R v Gionfriddo
[2000] VSCA 152
•3 August 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 242 of 1999
| THE QUEEN |
| v |
| CLAUDIO GIONFRIDDO |
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JUDGES: | WINNEKE, P., BROOKING and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 August 2000 | |
DATE OF JUDGMENT: | 3 August 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 152 | |
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Criminal law - Armed robbery - Escape in getaway car with third man - Subsequent oral admission by applicant of his involvement - Admission made in Queensland during unrelated investigation- Whether admission should have been excluded at trial - Whether verdict unsafe or unsatisfactory - Leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr J.D.McArdle,Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr M.C. Kowalski | Fraser Solicitors |
WINNEKE, P.:
I will invite Phillips, J.A. to give the first judgment.
PHILLIPS, , J. A.:
This is an application for leave to appeal against conviction. The applicant, who was born on 31 August 1958, is now 41 years old. On 8 August 1999 the applicant pleaded not guilty in the County Court to a presentment charging two counts of theft and one count of armed robbery, offences under ss.74(1) and 75A(1) of the Crimes Act 1958. Count 1 was of the theft of a car, a blue Gemini sedan, on 18 February 1996; count 2, the theft of a number plate from another car on 19 February 1996 and count 3 the armed robbery on the same day of a bank in Hawthorn. It was not the Crown case that the applicant was one of the two men who, wearing balaclavas, entered the bank, stole more than $38,000 in cash and then drove off in the blue Gemini sedan, with the stolen number plate attached, a car which they soon ditched in a nearby street. It was the Crown case that the applicant, having been party to the theft of both the blue Gemini and the number plate, had waited in that nearby street and driven off with the two men who held up the bank, and that he had throughout been acting in concert with them. The maximum penalty for theft contrary to s.74(1) is 10 years' imprisonment and for armed robbery contrary to s.75A(1), 20 years.
On 14 March 1997 a co-offender, Andrew Hodson, had pleaded guilty before another judge in the County Court to the like three counts of theft and armed robbery. He was sentenced on count 1 to be imprisoned for 12 months, on count 2 for three months and on count 3 for six years. By virtue of directions for accumulation, the total effective sentence was of six years and seven months' imprisonment, and four years was fixed as the non-parole period.
The applicant's trial was first listed for hearing in the County Court on 12 May 1997 and then on 10 November 1997. On the first occasion, legal argument was presented before the matter was adjourned. The second trial date was vacated on 15 October 1997, when it was determined that the applicant had absconded to Queensland, and it was not until late August 1999 that the applicant's trial began again.
After certain legal argument and evidence upon the voir dire, the Crown case was opened before the jury on 13 September 1999. The Crown closed its case on 17 September and the defence led no evidence. No exceptions were taken to his Honour's charge and, after deliberating for less than four hours, the jury found the applicant guilty on all three counts.
The applicant admitted nine prior convictions from four court appearances between February 1987 and March 1990, including three convictions for armed robbery. The first of these, which was recorded on 21 April 1989, drew a sentence of 10 years' imprisonment which, with a sentence of three years on another count, meant a total effective sentence of 11 years in gaol, eight to be served before the applicant became eligible for parole: on appeal, see Gionfriddo and Faure (1990) 50 A.Crim.R. 327. On his arrest for that armed robbery, shots were fired and the applicant was struck in the arm and shoulder, and as the result of those wounds, many months later (in November 1988), his left arm was amputated.
As for the other two convictions for armed robbery, the relevant offences were committed before the applicant lost his arm. The convictions were both recorded on 26 March 1990 and the applicant was sentenced to a total effective term of six years' imprisonment, 18 months to be served concurrently with the earlier sentence. Four-and-a-half years' was fixed as the non-parole period.
In addition to the foregoing offences which were committed before February 1996, there was also an armed robbery committed by the applicant afterwards. For the current offences in Victoria the applicant was arrested on 29 February 1996 and interviewed by the police and during that interview he offered "no comment" responses. He was then held in custody on remand for 280 days until being released on bail on 5 December 1996. The conditions of bail were fulfilled until early in August 1997, when, in breach of those conditions, the applicant left Victoria and went to Queensland. On 23 August 1997 he was arrested in Mackay for an armed robbery committed in Queensland earlier in the month, and on 25 February 1998 the applicant, after pleading guilty, was convicted and sentenced in Queensland to six years' imprisonment with a minimum term of two years. The head term of this sentence was subject to remissions, but the minimum term, as I follow it, was to expire on 23 August 1999, just two years after the applicant's arrest.
