R v Le-Gallienne & Jayetileke
[2004] VSCA 223
•7 December 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 38 of 2003
No. 39 of 2003
| THE QUEEN |
| v. |
| RICHARD KELVIN LE-GALLIENNE and WENDY JAYETILEKE |
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JUDGES: | CALLAWAY, EAMES and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 November 2004 | |
DATE OF JUDGMENT: | 7 December 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 223 | |
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Criminal law – Applications for leave to appeal against conviction – Jones v. Dunkel (1959) 101 C.L.R. 298 direction – Direction should not have been given – Whether occasioning a substantial miscarriage of justice – One applicant convicted of recklessly causing serious injury – Other applicant convicted only of intentionally causing injury – Applicants acquitted on all other counts – Whether verdicts inconsistent – Applications granted and appeals allowed – Judgments and verdicts of acquittal entered – Crimes Act 1958, s.568(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the First Applicant | Mr P.G. Priest, Q.C. | Michael J. Amad Pty Ltd |
| For the Second Applicant | Mr M.J. Croucher | Michael J. Amad Pty Ltd |
CALLAWAY, J.A.:
The applicants were arraigned in the County Court on a presentment containing five counts. Count 1 charged that they unlawfully imprisoned Zaklina Andreevska, count 2 that they intentionally caused serious injury to her, count 3 that they recklessly caused serious injury to her and count 4 that they intentionally caused injury to her. Count 5 applied only to Mr Le-Gallienne. It charged that he attempted to pervert the course of justice. After a trial occupying eight days, Mr Le‑Gallienne was found guilty on count 4 and Ms Jayetileke on count 3. They were acquitted on all the other counts. Following a plea for leniency, the learned trial judge sentenced each applicant to a community-based order. They seek leave to appeal against conviction only.
It is unnecessary to set out the amended grounds of appeal in full. They raise two issues. The first relates to a Jones v. Dunkel[1] direction given by the judge and the other to the alleged inconsistency between convicting the applicants on the counts on which they were convicted and acquitting them on all the other counts.
[1](1959) 101 C.L.R. 298.
The verdicts were described by the judge as puzzling and unexpected. The following is the case the Crown sought to prove, as set out in the prosecution summary pursuant to s.6 of the Crimes (Criminal Trials) Act 1999:
“1.The complainant, Zaklina (Jackie) Andreevska, had previously been in a relationship with the accused Le-Gallienne. At the time of the offences the accused Le-Gallienne was in a relationship with the co-accused, Jayetileke.
2.On the evening of Monday 22nd May 2000 the complainant was at Footscray Railway Station with her friend Mandy Brooks. The accused Le-Gallienne was parked nearby in his blue Celica and called out to the complainant. She left her friend and went over to the vehicle.
3.The accused Le-Gallienne then got out of the vehicle and pushed the complainant into the passenger seat. He then locked the doors and drove off with the complainant to an unknown location on the outskirts of Melbourne.
4.At that unknown location the accused Le-Gallienne opened the boot of the vehicle, from which emerged his co-accused Jayetileke. She began to punch and kick the complainant. The accused Le-Gallienne was shouting encouragement during this attack.
5.As a result of the attack the complainant suffered the following injuries: a badly bruised right eye, bruising to the neck, chin, wrists and knees, a blood nose, a sore head and ongoing pain in her left ribs. Subsequent x-rays revealed fractures to an index finger and a left rib. The complainant also suffered an epileptic fit shortly after the attack. The Crown says that in combination these injuries are serious.
6.Following the attack the complainant was driven to the city, where the accused Le-Gallienne got out of his car and went into his gym, leaving the complainant with the co-accused Jayetileke. He then returned and they drove on to his house in Elata Street, Oakleigh. The two accused went into the house, leaving the complainant locked in the car.
