R v Levidis

[2001] QCA 228

SUPREME COURT OF QUEENSLAND

CITATION:

R v Levidis [2001] QCA 228

PARTIES:

R
v
LEVIDIS, Stephen
(applicant/appellant)

FILE NO/S:

CA 218 of 2000
DC 268 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

8 June 2001

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2001

JUDGES:

McMurdo P, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal against conviction dismissed
Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – appellant convicted of stealing goods in transit – whether evidence of an accomplice who pleaded guilty was correctly directed upon -  whether evidence of a false passport was incorrectly admitted as evidence of flight – directions given to the jury were appropriate

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where appellant has a long criminal history and showed no remorse – sentence of five years within range and not manifestly excessive

Criminal Code s 668E(1A)

R v El Adl [1993] 2 Qd R 195, cited
R v Melrose [1989] 1 Qd R 572, cited

COUNSEL:

The appellant appeared on his own behalf
PF Rutledge for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  I have read the reasons for judgment of Williams JA in which he sets out the facts and issues in this case.  I agree with those reasons, subject to the following comments.

1. The appellant's explanation for the false passport in his evidence was far from convincing.  He said he had been told that there was a stop on his passport because he was in trouble with the Federal Police; he had no idea why; he intended to go overseas to Hong Kong with a friend in the antique business and obtained a false passport for that reason, not to avoid detection in this matter.

1. The learned primary judge told the jury the evidence of flight could be used in two ways.  First, it was one of a number of pieces of evidence capable of corroborating the evidence of the accomplice, Rose Salvucci.  Second, the prosecution submitted that evidence of the false passport was a fact from which they would infer the appellant intended to leave Adelaide to avoid police detection and that this was one of a number of circumstantial facts which, when combined, would satisfy the jury of the appellant's guilt.

1. The latter was effectively an invitation to the jury to use the evidence of the false passport and the inferred intention to flee as evidence of consciousness of guilt.  The learned primary judge did not specifically warn the jury that they must not assume the appellant's conduct was conclusive of his guilt (R v Melrose[1]) but did so in practical terms by telling them that it was a matter for them whether they drew that inference and by reminding them in a general way that the appellant had given an explanation of the circumstances which the prosecution submitted, when combined would satisfy them of the appellant's guilt.  Her Honour had earlier given careful directions as to how the jury should treat circumstantial evidence and reminded them that there may be innocent explanations for such circumstances.  To have reminded the jury of the details of the appellant's unsatisfactory explanation may well have been prejudicial to him.

   [1][1989] 1 QdR 572 and see also R v El Adl [1993] 2 QdR 195, 197-198.

1. I am not persuaded the learned primary judge erred in the directions as to the use to be made of the evidence of the false passport and potential for flight, but in any case the facts set out by Williams JA demonstrate that the case against the appellant was so convincing that there has been no substantial miscarriage of justice(s 668E(1A) Criminal Code).  The appeal should be dismissed.

1. I agree with the orders proposed by Williams JA.

1. WILLIAMS JA:  The appellant was convicted in the District Court Cairns, on 17 August 2000 of stealing goods in transit.  The offence occurred on 9 April 1996;  almost $200,000 worth of foreign currency and negotiable instruments from a TNT Courier van was stolen whilst it was left unattended in Cairns and none of that property has been recovered.  The appellant was sentenced to 5 years imprisonment with a declaration that he had spent 487 days in pre-sentence custody.

1. At the outset of the trial a barrister announced that that morning the appellant had withdrawn instructions from his legal representatives (apparently retained by Legal Aid) and signed a statement to that effect.  They were given leave to withdraw.  The appellant then informed the trial judge that he intended to represent himself and stated that he was ready to proceed.  The trial lasted nine days and the outcome was as indicated above.

1. The appellant has filed his own appeal against conviction and application for leave to appeal against sentence, and appeared in person on the hearing before this Court.  The formal notice of appeal only raised one issue going to the conviction: 

"That a false passport that was found in my possession on my arrest in Adelaide was allowed to be led as evidence of flight.
I feel that it was both irrelevant and prejudicial so the verdict of the jury was unsafe".

