R v Fackovec
[2007] VSCA 93
•10 May 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 104 of 2006
| THE QUEEN |
| v |
| CHRISTOPHER FACKOVEC |
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JUDGES: | VINCENT, EAMES and NETTLE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 May 2007 | |
DATE OF JUDGMENT: | 10 May 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 93 | |
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CRIMINAL LAW – Appeal against conviction for theft – Motor vehicle belonging to father-in-law taken and subsequently involved in serious accident – Whether express or implied permission as to use – Whether judge erred in direction to jury – Whether applicant honestly believed he was permitted to use motor vehicle – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr G A Georgiou | Victoria Legal Aid |
VINCENT JA:
I will invite Nettle JA to deliver the first judgment.
NETTLE JA:
On 28 February 2006 the applicant was presented for trial before the County Court at Bendigo on one count of theft of a motor car (count 1), one count of common assault (count 2), one count of reckless conduct endangering life (count 3), one count of reckless conduct endangering serious injury (count 4) and one count of negligent conduct causing serious injury (count 5). On 28 February 2006, it was ordered that counts 1 and 2 be severed from counts 3, 4 and 5 and the applicant pleaded guilty to count 5. Following a short trial on counts 3 and 4, the applicant was on 23 March 2006 acquitted of each of those counts. But after a further trial on counts 1 and 2, on 29 March 2006 the applicant was convicted of both of those counts.
Following a plea in mitigation of penalty, on 3 April 2006 the judge sentenced the applicant on count 1 to a term of imprisonment of three years, on count 2 to a fine of $250, and on count 5 to a term of imprisonment of 3 years and six months, and ordered that one year and six months of the sentence imposed on count 1 be served cumulatively on the sentence imposed on count 5. The total effective sentence was, therefore, five years’ imprisonment, of which the judge ordered that the applicant must serve not less than four years before being eligible for parole. His Honour further ordered that the applicant be disqualified from holding any licence or permit to drive for a period of five years and fined the applicant a sum of $100 on a summary offence of exceeding the prescribed blood alcohol concentration following a motor accident.
The applicant now seeks leave to appeal against conviction and sentence.
The facts
The applicant is a citizen of the United States of America from the State of New York. In 1999 he met an Australian woman, Nerida Wines, who was studying in New York, and on 2 June 2001 they were married. Thereafter Nerida Wines went through the American immigration process and was granted a Green Card and she worked in the United States for some time. On 31 July 2003 she bore the applicant a son and in 2004 the couple resolved to emigrate with their child to Australia.
The applicant preceded Ms Wines. He arrived in Australia on 1 September 2004 and pending the arrival of Ms Wines he stayed with her mother and father, Mr and Mrs Wines, at their home in Hampton East. On the evening of 24 September 2004, Mr and Mrs Wines were invited to participate in corporate hospitality associated with the AFL Grand Final. Before leaving to go to that function, Mr Wines had three or four drinks at home with the applicant. He then called a taxi and he and Mrs Wines departed in the taxi leaving the applicant at home alone for the weekend. At some stage the following day, the applicant helped himself to the keys to Mr Wines’ Mercedes Benz motor car, which was parked in the driveway, and he drove off. Those are the actions which comprised the count of theft of a motor car (count 1).
Where he drove thereafter is not completely clear. There is some suggestion that he may have driven to the George Hotel in St Kilda for dinner. But at 11.00pm he was observed coming out of the Sheraton Towers Hotel at Southbank and joining in an argument between a taxi driver and an elderly couple over a sum of $3.00. The applicant called the taxi driver a “fucking liar” and pushed or shoved him once lightly. Those are the actions which comprised the count of assault (count 2). He was then seen to get into the Mercedes Benz and drive away.
The next sighting was on the Calder Highway near Macedon at about 12.50 am the next morning, at which point the applicant drove the Mercedes Benz at another car, driven by a woman, while executing a u-turn. Then he drove very close behind her car up the highway for several kilometres, then at times along side her car and then ahead of her car so as to slow her down. Those are the facts which comprised the counts of reckless conduct endangering life and reckless conduct endangering serious injury (counts 3 and 4), of which he was acquitted on a plea that he was so drunk that he had acted involuntarily or without intent.
When he reached Malmsbury at about 2.00 am, he forced one driver off the road by driving the Mercedes Benz on the wrong side of the road and shortly afterwards he crashed the Mercedes Benz again on the wrong side of the road head on into another car, causing himself and the other driver serious injuries. Those are the actions which comprised the count of negligent conduct causing serious injury (count 5).