It was after his conviction and sentence in Queensland that the applicant sought and was granted transfer to Victoria, which enabled his trial on the current charges to proceed in August and September 1999. On 22 September, after the applicant was found guilty in the County Court and admitted the previous convictions to which I have referred, his counsel made a plea in mitigation on his behalf. No evidence was called on the plea, and on 27 September his Honour sentenced the applicant to be imprisoned on count 1 for 12 months, on count 2 for three months and on count 3 for five years. As no orders were made for cumulation, the total effective sentence was of five years' imprisonment. The judge declined to fix a non-parole period but declared 280 days already spent in custody as time to be reckoned as having been served under s.18 of the Sentencing Act 1991.
The judge's failing to fix a non-parole period was the result of a deliberate decision under s.11 of the Sentencing Act. The judge was told that the applicant still "owed" the Parole Board in Victoria a period of three years, presumably arising out of the convictions recorded on 21 April 1989. He was also eligible for parole under the Queensland sentence, although that would now be subject to his first serving the term of five years imposed by the sentencing judge on 27 September 1999: see s.15 of the Sentencing Act. The judge saw no reason to give any direction that would disturb the operation of s.16(3B).
In many ways, the sentences imposed on 27 September 1999 might be considered lenient, but that is not for us: there is no appeal against sentence. Having stood mute at his trial and having declined to call any witnesses, the applicant now seeks to appeal against conviction. He seeks leave to appeal on two grounds: first, that the conviction is unsafe and unsatisfactory in all the circumstances, and secondly, by recent amendment, that the trial judge erred by admitting into evidence the appellant's confession or admission against interest following his arrest in Queensland. Both grounds, we were told by counsel this morning, were directed only to the conviction on count 3.
It is necessary therefore to say something more about the offending and the evidence given at the trial in the County Court.
It was about 2.50 p.m. on 19 February 1996 when two men entered the branch of the National Bank at the corner of Glenferrie Road and Lynch Street in Hawthorn and robbed it. Both men were disguised with what one witness described as masks made of some sort of white material and were carrying black handguns. One of them wore a black beanie and the other a peaked cap. Both wore tracksuit pants, runners and white gloves. They yelled at customers and staff to get down on to the floor and one of the men, vaulting the counter, ran amongst the teller stations, seizing money from the cash drawers. After terrorising the customers and staff, they made off with the sum of $38,865.91 in cash, some $18,000 to $20,000 of which was later recovered.
The two men were observed entering the bank by customers and staff in a food shop on the other side of Glenferrie Road. One of the men was seen to be wearing a heavy brown parka, which was quite inappropriate to the hot weather. Both men, it was said by these witnesses, wore something white on their heads "like a white balaclava" and hats. Someone telephoned the police. After about two minutes, the men were seen to re-emerge from the bank, pull up their balaclavas and move off towards a blue Gemini car (the subject of count 1) which was parked in Lynch Street. The two men drove off, going west down Lynch Street. The blue Gemini car was later found parked around the corner in Tweed Street, which is a side street running between Lynch Street and Burwood Road.
Meanwhile, the owner of the food shop had gone out into Glenferrie Road and spoken to the driver of a courier van who was waiting to turn right into Lynch Street. The food shop proprietor said that "the little blue car" had just robbed a bank, "so chase them". This the driver of the van did. He turned into Lynch Street and, having his view of the car obscured by a truck which intervened, with great presence of mind he turned down a side street (not Tweed Street) and drove into Burwood Road, where he paused (facing west), thinking that his target might come out of Tweed Street. He noted the registration of the first car to emerge from Tweed Street, a Porsche with one occupant. The second vehicle to emerge was an orange Ford Laser, and again he recorded the registration number. This vehicle turned left into Burwood Road so as to face east, and the van driver saw the occupants, whom he described as three "roughish-looking guys", two in the front and one in the back. The van driver turned his van and followed the Ford Laser, observing the occupants laughing and talking and pointing to something on the floor. He followed them for some time along Burwood Road, Auburn Road and Victoria Street, and then along Burke Road into Sackville Street, Kew. At that point he gave up the chase, having lost and regained touch with the car along the way.
