R v Mavropoulos; R v Votino; R v Votino - [2009] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAVROPOULOS; R v VOTINO; R v VOTINO
[2009] SASC 190
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice David)
9 July 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
Appeals against conviction by all three appellants - all three appellants jointly charged with the offences of aggravated serious criminal trespass in a place of residence and aggravated causing serious harm with intent to cause serious harm - all three appellants convicted of aggravated serious criminal trespass in a place of residence (count 1) - appellant Mavropolous convicted of the alternative offence to count 2 of aggravated causing harm with intent to cause harm - appellants Enrico Votino and Vince Votino convicted of a further alternative offence to count 2 of aggravated causing harm - whether self-defence should have been left to the jury - whether trial judge gave incorrect directions on the onus of proof - whether lack of direction concering flight of the appellant Vince Votino - whether misdirection in relation to the elements of aggravated causing serious harm with intent to cause serious harm - whether inadequate directions about joint enterprise and the extended common purpose doctrine - whether failure to give specific directions in relation to each of the appellants.
Held: Appeals against convictions for aggravated serious criminal trespass in a place of residence against all appellants dismissed - appeal against conviction for aggravated causing harm with intent to cause harm in relation to Mavropoulous dismissed - directions in relation to complicity for count 2 inadequate - appeal against conviction for aggravated recklessly causing harm in relation to Enrico and Vince Votino allowed and retrial on that count ordered.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Applications for permission to appeal against sentence by all three appellants - whether sentence manifestly excessive - whether sentencing judge should have taken into account injuries to Mavropoulos.
Held: Permission to appeal granted - sentences of Enrico Votino and Vince Votino set aside - appeal against sentence in relation to the appellant Mavropoulos dismissed.
Criminal Law Consolidation Act 1935 (SA) s 170(1), s 23(1), s 5AA(4); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Johns v The Queen (1981) 43 CLR 108; McAuliffe v The Queen (1995) 183 CLR 108; R v Murphy (1988) 52 SASR 186, applied.
R v Calides (1983) 34 SASR 355, discussed.
Barci & Asling (1994) 76 A Crim R 103, considered.

R v MAVROPOULOS; R v VOTINO; R v VOTINO
[2009] SASC 190
Court of Criminal Appeal: Doyle CJ, Bleby and David JJ

DOYLE CJ: In relation to the appellant Mavropoulos, I would dismiss the appeal against the convictions recorded by the Supreme Court. I would grant permission to appeal against sentence, but would dismiss the appeal against sentence by the appellant Mavropoulos.
As to the appellants Enrico Votino and Vince Votino, I would allow the appeal against the conviction for the offence of aggravated recklessly causing harm, and would set aside the conviction recorded against each of them in respect of that offence. I would otherwise dismiss the appeal against conviction by each of them.
As the appeal against conviction has been allowed to that extent, I would set aside the sentence imposed on them.
There should be a retrial of Enrico Votino and Vince Votino on the charge of aggravated recklessly causing harm.
I agree with the reasons given by Justice David for making those orders.
BLEBY J: I agree with the orders proposed by David J and with his reasons.
DAVID J: These are appeals against conviction and applications for permission to appeal against sentence by all three appellants, Anthony Mavropoulos, Enrico Votino and Vince Votino.
Background
The appellants were charged on an Information with the offences:
1.Aggravated Serious Criminal Trespass in a Place of Residence, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”); and
2.Aggravated Causing Serious Harm with Intent to Cause Serious Harm, contrary to s 23(1) of the Act.
The Crown case was that in the early hours of 7 December 2007, the appellants entered a house at 38 Airlie Avenue, Prospect (“the premises”) with the intention of stealing cannabis from the victim, Sonny Ian Carroll (“V”). The cannabis was growing hydroponically in three rooms of the premises. The Crown case was presented to the jury as a joint enterprise by all three appellants to subdue V and steal his cannabis crop, using force if necessary. Further, the Crown case was that the appellant Mavropoulos, armed with a pistol which he took with him to the premises, shot V in the leg.
