R v Joffe

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 90 of 1998

THE QUEEN

MAX MICHAEL JOFFE

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JUDGES:	WINNEKE, A.C.J., BROOKING and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 October 1998
DATE OF JUDGMENT:	28 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 101

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Criminal law - Theft - Applicant pleading not guilty to 81 counts of theft of artistic works - Jury convicting on 24 counts and acquitting on remaining counts - Whether verdicts unsafe and unsatisfactory - Rational basis for jury distinguishing between counts - Whether presentment should have been severed - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G. Hicks and	P.C. Wood, Solicitor for
Ms. K. Judd	Public Prosecutions
For the Applicant	Mr. R. Kent, Q.C.	Haines & Polites

WINNEKE, A.C.J.:

I will invite Buchanan, J.A. to deliver the first judgment in this application.

BUCHANAN, J.A.:

Albert Tucker has been an important artist for a great part of the 83 years of his life. His works are found in a number of private and public galleries. Since the beginning of the 1980's Mr Tucker has lived in a house in Blessington Street, St Kilda. In the house is a collection of upwards of one thousand drawings and paintings, the majority by Mr Tucker, others by Arthur Boyd, Sidney Nolan, Viard, Bonard, Gill and Joy Hester. Joy Hester was Mr Tucker's wife and an artist who, with Mr Tucker, was part of the artistic community centred upon Heide, the residence of John and Sunday Reed. In his evidence in this case Mr Tucker said that when she left him in 1947, "she left in a hurry and left everything she had behind her", including some 200 works of art.
Many of the drawings and paintings are displayed on the walls of Mr Tucker's house. The majority are stored in a purpose-built security room in the house. Mr Tucker was not careless of his collection. According to the evidence of James Mollison:
"Whatever the day when you arrived at Tucker's he is in the garden waiting for you to come through the gate, which I understand he has opened because of your expected arrival. He then unlocks the front door and any subsequent room in the house that you have reason to visit, other than the living room and kitchen, he unlocks these as well and it is always locked behind you. The studio and the two stores in the yard are also locked at all times."
The applicant and his de facto wife, Lorraine Finlay, conducted the Melbourne Contemporary Arts Gallery in Gertrude Street, Fitzroy. The applicant was particularly interested in Australian artists of the 1940's, the period when Mr Tucker was perhaps at his peak as an artist. Mr Tucker learned of the applicant's interest and between 1993 and 1994 the applicant gained Mr Tucker's friendship and trust. The applicant attended at Mr Tucker's house in Blessington Street frequently in 1994, initially for the purpose of mounting and framing paintings and later to catalogue the works in the house. Mr Tucker paid for the applicant's work in money and in kind in the form of two paintings, one of his own and one by Joy Hester.
The security of which Mr Mollison spoke was relaxed in the case of the applicant, and he was often left alone to catalogue the paintings, and was admitted alone to the storage room. Even Mr Tucker's dealer since 1988, Lauraine Diggins, was not so trusted and was never allowed unsupervised access to the house.
In 1994 Mr Tucker realised that a painting, books and a collection of magazines were missing. A book and the magazines and a number of paintings were brought to Mr Tucker's house by the applicant and Lorraine Finlay. Finlay said there were other paintings at auction rooms and she would see that they were returned. She did return paintings and two further torn paintings retrieved from a rubbish bin. As compensation for their actions the applicant and Ms Finlay allowed Mr Tucker to select seven paintings from their gallery, gave him a painting by Vassilief, and the applicant framed a number of works in Mr Tucker's collection.
In February 1995 Mr Tucker discovered a number of paintings in his Hester collection were missing. Mr Tucker, Diggins and five assistants audited his own and Hester's works. Some 50 works in all were said to be missing. The police were informed. The police and Mr Tucker attended at the applicant's house, where Mr Tucker identified a number of works as his.
On 2 March 1998 the applicant was arraigned in the County Court and pleaded not guilty to a presentment containing 81 counts of theft, three counts of attempting to obtain property by deception and one count of obtaining property by deception. On 15 April 1998 verdicts of guilty were returned in respect of 24 counts of theft and the count of obtaining property by deception. Verdicts of not guilty were returned in respect of the other counts, save for three of the counts of attempting to obtain property by deception, in respect of which no verdicts were taken.
On 20 April 1998 the applicant was sentenced to a term of imprisonment on each count ranging from four to twelve months. Sentences of twelve months on three counts were directed to be served cumulatively, producing a head sentence of three years. The learned sentencing judge set a period of 18 months before the applicant was to become eligible for parole.
The applicant sought leave to appeal against both conviction and sentence. The application in respect of sentence was abandoned on the eve of this appeal.
The first ground of appeal is that the verdicts are unsafe and unsatisfactory. The applicant contends that the acquittals upon some 58 counts demonstrate the existence of considerable doubt as to the reliability of the evidence of Mr Tucker, and all of the counts depended to a greater or lesser extent upon the reliability and credibility of his testimony.
In order to evaluate this submission it is necessary to have regard to the circumstances attending each of the counts.
Counts 1 to 11 concerned the 11 works of art which were returned to Mr Tucker by the applicant and Ms Finlay at the end of 1994 or early 1995. The jury returned verdicts of not guilty in respect of nine of those counts. The distinguishing characteristic of the two counts in respect of which verdicts of guilty were returned was that evidence was given by art auctioneers that the paintings the subject matter of those two counts were placed by the applicant for auction. It appears to me to be likely that the jury was not satisfied that in respect of the other counts the applicant intended to permanently deprive the owner of those paintings. If that was so, the verdicts say nothing as to the jury's view of the credibility of Mr Tucker's evidence.