On testing some two hours after the collision, it was found that the applicant’s blood alcohol concentration was 0.219%, and the expert evidence given at his trial was that his ability to control a motor car would thereby have been grossly affected.
The applicant was interviewed in hospital by police and he told police that he had drunk only about five or six stubbies of beer. He also said that he held a New York driver’s licence, and that he had been driving the Mercedes Benz with Mr Wines’ permission. When told by police that Mr Wines alleged that the applicant had stolen the car, he responded that he expected Mr Wines to say that in order to avoid culpability for the accident. It was later ascertained that the applicant did not hold a New York driver’s licence but rather a New York learner driver’s permit.
No need for Zoneff direction
Ground 1 of appeal against conviction is that the judge erred by failing to give the jury a Zoneff direction.[1] Counsel for the applicant contends that the jury is likely to have concluded that the applicant lied in order to hide the fact that he did not have permission to drive the car and that, inasmuch as his lies on that point, and on others which were related to it, went directly to a matter in issue, the jury may have concluded that the lies bespoke a consciousness of guilt of the offence with which he was charged. Accordingly, it is submitted that, although the Crown did not suggest that the lies were evidence of guilt, but went only to credit, it was incumbent on the judge to warn the jury that they were not to reason that just because a person tells lies it is evidence of guilt.[2]
[1]Zoneff v The Queen (2000) 200 CLR 234.
[2]Ibid. at 245.
I do not accept that submission. In his charge to the jury the judge made plain that the Crown were relying on lies in order only to establish that the applicant had no creditability and that the lack of credibility extended to his contention that he had express permission from Mr Wines to drive the car. Defence counsel then sought an Edwards[3] direction but the judge declined to give it. In his reasons for ruling, the judge observed that the Crown had not suggested that the lies were evidence of consciousness of guilt and that to give such a direction would be to adopt a dangerous course of suggesting to the jury something which the Crown were not suggesting. In my view, that was so.
[3]Edwards v The Queen (1993) 178 CLR 193.
Where the Crown does not rely upon a lie or other post-offence conduct as evidence of consciousness of guilt, it is in general unnecessary for a judge to give the jury a Zoneff direction or an Edwards direction. As a rule, neither is required unless there is a real danger that the jury might of their own initiative treat a lie or other post-offence conduct as evidence of consciousness of guilt. If there is such a danger, a judge may need to give the jury a Zoneff direction or, occasionally, a full Edwards direction.[4] But otherwise, it is likely to be counter-productive for either type of direction to be given.
[4]R v Nguyen (2000) 118 A Crim R 479 at 478 [17]-[21]; R v Chang (2003) 7 VR 236 at 239[6], per Ormiston JA and at 253 [43]-[48], per Charles JA Dhanhoa v The Queen (2003) 217 CLR 1 at 17 [58]-[59], per McHugh and Gummow JJ and at 27 [96]-[97], per Callinan J in diss.
For the reasons given by the judge, I do not consider that there was a real danger in this case of the jury treating the applicant’s lies as evidence of consciousness of guilt. In substance, his answers to the police about having permission to drive the car were little more than an emphatic denial of Mr Wines’ allegation that the applicant did not have permission to drive the car. As the judge made plain to the jury, they could not convict the applicant unless they were satisfied both that the applicant was lying and that Mr Wines was telling the truth. It follows that if the jury accepted Mr Wines’ evidence and rejected the applicant’s evidence, they would have convicted the applicant because they were satisfied that he did not have permission to drive the car; not because of any sense of consciousness of guilt. In effect, as Eames JA put it in R v Ibrahim:
“The fact that the jury concluded that [the applicant] had told a lie about that matter added nothing, and no further direction was required other than was given concerning the burden of proof and standard of proof.”[5]
[5]R v Ibrahim [2003] VSCA at 180 at [50].
Furthermore, as the judge said, to have given a direction about consciousness of guilt would have been a dangerous course. It would have created an issue about consciousness of guilt where none existed and, in the circumstances of this case, that may well have done the applicant more harm than good.[6]
[6]cf. Dhanhoa v The Queen (2003) 217 CLR 1 at 18 [62].
Refusal to leave self defence to the jury
Ground 3 of appeal against conviction concerns the count of assault (count 2). In the course of final address, defence counsel submitted that the jury could not exclude as a reasonable possibility that the applicant struck the taxi driver in defence of the elderly passenger in order to protect the latter against imminent risk of harm.[7] But in his charge, the judge directed the jury that they should not so find, because:
“The defence that was suggested to you was that grabbing the old man was an assault by the taxi driver and that the accused may have been acting in self-defence. Now I should tell you that self-defence or defence of another exists and must be refuted, if properly raised, by the Crown. In other words, the Crown, if the defence were open, must prove beyond reasonable doubt that the accused did not believe on reasonable ground that it was necessary to apply force to the person of another to protect someone else, in this case the old man arguing with Mahommadi.