7.The complainant was later driven to a service station, where she went to the toilet, before they returned to the Elata Street house. The complainant was later driven to the co-accused Jayetileke’s unit at 3/157 Gladstone Street, Dandenong, where she was taken inside. By this stage it was the early hours of Tuesday 23rd May 2000. A neighbour, Troy Murray, recognised the accused Le-Gallienne’s voice and the sound of his Celica.
8.In the morning the complainant escaped from the house whilst the two accused slept. She was observed by a number of witnesses at a nearby bus stop in a distressed state. A man and a woman (the two accused) were also observed nearby, calling after her. The complainant said ‘They’re after me’. Police were called, and an ambulance took the complainant to hospital.
…
15.In relation to counts 1-4, the Crown says that the two accused were acting in concert or, alternatively, aiding and abetting one another. Counts 3 and 4 are alternatives to count 2.
16.The accused Le-Gallienne persisted[2] in his attempts to get the complainant to change her statement, and she finally agreed to do so. On the evening of 20th November 2000 or thereabouts he attended at her unit in Sydenham and dictated a letter, which she wrote.
17.The letter was addressed to the accused Le-Gallienne’s solicitor, and retracted the allegations made against the two accused, instead implicating two other persons. The following day the accused came back with the letter and had the complainant make some alterations. The contents of the letter were false. Its author was the accused and it was designed to evade responsibility for the earlier offences. It was written by the complainant under duress.
18.The letter was later taken from the accused’s solicitor by police. It was examined and the accused’s fingerprints were found on it.
19.The Crown proposes to lead evidence of the accused Le‑Gallienne’s attempting to pervert the course of justice as also demonstrating his consciousness of guilt of the other counts alleged.
…”
[2]Part of the summary which I have not reproduced alleged that Mr Le-Gallienne had made a number of telephone calls to the complainant in which he pressured her to change her statement.
Mr Le-Gallienne gave evidence at the trial. Not only did he deny the complainant’s allegations, he also denied that he and Ms Jayetileke were at Footscray Railway Station on 22nd May 2000. On the contrary, he said, they had gone to his mother’s house at about lunchtime and helped her clear up the house for an impending sale. They stayed there until about 8 p.m. Mr Le-Gallienne’s mother gave evidence confirming that account. His own evidence continued to the effect that he and Ms Jayetileke then attended a gymnasium near Flinders Street Railway Station. He enjoyed a spa while she watched television in the visitors’ area. They then travelled to her residence in Dandenong.
When they arrived, Mr Le-Gallienne said, he and Ms Jayetileke found the complainant sitting on a couch out the front. They asked her what she was doing there, to which she replied that she had been bashed and was too scared to go home. She stayed overnight. In the morning the complainant said that she wished to leave. The applicants offered to take her in the car but she said that she wanted to go by bus. They followed her, ten to 15 minutes after she left, because they were worried about her. Mr Le-Gallienne said that he waved and called out, “Come back if you need any help”.
Mr Le-Gallienne also denied the allegations the subject of count 5. He explained the presence of his fingerprints on the letter by saying that he held it in his hands when his solicitor showed it to him. As we shall see, the prosecutor later relied on the fact that the solicitor had not been called to give evidence. The prosecutor had asked Mr Le-Gallienne about the availability of another potential witness but, in the end, he did not refer to the fact that she had not been called. Questions were not asked about the availability of the solicitor.
The Jones v. Dunkel direction[3] of which complaint is made was in the following terms:
“It was put to you by [the prosecutor] that Le-Gallienne could if he wanted call his solicitor to give evidence to confirm that Mr Le-Gallienne did in fact take this letter in hands in his office, and that is how his fingerprints got on it and so on. Now, you want to be careful about that. Mr Le-Gallienne cannot be found guilty unless you are prepared to reject his evidence as untrue.
If his evidence is acceptable to you, or if it raises a reasonable doubt in your minds as to his guilt, then you must find him not guilty. In making your evaluation of his evidence you may consider whether there were witnesses, or a witness who might have been called to support his version, although you cannot speculate upon what that person might have said if he was called. When you are considering whether a witness ought to have been called by Mr Le-Gallienne you must take into account the absence of any burden on him to prove anything, and nothing I say now must detract from that principle.