Counts 12 and 13 concerned the torn paintings returned by Finlay. The applicant was acquitted of those counts. Again, the jury may well have doubted whether the applicant intended to permanently deprive Mr Tucker of those paintings.
Counts 14 to 17 related to works returned by Finlay from auction houses. The jury returned verdicts of guilty in respect of two of the counts in respect of which the applicant gave evidence that Mr Tucker gave him the paintings in exchange for two cartoons. Mr Tucker himself agreed that he had obtained the cartoons from the applicant, but said he had purchased them for $500. Apparently the jury did not believe the applicant's account.
Counts 18 to 30 concerned works found at the applicant's house which Mr Tucker said he had never sold or given away. The jury found the applicant guilty of all those counts.
The subject matter of counts 31 to 37 were Ms Hester's paintings, while counts 38 to 79 concerned missing works by Mr Tucker. The applicant was found guilty of the counts relating to the Hester paintings and not guilty of the counts relating to the Tucker paintings. The distinction between the two groups of paintings is that the applicant did take paintings by Hester and returned a number of them. Another distinction was that there was cogent evidence of the missing Hester paintings having been in the possession of Mr Tucker (based on a catalogue made after an exhibition in 1994), whereas the audit made of Mr Tucker's own works, far larger in number, appeared to contain errors and lacked precision. In my opinion, the difficulties with the audit process did not reflect upon the credibility of Mr Tucker, for the difficulties were largely due to the size of a collection representing works done over decades.
Counts 80, 81 and 82 related to deceptions involving paintings the subject matter of earlier counts. The trial judge took those counts away from the jury.
The jury returned verdicts of not guilty on counts 83 and 84, the theft of a Vassilieff painting and an art book. Mr Tucker's evidence as to his possession of the articles was somewhat uncertain.
Finally, the jury found count 85 proven. The count alleged deception of a woman from whom the applicant obtained $75,000 by falsely stating that Mr Tucker was prepared to sell some of his paintings. Some three months later the applicant returned the money, saying that Mr Tucker had changed his mind.
It is apparent from an analysis of the counts that there was a rational basis for the distinction the jury made in finding the applicant guilty of some counts and not guilty of others. In my view the verdicts do not entail or even suggest a conclusion that the credibility of Mr Tucker was so impaired that the convictions were unsafe or unsatisfactory.
The second ground of appeal is that the learned judge erred in failing to sever the presentment. The applicant contends that should have been done by dividing the counts into two groups of some 40 counts each, one comprising what were said to be stronger counts, the other comprising weaker counts. The second group was made up of the counts relating to the missing works by Tucker that were not recovered.
The final ground of appeal is that the trial judge erred in failing to discharge the jury at the conclusion of the Crown case. It was submitted on behalf of the applicant that that should have been done in order to enable the severance of the presentment and trial by a jury uninfected by knowledge of the counts that should not have been joined.
Both grounds take their impetus, and probably owe their existence, to remarks made by the trial judge at the close of the prosecution case. His Honour said:
"I am of the opinion that no matter how I charge the jury in relation to the 43 counts, it would be impossible for this jury to put out of their mind the evidence which is, all I will say, a much stronger pointer to him taking paintings from Tucker's home and I have come to the conclusion in relation to these 43 counts that he could not receive a fair trial with those counts being tried on the same presentment so I propose at this late stage - I have the power and I propose to sever them. ... I entertain not the slightest doubt that the jury will be overwhelmingly prejudiced by the case that is made out in relation to the other counts."
Those remarks were made after hearing a no case submission relating to counts 38 to 79. No application for severance was made on behalf of the applicant, and the learned judge did not have the benefit of any submissions from the Crown. His Honour considered the matter further overnight and concluded that there should be no severance. He said that on the previous day he had "hurtled" to judgment. The fear that prompted his Honour's remarks was that the jury might be induced by the presence of the stronger counts to convict the applicant on some or other of the weaker counts. The fear was not realised. The jury unerringly identified the weak counts and returned verdicts of not guilty.
Counsel for the applicant sought to turn the judge's concern on its head by submitting that the presence of the weak counts could have brought about the convictions on the stronger counts because there was a large number of counts overall and the weak counts may have given the not so weak counts a spurious air of strength.
In my opinion the verdicts of guilty cannot be laid at the door of the counts in respect of which there were acquittals. There is no basis for rejecting the rational explanation of the verdicts in favour of an irrational explanation. The Crown case with 85 counts was straightforward. Each related to an item of property which was separately identifiable. The case was not so complex that there was likely to have been any confusion in the minds of the jurors, which may have produced a verdict of guilty on any count that would not have been obtained if the count had been the sole count in the presentment.
Counsel for the applicant at the trial eschewed an application to sever the presentment, no doubt influenced by the hope that the presence of weak counts might lead to acquittal on stronger counts. In this he may have succeeded, for there were acquittals among the counts viewed by the judge and counsel as belonging to the group of stronger counts.
In my opinion the joinder of all the counts in one presentment did not prejudice the applicant in his defence.
I would dismiss the application.

WINNEKE, A.C.J.:

I agree.

BROOKING, J.A.:

I also agree.

WINNEKE, A.C.J.:

The formal order of the Court will be that the application for leave to appeal against conviction is dismissed.

[1998] VSCA 101

28 October 1998