R v Kalajdic; R v Italiano
[2005] VSCA 160
•24 June 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN |
| No. 355 of 2003 |
| v. |
| THOMASLAV DUSKO KALAJDIC |
| THE QUEEN |
| No. 358 of 2003 |
| v. |
| DOMENIC MICHAEL ITALIANO |
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JUDGES: | BUCHANAN and VINCENT JJ.A. and BYRNE A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 May 2005 | |
DATE OF JUDGMENT: | 24 June 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 160 | |
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Criminal law – Blackmail – Statements by another inadmissible against the accused – No reasonable evidence of combination – Verdicts of guilty on each of alternative counts of theft and unlawful imprisonment irreconcilable – Lies by the accused – Consciousness of guilt – Trial judge failed to put to jury the accused’s explanation for lies – Trial judge failed to relate each lie to an appropriate count – Recklessness – Attempt to obtain property by deception may be constituted by recklessly false statement – Verdicts set aside.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. D. McArdle, Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant Kaladjic Italiano | Mr C. B. Boyce | Leanne Warren & Associates |
BUCHANAN, J.A.:
Thomaslav Kalajdic was arraigned in the County Court and pleaded not guilty to a presentment containing one count of aggravated burglary, one count of armed robbery, one count of theft, one count of unlawful imprisonment and one count of blackmail. Domenic Michael Italiano was tried in the County Court on two counts of theft, one count of obtaining money by false pretences, two counts of blackmail and one count of attempting to obtain property by false pretences.
The person said to be the victim of most of the crimes was Thomas Barker, a young man aged 19 years, whose father provided him with considerable funds to enable him to trade in used motor cars.
At the trial Barker gave evidence that on 15 June 2001 Kalajdic and one Aisbett entered his house in Brighton. Aisbett produced a revolver and both men forced Barker to give them a Mercedes Benz 320 CLK motor car, which Barker had purchased in February 2001 at a price of $115,000. Barker said that Kalajdic told him that if Barker arranged finance to enable the applicant’s brother to purchase a house, the Mercedes Benz would be returned to him. Barker said that he was forced at gun point to ride in the car with Kalajdic and Aisbett to St. Kilda where Barker was told to get out of the car. It was alleged that the invasion at the house in Brighton with a revolver, the taking of the car and the carriage of Barker to St. Kilda constituted the offences of aggravated burglary, armed robbery, false imprisonment and theft. Kalajdic did not give evidence at his trial. His counsel contended that Barker voluntarily handed over the motor car to Kalajdic and Aisbett for the purpose of making a fraudulent insurance claim. This defence was based upon statements made by Kalajdic to the police in a second record of interview.
A matter of some difficulty which arose out of the account given by Barker was the reconciliation of the count of armed robbery of the motor car with the count of theft of the same motor car. If the jury accepted the account of Barker, the former charge was established. If, on the other hand, they did not accept this evidence, preferring the account of Kalajdic, there was no theft of the car. Confronted with this conundrum, the prosecutor put the theft count on the basis that, if the motor car was voluntarily handed over by Barker to Kalajdic pursuant to the scheme to defraud the insurer and Kalajdic did not proceed with the scheme but appropriated the motor car to his own use, he was guilty of theft. It was on this basis that the theft count went to the jury.
For several months before June 2001 Barker had a close business relationship with Italiano, who permitted Barker to use his motor car dealer’s licence.
In the period between 15 June 2001 and 19 July 2001, Italiano telephoned Barker on several occasions. The telephone conversations were intercepted by the police and were recorded. In the conversations Italiano purported to act as a mediator between Barker on the one hand and Aisbett and Kalajdic on the other hand. Italiano told Barker that he was not involved in taking Barker’s car, but said that he would try to persuade Kalajdic and Aisbett to accept a lesser sum. He said that he was on Barker’s side and if Barker paid $20,000 or $30,000, the motor car would be returned to him. These conversations were said to constitute the offence of blackmail by Kalajdic and Italiano.