1. On 18 April 2001 the appellant lodged with the Court a document headed "Summary of the grounds of appeal against sentence and conviction" which raised a number of additional issues relevant to conviction.  At the outset of the hearing of the appeal the appellant handed to the Court another document containing 16 purported grounds of appeal against conviction and a submission in relation to sentence.  There was a deal of overlapping as between the documents.  The Court permitted the appellant to address all the matters raised in the various documents he had placed before the Court.

1. About 4.45 pm on 9 April 1996 two men were interrupted whilst they were in the process of stealing a number of satchels from a courier van outside the National Mutual Building in Cairns.  Those men were chased on foot but escaped.  The prosecution case was that the appellant was one of those men.  Satchels were thrown away by the thieves during the chase but were picked up by a female accomplice who was in a motor vehicle.  That car was later located by police.

1. The evidence established that the appellant was one of a group of people who had travelled to north Queensland shortly before the offence.  The group had hired a sailing boat from Cardwell and between then and 9 April the appellant and the other members of that group were in the vicinity of Cardwell and Dunk Island.  The car used to pick up the satchels had been hired by Rosa Salvucci, the appellant's defacto spouse, in Cairns.  Salvucci gave evidence for the prosecution, and that included details of relevant movements of the appellant and of his admitting involvement in the offence to her.

1. There was a deal of circumstantial evidence before the Court which, if accepted by the jury, would have implicated the appellant in the commission of the offence.  It is not necessary to recount that evidence in any detail.  Much of the appellant's defence at the trial centred on the proposition that as he was on Dunk Island on the night of 8/9 April (a fact accepted by the prosecution) he could not have been in Cairns at 4.45 pm on 9 April 1996 when the offence was committed.  In fact the appellant gave evidence he was at Mission Beach at the time the offence was committed.  The prosecution led a deal of evidence which, if accepted by the jury, established that it was possible for the appellant to have been on Dunk Island on the night of 8/9 April and to have been involved in the commission of the offence in Cairns on the afternoon of 9 April.

1. Evidence was also led by the prosecution that when the appellant was arrested in Adelaide on 9 October 1996 he had in his possession an Italian passport in the name of Joe Salaris, but which bore a photograph of the appellant.  In addition, he was in possession of a Victorian drivers licence bearing his photograph but in the name of Salaris.

1. Perhaps the most damning evidence against the appellant came from Rosa Salvucci.  She had pleaded guilty to the offence of being an accessory after the fact to the crime with which the appellant was charged.  In those circumstances she was in law an accomplice, and her evidence had to be carefully scrutinised by the jury in the way all evidence from accomplices must be.

1. In the summing-up the learned trial judge gave the jury appropriate warnings with respect to the evidence of Rosa Salvucci.  They were told to "treat her evidence with care".  The learned trial judge pointed out to the jury that "it can be all too easy for someone who is involved in a crime as well to try and paint another person who is alleged to be involved in a worse picture and try and seek to blame them rather than yourself".  They jury's attention was directed to the evidence that for some years after the commission of the offence investigating police had been putting some pressure on Rosa Salvucci to induce her to co-operate in the investigation.  After the committal hearing she was committed for trial as a principal offender.  She was afraid of going to gaol.  It was after that that she co-operated with the police, gave a statement implicating the appellant, and her plea of guilty to being an accessory after the fact was accepted.  Against that background the jury were instructed as follows:

" . . . unless you can find amongst all of the evidence that you have heard in this trial, other evidence which you find you are able to use in support of Rosa Salvucci's evidence that confirms or strengthens or supports her evidence then there are dangers in convicting Stephen Levidis on her evidence alone.  Now that does not mean that you cannot rely solely on Rosa Salvucci's evidence, but it simply means that you must bear in mind the warning that I have just given you, that an accomplice may have motives for changing her story or co‑operating with the police and you need to bear that in mind when considering her evidence.  . . . you should, when considering her evidence and considering the evidence in the trial as a whole, set her evidence to one side and look to see if there is evidence elsewhere that supports what she had to say that strengthens and confirms what her evidence was".

