R v Iliovski & Shnider
[2002] VSCA 172
•31 October 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.121 of 2002
| THE QUEEN |
| v. |
| PAUL ILIOVSKI |
No.135 of 2002
| THE QUEEN |
| v. |
| ALAN HARVEY SHNIDER |
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JUDGES: | PHILLIPS and CALLAWAY, JJ.A. and O’BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 October 2002 | |
DATE OF JUDGMENT: | 31 October 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 172 | |
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CRIMINAL LAW - Blackmail and other offences - Inconsistent verdicts - Principal offender acquitted - Applicant convicted - Aiding and abetting - Concert - Common purpose - Foresight that an offence outside the scope of the common purpose may be committed - Judge impermissibly expanding Crown case in response to jury question - Conventional direction where accused person gives evidence - Lies - Whether verdicts unsafe - Applications for leave to amend grounds of appeal - Sentencing - Parity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle Q.C. with Ms R.J. Orr | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant Iliovski | Mr. M.J. Croucher with Mr. A. Halphen | Lewenberg & Lewenberg |
For the Applicant | Mr. R. van de Wiel Q.C. | Goldsmiths |
PHILLIPS, J.A.:
I agree in the judgment of Callaway, J.A. I agree in his Honour’s reasons for judgment and in the orders which he proposes.
CALLAWAY, J.A.:
Introduction
The Crown filed a presentment charging each of Paul Iliovski, Ramzi Nassar and Alan Harvey Shnider with two counts of false imprisonment (counts 1 and 2), two counts of intentionally causing injury (counts 3 and 5), one count of blackmail (count 4) and two counts of threatening to kill (counts 6 and 7). The presentment was severed and separate trials were held, first in relation to Shnider and then in relation to Iliovski and Nassar. Shnider was convicted on all counts. Nassar was convicted only on count 3, intentionally causing injury to one George Kallis. Iliovski was convicted on that count and also on count 4, making an unwarranted demand with menaces to Kallis with a view to gain for Shnider.
The learned trial judge sentenced Iliovski and Nassar on 17th May, and Shnider on 22nd May, 2002. He sentenced each of them to eight months' imprisonment on count 3. Iliovski was also sentenced to 18 months' imprisonment on count 4, suspended in part as to ten months for a period of three years. Shnider was also sentenced on the other counts on which he was convicted. His total effective sentence was two years' imprisonment, suspended in part as to 16 months for a period of three years. In each case declarations were made regarding pre-sentence detention.
Iliovski seeks leave to appeal against both conviction and sentence. Nassar gave notice of application for leave to appeal against sentence but that application was abandoned. Shnider seeks leave to appeal against conviction only. It will be convenient to deal with Iliovski's case first but, before turning to his grounds of
appeal, an application to amend those grounds and counsel's submissions, I shall say something briefly about the facts common to both cases.
In 1997 Kallis instructed Shnider, a solicitor, to act for his company in the Federal Court. Shnider briefed Gerard Nash, Q.C. When the case settled in late 1998, Kallis or his company allegedly owed Shnider's firm a sum in the order of $80,000 by way of outstanding costs and disbursements. Included in that figure was a sum in excess of $20,000 for Nash's fees. Kallis disputed the debt, maintaining that he had been given a quote and had paid the amount quoted. Shnider enlisted the assistance of Iliovski, a former client. He said that it was only to find Kallis, whose whereabouts were unknown. The Crown case was that it was with a view to recovering the debt by unlawful means.
On 8th September 1999 Iliovski and another man identified only as "Jack" arrived at Kallis's workplace. Kallis gave evidence that one of them demanded that he pay his debt to Shnider. He denied that he owed any money to Shnider. Iliovski then telephoned Shnider on his mobile phone, passing it over to Kallis, who agreed to meet Shnider that evening. Later he received a telephone call from Shnider saying that the meeting would take place in Nash's chambers at 5 o'clock. Kallis arranged for another solicitor, Paul Egan, to attend the meeting and told Shnider that Egan would be accompanying him.
At about 5 o'clock Shnider entered Nash's chambers with two men, Iliovski and Nassar, whom Nash did not know. He told Nash that the men were looking for Kallis. They waited for Kallis and Egan to arrive. In the meantime, on Egan's advice, Kallis had decided that it would be better to have the meeting at Shnider's office in Collins Street. When Shnider was contacted by telephone at Nash's chambers he was at first reluctant to change the venue but he rang back a few minutes later and agreed to meet at his office. He, Nash, Iliovski and Nassar travelled there by car, Iliovski and Nassar alighting a short distance before the office.
