injuries.
In the Record of Interview, the applicant said the door of Room 4 opened inwards and commented on the fact that the deceased did not bleed when he had been shot. He stated that a man named “Steve” brought the gun to his house that morning. He said that a man named “Aaron” was at the back door, that he remained in the car and heard a bang. He went home. Afterwards, he gave the gun to a friend and told him not to keep it. The applicant was also charged with the offence of murder.
From 5 March 1998 and following, Sergeant Paul Tremain and other police listened, via an authorised listening device, to conversations between the applicant and Comensoli, who were in custody. They had discussions about the Bedrock Motel being a smack house. Comensoli stated how he had told the police about the applicant’s involvement in the drive-by shoot out. The compact disk of the conversations was played to the jury, with a transcript provided as an aide-memoire.
I shall return later to the detail of these conversations.
I now turn to the arguments of counsel on this application. For the applicant, it was submitted (and not disputed by counsel for the respondent) that at the applicant’s trial the Crown had put its case on count 4 against the applicant in three different ways. It was contended (and again not disputed) that those ways were accurately set out in the charge of the learned trial judge to the jury. (Emphasis mine.) Before citing the relevant passages for the purpose of explaining the case and the ground pleaded, I desire to make the following comments. With the utmost respect to the learned trial judge, I do not regard the legal concepts therein as admirably expressed. There is some convolution and consequent difficulty of understanding. Still, no explicit challenge to the charge was made on this application. While no problem was created, I think, by his Honour’s use of the expression “joint criminal enterprise”, it should be said that the customary expression for it in this jurisdiction is “acting in concert”. Dealing with the matter of “joint criminal enterprise”, which was the first way the Crown put its case, his Honour said:
“The prosecution case as to the charge of murder as put to you by Mr Elston is that the death of the deceased was caused by the shotgun wound. Mr Elston says there is evidence which could lead to your finding that both accused were present, that the accused Comensoli was the perpetrator of the act which caused the death of the deceased, and that the accused Dolheguy should be held legally responsible for that death on one or other of the three bases of criminal responsibility. So, the prosecution case as to how the accused Dolheguy is liable, even though you were not satisfied that he was a perpetrator, is put in three different ways.
The prosecution case as to acting within the scope of the joint criminal enterprise is put shortly as follows. There was a joint criminal enterprise in that there was an understanding or arrangement between the two accused. The scope of the enterprise was to inflict really serious injury on Frank Farrugia, and the two accused were present and continuing to participate in the enterprise when the injuries were inflicted by an act of the accused Comensoli, and accordingly each is legally responsible for the effects of that act.” (393 – 394)
The learned judge then turned to the second way in which the Crown put its case.
“The prosecution alternative case is as to acting outside the scope of a joint criminal enterprise, and put shortly that alternative case is that there was a joint criminal enterprise in that there was an understanding or arrangement between the two accused. The scope of the enterprise was to inflict injury by an unlawful assault or assaults. It was within the contemplation of the individual accused as a possible incident of the enterprise that what did occur, namely the firing of the shotgun causing the death of Farrugia, might occur. And each of the accused was present, and continuing to participate in the enterprise when the injuries were inflicted by the act of the accused Comensoli. Accordingly, each is legally responsible for the effects of that act.” (394)
His Honour later returned to the subject:
“I move then from acting within the scope of a joint criminal enterprise to consider the position of the legal responsibility of an individual for a crime which is outside the scope of the joint criminal enterprise.
Where an individual does not agree to the commission of a crime which is actually committed so that that crime is outside the scope of the joint criminal enterprise but it is within his individual contemplation that the crime is a possible incident of the enterprise, and he continues to participate in the agreed enterprise, that individual is responsible for that crime.
Explaining to a jury these principles as to criminal responsibility is not easy, and my reading and experience suggests that after explaining the principles to be applied it helps to give an appropriate example. The trouble is that some examples are too unlike the facts of the case before the court to be particularly helpful. However, if the facts are changed to make them more relevant, that might suggest that the judge is trying to send through the example a message to the jury as to how the judge thinks certain findings should be made. That just makes it difficult to get the right kind of example. Bearing those problems in mind I will give you this example.