After a trial before a jury:
·all three appellants were convicted of the charge of aggravated serious criminal trespass in a place of residence;
·the appellant Mavropoulos was found not guilty of aggravated causing serious harm with intent to cause harm, but guilty of the alternative offence of aggravated causing harm with intent to cause harm; and
·the appellants Enrico Votino and Vince Votino were found not guilty of aggravated causing serious harm with intent to cause serious harm, but guilty of a further alternative of aggravated recklessly causing harm.
As required, the jury answered questions in relation to alleged circumstances of aggravation in relation to the counts on which the appellants were convicted. I will refer to those shortly.
Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”):
·Anthony Mavropoulos was sentenced to 12 years imprisonment with a non‑parole period of seven years; and
·Enrico Votino and Vince Votino were sentenced to eight years imprisonment with a non‑parole period of four years and six months.
The trial
At the trial V gave evidence that there was a commercial arrangement for him to look after and tend to a hydroponic cannabis crop at the premises. He gave evidence that he went to bed at about 11.30 pm on 6 December 2007. At about 1.30 am on 7 December he was awoken by a rattling of the back door, which he interpreted as someone breaking into the premises. He walked into the hallway towards the back door, and as he did so he saw the silhouette of a person, which he described as being “over six foot” tall, in the hallway. That person said, “Stop, don’t move or else I’ll fucking shoot you”. V was then directed back into the bedroom and told to sit on the end of the bed. V was naked and asked if he could put clothes on but that request was denied. He was then directed back into the hallway towards the kitchen area of the house. Whilst he was moving towards the kitchen, V saw another person, who was five feet six or five feet five inches tall and extremely overweight. He also saw a third person further down the hallway. He described that person as being about five feet seven or five feet eight inches tall and “skinny, string bean like”.
V then gave evidence that he was ushered by threats into the kitchen and also told to go towards the bathroom by threats, which he did. As he was walking towards the bathroom, being in fear for his life, he took knives from a knife block in the kitchen and spun around. The person who was threatening him immediately shot him in the thigh. V gave evidence that he was frightened he was going to be killed, so he launched himself and thrust one of the knives towards his assailant, making contact with him. V then passed out. When he regained consciousness his assailant was still on top of him, but he got up and V heard him say from the hallway, “He’s fucking stabbed me”. V then dragged himself into the bathroom and lay down. Whilst he was there he heard two other shots fired and heard the assailants leaving the house.
V remained in the bathroom for up to about half a minute. He then contacted other people involved with the hydroponic crop on his mobile phone. He attended to the bleeding from his leg with a tea towel. After his friends arrived, he was eventually taken to the Flinders Medical Centre where he had surgery. He had a wound to his leg and stab wounds to his arm.
When cross-examined by counsel for Mr Mavropoulos, it was put to V that he himself had a firearm in the house. He denied that. It was also put to him that he went to the front door of the house and let in a person (presumably Mavropoulos). He also denied that. He admitted in cross-examination that when speaking to the police, he made up another story about these events happening at another premises. His explanation was that he did not want to compromise the drug crop. It was also put to him that two men came to the front door and he let them in. He also denied that.
V was then cross-examined to the effect that he stabbed his assailant before he was shot. It was put in clear terms in cross-examination that the gun was fired after the assailant was stabbed and not before. It was clearly put to him that he stabbed the assailant with a knife and was then shot. He emphatically denied that assertion.
When cross-examined by counsel for the appellant Mavropoulos, it was also put to V that when he went to the Flinders Medical Centre he saw a Dr Palani Kuppusamy and told him that when people entered his house he went to attack those people and they shot him. He initially denied saying that to Dr Kuppusamy, but then changed that to saying he could not remember whether he said that or not. That, of course, is inconsistent with his evidence, which was that he was shot first, before attacking his assailant with a knife.