Kallis and Egan were already waiting in Collins Street. When they saw Shnider and Nash enter the building they followed and were taken into the conference room. The four men sat at the table and began discussing the moneys allegedly owing. After a time Nassar and Iliovski entered the room and stood behind Egan and Kallis. They were not introduced. As the conversation became heated, Nassar told Nash and Shnider to leave the room. The door was closed behind them. Egan was prevented from leaving and told to stay.
The evidence of what then transpired varied as between the two trials. Kallis, Egan and Nash gave evidence on both occasions. Iliovski and Nassar did not give evidence at Shnider's trial but did give evidence at their own. The Crown case was that Kallis was punched and kicked by Nassar, who asked him whether he was going to pay the $80,000. Egan was attacked by Iliovski. His head was banged against the conference room table and he was told not to look at what was happening to Kallis. Threats to kill were made to each of them. It must be remembered that Iliovski and Nassar were acquitted on most counts at their trial. For reasons that will become apparent, it is unnecessary to summarize their evidence. More will be said later about the evidence at Shnider's trial.
R. v. Iliovski
Iliovski's notice of application for leave to appeal against conviction refers only to his conviction on count 4 and seeks leave to appeal only against that conviction. Originally there were two grounds, but a further five were added by order of the Registrar made on 27th September 2002. Grounds 2 and 4(c), (d) and (e) were not argued. The remaining grounds read:
"1.The verdict of the jury of guilty on count 4 (blackmail) for the applicant, Paul Iliovski and not guilty for the co-accused Nassar is inconsistent. The Crown case was that Nassar was directly responsible for the making of the demand and the applicant was acting in concert and/or aiding and abetting.
…
3.The trial judge erred in his directions as to complicity and, in particular, he erred in failing expressly to instruct that the applicant could not be convicted of counts 3, 4 and/or 7 in the event of the jury's acquittal of Mr Nassar on those counts.
4.The trial judge erred in his directions on count 4 (blackmail) and, in particular, he erred:
(a)in directing that 'the demand consisted of the cumulative effect of various conversations' (charge at 489);
(b)in giving the foregoing direction when the respondent alleged that it was Mr Nassar, not the applicant, who 'performed the physical act constituting the crime' (charge at 498-499) and the only demand that was in fact, or could be, relied upon was but a single utterance by Mr Nassar in the course of assaulting Mr Kallis;
…
5.The verdict on count 4 (blackmail) is unsafe or unsatisfactory in that no reasonable jury properly instructed could be satisfied beyond reasonable doubt that the demand allegedly made by Mr Nassar was in fact made.
6.The trial judge erred in his directions as to how the jury should approach the evidence of the accused and, in particular, he erred:
(a)in effectively presenting the jury's task in this regard as if it were a choice between characterizing the applicant as 'a guilty person [attempting] to brazen it out' or as 'an innocent person' giving his version (charge at 465-466);
(b)in failing to accede to Mr Nassar's counsel's request for a re-direction on this topic (charge at 484-586 & 588).
7.An aggregate of errors caused the trial to miscarry."
At the outset of the hearing Mr Croucher sought leave to amend the notice of application for leave to appeal to encompass count 3. Only ground 6 is clearly capable of application to that count but, counsel foreshadowed, he would argue that success in relation to count 4 would have implications for count 3. The Court permitted argument to be put as if the notice had been amended but reserved its decision whether to grant leave to amend.
In my opinion ground 1 must be upheld, Iliovski's conviction on count 4 quashed and a judgment and verdict of acquittal entered on that count. The case against the applicant on count 4 was that, although Nassar alone did the acts constituting the offence, Iliovski either acted in concert with him or aided and abetted him and the judge directed the jury as follows:
"Now, in respect of this count, count 4, I direct you that as a matter of law there is no evidence that Iliovski acted directly in this matter, in other words, was the actual person who did the physical act in committing the crime. There is evidence open to you to find that Nassar acted directly in this matter, and you will recall that it was on this basis that the Crown put its case to you. The Crown does not allege that it was Iliovski who performed the actual physical act constituting the crime. It would, of course, be open to you to find in respect of this count that Iliovski acted in concert with Nassar or, alternatively, it would be open to you to find that he aided and abetted Nassar in the commission of this crime."