Suppose that you have to assess the position revealed by security cameras which cover a robbery at a convenience store. A car arrives with three men. The driver stays in the car. One passenger gets out of the car carrying a bag. The other passenger also gets out of the car, he then pulls out and opens a flick-knife and motions with it at the shopkeeper. The man with the bag scoops cash from the cash register into the bag. The two intruders leave. The man with the knife closes it and puts it in his pocket. The shopkeeper then runs out and goes to tackle the man with the bag. The man with the bag gets into the car. The driver gets out of the car and punches the shopkeeper in the head several times. The shopkeeper falls and his head strikes the kerb. The men leave in the car. The shopkeeper dies of head injuries. Who and on what basis should be held responsible for the armed robbery? Who and on what basis should be held responsible for the death of the shopkeeper?
Each of the three men could be found guilty of armed robbery. That is so, although only one was armed and only one took the money. That is so because if as could reasonably be inferred the three men were acting within the scope of joint criminal enterprise that was agreed between them that they would commit an armed robbery, they would all be guilty of that offence. It would not matter that each played a different part in the commission of the offence, whether as a driver, a standover man or a bagman.
However, more difficult questions arise as to who and on what basis each of the three men could be found legally responsible for the death of the shopkeeper. A starting point would be to consider whether it is possible to make a finding as to which act or acts caused the death. If that could be done at least it would enable the perpetrator to be identified, but in my example it would not be possible to do so.
When that is so it may be appropriate to consider the position as to joint criminal enterprise, first as to what was within the scope of the enterprise and, secondly, as to what was outside the scope of the enterprise.
It may be easy to infer in my example that there was an understanding or arrangement as to a joint criminal enterprise. You might infer that the scope of the enterprise was to carry out an armed robbery. You might infer that it was a planned enterprise, not a spontaneous one. However, you could vary the facts and it could be spontaneous.
Say the three men come in looking as if their only need was to buy cigarettes, but when they came to pay the shopkeeper in front of them counted out hundred dollar bills in the cash register. Nothing might be said, but the three might look at each other and then the action happened. In such different circumstances it might not be difficult to infer that there was a spontaneous arrangement for a joint criminal enterprise.
Even on my original example it could be found that there was a new enterprise involving only two of the three men as to how the shopkeeper was to be dealt with. That inference might be drawn based upon how the driver and the man with the knife reacted when the shopkeeper came out of the shop.
If there was a separate joint criminal enterprise, and the man with the bag was not a party to it, he could not be held responsible for what was done as part of that separate joint criminal enterprise. He could be held responsible for armed robbery, but not for murder. I have said before, in my original example, that it may not be difficult to find that the scope of the joint criminal enterprise was to carry out an armed robbery, but does that scope mean as to a death occurring in carrying out the enterprise? Can you infer that the inflicting of really serious injury, potentially causing death, was fairly within the scope of an armed robbery enterprise? If it was within the scope of a joint criminal enterprise that really serious injury might be inflicted, all three men could be criminally responsible for the death. A further aspect of the analysis might involve you considering the position on the basis that what was done was outside the scope of the enterprise. That means looking separately at the subjective contemplation of each individual. Are you able to infer that that individual contemplated that the contingency which did actually occur, namely a killing, was a possible incident associated with the implementation of the joint criminal enterprise. If so, that individual continued to take part in the enterprise, he would be criminally responsible for the acts of the perpetrator of that injury.