When V was cross-examined by counsel for the appellant Enrico Votino at the trial, it was clearly put to him that there were only two people in the house at the time of the stabbing and the shooting. He denied that. It was put to him by the same counsel that on the night in question two men came to the front door, a tall man and an overweight man, and he let them in. He denied that. V emphasised that before any shots were fired his back door was broken into, and the men did not come through the front door.
At trial there was no dispute that the appellants were the three men who were at the premises. There was also no dispute that the person who fired the shot was the appellant Mavropoulos. There was uncontested evidence given by police officers of observations at the Women’s and Children’s Hospital on the morning in question. The three appellants were seen by the police driving a vehicle to the Women’s and Children’s Hospital. The police noticed the vehicle because it had gone through a red light. On stopping the vehicle it was apparent to the police officers that the appellant Mavropoulos was injured and had a number of stab wounds. He was taken into the hospital by police officers.
There was evidence that whilst that was happening Vince Votino fled the scene. He was eventually apprehended hiding behind a tree in the gardens near Brougham Place. After he was apprehended a firearm was found in the car. Evidence was given that when tests were eventually carried out on that firearm it appeared to be in good mechanical order. The tests also determined how much weight could be applied to the trigger of the weapon before it was discharged. This was found to be a weight of 3.3 to 3.4 Kg before the trigger was released. Uncontested evidence was given that that was an intermediate weight. The firearm was a .38 calibre Beretta pistol and operated only in a single action mode, which meant that it must be manually cocked first and then the trigger pulled.
Mr Peter Tamblyn, an orthopaedic surgeon, was called and gave evidence in relation to V’s injuries. Mr Tamblyn had examined a gunshot wound in V’s thigh, and as a result, V had undergone surgery.
It was an agreed fact that the appellant Mavropoulos suffered five separate stab wounds to his body.
The appellants Mavropoulos and Vince Votino elected not to give or call evidence.
Enrico Votino gave evidence. He told the court that on the evening in question he went to the premises with the other two appellants. There had been no plan to go to the premises, but he went with the other two to a few hotels and then they went to a house. He was sitting in the back of the vehicle and the other two were in the front with the appellant Vince Votino driving. He had been asleep in the back. He said the vehicle stopped outside the premises and they went to the front door but he stayed in the car and dozed off. He said when the other two went to the front door he saw someone open it, but could not see who it was. He then heard a loud bang and got out of the car and saw Vince Votino trying to open the side gate. Vince appeared shaken and scared and said, “I think Mav is in trouble”. He and Vince Votino then went to the back door and broke through it and saw blood all over the kitchen floor. He then heard Mavropoulos say, “Get me out of here. He’s gone crazy.” Enrico Votino then saw Mavropoulos behind the hallway door. He appeared to be injured. Enrico Votino then guided him out of the house as quickly as possible. He put him in the front seat of the car, and with Vince Votino driving, they went to the Women’s and Children’s Hospital. Whilst they were driving off he heard a gunshot from within the car, but did not know who did it. The gun was then thrown into the back seat. He gave evidence that prior to that he had not seen anybody with a gun, he had not been part of a plan to rob anybody at the premises and did not know for what purpose they were all going to the premises. He said he did not know that Mavropoulos was in possession of a gun when they first arrived at the house.
As part of the trial judge’s summing up it was incumbent upon the judge to direct the jury of their task in relation to s 5AA(4) of the Act. That section reads as follows:
(4)If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors it finds to have been established.
Consistent with that the judge asked for separate verdicts on each count for each appellant in relation to the aggravating factors alleged in relation to each count. The taking of that part of the verdict has not been reported on the transcript, but the trial judge presented a report in the following terms:
REPORT ON AGGRAVATING FACTORS FOUND PROVED BY JURY
In respect of accused MAVROPOULOS and Count 1
Upon your finding of Guilty, please state which of the aggravating factors alleged in the Information you have found established:
a)    At the time of the Offence, another person, namely, Sonny Ian Carroll, was lawfully present in the said place of residence, and the Accused knew of his presence or was reckless as to whether anyone was in the said place.