Nassar's acquittal on count 4 meant that the applicant could not be found guilty as an aider and abettor. Criminal liability on that footing is derivative.[1] The same is not true of acting in concert. But on the facts of this case, if Nassar was not guilty, the applicant could not be liable on the footing of concert. The offence the subject of the alleged agreement was not committed.[2] It was not a situation where, for example, although the actus reus was proved to the requisite standard, one party had a defence that the other party did not.
[1]See, for example, Osland v. R. (1998) 197 C.L.R. 316 at [71] per McHugh, J.
[2]The elements of blackmail appear from s.87 of the Crimes Act 1958. It is unnecessary to set them out.
The issue having been explored in the course of argument, Mr McArdle conceded that there was no legal basis on which Nassar's acquittal on count 4 could be reconciled with the applicant's conviction on that count, but he sought to support the verdict by reference to the well known observations of King, C.J. in R. v. Kirkman[3], which were endorsed by Gaudron, Gummow and Kirby, JJ. in MacKenzie v. R.[4] Those observations were directed to multiple counts against one accused, not to a case where, without legal justification, a jury acquits one person and convicts another. There may be circumstances in which an appellate court would refrain from intervening, but ordinarily such verdicts would give rise to a justifiable sense of grievance. As I have already indicated, I consider that ground 1 must be upheld.
[3](1987) 44 S.A.S.R. 591 at 593.
[4](1996) 190 C.L.R. 348 at 367-368.
Turning to the application for leave to amend the notice, I am not persuaded that it is sufficiently arguable that the inconsistent verdict on count 4, or any other ground relating only to that count, impugns the applicant's conviction on count 3. The only other basis on which it was argued that leave should be granted was that ground 6 was equally applicable to both counts. The direction impugned by that ground concerned the significance of the applicant's having given sworn evidence and was in conventional terms.[5] Defence counsel below took exception to the direction, referring to Robinson v. R.[6] and Ramey v. R.[7] Mr Croucher said that, if leave were granted, he would also rely on what had been said by Winneke, P. in R. v. Hyatt[8].
[5]There were minor differences but Mr Croucher expressly conceded that they were not relied on. The object of the exercise was to challenge the direction ordinarily given in this State.
[6](1991) 180 C.L.R. 531.
[7](1994) 68 A.L.J.R. 917.
[8][1998] 4 V.R. 182 at 192.
It is unnecessary to express a final conclusion on this point, but I do not wish to encourage the notion that it is likely to succeed. In the first place, Mr Croucher conceded that the direction that had been given in R. v. Hyatt was different. It is unlikely that the learned President and those who agreed with him[9] intended to criticise the conventional direction without saying so. Secondly, when I examined the authorities in this branch of the law in R. v. Haggag[10], I expressly referred, without disapproval, to the conventional direction that is given in this State when an accused person gives evidence.[11] Thirdly, there is no reason to think that, in the circumstances of this case, the direction affected or prejudiced the applicant in a manner that would warrant appellate intervention. Accordingly I would refuse leave to amend the notice.
[9]Brooking and Charles, JJ.A.
[10](1998) 101 A.Crim.R. 593.
[11]At 598. Phillips, C.J. and Kenny, J.A. concurred.
That leaves for consideration Iliovski's application for leave to appeal against sentence. The notice is expressed to apply only to count 3 and seeks leave to appeal against "the sentence on count 3 of 18 months' imprisonment with ten months suspended for three years". The grounds read:
"1.The learned sentencing judge erred in exercise of his discretion in failing to have sufficient regard to the principles of parity in that the co-accused Nassar had significantly more prior convictions than the applicant Iliovski.
2.The learned sentencing judge erred in exercise of his discretion in failing to have sufficient regard to the distinction in the roles played by the applicant and the co-accused, Nassar, in the commission of the offence.
3.The learned sentencing judge erred in the exercise of his discretion in failing to have regard or sufficient regard to the principles of parity and totality in fixing the same term of immediate imprisonment for the applicant Iliovski as the co-accused Shnider who was said to be the principal and was convicted of seven counts.
4.The learned sentencing judge erred in the exercise of his discretion in imposing a sentence that is inappropriate and manifestly excessive having regard to:
(a)the applicant's background,
(b)the applicant's prospects of rehabilitation,
(c)the applicant's employment history,
(d)the role played by the applicant in the commission of the offence."
Notwithstanding the opening words of the notice, I have taken those grounds to relate to the sentence of eight months' imprisonment imposed on count 3.
It was but faintly contended that the sentence was manifestly excessive. Mr Croucher's principal argument was directed to parity with Nassar and Shnider. It will emerge later in these reasons that I consider that Shnider's convictions should be quashed and the sentences set aside. In another case that might not be an answer if a sentence set aside nevertheless betokened error in the exercise of the discretion, but in this case it is enough to consider the parity argument in relation to Nassar.