To use the failure to call a witness against Mr Le-Gallienne in this trial you would have to be satisfied first that there was a witness who could have given relevant evidence. Secondly, that that witness is available in the sense that his absence has not been satisfactorily explained. If you are satisfied about those two matters, you may infer that the witness’s evidence would not have helped Mr Le-Gallienne. This may in turn lead you to attach less weight than you otherwise would have to Mr Le-Gallienne’s evidence.
Even if you were satisfied about the availability of a witness, and the lack of explanation for his absence you are not bound to draw any inference adverse to Mr Le-Galienne, although it is open to you to do so. It is really a matter of forming a commonsense judgment about the matter. In that connection you will consider all the circumstances, including the nature of the evidence it is suggested might have been given, the difficulties which might be associated with obtaining a witness.
You may have cases where the unexplained failure of a party to call some obvious witness is very important on the issue of credibility, but whether this is such a case remains a matter for you. Remember at all times that he, Mr Le-Gallienne, does not have to prove anything. Does not have to establish his innocence, or indeed prove anything, establish his innocence, or prove that he is not guilty.” (Emphasis added.)
[3]It is convenient to call it a Jones v. Dunkel direction. Compare O’Donnell v. Reichard [1975] V.R. 916 especially at 929.
It is clear that that direction should not have been given. The learned judge hesitated to do so. Unfortunately his attention was not drawn to the decision of the High Court in Dyers v. R.[4] which was decided a month before the charge was delivered.
[4](2002) 210 C.L.R. 285.
Prima facie, however, the direction related only to count 5, on which Mr Le‑Gallienne was acquitted. Mr Priest, whose submissions were adopted by Mr Croucher, submitted that that was not decisive because the jury may have returned a merciful verdict on that count. I do not accept that submission. The only safe way for an appellate court to proceed in such a case is to assume that the jury were not satisfied beyond reasonable doubt that Mr Le-Gallienne was guilty of the offence charged in count 5.
Counsel argued that the direction was prejudicial in relation to the other counts too. First, it was said that the direction had to be read in conjunction with the consciousness of guilt direction that the judge had given in relation to the same letter. The consciousness of guilt direction was in the following terms:
“Now, [the evidence regarding the letter] may be used also against him, Mr Le-Gallienne, in a way which I am now about to direct to you, not only in relation to count 5, but in relation to whether or not he is guilty of counts 1 to 4, or any of them. I say again, it cannot be used in any way at all against Ms Jayetileke.
The Crown says that Mr Le-Gallienne’s behaviour in respect of this letter was such that it can be explained on only one basis. That is, that he knew he was guilty of counts 1 to 4 and he did this to avoid detection and conviction for those offences. The Crown says therefore that you can infer his guilt in respect of counts 1 to 4 from that fact. I give you these directions about that argument.
Evidence that an accused person is conscious, aware of his own guilt of a charge is of course evidence of that guilt. However, before you can infer such a consciousness of guilt from his actions in relation to that letter, you must be satisfied of these things. First, that he did in fact force, or coerce Ms Andreevska into writing that letter. Secondly and most importantly, you must be satisfied that the reason for him doing that was his desire to escape the consequences of the activities that gave rise to counts 1 to 4. Not to escape the consequences of some other wrongdoing, or a fear of being wrongly accused of counts 1 to 4, or panicking, or failure of the mind, or anything like that.
You have to be satisfied that the reason and the only reason he did this was to escape the consequence of the incidents giving rise to counts 1 to 4 of which he knew he was guilty. Were you satisfied beyond reasonable doubt that he did do what Ms Andreevska said he did in relation to that letter, and did so only because of a consciousness, or awareness, or realisation of his guilt, of his own guilt of counts 1 to 4 then you could use the evidence of his own consciousness of guilt as evidence of actual guilt.