[ANSWER: ‘Yes’]
b)    The Accused committed the Offence whilst in company with 1 or more other persons.
[ANSWER: ‘Yes’]
c)    The Accused used, or threatened to use, an offensive weapon, namely a firearm, to commit, or when committing the Offence.
[ANSWER: ‘Yes’]
In respect of accused VINCE VOTINO and Count 1
Upon your finding of Guilty, please state which of the aggravating factors alleged in the Information you have found established:
a)    At the time of the Offence, another person, namely, Sonny Ian Carroll, was lawfully present in the said place of residence, and the Accused knew of his presence or was reckless as to whether anyone was in the said place.
[ANSWER: ‘Yes’]
b)    The Accused committed the Offence whilst in company with 1 or more other persons.
[ANSWER: ‘Yes’]
c)    The Accused used, or threatened to use, an offensive weapon, namely a firearm, to commit, or when committing the Offence.
[ANSWER: ‘No’]
In respect of accused ENRICO VOTINO and Count 1
Upon your finding of Guilty, please state which of the aggravating factors alleged in the Information you have found established:
a)    At the time of the Offence, another person, namely, Sonny Ian Carroll, was lawfully present in the said place of residence, and the Accused knew of his presence or was reckless as to whether anyone was in the said place.
[ANSWER: ‘Yes’]
b)    The Accused committed the Offence whilst in company with 1 or more other persons.
[ANSWER: ‘Yes’]
c)    The Accused used, or threatened to use, an offensive weapon, namely a firearm, to commit, or when committing the Offence.
[ANSWER: ‘No’]
In respect of accused MAVROPOULOS and Count 2
Upon your finding of Guilty, please state which of the aggravating factors alleged in the Information you have found established:
a)    The Accused committed the Offence whilst in company with 1 or more other persons.
[ANSWER: ‘Yes’]
b)    The Accused used, or threatened to use, an offensive weapon, namely a firearm, to commit, or when committing the Offence.
[ANSWER: ‘Yes’]
In respect of accused VINCE VOTINO and Count 2
Upon your finding of Guilty, please state which of the aggravating factors alleged in the Information you have found established:
a)    The Accused committed the Offence whilst in company with 1 or more other persons.
[ANSWER: ‘Yes’]
b)    The Accused used, or threatened to use, an offensive weapon, namely a firearm, to commit, or when committing the Offence.
[ANSWER: ‘Yes’]
In respect of accused ENRICO VOTINO and Count 2
Upon your finding of Guilty, please state which of the aggravating factors alleged in the Information you have found established:
a)    The Accused committed the Offence whilst in company with 1 or more other persons.
[ANSWER: ‘Yes’]
b)    The Accused used, or threatened to use, an offensive weapon, namely a firearm, to commit, or when committing the Offence.
[ANSWER: ‘Yes’]
Grounds of appeal against conviction
Each of the appellants was granted permission to appeal against conviction on a number of grounds. However, many of the grounds are common to each of the appellants and a number of grounds cover the same areas. Rather than setting out the grounds of appeal in detail, I think it is more convenient if I deal with the arguments by reference to topics covered by the grounds of appeal. All appellants make complaints in relation to the following matters:
1.the withdrawal by the trial judge of self‑defence from the jury and its effect on the defence of a non‑deliberate discharge of the firearm;[1]
2.the comment by the trial judge that the victim was “not on trial”;[2]
3.the trial judge’s directions on the onus of proof;[3]
4.the lack of a direction concerning the flight of the appellant Vince Votino from the Women’s and Children’s Hospital;[4]
5.an initial misdirection in relation to count 2, whereby the trial judge directed that recklessness was a path to conviction;[5]
6.there was originally no adequate direction on the various alternatives to count 2;[6]
7.there were inadequate directions about joint enterprise and the extended common purpose doctrine. This argument, in part, also relies upon the difference in the jury’s verdict of aggravation between Mavropoulos and the Votinos about the presence of a firearm in relation to count 1; [7] and
8.the trial judge failed to give specific directions in relation to each of the appellants.[8]
I deal with each in turn.