By then the police had been alerted and they commenced surveillance operations centred on the Ford Laser, which was parked at the applicant's address in Harp Road, Kew, and in the days that followed they observed the applicant both as the driver and as a passenger in that car. More particularly, later in the afternoon on the day of the bank robbery, the Ford Laser was observed being driven away from the applicant's address with three men in it, including the applicant, who was the front seat passenger. The car was driven to a car park across the road from a supermarket in Doncaster Road; it was parked within ten metres of a pair of clothing recycling bins. The three men entered the supermarket and later emerged with a shopping trolley. One of them (not the applicant) returned to the vehicle and collected the others outside the supermarket, whereupon all three then drove off.
Enquiries were later made of those having the responsibility of clearing the recycling bins in question. Collections, it seems, were made on15 February and 23 February 1996, and on 26 February, one to whom some of the contents were delivered for sorting found a tied plastic supermarket bag containing a shirt, a pair of flesh-coloured surgical gloves, two bright blue balaclavas and two heavy toy guns. When the police disclosed a photograph from the bank's security camera, presenting an offender wearing a dark jacket with a striped front, a search was made for such a jacket and it too was found in one of the bales being sorted. It was not possible to tell whether the imitation guns and the jacket had come from the same sorting bale, or whether the goods mentioned had been deposited in the same recycling bin, or into which bin or bins they had all been dropped, or on what day they had been deposited; but the jury were invited none the less to infer that on 19 February, when the Ford Laser was parked near the recycling bins opposite the supermarket in Doncaster Road, the bins had been used for the disposal of these goods after the robbery.
At the trial of the applicant, nine witnesses gave evidence in respect of the apparent enrichment of the applicant after 19 February 1996. Not only were outstanding accounts paid shortly thereafter but a motor scooter was purchased by a man matching the applicant's description for $2,340, and there was evidence, too, of the purchase of a second motor scooter a few days later by the co-offender, Andrew Hodson, in company with the applicant. The applicant and Hodson discussed with the salesman on that occasion the purchase of two motor cycles for $6,500. On 23 February 1996, acting under a warrant, police installed listening devices in the applicant's home and conversations were recorded, including some apparently between the applicant and Hodson. In one such conversation, recorded on 28 February, the applicant said: "It'd be easier to just fuckin' rob another bank"; and a little later he spoke of the need to be careful about displays "of large amounts of money".
It has been mentioned that the blue Gemini car, in which the two men left the bank on 19 February, was found later around the corner, in Tweed Street. There was no visible damage to the ignition lock or the vehicle and it then bore the stolen registration plate, the subject matter of count 2. At the trial of the applicant, a locksmith gave evidence that, on a Wednesday before the robbery, a male with only one arm, wearing a peaked cap and a white t-shirt, asked to have a key cut for his car, which was a Holden Gemini. Because the key produced appeared likely to fracture soon, the locksmith cut two keys, and these were handed by him to the man with one arm. He had a male companion with him who paid for the keys. On a photo-board prepared by the police, showing twelve male heads, the locksmith identified photograph number 2 as the man with one arm, and this was the applicant. In cross-examination, the locksmith said he had volunteered to the police that the man in question had only one arm: it was not something told him first by the police.
There was evidence, too, from the sales manager of a second-hand car yard. He gave evidence that the applicant had attended the yard in July 1995 in company with a female, and that the orange Ford Laser had then been purchased and transferred into the name of the female companion. That car was later transferred into the name of another, a long-term female friend of the applicant, who gave evidence at the trial that that had been at the applicant's request and that otherwise she had never had anything to do with the car, although from time to time she had seen the applicant and others driving the vehicle. She described it as his car.