The Crown alleged that on 18 October 2001 Italiano attempted to sell the Mercedes Benz 320 CLK to Brian Amatruda at a price of $88,000. Italiano left the car with Amatruda, who made enquiries of VicRoads and was told that the car was subject to a lien. The lien was placed on the motor car to secure the interest of Barker’s father, who had advanced the money with which Barker purchased the motor car. Amatruda decided not to buy the car. These facts were said to constitute the offences of theft and attempting to obtain property by deception.
The other count of blackmail alleged against Italiano was based on the evidence of Barker’s father, who said that on 22 June 2001 Italiano told him that Kalajdic and Aisbett wanted the lien over the Mercedes Benz 320 CLK lifted. Barker’s father said that he understood that he was being threatened.
Barker acquired another Mercedes Benz, a 560 SEL model, as a trade-in. He leased the car to one Bruce Davis. In January 2001 the car engine was damaged when it overheated. With Barker’s agreement the car was delivered to Safwan Khoury to be repaired. Khoury repaired the car and on 8 June 2001 agreed to purchase it from Italiano at a price of $12,000 and the cost of repairs. Khoury paid the sum of $12,000 to Italiano. Italiano did not tell Barker of the sale or account to him for the proceeds. Instead he was alleged to have told Barker that the car had been moved to another site for repairs. Those events were said to constitute one of the offences of theft and the offence of obtaining money by false pretences with which Italiano was charged.
The applicant and Aisbett were arrested and charged. The trial of Italiano was severed and was heard after the trial of Kalajdic and Aisbett. At the conclusion of the first trial Kalajdic was acquitted on the counts of aggravated burglary and armed robbery and convicted on the remaining counts of theft of the Mercedes Benz 320 CLK, unlawful imprisonment and blackmail. Italiano was convicted on the counts of theft of the Mercedes Benz 560 SEL, obtaining money by false pretences from Khoury and attempting to obtain property from Amatruda by false pretences. He was acquitted on the remaining counts.
After pleas were made, Kalajdic was sentenced to be imprisoned for a term of 18 months on the count of theft, for a term of three months on the count of false imprisonment and for a term of four years on the count of blackmail. It was ordered that the sentence imposed on the count of false imprisonment and three years of the sentence imposed on the count of blackmail be served cumulatively upon each other and upon the sentence imposed in respect of the count of theft, producing a total effective sentence of four years and nine months’ imprisonment. The sentencing judge directed that Kalajdic serve a term of three years and six months’ imprisonment before becoming eligible for parole. Italiano was sentenced to be imprisoned for a term of three years on each of the counts of theft of the Mercedes Benz 560 SEL and obtaining money by false pretences and for a term of 18 months on the count of attempting to obtain property by deception. One year of the sentence on the count of attempting to obtain property by deception was cumulated upon the other sentences, producing a total effective sentence of four years’ imprisonment. The sentencing judge ordered that the applicant serve a term of three years’ imprisonment before becoming eligible for parole.
Kalajdic’s Applications
Turning to the application by Kalajdic for leave to appeal against conviction, the verdict of guilty on the count of blackmail was attacked on a number of grounds. It is necessary to deal with only one of the grounds. It was contended that the trial judge erred in permitting the jury to use the statements made by Italiano to Barker as proof of the commission by Kalajdic of the offence.
The statements were only admissible against Kalajdic if they were made by Italiano with Kalajdic’s authority. That authority could be inferred if Kalajdic and Italiano were acting in combination, that is, if they agreed to blackmail Barker. In Ahern v. R[1] Mason, C.J., Wilson, Deane, Dawson and Toohey JJ. said:
“[W]hen two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others ….”[2]
[1](1988) 165 C.L.R. 87.
[2]Above at 94 – 5. See also Tripodi v. R. (1961) 104 C.L.R. 1 at 7.