[1]    Anthony Mavropoulos, Amended Grounds of Appeal, Grounds 1 and 2;
Vince Votino, Grounds of Appeal, Ground 1; and
Enrico Votino, Grounds of Appeal, Grounds 6 and 7.
[2]    Anthony Mavropoulos, Amended Grounds of Appeal, Ground 3.
[3]    Anthony Mavropoulos, Further Amended Grounds of Appeal, Grounds 6 and 9;
Vince Votino, Grounds of Appeal, Ground 4.
Enrico Votino, Grounds of Appeal, Grounds 2 and 8.
[4]    Anthony Mavropoulos, Further Amended Grounds of Appeal, Ground 4; and
Enrico Votino, Grounds of Appeal, Ground 3.
[5]    Anthony Mavropoulos, Further Amended Grounds of Appeal, Ground 7; and
Vince Votino, Grounds of Appeal, Ground 5.
[6]    Anthony Mavropoulos, Further Amended Grounds of Appeal, Ground 8 and
Vince Votino, Grounds of Appeal, Ground 6.
[7]    Anthony Mavropoulos, Further Amended Grounds of Appeal, Ground 5;
Vince Votino, Grounds of Appeal, Grounds 2 and 3; and
Enrico Votino, Grounds of Appeal, Grounds 1 and 5.
[8]    Enrico Votino, Grounds of Appeal, Ground 4.
The failure to leave self‑defence to the jury

During the course of argument at the trial counsel for the appellant Mavropoulos sought a direction that self-defence should be left to the jury. He argued that even though Mavropoulos had not given evidence or called evidence, there was enough material for the defence to be left to the jury. The test to be applied by a trial judge in such circumstances is set out in R v Murphy[9] where Cox J said:[10]
The test is whether a reasonable jury, properly instructed, could admit the defence as a reasonable possibility on the evidence before them. It is for the jury to decide what evidence it will accept and this may be a view of the facts that is, in the opinion of the trial Judge, or the appeal court, improbable and is possibly inconsistent with that put forward explicitly by either the prosecutrix or the defendant himself.
[9] R v Murphy (1988) 52 SASR 186.
[10] Ibid 197.
Mr Boucaut, of counsel, argues on behalf of the appellant Mavropoulos that the following matters provided enough material to satisfy the above test:
·the fact that there was evidence of a struggle by virtue of the number of injuries sustained by the appellant Mavropoulos, as distinct from the single stab wound that V could remember;
·the direct evidence of Enrico Votino that he heard Mavropoulos say that “He’s gone crazy”;
·the direct evidence of Enrico Votino that the other two had entered the front door and were let in the front door by somebody;
·the statement by V to Dr Kuppusamy that the gun was fired after the stabbing; and
·admitted lies V told the police when they first spoke to him about where the incident had taken place.
Mr Boucaut argues that a combination of these factors, at the very least, satisfies the test that there is a reasonable possibility that V was the aggressor and the appellant Mavropoulos was acting in lawful self‑defence.
In my view, none of these factors, either taken in isolation or as a combination, justify leaving self‑defence to the jury. I am of the view that the trial judge was clearly correct. There is no evidence at all that the shot was fired after the appellant Mavropoulos was attacked with the knife. The injuries do not indicate that and neither does the evidence of Enrico Votino support that. Lies told to police or a previous inconsistent statement to the doctor are clearly not evidence of what was said and only go to the question of V’s credit. There is no other evidence.
Mr Boucaut also argues that by not leaving self‑defence to the jury, the trial judge had somehow impinged upon a defence that there was no appropriate intention when pulling the trigger and that it was done instinctively. I cannot see how that possibility arises on the evidence that was presented, but nevertheless, the trial judge clearly directed the jury that the act causing serious harm (or harm in relation to one of the alternatives) must be a “conscious and deliberate act, as opposed to being accidental”.