I turn back from my example to explain, in relation to this case, what the position is as to the state of mind which must be established, as against a particular accused. To establish the requisite intention for murder, it will be necessary for the Prosecution to establish, beyond reasonable doubt, where the individual accused is the perpetrator of the act causing death, an intention to inflict really serious injury or that the perpetrator foresaw that really serious injury was a probable result of acting as he did, and he took the risk that it would result by acting so as to cause the death of the deceased. Next, where an individual is not the perpetrator of the act causing death, but is engaged with another in a joint criminal enterprise, and where the commission of an act or acts intended to inflict really serious injury is within the scope of the enterprise, the Prosecution must show that that individual had, with the other party to the enterprise, an intention to inflict really serious injury. Where an individual is not the perpetrator of the act causing death, but is engaged with another in a joint criminal enterprise, and where the commission of an act or acts causing death is outside the scope of the enterprise, the Prosecution must prove that that individual accused contemplated what, in fact, occurred, namely the death of a person, was a possible incident in the carrying out of the joint criminal enterprise. Putting that last alternative another way, and focusing here on the accused Dolheguy, did he contemplate that, in taking part in a joint criminal enterprise with the accused Comensoli, that Comensoli might fire a loaded gun with the intention of causing really serious injury.” (401-406)
“…It is important to bear in mind that that contemplation (as to what actually occurs as a possible incident of the joint criminal enterprise) must be in the course of the continuing joint criminal enterprise. In other words, it must still be on foot, and it is the subjective state of mind of the accused with which you are concerned when you consider where an action is taken by the perpetrator outside the scope, whether that action outside the scope of the joint criminal enterprise was contemplated as a possible incident of the enterprise.” (417-418)
His Honour then turned to the third way the Crown put its case, which the judge had in fact dealt with first.
“The Prosecution alternative case is to aiding and abetting and, put shortly, that is that the accused Comensoli was engaging in a criminal act. The accused Dolheguy took active steps to aid or encourage Comensoli. Dolheguy intended to give such aid or encouragement. Dolheguy knew all the essential facts which made what was done a crime and, accordingly, Dolheguy is legally responsible for the effects of what was done.
Let me come in more detail to explain the position as to those three alternatives, dealing first with the subject of aiding and abetting. A person may be responsible, as a secondary party, where that person aids or abets the perpetrator in the commission of the crime. It is, in some respects, more logical to deal with aiding and abetting after joint criminal enterprise, rather than before. I say that, having regard to the differences between aiding and abetting on the one hand, and acting in a joint criminal enterprise on the other. Let me oversimplify somewhat to make this point. For acting in a joint criminal enterprise, there must be an understanding or arrangement to be part of that enterprise. For aiding and abetting, there need not be such an understanding or arrangement. Let me illustrate that briefly and, perhaps, over simply. First, an aiding and abetting situation. Two men on a train are abused by a third. One says to the other, ’Hold my coat’. The speaker then assaults the third man, while the second man aids and abets that assault by holding the coat and stopping anyone coming close. Compare that aiding and abetting situation, where one man acts and the other helps, with the situation where both agree to act. For example, one man says, ‘Shall we punch up that guy’, and the other says, ‘Yes, let’s.’ The question of whether there is an agreement or understanding is crucial. With aiding and abetting, an understanding or arrangement need not be shown. For that reason, I propose to – I should deal with it later, but I am reversing the order because the principles as to aiding and abetting are simpler to explain in a situation like this than those of acting in a joint criminal enterprise, where you must deal with acts within the scope of the enterprise and outside the scope of the enterprise.