Thereafter the learned trial judge pointed out to the jury some evidence which, if accepted, might be regarded as supporting the evidence given by Rosa Salvucci.  She had given evidence that plans were made for the appellant to organise a false passport in order for him to leave Australia via Adelaide and for she herself to follow him at a later date.  Her evidence was that he was going to use the name Joe Salaris.  Against that background the following passage appeared in the summing‑up:

"And the fourth area of evidence that independently of Rose Salvucci's evidence could be used by you as corroboration of her evidence, is the evidence that the prosecution says is evidence of Mr Levidis' intention to leave the country.  The fact that when he was arrested in Adelaide he was in possession of an Italian passport in a false name with his photograph on it and similarly a driver's license in a false name.  Now the prosecution is asking you to view that evidence as evidence of an intention to leave the country and to draw the inference that the reason why he was leaving the country, was to avoid detection.  Now whether or not you interpret that evidence that way is entirely a matter for you".

The contention of the appellant is that by referring to Rosa Salvucci as an accomplice of the appellant, the learned trial judge "effectively destroyed my not guilty plea and replaced it with a guilty plea on my behalf and deprived me of a chance of acquittal that was fairly open to me".  He made the point in his last written outline of argument that "no jury anywhere could acquit a man of committing a crime if they are told that his defacto has pleaded guilty of being his accomplice in the commission of that crime".  He went on:

"Consistent with sentencing principles I would have received a 25% discount on sentence had I pleaded guilty, perhaps it would be fair for this court to alter the sentence as if I had pleaded guilty".

1. In my view there is no substance in the contentions of the appellant.  It was proper, and favourable to the appellant, for the learned trial judge to give an accomplice warning in the course of the summing-up.  The impact of the evidence comes from the very fact that the defacto went into the witness box and gave the evidence, not from the fact that her evidence was regarded in law as coming from an accomplice.  Nothing said by the learned trial judge destroyed the appellant's not guilty plea;  if anything it reinforced it, because it highlighted the care the jury should take before accepting what was extremely damning evidence against the appellant.

1. Insofar as the appellant takes objection to the reference to "flight" in the summing‑up, I am of the view that there is no substance in his point.  The emphasis in the passage quoted above was essentially on the fact that the false passport corroborated Rosa Salvucci's evidence as to the plan to leave Australia.  The language used in the summing-up must be considered in the light of the evidence given by Rosa Salvucci.  What was said by the learned trial judge did not amount to a specific direction that the jury could use evidence of flight as independently establishing the appellant's guilt.  At a later point in the summing-up it was pointed out that the prosecution asked the jury to infer that the appellant had the intention of leaving the country to avoid police detection.  They were instructed - properly - that the drawing of any such inference was entirely a matter for them.

1. It follows that the ground relied on in the formal notice of appeal has not been made out.  I now turn to consider the other issues raised by the appellant.

1. When instructing the jury that propositions put to a witness in cross-examination which were not accepted by the witness did not constitute evidence, the learned trial judge gave two examples from the appellant's cross-examination of Rosa Salvucci.  The appellant has taken exception to that, contending that it may well have influenced the jury to disregard his later testimony which was in terms of what he put to the witness.

1. In the whole context of the trial I cannot see that there was any unfairness to the appellant in the learned trial judge using those examples.  What is important is that the direction was correct in law.  The summing-up dealt at length with the evidence given by the appellant and the jury was given full and proper directions as to their approach to that evidence.