It was submitted that Iliovski should have received a lesser sentence than Nassar given their respective roles, levels of culpability and criminal histories. In my opinion, if the judge did take a broad-brush approach, which I do not decide, he was entitled to do so. Nassar, who was 11 years older than Iliovski, had nine previous convictions and two findings of guilt from five court appearances between 1986 and 1995, whereas Iliovski had only two findings of guilt, for unlawful assault and using threatening words in a public place, from one court appearance in 1996; but Iliovski recruited Nassar, was an active participant in the events of 8th September 1999 and was present when Nassar intentionally caused injury to Kallis. I doubt that he feels a sense of grievance arising from their receiving the same sentences but, if he does, it is not a sense of grievance that would be shared by an objective observer.[12] I would dismiss the application for leave to appeal against sentence.
[12]R. v. Taudevin [1996] 2 V.R. 402 at 404; Postiglione v. R. (1997) 189 C.L.R. 295 at 323.
R. v. Shnider
Shnider originally sought leave to appeal against conviction on four grounds. At the outset of the hearing counsel sought to substitute three new grounds of appeal, as follows:
"1.The verdicts of the jury in relation to the applicant were unsafe and unsatisfactory.
2.The learned trial judge erred in answering the question of the jury (p.713) in the manner in which he did because:
(i)he recast the Crown case in a way not pleaded by the Crown;
(ii)he unnecessarily complicated the jury's consideration in a manner prejudicial to a proper consideration of the applicant's case;
(iii)he incorrectly introduced the concept of objective culpability.
3. The learned trial judge failed to give any or any adequate direction in relation to the use that the jury could make of alleged lies and omissions of the applicant in his records of interview and statement to the police relied upon by the Crown to establish guilt."
Grounds 1 and 2 were similar to grounds already to be found in the notice of application. Ground 3 was not. The Court granted leave to substitute grounds 1 and 2 for the existing grounds and reserved its decision whether to grant leave to add ground 3.
It will be convenient to deal first with ground 2. After they had retired to deliberate, the jury submitted a written question to the judge, reading:
"Point of law. If a person instigates a threat and this threat takes on a life of its own which results in a crime being committed, is the instigator of the initial threat guilty of the subsequent crime?"
His Honour told counsel the directions he proposed to give in answer to that question but invited submissions.
The proposed directions informed the jury of the aspect of common purpose explained by the High Court in McAuliffe v. R.[13], to the effect that a party may be guilty of a crime which falls outside the scope of the common purpose if he or she contemplated as a possibility the commission of that offence by one of the other parties in the carrying out of the enterprise and continued to participate in the venture with that knowledge. For convenience, I shall refer to that aspect as "extended common purpose".[14] Such precision is desirable in this judgment partly because of the way in which "common purpose" was used by the prosecutor in the course of the trial and partly because the terminology varies from State to State and there is a certain amount of imprecision and overlap in the terms that are used.[15]
[13](1995) 183 C.L.R. 108 at 115-118..
[14]Cf. R. v. Coombe (unreported, Court of Appeal, 10th February 1998) at 8.
[15]See, for example, R. v. Phan (2001) 123 A.Crim.R. 30 at [64] per Wood, C.J. at C.L. and R. v. Lao [2002] VSCA 157 at fn. 98 per Eames, J.A.
Counsel for the applicant vigorously resisted the proposed directions. They submitted that the Crown case against Shnider had always been limited to concert and aiding and abetting. It was not part of the Crown case that, if the use of violence was outside the scope of the agreement, Shnider could still be convicted if he foresaw that violence might be used as an incident of carrying out the plan.
The prosecutor encouraged his Honour to give the proposed directions and referred to what he had said in his opening, as follows:
"Now the prosecution case is that Shnider, Iliovski and Nassar reached an understanding, or arrangement amounting to an agreement, that money would be obtained from Kallis by the use of violence. All three were engaged in a common purpose of obtaining money from Kallis by threats of violence and the use of violence. It was essential to their purpose that Kallis submit to their violence, agree to pay the money, pay the money and not report their offending to the police. And the prosecution says that all those charges on that document fall within that understanding or arrangement."[16]
As the prosecutor correctly submitted, that did not tie the Crown to an agreement to use violence in any event. Understood sensibly, it meant that Shnider was party to an agreement, express or implied, to threaten Kallis and to use violence if necessary.