The first point I want to make as to aiding and abetting is that just to be present with a perpetrator of a crime when it is committed is not enough to make a man an aider and abetter of the perpetrator. With aiding and abetting, some active steps must be taken by the particular accused to assist or encourage the perpetrator before the other individual is legally responsible. I repeat that point in saying that mere presence at the commission of a crime is not sufficient to make an individual responsible as an aider and abetter. If that were not the case, persons who were standing by when a crime was committed, but were afraid to intervene, could be held responsible. The second point is that, for a particular accused to be held legally responsible as an aider and abetter, that accused must intend to be assisting, or encouraging the perpetrator. In other words, the individual must intentionally participate in the crime by lending assistance or encouragement, with such participation being intentionally aimed at the commission of the acts which make up the crime. In some situations, holding another person’s coat may be simply a polite thing to do, but it takes on a different character if the holder is intending to make it easier for someone to be involved in a fist fight. The third point is that, for a particular accused to be held responsible as an aider and abetter, that individual must know all the essential facts which make what was done a crime. Only where that is so could the individual be intentionally assisting or encouraging the perpetrator. That means that the individual must know of the existence of the state of mind of the perpetrator, which must be established to show that the crime was committed by the perpetrator. The fourth point is linked to the third, and I make it now separately, because of its later significance. And, as I will repeat later, the position is not the same with joint criminal enterprise. The point is that a secondary party cannot be held legally responsible for a different crime than the perpetrator whom the secondary party is assisting. An aider and abetter cannot be found legally responsible for manslaughter, while the perpetrator is guilty of murder, let alone the other way around. In an aiding and abetting situation, both can only be held responsible for the same crime.” (394-397) (This basis was referred to by counsel as the “aiding and abetting” basis.)
The central submission of counsel for the applicant was that, upon each of the three bases relied on by the prosecution and which were left to the jury in the charge, a jury could not be satisfied beyond reasonable doubt of the applicant’s guilt of murder upon the whole of the evidence. Accordingly, so the argument went, an independent assessment of the evidence by this Court would reveal this to be so. (See Jones v. R.[1], Cutter v. R.[2] and R. v. Cervelli[3].)
[1](1997) 191 CLR 439
[2](1997) 143 ALR 498
[3][1998] 3 V.R. 776
Counsel further submitted that this assessment ought to be undertaken in the light of the directions given to the jury by the learned judge.
In a helpful summary, the Court was taken to different areas of evidence upon which the Crown relied for a conviction on count 4.
The first of these areas related to evidence as to the conduct of the applicant on Monday 2 March, in particular:
*statements made by the applicant on the morning after the fight with the deceased relating to his views of the deceased’s conduct. (Evidence of J. M. Eischeid.)
*Statements made by the applicant evidencing an intent to go to the Bedrock Motel to have a “fight” or “punch on” with the deceased. (Evidence of A. and K. Trigueros.)
The second of these areas related to the conduct of persons immediately prior to the shooting of the deceased. (Evidence of D. Stewart.)
The third of these areas related to evidence of the appearance and conduct of the applicant subsequent to the shooting – that he was nervous, shocked, distressed, pale and shaken up. There was also his statement that Comensoli shot the deceased. (Evidence of A. and K. Trigueros.)
The fourth of these areas was evidence touching the circumstances which surrounded the shooting. This area included evidence of a number of statements made by the deceased to witnesses after the shooting, which evidence was admitted without objection at the trial. Thus, the deceased told a Dr Jacobs and a police officer, Malley, he had been shot at a range of some ten to 12 feet and through a door. There was evidence of a paramedic and police who attended of a hole in a bedroom door at the motel. This hole was measured by police officer Glaser who offered the opinion that it was consistent with the discharge of a shotgun inwards into the room from outside the room while the door was partly open.
The fifth of these areas consisted of the evidence of the conversations covertly tape-recorded between the applicant and Comensoli when in custody.
Before examining the detail of this last mentioned area, it is necessary – in order that aspects of those conversations may be properly appreciated – to look at the detail of incidents which occurred in the days prior to the shooting of the deceased.
The first of these incidents relates to the evening of 28 February. There was evidence of admissions made by the applicant to the witness Eischeid “I’ve got an auto shotgun at home and I put a shell through his window last night”. (85) (All shells recovered by the police, except one, were linked to the this shotgun.) There was also evidence that on that evening a variety of damage was occasioned to the motel building by shotgun pellets. Photographs 3, 9, 10, 11, 12 and 13 depict this. Photos 11 and 12, according to the evidence, reveal a spread of shot damage beginning at a distance of 954mm. from the ground and missing panes of glass from the windows. Photograph 3 depicts a window with a missing pane of glass described as “the last window to the right facing Ballarat Road” (138). Shot damage to the wall on the right side of this window started at a distance of 1,572 mm. from the ground. Photographs 9 and 10 show shot damage to a letterbox. Thus, the damage to the building encompassed its Ballarat Road frontage.