The admissibility of the evidence depends upon proof of the combination. The criterion is that there must be reasonable evidence of the combination apart from the co-offender’s acts and declarations.[3] Although the question whether such evidence exists is one for the judge alone,[4] in the present case the trial judge left the question to the jury. He instructed the jury that they were only to consider the evidence of the telephone conversations between Barker and Italiano if they were satisfied beyond reasonable doubt that there was an agreement between Kalajdic, Aisbett and Italiano that the car would be taken forcibly from Barker in order to compel Barker to arrange a loan for Kalajdic’s brother. The trial judge told the jury that there was no direct evidence of any such agreement, and its existence depended upon inference.
[3]Ahern v. R., at 100.
[4]Ahern v. R. at 103-4; R. v. Pektas [1989] VR 239.
His Honour did not identify any evidence from which the inference could be drawn. In my view the only evidence which might be said to relate to a combination to which Italiano and Kalajdic were party consisted of Kalajdic being introduced to Barker by Italiano, Kalajdic taking the car, demanding that Barker secure finance to assist Kalajdic’s brother to purchase a house, giving the car to Italiano and communicating with Italiano in the weeks following the taking of the car. In my opinion the evidence amounted to nothing more than proof of an association between Kalajdic and Italiano concerning the Mercedes Benz 320 CLK. The existence of an agreement between the two and the terms of such an agreement were entirely speculative. In my view the evidence did not provide any basis for inferring that Kalajdic agreed with or authorised the making of threats by Italiano to Barker.
Unless the evidence of Italiano’s telephone conversations with Barker were admitted against Kalajdic, the latter’s guilt on the count of blackmail cannot be justified. It is evident that the jury’s verdict was based upon the telephone conversations and not the demand said to have been made by Kalajdic to Barker on 15 June 2001. In the course of his charge the trial judge told the jury on several occasions that the only evidence of demands led in support of the count of blackmail were the demands made by Italiano by telephone. It appears that the judge’s oral directions were reduced to writing and given to the jury. Although the document cannot now be found, it is likely that it was amended to omit the word “only” so that the jury appears to have been told that the demands included those made by Italiano by telephone. Nevertheless, as a consequence of their finding that Kalajdic stole the Mercedes Benz 320 CLK, I think it is clear that the jury based their verdict on the telephone conversations and did not rely upon the evidence of a demand made by Kalajdic on 15 June. The verdict of guilty on the count of theft means that the jury accepted that Barker gave the motor car to Kalajdic for the purpose of perpetrating an insurance fraud and the theft consisted of a later conversion of the motor car by its delivery to Italiano to be sold by him. I do not see how the jury could have thought that the applicant made any demand upon Barker constituting blackmail on the occasion when Barker was voluntarily handing over the motor car for a shared purpose.
For similar reasons the verdicts of guilty on the counts of theft and unlawful imprisonment cannot be reconciled. The verdict on the count of theft means that the jury accepted that Barker voluntarily handed over the car to perpetrate an insurance fraud and Kalajdic later converted the car by delivering it to Italiano in order it be sold to Amatruda. The possibility that the car was taken from Barker by force without the use of a weapon was not left to the jury by the trial judge in his charge. The trial judge said that the count of theft was an alternative to the counts of armed robbery and aggravated burglary. He did not identify any facts which might constitute theft. In the light of the evidence, however, the count of theft was truly an alternative not only to the counts of aggravated burglary and armed robbery but also to the count of unlawful imprisonment.
In these circumstances there was no factual basis to sustain both the verdict of guilty on the count of theft and the verdict of guilty on the count of unlawful imprisonment. It is hardly credible that Barker was unlawfully imprisoned by Kalajdic and Aisbett while he was plotting with them to defraud an insurance company. As it is not possible to identify the facts found by the jury, in my view neither verdict can stand.
For the foregoing reasons I would grant the application by Kalajdic for leave to appeal against his conviction, allow the appeal, set aside the convictions and order that there be an acquittal on the count of blackmail and that the remaining counts be retried.