[16]Reference was then made in the opening to aiding and abetting.
His Honour answered the jury question as follows:
"Your question is, as I understand it, a point of law. If a person instigates a threat and this threat takes on a life of its own which results in a crime being committed, is the instigator of the initial threat guilty of the subsequent crime? Now it seems to me that you should look very closely at the alleged agreement that is said to have taken place by the Crown between Shnider, Iliovski and Nassar. The Crown case is that violence was part of the blackmail agreement entered into between Shnider, Iliovski and Nassar. Were you to think that there was blackmail afoot, but with no violence attached to it, then, of course, Shnider would be not guilty of the count, because the Crown case is that violence was part of the agreement.
Now I should say this to you, in line with the question and particularly that last bit, 'Is the instigator of the initial threat guilty of the subsequent crime?' Remembering importantly what I have just said to you, but in the situation where one party foresees - and the important word is foresees - in the situation where one party foresees, but does not agree to a crime other than that which is planned and continues to participate in the venture, that party is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the definition of acting in concert or common purpose. In that situation the prosecution must prove that the party concerned foresaw - that the party concerned foresaw - that the incidental crime might be committed and it cannot, I repeat, cannot rely upon the existence of the common purpose as establishing that state of mind. So, the prosecution must prove that the party concerned foresaw that the incidental crime might be committed.
Let me give you an hypothetical example and it is an hypothetical example and it is using the facts in this case by way of illustration because that is the case you are dealing with. Again, I stress it is an hypothetical example. Let us assume that you find proven beyond reasonable doubt that Shnider did enter into an arrangement with Iliovski and Nassar that they would make an unwarranted demand with menaces with a view to gain for Shnider - let us assume that. Let us assume that that was the extent of the agreement and you will see that count 4 charges that Shnider made an unwarranted demand with menaces to George Kallis with a view to gain for the said Shnider. Let us assume that was the extent of the agreement, but that Iliovski and Nassar went further than the agreement and that, for example, Nassar without lawful excuse intentionally caused injury to Kallis by kicking and hitting him. If what Nassar did in committing the assault went beyond anything that Shnider had agreed to or realised Nassar might do - and that is the important words again - in other words, that is the foreseeing - so if what Nassar did in committing the assault went beyond anything that Shnider had agreed to, or realised Nassar might do, Nassar alone would be guilty of the further offence and Shnider not guilty of that further offence.
However, if you were satisfied beyond reasonable doubt that Shnider realised or was aware or ought to have known that Nassar might assault Kallis in furtherance of the demand with menaces, the law is that by taking part in the blackmail with that knowledge, that is to say the knowledge that Nassar might assault Kallis, he, Shnider, is taken to have accepted the risk that Nassar might or would act in that way and so he, Shnider, adopts those acts and is responsible for them even though he, Shnider, would have preferred that Nassar had not acted like that at all." (Emphasis added.)
That is the answer impugned by ground 2. The principal objection is that his Honour impermissibly enlarged the Crown case to encompass extended common purpose, but it is also objected that the words I have emphasized introduced an objective alternative to actual foresight of what Nassar might do.
This case requires no close analysis of common purpose or extended common purpose. That ground 2 must be upheld emerges clearly from the course of the trial. The vice in the answer was that it permitted Shnider to be convicted even if he did not agree, expressly or impliedly, to the use of violence.
The part of the prosecutor's opening that I have quoted was understood by the defence as a reference to concert and certainly not to extended common purpose. (The prosecutor's use of the expression "common purpose" is simply an illustration of the imprecision to which I have earlier referred. I think he may have intended to cover the second of the three situations described by the High Court in McAuliffe v. R.[17], but it will become clear from what follows that he did not intend to cover the third[18], i.e. extended common purpose.) The Crown case was one of an understanding or arrangement amounting to an agreement and the use of violence, if necessary, as part of the agreement. There was no suggestion that Shnider might be criminally liable if the use of violence was not part of the agreement and one of the parties went beyond the agreement but he foresaw that that was a possible incident of its implementation.
[17]At 114 line 14.
[18]At 115 line 25.