The second of these incidents concerns what counsel described as “the fight” which occurred early in the morning of Monday 2 March resulting in injury to the deceased. Dr Martyn, who examined the deceased on that date thought his nose was broken and there was swelling over the left cheekbone and the nasal bones and head bruises. Dr Cordner, who, by consent, interpreted the results of the post mortem, described the deceased as having black eyes on both sides and as exhibiting lines of bruising on both sides of the forehead and bruising to the inside of the upper lip. There was also bruising to the right side of the top of the head and on the left moving towards the top of the head. He also spoke of a “pattern bruise” consistent of kicking to the head by someone wearing runners or similar footwear. There was also the evidence, already noted, of Robyn Bate that the deceased had a bruised face and left eye and swollen head on 2 March. Senior Constable O’Connell noted facial injuries including bruised eyes and a swollen nose on the deceased on the same day. Teresa Carminati observed the deceased’s bloodied and deformed nose. Other witnesses gave evidence of facial injuries. Although, as counsel for the applicant pointed out, Dr Martyn did not give evidence of the results of x-rays taken, the applicant in fact pleaded guilty to count 3 thus admitting that on that date he unlawfully and recklessly caused serious injury to the deceased.
Again, before turning to the detail of the custody conversations, I think it is relevant to note the nature of the weapon used, a 12 gauge shotgun During the covertly recorded custody conversations the applicant is heard to say “And I was tryin’ to get you to take it all that day too, remember, I’m going, ‘I want that four ten, I want that four ten remember. And you (Comensoli) go ‘No. It’s not worth it. It won’t kill no-one, no, it won’t hurt no-one. It’s fucked.’” (45) To this Comensoli rejoins “If this joints bugged mate, they just got everything they needed, mate.” (45)
Finally, in my review of these incidents, it is of assistance to canvass the evidence as to the visit to the motel in the early hours of Tuesday 3 March by a group of men of whom the applicant was one. The premises were then in darkness and locked up. The party had with them a loaded shotgun and ammunition. It was said that the premises were going to be “shot up”. Entry to the premises went as far as the deceased’s room. A door was kicked in. The deceased was asleep and without a weapon. In the aftermath of the shooting, which involved flight by members of the group, the shotgun was discharged several times in surrounding streets.
I now turn to the transcript of the tape-recordings of the custody conversations. The statements apparently favourable to the applicant contained therein must not be merely dismissed as self serving but, on the other hand, counsel for the applicant accepted that part of the conversations constituted a plan to tell a false story designed to incriminate a man referred to as “Pablo”.
It is convenient to look first at those aspects of the conversations from which it was open to the jury to conclude that the applicant was present when the shooting actually occurred. (It will be recalled he did not give evidence at his trial.) I shall give page references which relate to the transcript used at the trial.
· Comensoli says “Pablo kicked the door in Darren…” and the applicant responds “Yeah, I know.” (3)
· Comensoli says “You’ll get manslaughter, Darren. Believe me.” The applicant responds “Yeah, how long will I go down for?” (8)
· The applicant says “…They (Pablo and Aaron) were there. But I can’t say much because I said I wasn’t in the house which I were. Which I were.” (16)
· The applicant says “I knew we shouldn’t have gone down there.” (18)
· The applicant says “As soon as the first incident was ended we should have run. Huh?” (18)
· Comensoli says “Who else was there? The applicant responds “Peter, me.” (19)
· Comensoli says “You don’t know if he dropped them (guns) off anywhere first?” the applicant responds “Yeah, he did.” (21)
· The applicant says, referring to 3 March “…It was the same morning, 1 o’clock in the morning, Tuesday morning, that’s when we went down there, right?” (26)
· Comensoli says “They (the police) think you fired the gun, Darren. See I know for a fact because otherwise why would the jacks say ‘Darren brought the gun’. I, I reckon Frank has said you’ve gone there for retribution, right?” The applicant responds, “But I never.” Comensoli says “I know that, but that’s what he said. Because after we’ve fired the gun, we’ve run out. All he’s seen is ‘Boom’. Know what I mean? The argument is that this plan Frank was to be shot.” The applicant says “He shouldn’t have been shot dead.” and later adds, “He shouldn’t have been shot dead, straight away.” (29)
· After reference to blood and Comensoli’s running shoes is made the applicant says “How come? Frank didn’t bleed.” (30) (It is to be noted that the applicant said the same thing in his record-of-interview and, at trial, the Crown relied on the evidence of the paramedic Spanwick that probably about ten minutes after he had been shot the deceased presented with “minimal external bleeding”.)