Now I have to tell you that having considered the whole of the facts in this case and bearing in mind what the evidence reveals is that there was an argument proceeding between the old man and Mohammadi when the accused simply came up, punched Mohammadi, saying he was a liar and walked off, got into a car and drove away. In those circumstances there is no evidence upon which you could find an honest belief on reasonable grounds that punching the taxi driver was necessary to defend the old man, and there has been no evidence of that .” (Emphasis added).
[7]See R v Portelli (2004) 10 VR 259 at 268-9 and 272-273.
It is contended that the judge was wrong. Counsel for the applicant submits that, contrary to the judge’s direction, there was evidence from which it could be inferred that the applicant acted in defence of the elderly passenger, and that in those circumstances the judge should not have taken the decision away from the jury. Further or alternatively, it is said, the judge erred in the form of the direction which he gave, by in effect reversing the onus of proof.
I am not persuaded by that argument. Of course, if there were evidence on which a reasonable jury could decide the issue of defence of another in favour of an accused, it would be a question for the jury whether the defence had been rebutted.[8] But hopeless defences which have no factual basis of support do not have to be left to the jury.[9] Accordingly, where there is no evidence on which a jury could reasonably come to the conclusion that an accused has acted in defence of another, a judge is entitled to deal with the matter on that basis. And in my view, in this case there was no evidence capable of sustaining a reasonable possibility that the applicant acted in what he honestly perceived on reasonable grounds to be necessary for the defence of another
[8]Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 665.
[9]Director of Public Prosecutions (Jamaica) v Bailey [1995] 1 Cr App R 257 at 261; cf R v Kear [1997] 2 VR 555 at 565 and 570.
So to say is not to exclude the possibility that the applicant honestly believed that it was necessary to strike the taxi driver in order to defend the old man. Given the applicant’s likely level of intoxication, his comprehension of events was probably distorted. But intoxication is not reasonable grounds on which to base a belief that it is necessary to strike to avoid imminent risk of danger, and there is nothing in the objective evidence to support the view that it was reasonably necessary to do what the applicant did. To the contrary, the clear inference is that he was a gratuitous and unwelcome interloper.
Technically speaking, the way in which the judge expressed the latter part of the direction may appear to have reversed the onus of proof. It was not a matter of the jury having to find that the applicant had an honest and reasonable belief as to the necessity to act in defence of the elderly passenger. It was a matter of the Crown needing to satisfy the jury beyond reasonable doubt that the applicant did not have such a belief. But the judge made that plain in the earlier part of the direction, and in any event, as the judge said, there was no evidence capable of sustaining the defence.
In my view ground 3 fails.
Misdirection on dishonesty
Ground 2 of appeal against conviction concerns the count of theft (count 1). It is contended that the judge erred in directing the jury in that connection by stating only that:
“The word ‘dishonestly’ means, having no legal right, and knowing that he had not legal right’.”
It is submitted for the applicant that the judge ought also to have directed the jury that, if they were persuaded that the applicant did not have express permission to use the car, they could still not convict him unless they were satisfied that the Crown had also excluded beyond reasonable doubt the possibility that the applicant honestly believed that he had permission to use the car without asking for it.
In my view there is force in that submission. In final address, defence counsel put to the jury that, whether or not they accepted the applicant’s story that he had express permission to use the car, they should not convict him of theft without first excluding beyond reasonable doubt the possibility that he honestly believed that he had permission in the sense that, if he had asked for it, it would have been given. The judge, however, directed the jury that:
“Now as to that element of the defence I remind you (a) that it is not what the accused told the police. In his story to the police he said he actually had a conversation in which permission was expressly given to him and, (b) there is no evidence of any such belief.”
The first part of that direction was correct. When interviewed the applicant told police that Mr Wines had expressly given him permission to drive the car, thus:
“Now, did you have permission from the owner, Peter [Mr Wines], to have the car? --- Yes.
When did he give you that permission? --- Before he left to go to Melbourne into the city.
Right?--- He said I could use it if I needed, you know, if I needed to go to the store to get something to eat. So that was the basis of it.
When was that then? --- Friday, when he left, he left about 5 pm. Him and his wife were spending – my mother-in-law was spending in the week in downtown at the Hyatt. They went to the finals, I believe.
To the, sorry” --- The finals, the AFL final.”