That is also how the case was understood by the judge. In discussion with counsel prior to the charge he intimated that he would "merely direct on acting in concert and aiding and abetting and [avoid] the pitfalls that can then follow when one also introduces common design or common purpose."[19] He asked the prosecutor whether he was content with that and the prosecutor said that he was. The following exchanges then took places"
"HIS HONOUR: Gentlemen, there is one other matter perhaps I should ask you as to whether I should address or charge this jury on the basis - well it is not the Crown's case and there is no suggestion from the defence as to this and my own reaction is that I should leave it well alone, but I just raise the issue of whether I should look at the scenario, right, you the jury might think he was party to an agreement to blackmail Kallis, but it went further than that and the directions about whether he is liable for all the - then the bashing up and the vicious assault, whether that was beyond the scope. It seems to me that I shouldn't do it. It hasn't been made part of the Crown's case and I think [defence counsel], you put it up, something along the lines, once you've grabbed the tiger, you are responsible for what happens from then on.
[DEFENCE COUNSEL]: We say that Your Honour should not introduce an alternative form of life.
HIS HONOUR: That is all I just wanted to hear. You are satisfied with that?
[PROSECUTOR]: Yes, perhaps I could just make the prosecution position crystal clear, Your Honour. In some of the cases they talk about extended common purpose, that is where certain crimes are within the scope and it occurs to someone who is a party to it, that the crime might be committed outside the scope which is the McAuliffe situation, now that is not the Crown case. The Crown case is that all of these were within the scope."
[19]This is only one of several passages in the transcript which show that his Honour understood the Crown case to be concert or aiding and abetting.
It is clear from the foregoing that it was not part of the Crown case that, even if the use of violence was outside the scope of the agreement, Shnider would be liable just because he foresaw that one of the other parties might use violence in the course of implementing the agreement and continued as a participant. Notwithstanding the opening paragraph of the answer to the jury question, the ensuing paragraphs impermissibly expanded the prosecution case.[20] It was not like telling a jury about the doctrine of recent possession in connection with a count of theft. It exposed Shnider to the imposition of criminal liability on a distinctly different basis. It is not altogether apparent whether further exception was taken, but the directions had already been opposed and it is important to remember that they were given in answer to a jury question. Once the jury were told that they could convict on the basis of extended common purpose, they would not have had to address their minds to the true basis on which the Crown case had been put. That is what they should have been directed to do. It is very likely that at least one of them convicted the applicant in reliance on the judge's answer.[21] The expression "a life of its own" shows that they were thinking of offences outside the scope of the alleged agreement.[22]
[20]Compare R. v. G.A.S. [1998] 3 V.R. 862; see also R. v. Tangye (1997) 92 A.Crim.R. 545 at 556 line 7 and Crimes (Criminal Trials) Act 1999, ss.6-8.
[21]They had been deliberating for more than a day when they asked their question. They convicted the applicant an hour-and-a-half after the question was answered.
[22]It will be apparent from the foregoing that I do not regard the departure as immaterial or such as could be met by the proviso, even if, as Mr McArdle submitted, there was a strong case of concert.
Even if it had been appropriate to direct the jury about extended common purpose at that stage, the charge having been restricted to concert and aiding and abetting, the words I emphasized when I set out the answer were erroneous because they introduced an objective test as an alternative to actual foresight. No exception was taken, but that does not matter in the circumstances of this case. In the first place, the main point succeeds. The answer impermissibly expanded the Crown case. Secondly, there was no forensic advantage in counsel's not taking the exception. Their minds were no doubt focused on the issue that had been the subject of debate and the way in which the judge would deal with it. The further submissions that they did make were directed to that issue. Moreover the italicised words did not appear in the directions as originally proposed to counsel.[23]
[23]Above at [21]-[22].
It was not disputed at the hearing of the application that the answer given to the jury question affected all counts. On reflection, it is not clear to me that it affected count 4. I do not read the prosecutor's opening as meaning that the Crown case depended on there being an agreement to use violence in any event, and blackmail with violence is not a different offence from blackmail by threats alone, but I think it is best to decide the case on the basis it was argued. I have adopted the same stance in relation to ground 1. In doing so, I imply no criticism of counsel on either side. It follows that the applicant's convictions must be quashed and, unless the verdicts or any of them were unsafe and unsatisfactory in the sense explained by the High Court in M v. R.[24] and Jones v. R.[25], which is the issue raised by ground 1, a new trial should be directed.
[24](1994) 181 C.L.R. 487 at 494-495.
[25](1997) 191 C.L.R. 439 at 450-452.
It will be recalled that Shnider was convicted on seven counts. Those counts were unlawfully imprisoning Egan (count 1), unlawfully imprisoning Kallis (count 2), intentionally causing injury to Kallis (count 3), blackmailing Kallis (count 4), intentionally causing injury to Egan (count 5), threatening to kill Egan (count 6) and threatening to kill Kallis (count 7). The same sentences were imposed on counts 1 and 2 and on counts 6 and 7. A more severe sentence was imposed on count 3 than on count 5. The longest sentence was two years' imprisonment on count 4. All the sentences were to be served concurrently. The argument for the applicant focused on the counts involving Kallis. No distinction was drawn between the four offences charged except, in response to a question from the bench, in the case of false imprisonment.