· After Comensoli says “…I’ve gone through the door and got him” the applicant responds “No, you’re wrong, the door opened inside.” (38)
Counsel for the applicant argued that aspects of the conversation constituted credible evidence that the applicant was not present at the shooting and that parts of the conversations summarised above were equivocal. (Thus, the response “Yeah, I know” to the statement that Pablo had kicked in the door might have meant that the applicant had learned, without being present, that this had occurred.) The parts so relied upon may be summarised as follows.
· The applicant says “Yeah, I said, I said he was at the back porch. And I went to the back porch, I left, sat down in the car and then I heard bang.” (7)
· The applicant says “I was on the back porch. I went to the car, sat in the car and heard bang. And after that I left the car.” (14)
· The applicant says “I said that me and Aaron were at Sunshine, came back, went to Frank’s. And we got to Frank’s, Aaron was at the back porch and went inside the back door. I went to the back porch, I, I went back to the car sat down in the car. All I heard was a bang. They asked me where Aaron was, I said I don’t know.” (20)
· The applicant says “Well I said to them I weren’t there. I weren’t inside the house, I was on the back porch, then I went and sat in the car. This is a pretty good idea.” (22)
· The applicant says “But the only thing I’m going to say, right? Is that I was at the back porch and I went back to the car. That’s the only thing I’m going to keep on saying, right? Aaron and Pablo was inside the house, I didn’t see you there. Because I’m not going to say that I sent you up there, no way.” (23)
In assessing these statements, it was open to the jury to take into account that, invariably, the applicant appears to be speaking – not in terms of what actually happened – but in terms of what he has said, or intends to say, to the police. The following statements of the applicant would also have been relevant in this assessment.
· “I didn’t say who else was there, I said, I just said it was Aaron who was there.” (7)
· Comensoli says “But you’re going to say you seen me give the gun to Pab?” The applicant responds, “M’mm, I say I seen Pablo run out with his gun there, and jump in his car…when I was down the street. I’ll say I didn’t see anything else. That’s what we’re going to do.” (24)
· The applicant says “That’s what we should do, get our stories straight in here and I want to change my statement to my solicitor, you want to change your statement too…” (27)
· Comensoli says “Who was driving the car?” The applicant responds “I’ll say Aaron was, I don’t give a fuck.” Comensoli rejoins “So that’s what I’ve got to say.” (28)
Counsel for the applicant also argued that an exchange between the applicant and Comensoli in which the applicant says “I was going to stay home that night too, I weren’t going to fight him” and Comensoli responds “No-one was meant to get shot man. That’s what we are. Fucking dickheads.” (43) ran counter to the Crown allegation of common purpose as did a statement of the applicant “If I wanted to kill anyone I would have killed someone with the crossbow. At least there is less noise, true, less noise. It doesn’t fucking go bang.” (45) It was also said that a statement of the applicant “Yeah, but which room should have you known to search when I left the room.” (30) evidenced a withdrawal from any common understanding hitherto reached.
It is sufficient to say that in the light of the above, in my opinion it was plainly open to the jury to reject statements of the applicant smacking of exculpation.
As to the applicant’s intentions in going to the motel, the following statements would have been relevant.