Italiano’s Applications
Turning to the application by Italiano for leave to appeal against his conviction, belief in a claim of right was central to Italiano’s defence on all counts. He claimed in his record of interview that he had lent large sums of money to Barker, that he and Davis, not Barker, had an interest in the 560 SEL motor car and that he had an interest in the CLK 320 motor car and had the right to sell it. Counsel for Italiano submitted that the trial judge’s directions to the jury in the matter were erroneous.
In the course of his directions as to theft, his Honour said:
“Here I further direct you that it is not lawful for a person to simply take and sell property belonging to someone else, simply to satisfy a claim that a person might believe that they have, or to pay proceeds of such sale to others, in the absence of any agreement reached with the person who in fact owns the property. That might seem to be a matter of commonsense, but we do have a system of law and courts, if you claim that somebody is owing you money and they will not pay, of course the proper legal procedure is to go to court and to get the court to authorise, if it is so minded, the seizure of any property in the enforcement of a judgment. But it is certainly not lawful for a person to simply take someone else’s property, without the sanction or authority of a court order.”
The trial judge made similar statements in directing the jury on the law relating to obtaining and attempting to obtain money or property by deception.
It was submitted that the directions were apt to take away or at least substantially undermine the defence of claim of right. The defence of claim of right was not determined by whether or not self-help was lawful. According to counsel the only question was whether the Crown had established that the applicant did not have the belief he asserted. Moreover, it was immaterial that the asserted belief was mistaken or unreasonable.
In my view his Honour’s directions were correct. They were directed only to the question whether Italiano had a right to sell Barker’s cars to satisfy a debt claimed by Italiano to be due to him by Barker. The question of Italiano’s belief in a claim of right was a separate question and was treated in orthodox terms by the trial judge: he told the jury that the element of dishonesty meant the absence of a legal right to appropriate property and knowledge or belief on the part of Italiano that he had no such legal right.
Counsel next turned his attention to the topic of lies which the Crown alleged were told by Italiano. The topic assumed some significance at the trial. A number of statements by Italiano in the course of his record of interview, in telephone conversations with Barker intercepted by the police and in a conversation between Italiano and Amatruda, were left to the jury as potential lies which exhibited a consciousness of guilt on the part of the applicant.
The lies were said to be ten in number. The first was the applicant’s statement that he was not aware that a Mercedes Benz 560 SEL motor car owned by Barker was transferred to Khoury. The second was that the applicant purchased the 560 SEL motor car from a person other than Barker. The third was that Davis was the owner of the 560 SEL motor car. The fourth was that the applicant told Barker that the 560 SEL’s engine had seized and the cost of repairs would be $12,000, when Khoury said that he repaired the engine and that it was in good condition. The fifth was that the applicant had paid Barker for a 50 per cent equity in the 320 CLK motor car. The sixth alleged lie was that Italiano paid $50,000 for the 320 CLK motor car. The seventh was that the applicant had never heard of Amatruda. The eighth alleged lie was that the 320 CLK had been driven to the snow when there was evidence that it had been left in a city car park. The ninth was that an invoice for $80,000 had nothing to do with the sale of the car to Amatruda. Finally, the applicant told Amatruda that he owned the 320 CLK as the result of the failure of a partnership in a restaurant between the applicant and Barker.
The trial judge, as he was bound to do[5], told the jury that there might be reasons for the telling of the lies apart from a realisation of guilt. He gave as examples embarrassment or panic when confronted by the police and referred to the applicant’s suggestions that he had a poor memory and was not well when he was interviewed by the police. His Honour failed, however, to mention the possibility that the applicant lied because he feared Kalajdic and Aisbett, a possibility suggested in the applicant’s record of interview and the intercepted telephone conversations. Counsel also complained that the trial judge failed to relate each lie to particular counts, instead leaving all the lies to the jury as displaying a general consciousness of guilt.
[5]Edwards v. R. (1993) 178 C.L.R. 193; R. v. Nguyen (2001) 118 A.Crrm.R.479.