In doing so, however, you must be careful to consider the possibility that he may have wrongly believed himself guilty. If you are able on the whole of the evidence to exclude that possibility beyond reasonable doubt, then the evidence of his consciousness of guilt becomes evidence, or is available to be used by you as evidence of his actual guilt.” (Emphasis added.)
In relation to the word “satisfied” as used in both directions, it is to be borne in mind that, at the beginning of the charge, the judge told the jury that, whenever he said that they must be “satisfied” of something, he would always mean “satisfied beyond reasonable doubt”. It will be observed that, in addition to the word “satisfied”, the expression “beyond reasonable doubt” was used twice in the course of the consciousness of guilt direction.
Mr McArdle submitted that, in those circumstances, the acquittal on count 5 necessarily implied that the jury could not have used the letter as evidence of consciousness of guilt. The acquittal meant that they were not satisfied beyond reasonable doubt that Mr Le-Gallienne attempted to pervert the course of justice. That being so, they could hardly be satisfied beyond reasonable doubt that he did in fact force, or coerce, Ms Andreevska into writing the letter. A fortiori, they could not be satisfied beyond reasonable doubt that the reason for his doing so was his desire to escape the consequences of the offences charged in counts 1 to 4. Compare the italicized part of the consciousness of guilt direction as set out in [10] above. I accept that submission.
Secondly, counsel for the applicants submitted, the Jones v. Dunkel direction was prejudicial in relation to counts 1 to 4 because it was calculated to undermine Mr Le‑Gallienne’s credibility generally. See especially the italicized passages in that direction as set out in [7] above. Mr Le-Gallienne gave evidence and Ms Jayetileke relied on his evidence for her defence. The trial was, to that degree, one of oath against oath. Accordingly, it was said, a misdirection affecting credibility was of particular significance.
Mr McArdle responded to that submission in two ways. One was to point out that the judge had instructed the jury that, before they could apply the Jones v. Dunkel direction against Mr Le-Gallienne, they had to be satisfied, i.e. satisfied beyond reasonable doubt[5], that there was a witness who could have given relevant evidence and the absence of that witness had not been satisfactorily explained. The prosecutor had not asked any questions about the solicitor’s availability as a witness. In the absence of evidence on that topic, how could the jury be satisfied beyond reasonable doubt of the preconditions in the direction? The other way Mr McArdle responded was to say that it was unrealistic to suppose that the jury thought that the Jones v. Dunkel direction had any application beyond the letter.
[5]The direction was, to that degree, unduly favourable to the applicant. A jury do not have to be satisfied beyond reasonable doubt of the availability of a witness before they apply a Jones v. Dunkel direction in cases where such a direction is properly given. For the reasons explained in Dyers v. R. at 291 [5], there will be few such occasions at a criminal trial.
The conclusion I have reached on inconsistency of verdicts makes it unnecessary for me finally to decide whether the Jones v. Dunkel direction would have warranted appellate intervention. There are arguments both ways. It might be said that, even in the absence of evidence, the jury might readily have inferred that the applicant’s own solicitor could have been called to give evidence. As against that, the direction was all about the letter the subject of count 5 and it might well be thought fanciful to suppose that the jury understood it to have any wider application.[6]
[6]The jury did ask a question as to which side had called a particular witness. The witness had in fact been called by the Crown. The Jones v. Dunkel direction was concerned with not calling a witness, but Mr Croucher argued that the question was an indication that the jury may have thought that the direction was of general application.
As a matter of analysis, it may be assumed that the Jones v. Dunkel direction involved either a wrong decision of a question of law or, as in the case of the defective Edwards direction in R. v. Konstandopoulos[7], a miscarriage of justice within the meaning of those words in the third limb of s.568(1) of the Crimes Act. That being so, the Crown would have to show that no substantial miscarriage of justice had actually occurred. It may be that that burden could be discharged, on the footing that the direction related only to the letter and, in the light of the directions as to the standard of proof and the jury’s verdict on count 5, that it did not deprive either applicant of a chance of acquittal that was fairly open.[8] Even if the proviso could not be applied, success on the first issue would lead only to a retrial unless the Court could be persuaded, exceptionally, to direct judgments and verdicts of acquittal. Ordinarily, where such a ground succeeds, the decision as to a retrial would be left to the Director.[9] As I have said, I need not reach a final view on these matters.