But in my view the second part of the direction was incorrect; for as I see it there plainly was evidence from which it might logically be inferred that the applicant honestly believed that he had Mr Wines’ implied permission to use the car. First and foremost, the applicant was Mr Wines’ son-in-law, and the father of Mr Wines’ grandchild, and he was staying with Mr and Mr Wines in their home awaiting the arrival of their daughter and grandchild. Arguably, that provided some basis in itself from which to infer that the applicant honestly believed that he was allowed to use the car.
Secondly, the applicant told police that he had previously driven the vehicle with Mr Wines’ going to or from Mr Wines’ place of work, at which the applicant was assisting without charge. If so, that was also some basis from which to infer that the applicant honestly believed that he was permitted to use the car. Admittedly, Mr Wines’ gave evidence that the applicant had not driven the car before. But it was for the jury to decide who was to be believed about that. Evidently, the jury disbelieved the applicant’s story about express permission. But it does not necessarily follow that the jury would have dismissed out of hand what the applicant said about the other occasion.
Thirdly, Mr Wines conceded in cross-examination that he had on two separate occasions visited the applicant and his daughter in the United States, and stayed with them, and that on each of those occasions he had been given unrestricted use of the applicant’s motor vehicle. In the scheme of things, it does not strike me as unlikely or particularly unreasonable for the applicant to have assumed that the favour would be returned. It is true that on the evidence the applicant held no more than a New York learner’s permit. But there was no evidence as to what that did or did not entitle him to do in the United States, or otherwise as to his belief as to whether it entitled him to drive in this country.
Fourthly, it will be recalled that Mr Wines had had three or four drinks with the applicant before leaving to go to the function on the evening of 24 September 2004, and hence it seems to me that the scope for bonhomie and the possibility of confusion or misunderstanding on the part of Mr Wines and the applicant are likely to have been enhanced.
No doubt, the applicant’s story about being given express permission, and his failure to say to police that he assumed that he would have been given permission if he had asked for it, told against the possibility that he honestly believed that he had implied permission. It may be, therefore, that if the jury had had their attention directed to the evidence to which I have just referred, they would still have come to the conclusion that the applicant was guilty of theft. But once again, that was a matter for the jury to decide[10] and, with great respect to the trial judge, they should not have been influenced in that decision by being directed, incorrectly, that there was no evidence to support the defence submission. Whatever the probabilities, it is not inconceivable that the applicant lied about being given express permission because he feared the consequences of having honestly but wrongly assumed that he had been given implied permission, or because he thought that although he had implied permission it would not suffice. It is also not without significance that when he told police that he had been given express permission, he was in hospital after a major motor accident, having been given morphine for his pain, and having just had put to him by police the doubtless alarming allegation that his father-in-law was calling him a thief.
[10]Melbourne v The Queen (1999) 198 CLR 1 at 53-54[144].
I am conscious that the judge was an experienced criminal trial judge and so may be assumed to have approached the matter by concentrating on what he perceived to be the issues and keeping the trial as simple as possible.[11] But I do not consider that this point may be passed over on that basis. Authority is clear that, whatever course an accused may take, a trial judge must be astute to secure for the accused a fair trial according to law. There is, therefore, nothing particularly unusual about a case in which an accused advances a defence that is logically inconsistent with the possibility of an alternative defence and the judge is required to leave the alternative to the jury for their consideration. That involves adequate direction both as to the law and the possible use of relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or part.[12]
[11]Clayton v The Queen (2006) 81 ALJR 439 at [24]-[29], cf. [115]; R v Tully op cit 391 at [44]-[49] and [75]-[79]; and see Gleeson CJ, The State of the Judicature, 25 March 2007 at 10.
[12]Pemble v The Queen (1971) 124 CLR 107 at 117-118; R v Kear [1997] 2 VR 555 at 560; Gilbert v The Queen (2000) 210 CLR 414 at 419[8]; Gillard v The Queen (2003) 219 CLR 1 a5t 35 [107].
Further, in my judgment, the failure of the judge to identify evidence capable of supporting the defence of honest belief, compounded by his Honour’s misdirection that there was no evidence capable of having that effect, could well have affected the jury’s verdict on count 1. At least, in my view, if the evidence had
been outlined to the jury as I conceive that it should have been, there is a reasonable possibility that the verdict on count 1 would have been different.[13] It follows as I see it that there has been a miscarriage of justice.
[13]Simic v The Queen (1980) 144 CLR 319 at 332.