Mr van de Wiel submitted that the jury should have thought it a reasonable hypothesis that the conduct of Iliovski and Nassar in the applicant's office was "divorced from any agreement or assent by the applicant". The written outline referred to the evidence that the men who went to Kallis's yard were Iliovski and "Jack"; that Iliovski and Nassar attended Nash's chambers; of the telephone conversations between Kallis and the applicant for the purpose of arranging the meeting; of the initial arrangement to meet at Nash's chambers and the arrangements that both Nash and his junior would be present[26]; of the understanding that Egan would be present and what was described as the applicant's desperation to have Nash attend the meeting when it moved to the applicant's office[27]; as to the applicant's demeanour at the meeting and as to his conduct and demeanour when he and Nash left the room; and about the applicant's attempt to stop what then occurred.
[26]In the end the junior did not attend. That is why I have not referred to him.
[27]The purpose of having Nash present was to deny the alleged cap on fees. Nash agreed with the word "desperate" in relation to the meeting at its original venue and said also that Shnider "prevailed upon him" to go to his office.
Nash said that, when he and Shnider left the conference room, he asked Shnider what was going on and the latter said that he did not know. Nash said at the committal that he believed Shnider. That answer was put to him in cross-examination and he apparently stood by it. He also gave evidence that at one stage he opened the door and Shnider called out "Please stop. Please stop." but the assaults continued. Kallis, too, said that he heard Shnider call out, "Paul, what are you doing? Stop, Stop. You're going to kill them."
In his oral argument Mr van de Wiel emphasized that Iliovski and Nassar were tall, well-built men, who were likely to have intimidated not only Kallis but also Shnider. We were taken to evidence of their appearance and demeanour, including Nash's explanation that he did not report the matter to the police because he was scared for his family. The substance of the submission was that, even if the jury inferred an agreement to threaten Kallis, they should have had a reasonable doubt as to whether the agreement extended to the actual use of violence. Understanding the Crown case as I do[28], the reasonable doubt for which counsel contended would not have entitled the applicant to an acquittal on count 4. An agreement to threaten Kallis would have been enough. I reject the submission that there was insufficient evidence to infer that a demand with menaces was in fact made.[29]
[28]See [24], [27] and[31] above.
[29]Kallis said only that, in the course of the assault, Nassar "probably" demanded that he pay the bill. He could not remember. But the inference of such a demand was well and truly open on the facts, especially if the jury accepted Egan's evidence that Kallis kept on saying, "I'll pay. I'll pay."
Returning to counsel's main argument, I do not accept that it was not open to the jury to be satisfied to the requisite standard that Shnider had agreed, expressly or impliedly, to the use of violence. It was well open to them to find that he was party to an agreement to threaten Kallis. In the light of the evidence that Iliovski and Nassar turned up in Nash's chambers, travelled to the applicant's office in the same car, alighted separately (so as, the jury were entitled to infer, not to be observed), arrived in Shnider's office, stood behind Kallis and Egan and ushered Shnider and Nash out of the room and that Nassar bashed Kallis, the jury were entitled to conclude that the use of violence was also within the scope of the agreement.
Counsel's argument has more force in relation to false imprisonment. Falsely imprisoning Kallis is unlikely to have been part of the agreement from the beginning and I am prepared to assume, in favour of the applicant, that it could not be inferred beyond reasonable doubt that it became part of the plan prior to Iliovski's and Nassar's arrival at Nash's chambers or before they turned up in the conference room.[30] On those assumptions, one must decide the significance of Shnider's having left the room when he and Nash were told to do so. Did he thereby impliedly agree to the false imprisonment[31] or did he simply foresee that it had become a possible incident of implementing the agreement?[32]
[30]Nash said that he noticed Shnider with a mobile phone to his ear between parking the car and entering his building in Collins Street, but that is all he could say on that subject.
[31]See R. v. Tangye at 556-557 (proposition 2).
[32]This is one of several illustrations of why it was convenient to deal with ground 2 first. The question whether the verdicts are unsafe and unsatisfactory has to be answered mindful of the way in which the Crown put its case.