1. The appellant then attacks the summing-up when it dealt with the question of evidence corroborating the evidence of Rosa Salvucci, particularly the appellant's admission to her.  Insofar as I understand the points the appellant seeks to raise under this heading, I can see no substance in his contentions.  The jury was clearly reminded that Rosa Salvucci did not initially co-operate with the police and it was only some four years after her first interview that she made the statement which was the basis of her damning evidence against the appellant.  The jury was reminded of the appellant's evidence denying the making of any admission to Rosa Salvucci, and the jury was fully and adequately instructed as to the considerations relevant to the acceptance of confessional evidence.  Again I am satisfied that there is no substance in those contentions advanced by the appellant.

1. In the last of the written documents the appellant asserted that the learned trial judge failed to inform him of his right to have a voir dire hearing on the confession he made to Salvucci.  That was an issue raised during the course of the trial, and the record makes it clear that the appellant understood his rights in that regard.  There were apparently other issues which impacted on the decision and resulted in there being no formal request for a voir dire.

1. I turn now to the issues raised by the appellant under the heading prejudice.  At the close of the prosecution case, when called upon, the appellant said he would give evidence.  After he was sworn he said, "I forgot to put a couple of things to your Honour".  The jury retired and the accused is recorded as saying:

"As you know, I've - I've - I have got a couple of worries with the Gold - any evidence - I want to stay away from the Gold Coast".

That was apparently a reference to the fact that the prosecution had evidence placing the appellant on the Gold Coast and connecting him from there with others in the group alleged to have been involved in the commission of the offence.  In response to the appellant's statement, the learned trial judge told him that he would be open to be cross-examined by the Crown prosecutor once he put himself in the witness box.  The accused then said, "Well, but can't I claim privilege".  He was informed that he could claim privilege on matters that might incriminate him with respect to other offences.  The appellant then made further statements indicating that he was worried about information the police had with respect to his activities on the Gold Coast.  When asked if he wanted to say anything, the Crown prosecutor is recorded as saying:

" . . . There was another incident involving a TNT van on the Gold Coast that, obviously, Mr Levidis wants to distance himself from.  I won't be asking any questions with respect to that, but I will be asking questions to place him on the Gold Coast in accordance with the Crown Case".

To that the appellant reasserted his position that if asked about the Gold Coast he would "have to claim privilege".  It is clear that, except as recorded in the statement quoted above, the Crown prosecutor gave no undertaking not to cross-examine the appellant with a view to establishing that he was on the Gold Coast.  The exchange in question concluded with the appellant indicating that he would claim privilege if asked certain questions in cross-examination and the learned trial judge stating that a ruling would be made on each claim as it was taken.

1. Under cross-examination the appellant admitted that prior to flying to Cairns he had been staying on the Gold Coast.  He said he could not recall the date he arrived at the Gold Coast.  When specifically asked:  "Well how long had you been at the Gold Coast before you came to Cairns?" he responded "Well I'd like to claim privilege on that".  After argument the learned trial judge ruled against the appellant on that claim.  The cross-examination continued with the appellant asserting to claim privilege with respect to some questions.  On other occasions when asked about an incident placing him on the Gold Coast he responded "I can't remember".

1. In my view nothing which occurred in that regard prejudiced the fair trial of the appellant.  No questions were raised about any other offence committed by the appellant.  The only questions related to his being on the Gold Coast, which was part of the prosecution case linking him with others involved in the Cairns offence.  There is no substance in this complaint of the appellant.

1. Insofar as I understand the contentions, I can see no ground of appeal in relation to matters raised under the headings "Change of Direction" and "Informing the Witness".  The former related to the various possibilities, in particular timings, with respect to the appellant leaving Dunk Island and getting to Cairns in time to commit the offence.  That issue was canvassed in great depth at the trial and was more than adequately dealt with in the summing-up.

1. The appellant also complains that he was forced to proceed with the trial immediately after his legal representatives withdrew, though he was not ready to proceed.  He refers in his written material to the trial as a "trial of convenience".  Again I cannot discern any substance in the contention.  It seems clear that it was the appellant who withdrew instructions and then informed the trial judge that he was ready to proceed.  He asserted that he wanted some additional material, but the learned trial judge ruled (correctly it would appear) that such material was irrelevant to the charge in question.