· Comensoli says “But I knew that before I did it (pulled the trigger) too, you know what I mean?” The applicant responds, without any hint of surprise at the statement, “Yeah.” (35)
· Comensoli says “Remember I had the bullets in my pocket playing with them that day, ages before we went.” The applicant responds “Yeah I know and then I never touched them did I.” (37)
This review of the evidence as a whole satisfies me that it was open to the jury to make, in the appropriate manner, the following findings of fact. Firstly, in the words of counsel for the respondent, that three episodes of “escalating” violence had occurred. Next, to find that the initial episode, having regard to the extent of the damage and the nature of the weapon or weapons used to cause it, was a determined and considerable attack on the deceased’s premises and that the applicant had been in possession of a shotgun at the time and had discharged it. As to the second episode, it was open to the jury to find, on the basis of his plea of guilty and the other relevant evidence, that the applicant was a party to the infliction of serious injury to the deceased and that, at the time of such infliction, his animus towards the deceased was unsatisfied by the damage previously occasioned to the motel premises.
As to the third, it was open to the jury to find that, prior to it, and after the infliction of the serious injury, that the applicant proposed to “sort out” the deceased if the applicant thought he continued to sell heroin; that the applicant was one of a group who attended at the motel in the early hours of the morning pursuant to a plan to which the applicant was a party, bringing with them a loaded shotgun and ammunition still concerned about heroin sales; that it was then said in the presence of the applicant that the premises were going to be “shot up”; that violent entry was made to the deceased’s room where he was asleep with his son unarmed and a shotgun was discharged through the door to the room in the presence of the applicant and that the shot so discharged caused the death of the deceased; that the group then fled and during the flight the shotgun was again discharged and that the applicant was a party to the firearms disposal.
Accordingly, having regard to my earlier findings, I have come to conclude that each of the following conclusions was clearly open to the jury on the evidence according to the requisite standard of proof.
· That the applicant had an understanding with Comensoli to inflict really serious injury on the deceased and that while that understanding was still afoot Comensoli inflicted such injury in the presence of the applicant.
· That the applicant had an understanding with Comensoli to inflict an unlawful assault on the deceased and that it was within the contemplation of the applicant that a firing of the shotgun, causing the death of the deceased, might occur, the applicant being present when the firing by Comensoli occurred.
· That the applicant intentionally assisted or encouraged Comensoli in his perpetration of the shooting, being present thereat.
Put another way, in my opinion it was open to the jury to find that each of the elements of the three heads of criminal liability, as defined for them by the learned judge in terms of count 4, had been proven beyond reasonable doubt by the prosecution. In reaching this view, I have taken into account the circumstance that the applicant stood mute at his trial and called no evidence and I have applied Weissensteiner v. R.[4].
[4](1993) 178 C.L.R. 217
In my opinion, the sole ground pleaded fails and this application should be dismissed.
BROOKING, J.A.:
I agree with the Chief Justice and wish to say only two other things. The first is that even without recourse to Weissensteiner v. R.[5] I should have no hesitation in concluding that the verdict was not unsafe or unsatisfactory. The second is that, if the applicant had succeeded in showing that a verdict based on one of the three ways in which the Crown put its case was unsafe and unsatisfactory, the appropriate outcome would have been, not the acquittal for which the applicant contended, but a retrial.
ORMISTON, J.A.:
[5](1993) 178 C.L.R. 217.
In this application I have had the opportunity to read the judgment of the Chief Justice in draft form. The facts there stated should make it sufficiently clear why the applicant could not succeed in demonstrating that the verdict of murder was unsafe or unsatisfactory.
As I understand the argument presented on behalf of the applicant, the principal defect in the verdict was that it could not be shown that there was sufficient evidence to sustain a verdict on each of the three bases upon which the Crown had presented its case, or, at the least, that it could not be shown that there was sufficient evidence to sustain the verdict on all three bases. Thus, if there was insufficient evidence to support a verdict on one, or two, of the bases, one could not now be sure, so it was contended, that the jury, or some members of the jury, had brought in their relevant verdict on what was said to be an insupportable basis. In that state of uncertainty, so it was argued, the verdict would therefore have to be set aside and, further, a verdict of acquittal entered.