The same salesman who described the purchase of the Ford Laser gave evidence that in February 1996 he had reported the theft of a Holden Gemini from the car yard. He identified this as the vehicle used by the bank robbers on 19 February. On the Friday before the theft of this car, he recalled, the applicant and another male had taken the car for a test drive. He knew the applicant as "Claude" and recognised him from his earlier dealings in respect of the Ford Laser; he also identified the applicant from the police photo-board. Before long, the two men were back in the car yard, the applicant saying that he was "not keen on the Gemini", and the jury were invited to infer that during their absence the applicant and his companion had had the extra keys cut. That the locksmith recalled their visit to him as occurring on a Wednesday, not a Friday, was said by the Crown to be a mistake on his part.
As for the stolen number plate, the owner of the vehicle from which it was stolen gave evidence that she parked the car in the Northland Shopping Centre at about 8.45 a.m. on 19 February 1996. At about 8.30 p.m. that day, after she returned home, she checked the car and found that the rear registration plate was missing. She said that she believed that she would have noticed it, had it been missing when she first went to her car on that day. The obvious inference was, of course, that whoever robbed the bank stole the number plate.
There was thus a substantial body of circumstantial evidence linking the applicant to the offences on the presentment. By the time of the trial, however, there was further evidence, not only of what was said by the Crown to have been the flight of the accused to Queensland in August 1997, but also the evidence of the two Queensland detectives by whom the applicant was arrested - evidence which is now under challenge. Acting on information received in respect of a matter unrelated to the Victorian offences, Detective Senior Constables Carroll and Newman arrested the applicant in the company of a woman at Mackay railway station on Saturday 23 August 1997. After being cautioned according to Queensland law, the applicant was asked why he had left Victoria and whether he had any outstanding matters in Victoria. The applicant replied, "No reason" and "Yeah ... I'm on bail for a job I did down there." When asked why he had come to Queensland, the applicant replied, "I'm not wanted up here." He explained, too, that his girlfriend was pregnant and that he did not want to leave her alone. When asked what job he had done in Victoria, he replied: "Same as this only a bit bigger robbery." (It will be recalled that the applicant was arrested in August 1997 for an armed robbery in Queensland.)
The conversation between the applicant and the detectives was not audio-taped; nor was it specifically confirmed on audio-tape. After all, as indicated in their evidence, the detectives were not really interested in what had happened in Victoria, for it had no relevance to their investigation into the Queensland offence. None the less one of them made a record of the conversation in his notebook and, although that record was not made immediately and was not verbatim, that led to the two detectives giving evidence of the conversation at the trial of the applicant.
The applicant, of course, objected to the admission of the evidence and so it was heard first on the voir dire when the applicant too gave evidence, testifying that, although some conversation did take place as the detectives said, it was not as they described and in it he had made no admissions about a robbery in Victoria. Further, it was put to the detectives in cross-examination that they had first ascertained details of the outstanding matters in Victoria before they had the conversation with the applicant in the evening of 23 August. The judge rejected this, finding that they had had no such communication before the interview and that the original communication to them about the offences alleged against the applicant in Victoria was that of the applicant himself, as the two detectives had testified. Proper procedures according to the law in Queensland had been followed and so the judge saw no reason to reject the evidence for non-compliance with s.464H of the Crimes Act. The Victorian Act had no direct application because members of the Queensland police force were not "investigating officers" for the purposes of the relevant sections, and the judge declined to apply s.464H indirectly in the exercise of his discretion. In his careful ruling that the evidence should be admitted, his Honour canvassed cases in which non-compliance with s.464H had been regarded as material to the exercise of the discretion to exclude, but his Honour distinguished those cases, pointing out for instance that in some of them - and I mention Grainger (Cummins, J., unreported, 11 June 1991), Weston (Court of Criminal Appeal, unreported, 5 August 1992) and Bartlett (Court of Criminal Appeal, unreported, 14 September 1994) - the accused had been questioned in another State about the offence alleged against him in Victoria (which was not the case here), and in another of the cases mentioned – Duckett (Hampel, J., unreported, 30 March 1992) - there was non-compliance with the local legislation concerning interviews.