1. A perusal of the transcript demonstrates that the appellant was capable of conducting his defence and had necessary material available.

1. Insofar as the document lodged 18 April 2001 and the document handed up at the outset of the appeal refer to other matters, I am not persuaded that there is any substance in any of the issues sought to be raised by the appellant.  In many instances he was unable during oral argument to clarify the issue he sought to raise.

1. Given the whole of the material, the verdict is not unsafe and the appeal against conviction should be dismissed.

1. I now turn to consider the question of sentence.  In the formal notice of appeal the following appears as the ground on which this Court is asked to interfere with the sentence:

"That the two co-accused in this offence were both offered the lesser charge of accessory after the fact and received non-custodial sentences.  I can accept that Rose Salvucci was dealt with leniently as she co-operated and gave evidence against me at my trial.

But Melinda Williams did not and evidence of her picking up the money after it was thrown away allegedly by me was led at my trial.  She received a 9 month suspended sentence.

I was given a 5 year sentence.  I feel that no parity was given to me.  Although I have an extensive prior record I feel that the sentence was too severe.  I ask that some of that sentence be a term of suspended sentence.  Because the judge has sentenced me taking into consideration my priors.  Because of my prior history I will again be penalised by the Parole board and my chances of being paroled are very slim."

It should be recorded that the prosecution case was that it was the appellant and another man who were the principal offenders and who took the money from the vehicle;  the other man has not yet been brought to trial.  Melinda Williams was the person who picked up the satchels using the get-away vehicle after the appellant threw them away during the chase on foot.  Rosa Salvucci was implicated if only because of conduct such as paying the motel and dealing with the motor vehicle with knowledge that the offence had been committed.

1. In those circumstances I accept the submission of counsel for the Crown that no question of parity arises as between the appellant on the one hand and Williams and Salvucci on the other.  That is made even more evident when the appellant's criminal history is brought into account. 

1. The appellant's prior criminal history records some 104 convictions which include a number of dishonesty offences.  He was aged 50 at the time of sentence.  It is sufficient to note specifically that in 1980 the appellant was sentenced to 5 years imprisonment for theft by deception in France and to a further term of 5 years imprisonment in New South Wales in 1987 for theft of $250,000 worth of jewellery.  Whilst on bail for the present offence the appellant committed, and has been convicted of, the offence of conspiracy to steal property from a TNT courier van in Victoria.  That fact was placed before the sentencing judge here as demonstrating that the appellant had no remorse with respect to this crime and was following a career of dishonesty.

1. The appellant in his two other written documents received by this Court asserts that the Victorian conviction was treated as a prior conviction.  That is clearly not so.  That is made clear by the sentencing remarks of the trial judge.  In her sentencing remarks the learned trial judge referred to the fact that the appellant had "chosen a career of dishonesty".  He was being sentenced on the basis that this was "an organised offence";  a large amount of money was involved, none of which had been recovered.  She described the appellant as "an inveterate thief", and went on to say "that is illustrated by the fact that you committed a similar offence in Melbourne whilst on bail for this offence".  That, in my view, was a perfectly justifiable observation.

1. Having pointed out that the appellant was not entitled to any discount for any remorse shown she dealt with his submission that he should receive a suspended sentence.  That, in my view, was rightly rejected.  It was in those circumstances that the sentence of 5 years imprisonment was imposed.

1. On the hearing of the appeal, counsel for the Crown submitted that in all the circumstances, particularly given the criminal history, a sentence of 7 years imprisonment would have been justified.  I am inclined to agree with that, but it is not necessary to consider that proposition further.  It is sufficient to say that in the circumstances a sentence of 5 years imprisonment was well within the range and not manifestly excessive.

1. The application for leave to appeal against sentence should be refused.

1. The orders of the Court should therefore be:

(i)          appeal against conviction dismissed;

(ii)         application for leave to appeal against sentence refused.

1. MACKENZIE J:  I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused for the reasons given by Williams JA.