I do not consider that this is a case in which the proviso should be applied. Assessment of the likelihood that the applicant honestly believed that he had implied permission to use the car depends on assessment of the Mr Wines’ credit. In the circumstances of this case, I do not consider that it would be just to the applicant to make a determination about that without having the benefit of seeing Mr Wines in the witness box. Granted, we have the benefit of the jury’s view that Mr Wines was to be believed in what he said about not having given express permission to use the car. But, as I have observed already, that is a different question to what he said about the applicant’s previous use of the car and about what the applicant may have believed was his right to use the car. Having examined the whole of the record and making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, I am not satisfied that the applicant was proved beyond reasonable doubt to be guilty of the count of theft of which he was convicted.[14]
[14]Weiss v The Queen (2005) 224 CLR 300 at 316[40].
Appeal against sentence
If the conviction on count 1 is to be quashed, as I think it should be, the sentencing discretion will be reopened in respect of the other counts and the applicant will fall to be re-sentenced on those counts.
VINCENT JA:
It is my view that the application for leave to appeal against conviction should be granted and the conviction set aside, for the reasons given by Nettle JA.
EAMES JA:
For the reasons given by Nettle JA, I too agree that the application for leave to appeal against conviction on count 1 should be granted, and I agree that the application for leave to appeal against conviction in respect of count 2 should be refused, for the reasons given by his Honour.
NETTLE JA:
I turn to the question of re-sentencing. As to the count of negligently causing serious injury (count 5), it is to be noted that the maximum penalty is only five years’ imprisonment. But, as this Court has said on several occasions, it is a penalty which needs to be revised. As Callaway JA put it most recently in R v Brown:[15]
“… It is notorious that the maximum penalty for negligently causing serious injury is too low and is out of kilter with the maximum penalties for related offences. That does not mean that the maximum can be ignored, but it does not prevent the courts from ‘firming up’, in appropriate cases in the sentences imposed for that offence.”
All things considered, in my view, this was a relatively serious case of negligently causing serious injury. It was aggravated by the applicant’s extreme intoxication, and by the fact that it came at the end of a long period of erratic driving, under the influence of alcohol. As the judge observed below, it is remarkable that it did not result in death, or at least much worse injury than was the case. In my view, it approaches the most serious instances of negligently causing serious injury that can be conceived of. In the circumstances, I see no reason to differ from the view of the trial judge that a sentence of three-and-a-half years’ imprisonment is warranted.
VINCENT JA:
[15][2003] VSCA 153 [9].
I agree.
EAMES JA:
I also agree.
NETTLE JA:
As to non-parole period, I take into account matters which were submitted below as to the applicant’s alcoholism. One difficulty for the applicant in that connection is that there was no medical evidence on the point, as the judge observed, but, that said, there was evidence that the applicant had been dealt with in the United States for a drink-related offence, and, of course, that he was seriously drunk at the time at which he committed the subject offence of negligently causing serious injury. As the judge stated in the course of the hearing, those matters lent assistance to counsel’s proposition that the applicant was an alcoholic. Additionally, defence counsel tendered on the plea a certificate which showed that the applicant had been attending Alcoholics Anonymous meetings in prison, and counsel told the judge, without objection, that the applicant had continued to attend throughout the year that he had been remanded in custody. At another point in the hearing, the judge indeed said that he accepted that it was likely that the applicant was medically an alcoholic.
All things considered, bearing in mind in particular the seriousness of the offence, but also what I perceive to be the possible prospects of rehabilitation, I would impose a non-parole period of two years.
VINCENT JA:
I agree.
EAMES JA:
I also agree.
VINCENT JA:
The orders of the Court are:
1.The application for leave to appeal against conviction is granted.
2.The appeal is treated as having been instituted and heard instanter and is allowed, to the extent that the conviction sustained by the appellant on count 1 in the court below is quashed and sentence passed thereon is set aside.
3.The Court directs a new trial to be had in respect of that count.
4.The application for leave to appeal against sentence is also granted.
5.That appeal is similarly treated as instituted and heard instanter and is allowed.
6.The sentences imposed on each of counts 5 and 2 are set aside and, in lieu thereof, the appellant is sentenced as follows:
On count 5 - three years and six months’ imprisonment; and
On count 2- a fine of $250.
7.The order for disqualification from obtaining a driver's licence for five years, from 3 April 2006, and the fine of $100 imposed in the court below for the summary offence are re-imposed.
8.It is ordered that the appellant serve a period of two years before becoming eligible for parole.
9.It is declared that the period of 784 days that the appellant has undergone be reckoned as having been served under the sentence hereby imposed and it is directed that this declaration and its details be entered in the records of the Court.
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