In my opinion the trial judge was obliged to tell the jury that the applicant may have lied as a result of fear of violence by Kalajdic and Aisbett. The effect of the explanation that emerged from the evidence was diminished by its omission from the possible explanations listed by a judge constituted by his passing references to embarrassment, panic, poor memory and illness.
Further, each lie was relevant to a particular count or group of counts. In my view the trial judge’s failure to relate each lie to the appropriate count or counts could have brought about a miscarriage of justice: the jury may have reasoned that the applicant was guilty of a count concerning one motor car because he told a lie about the other motor car, that is, because he was a liar. A lie is only probative of guilt, as distinct form affecting the accused’s credit, if the accused tells the lie because he perceives that the truth is inconsistent with his innocence. The lie must relate to a material issue. As Deane, Dawson and Gaudron, JJ. said in Edwards v. R:
“[T]he jury should be instructed that they may take the lie into account only if they are satisfied … that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence …”
In the present case the trial judge told the jury that they were required to find that “the only reasonable explanation that the accused did tell lies was his consciousness of guilt of this particular crime, that is, the count you are then considering, not of some other wrongdoing …”. Unfortunately his Honour neglected to identify “this particular crime” to which each lie related. In my opinion his Honour’s directions as to lies exhibiting consciousness of guilt were defective.
Counsel for the applicant next contended that the trial judge misstated the test of recklessness in directing the jury as to the mental element on the counts of obtaining and attempting to obtain property by deception. His Honour said:
“Now, in relation to this third element [deception] there are three matters at that the Crown must prove. First, that the accused made some false statements, that is, he told a lie …. The telling of the lie might be done deliberately, in the sense that he knew what he [said] was untrue, or recklessly, in the sense that he knew it might be untrue and said it not caring whether it was true or false.”
The jury were told that it was sufficient to constitute recklessness as to the truth of the statement by the applicant if he appreciated the possibility that it might be false. More is required than mere possibility. At least the statement must be probably untrue[6], or perhaps it is sufficient that there was a substantial risk that the statement was untrue.[7] I do not think, however, that the error caused any injustice to the applicant. No question of recklessness arose upon the evidence before the jury: if the applicant’s statements were false he must have been aware of their falsity.
[6]R. v. Nuri [1990] V.R. 641 at 643; R. v. Campbell [1997] 2 V.R. 585 at 592 – 3; R. v. Taylor [2004] VSCA 189 at [42].
[7]R. v. Smith (1982) 7 A.Crrm.R. 437 at 440 – 1 per Starke, J.
It was also submitted that the trial judge erred in directing the jury that the elements of the offence of attempting to obtain property by deception were the same as the elements of the offence of obtaining property by deception. Counsel contended that recklessness as to the truth of a statement was insufficient, for s.321N(2) of the Crimes Act 1958 provided:
“(2) For a person to be guilty of attempting to commit an offence, the person must –
(a)intend that the offence the subject of the attempt to be committed; and
(b)intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place.”
In my view the word “intend” in sub-section (2) embraces the concepts of deliberate design and recklessness. To make a statement which the accused thinks is probably untrue for the purpose of obtaining property, but which fails to achieve that purpose, constitutes an attempt to obtain property by deception.
While I have not accepted the soundness of all the grounds of the application, I consider that, as a consequence of the directions by the trial judge as to lies and consciousness of guilt, the verdicts against Italiano, too, should be set aside and the applicant retried.
In the circumstances, it is not necessary to consider the applications for leave to appeal against sentence.
VINCENT, J.A.:
I agree in the disposition of these matters as proposed by Buchanan, J.A. and I do so for the reasons advanced by him in his judgment.
BYRNE, A.J.A.:
I agree with the conclusions reached by Buchanan, J.A. for the reasons which his Honour has set out in his judgment. I agree also that, in each case, the application for leave to appeal should be allowed, the appeal should be allowed and that the orders proposed by his Honour should be made.
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