In his Honour's view, and I agree, the conversation contained an important admission by the applicant and, moreover, on one view might be seen to demonstrate that the applicant's flight from Victoria in breach of the conditions of his bail had been precipitated by consciousness of guilt. In the course of ruling his Honour said this:
"It may be said to be something of a misfortune for the accused, who, after exercising his rights to make no comment to the investigating officers in Victoria, appears to have made unguarded statements to Queensland police who were concerned with the investigation of the Queensland offence to which he subsequently pleaded guilty. However, the very circumstances under which the statements were made were caused by the accused in breaching the conditions of his bail and in the commission of an offence which brought him under the notice of the Queensland detectives."
I agree that there was no reason here to reject the evidence.
In his submissions made this morning, counsel for the applicant conceded that no unlawfulness attached to the obtaining of the admission in Queensland. He also accepted that the admission was voluntary and reliable. He relied instead upon what he called the general discretion to exclude admissible evidence when to admit it would be unfair to the accused. He pointed to the judge's finding that the admission was "unguarded", that the applicant was not told that the investigation concerned the Victorian offences (which of course it didn't), and that the applicant had previously exercised his right to make a "no comment" record of interview when interviewed in Victoria. More particularly, it was put that it was unfair to allow evidence to be given of the conversation, when the applicant's attention had been directed by the detectives only to the investigation of an offence in Queensland. I must say, having listened to what counsel has put so carefully on behalf of his client, I am altogether unpersuaded that the judge fell into error in declining, in the exercise of discretion, to exclude evidence of what was said by the applicant according to the two Queensland detectives. It follows that ground 2 must fail.
In a sense, that is enough to determine also ground 1 (which was that the conviction was unsafe or unsatisfactory) and, in the end, I rather took it that counsel this morning was disposed to that view too. The issue raised by ground 1 is one which must be determined, as counsel submitted, on an assessment of the whole of the evidence presented during the trial. But in this instance counsel's complaint was somewhat more specific. He submitted that the jury could not have found beyond reasonable doubt that the applicant was the driver of the car that fled the scene of the armed robbery (meaning the orange Ford Laser). Again counsel very fairly conceded that "there was persuasive evidence pointing towards the Applicant's involvement in the offence prior to and after the commission of the armed robbery". That extended to the applicant's having attended a car yard and purchasing the orange Ford Laser, and, it may be added, the acquisition of the spare keys. Moreover, the applicant was seen in the Laser some hours after the offence and had apparently been enriched at about that time. It was submitted that, at its highest, this evidence "could only go so far as to implicate the accused as an accessory before or after[1] the fact", and this had not been put to the jury. Of course, to be an accessory before the fact would not have relieved the applicant of any criminal responsibility, and perhaps there was good forensic reason for this alternative not being pursued by his counsel at the trial. Be that as it may, counsel contended that what had been put to the jury was only that the applicant was driving the vehicle and was therefore shown to have been acting in concert; yet, said counsel, there was no direct evidence of his driving the getaway vehicle, for the driver of the van that gave chase made no identification of the applicant as the driver, nor did he observe the applicant's missing arm.
[1] As to the latter see now Crimes Act 1958 s.325.
In my opinion, there was nothing unsafe or unsatisfactory about this verdict. It was for the jury to weigh the circumstantial evidence which linked the applicant to the commission of count 3 and it was open to the jury, I think, to conclude beyond reasonable doubt that he was the third man in the getaway car. After all, there was no evidence to the contrary: nothing was said in evidence to support a suggestion that the applicant had not been in the getaway car or that it had not been used (once the blue Gemini had been ditched) because it was the car earlier purchased by or at the instance of the applicant, apparently for his use even if in conjunction with others. Moreover, whatever the strength of the evidence otherwise, once it is coupled with the admission made in Queensland by the applicant himself, it seems to me that the circumstantial case was indeed strong, and on that basis I am not persuaded that the verdict was unsafe or unsatisfactory.
For these reasons I would dismiss this application for leave to appeal against conviction.
WINNEKE, P.:
I agree.
BROOKING, J.A.:
I too agree.
WINNEKE, P.:
The order of the Court is that the application for leave to appeal against conviction is dismissed.
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