The applicant did not give evidence, but two records of interview and a statement to the police were before the jury. No fewer than seven lies or alleged lies by Shnider were identified by the prosecutor in the course of his opening. Nash gave evidence that, although he was politely asked to leave the room, there was no discussion between the applicant and Iliovski and Nassar about the applicant's leaving. In cross-examination Nash agreed with a suggestion that the applicant left the room "apparently on the same instructions" as those that had been given to Nash. Egan's evidence was different. He said that Nassar pointed to Shnider and Nash and said, "You and you, out!" Kallis's evidence was similar to Egan's. Both Nash and Egan testified that Egan started to get out of his chair with a view to leaving too, but that Iliovski physically prevented him and told him not to leave. Kallis made no attempt to leave the room and would obviously not have been allowed to do so.
Returning to the question posed at the end of [37] above, I consider that the jury were entitled to conclude that Shnider assented to the false imprisonment. He saw what was happening and left the room without protest. His later efforts to call off the men whose services he had procured occurred after that offence had been committed. It was not just a case of foreseeing what they might do in carrying out an agreement to threaten; there was assent to what was evidently intended if not already in progress. Realistically, it was not contended that he was not present in the relevant sense.[33] I would not uphold ground 1.
[33]I do not stay to consider whether one or more of the convictions might also be supported on the footing that he aided and abetted.
I would refuse leave to add ground 3. In the first place, even if the ground succeeded, it would not lead to a different order. A new trial must be directed by reason of the applicant's success on ground 2. A failure to direct or an inadequate direction in relation to lies would not lead to a judgment and verdict of acquittal. Secondly, no exception was taken below and I agree with Mr McArdle that there may have been a good forensic reason for that. The judge had not dealt with all the lies or alleged lies on which the prosecutor relied. Counsel may have considered that a direction would highlight them and that it was better to rely on what senior counsel for the applicant had said in his closing address. But this point need not be pursued to a conclusion.[34] The first reason is sufficient.
[34]Cf. BRS v. R. (1997) 191 C.L.R. 275 and R. v. Arundell [1999] 2 V.R. 228.
The judge and counsel should nevertheless give attention to the topic raised by ground 3 at the new trial to ensure that, if a direction is required, it is given. The content of any such direction would depend on the evidence and the way in which the Crown case was put, but I am disposed to think that, on the facts of this case, the jury should at least be directed to consider the possibility that the lies were told as a result of panic.[35]
[35]Compare R. v. McCullagh [2002] VSCA 163 at [25]; Broadhurst v. R. [1964] A.C. 441 at 457; R. v. Galli (unreported, Court of Appeal, 18th October 1996) in the judgment of Southwell, A.J.A. at 47-50; R. v. Miletic [1997] 1 V.R. 593 at 606-607 and Zoneff v. R (2000) 200 C.L.R. 234.
Orders
In R. v. Iliovski I propose orders in accordance with the following minutes:
1.Refuse leave to amend the notice of application for leave to appeal against conviction.
2.Grant the application for leave to appeal against conviction, treat the appeal as instituted and heard instanter and allow the appeal.
3.Quash the conviction sustained by the appellant on count 4 and the sentence passed thereon.
4.Direct a judgment and verdict of acquittal to be entered on count 4.
5.Dismiss the application for leave to appeal against sentence.
That leaves standing Iliovski's conviction on count 3, the sentence of eight months' imprisonment passed thereon and the declaration regarding pre-sentence detention.
In R. v. Shnider I propose orders in accordance with the following minutes:
1.Refuse leave to amend the notice of application for leave to appeal against conviction.
2.Grant the application for leave to appeal against conviction, treat the appeal as instituted and heard instanter and allow the appeal.
3.Quash the convictions sustained by the appellant and the sentences passed thereon.
4.Direct a new trial to be had.
5.Remand the appellant in custody pending the new trial.[36]
[36]That will not, of course, preclude an application for bail if appropriate. As to bail pending a new trial, see Practice Statement C.A. 2 of 1997 [1998] 2 V.R. 405 at [3].
Subject to hearing counsel, I would grant each applicant a certificate under s.14 of the Appeal Costs Act 1998 in relation to his appeal against conviction and, in Shnider's case, include in the certificate any additional costs that he will pay, or will be ordered to pay, as a consequence of the order for a new trial.[37]
O'BRYAN, A.J.A.:
[37]See s.14(2).
I have read the reasons of Callaway, J.A. in draft and I agree in his reasons that the orders proposed in para.[42] be made in the appeal of Iliovski and the orders proposed in para.[43] be made in the appeal of Shnider.
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