The question of the relevant relief, however, need not be further examined, for I do not consider the applicant’s principal argument has been made out. In the first place it should be noted that no ground sought to challenge the learned judge’s
leaving all three bases to the jury, nor indeed was there any challenge to his charge. Secondly, there was sufficient evidence to sustain a verdict on all three bases, whether or not one thinks it likely that the jury would have chosen the second or third basis upon which to convict.
For these purposes, there was more than sufficient evidence to satisfy the jury that the applicant was “present” at the relevant time, in the accepted meaning of that word: cf. R. v. Camilleri[6], whether the jury was considering the “acting in concert” or common enterprise bases (1 and 2) or the aiding and abetting basis (3). Some argument was addressed to the possibility that the applicant was not inside the “Bedrock Motel” when Comensoli fired the fatal shots, but, although the jury was not obliged to disregard that possibility, there was abundant evidence to support the view that he was within a metre or so of Comensoli at the critical time. The applicant had attempted, so one readily could infer, to distance himself from the shooting by concocting a story with Comensoli that one “Pablo” was inside the motel at the relevant time and that he was outside, perhaps already in the car.
[6][2001] VSCA 14 at paras.[81]-[91].
The co-offenders’ secretly recorded conversation in gaol gave strong support for any conclusion by the jury that the applicant was in fact near at hand when the shots were fired. Indeed the evidence as a whole provided strong support for the view that the purpose of their going to the motel late that night was to shoot the victim. Once that conclusion was reached the rest of the evidence fell into place. There was more than sufficient evidence of motive, if not reason, for the shooting. The collaboration of the two accused might be seen to have been established by the circumstantial evidence. If there was no specific agreement, there was, so the jury might have found, an understanding between the two men as to what they hoped to achieve. It may not have involved killing, but by taking the gun to the bedroom door inside the motel and by firing through it, they must have intended at the least to cause serious injury to the victim, or so it could well have been concluded by the jury. If their original intent might have been seen to be less, i.e., only that they would use the gun to inflict injury by an unlawful and dangerous assault or assaults, then the jury here could have concluded that serious injury or death was a possible incident of that arrangement, in all the circumstances, especially having regard to the use of a powerful shotgun inside the motel. Nor was the jury obliged to conclude, having regard to their previous dealings with the victim and the proximity at the time of the two men, that Comensoli had gone outside the scope of the enterprise or that the applicant had withdrawn from it before the critical moment.
Next, if all the jury were prepared to conclude was that the applicant was a party to the perpetration of the shootings, then, having regard to the preceding events and his immediate presence, the jury could have concluded that he was giving aid or encouragement to Comensoli. Moreover they could properly have concluded that he was well aware of Comensoli’s intent in shooting the victim. In these circumstances it would not have been hard to conclude that the applicant by his presence intended actively to encourage and, if need be, assist Comensoli in causing at least serious injury to the victim.
Finally, one may ask rhetorically, what else would the applicant and his colleague be doing in the early hours of the morning in the darkened motel with one carrying a powerful loaded shotgun which was directly aimed into a small room where the victim was sleeping, if they were not intending to cause at least serious injury to the deceased? They had already warned him, “roughed him up” and damaged his seedy motel of which they ostensibly disapproved. Was it a case where something went drastically wrong in a small vigilante exercise? By no means, as their subsequent behaviour showed. When they fled, one or other fired the gun several times in the air. They showed no contrition, as their desperate conversation in gaol showed; they squirmed and manoeuvred to take the blame off their obviously guilty shoulders. There was more than adequate evidence for the jury to be satisfied beyond reasonable doubt of the applicant’s guilt, whichever basis they chose to support that conclusion.
For these reasons, as well as those stated by the Chief Justice, I would dismiss this application.
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