[7][1998] 4 V.R. 381.
[8]Mraz v. R. (1955) 93 C.L.R. 493 at 514-515; R. v. Weiss [2004] VSCA 73 at [70]. To adopt the language of Fullagar, J. in the former case at 514, it may be that the applicants did not thereby lose a chance which was fairly open to them of being acquitted.
[9]R. v. Tadic [2003] VSCA 28 at [24].
I turn to the inconsistency of verdicts issue. The judge discussed the verdicts with counsel in the course of the plea and foreshadowed the rationalization that he would later adopt in the sentencing remarks:
“I think that the jury’s verdicts amount [to] finding that Mr Le-Gallienne wanted the complainant to receive a good beating at the hands of Ms Jayetileke and that he acted in concert with her or aided and abetted her in the offence of intentionally causing injury but that she went beyond what was expected of her and in fact inflicted serious injuries which were not intended by Mr Le-Gallienne but she did this not intentionally but recklessly.”
It was necessary for his Honour to reach an hypothesis for the purpose of sentencing the applicants and I do not criticize the rationalization he adopted for that purpose but, as an answer to the complaint made on these applications, it is seriously flawed.
In the first place, although the charge dealt with complicity, there was no mention of the possibility that the applicants might be other than equally complicit in any given offence. That reflected the course of the trial. No such suggestion was made in the course of addresses or otherwise at the trial. Secondly, the complainant’s evidence was that, after Ms Jayetileke had kicked her below the stomach, bruised her knees and stamped on her, Mr Le-Gallienne told Ms Jayetileke to keep on “bashing her, she deserves more and more”. Unless the jury rejected that part of the complainant’s evidence, it would be difficult for them to distinguish between the applicants in the manner suggested by the judge, which the respondent adopted.
Mr McArdle’s alternative submission was that we should apply the well known observations of King, C.J. in R. v. Kirkman[10], which were endorsed by Gaudron, Gummow and Kirby, JJ. in MacKenzie v. R.[11] The jury may, for example, have determined to show mercy and to show more mercy to Mr Le-Gallienne, who was not alleged to have been the direct perpetrator and who suffered from a measure of intellectual disadvantage. I do not accept that submission.
[10](1987) 44 S.A.S.R. 591 at 593.
[11](1996) 190 C.L.R. 348 at 367-368.
It is one thing for a jury to decide that enough is enough and to convict an accused person on some counts where, as a matter of logic, they should have convicted the accused on all counts. Similarly, it has to be accepted that a jury will sometimes return a merciful verdict of a lesser offence, such as recklessly causing serious injury instead of intentionally causing serious injury or manslaughter instead of murder. It is another thing altogether, where there are several accused, for the jury to discriminate between them in a way that cannot be supported having regard
to the directions they were given and the evidence which it was their duty to consider.[12] They are not, as Mr McArdle submitted, entitled to throw away the rule book so long as they do not compromise.
[12]See and compare R. v. Iliovski (2002) 135 A.Crim.R. 117 at 121 [14].
For these reasons, I would grant the applications for leave to appeal against conviction, allow the appeals, quash the convictions and direct that judgments and verdicts of acquittal be entered.
EAMES, J.A.:
For the reasons given by Callaway, J.A., I agree that the applications for leave to appeal against conviction should be allowed and the convictions be quashed, with verdicts of acquittal being entered.
NETTLE, J.A.:
I agree that this application to appeal against conviction should be allowed, I do so for the reasons advanced by Callaway, J.A. in his judgment.
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