I would reject the grounds of appeal in relation to the withdrawal of self‑defence by the trial judge.
Onus of proof
This argument was presented by Mr Crocker, counsel for the appellant Enrico Votino. Although the argument touches on the other appellants, it is more apposite to Enrico Votino because he gave evidence.
Mr Crocker argues that in a number of passages in the trial judge’s summing up to the jury he gave incorrect directions on the onus of proof, to such an extent that there was a fundamental flaw and a miscarriage of justice.
Mr Crocker points out that after the jury was empanelled and whilst the trial judge was making some preliminary remarks, he said:
Whilst listening to the evidence, bear in mind that it will be you that is deciding at the end of the day if the prosecution has in fact proved its case beyond reasonable doubt. If you have a reasonable doubt you will acquit the accused. A reasonable doubt is exactly what it means, and I will tell you more about this later, it is any doubt which you as reasonable people regarded as reasonable. If it is a doubt that you think is reasonable, then it’s a reasonable doubt, it’s as simple as that, the plain words, it is a simple proposition.
Mr Crocker further points that out in the summing up itself the trial judge was incorrect when he said:
It is not enough, as you have been told by defence counsel, for the prosecution to show a suspicion of guilt or indeed even that the accused or any of them are probably guilty. That is not good enough. They are not to be convicted unless their guilt has been proved beyond reasonable doubt. So, if at the end of the trial there is a doubt reasonably arising on the evidence which you as jurors are prepared to entertain, that is a reasonable doubt. If you do entertain such a doubt you must give the accused the benefit of that doubt and find him not guilty. Now, again, if I use words like something being proved or something being established, they are the sort of words that I mean and when I say those words I always mean ‘beyond reasonable doubt’. As I said, simply a doubt which you as jurors are prepared to entertain on the whole of the evidence at the end of the trial.
It is those two passages, one just after the jury was empanelled and the other in the course of the summing up, that Mr Crocker first complains about.
Mr Crocker’s next complaint is that when giving an example of how to assess the evidence of witnesses, the trial judge referred to the differences between the evidence of V and the appellant Enrico Votino, in that the latter said he was not inside the premises until after the gun was fired, whereas V said three people were inside the premises before the gun was fired. After pointing out those differences the trial judge then went on to say:
It is an illustration of how people can give evidence which is quite different and it is quite common in courts, it happens all the time. You have to consider those differences and any others which you regard as important and see whether you can decide what you think is the truth of the matter.
Mr Crocker argues that at that stage the trial judge should have directed the jury that it was not just a matter of seeking where the truth lay; he should have advised the jury that before they could act upon V’s evidence they had to accept the evidence of V beyond reasonable doubt and reject the evidence of Enrico Votino beyond reasonable doubt.
The third criticism Mr Crocker makes of the trial judge’s directions in regard to the onus of proof is that the judge did not emphasise, or indeed mention, the third alternative: he argues that it should have been pointed out to the jury it was not just a matter of believing what V said or believing what Enrico Votino said. If the jury was unsure where the truth lay, then they should bring in a verdict of not guilty. In other words, the trial judge did not give what is commonly referred to as a “Calides[11] direction”.
[11] R v Calides (1983) 34 SASR 355.
I deal first with Mr Crocker’s third submission. In the context of this case it was not necessary to tell the jury of the third alternative. The trial judge clearly emphasised that each and every element of the charge must be proved beyond reasonable doubt. He said at the beginning of his summing up:
I will now deal with some of the general matters before I get onto particular aspects of the case. They are all very important and I ask you to listen to them carefully. You have heard some of them already from counsel but you must bear them in mind at all stages in considering your verdicts. First and foremost, as all counsel have reminded you, is the presumption of each accused’s innocence. Each accused comes into this court with the presumption of innocence in his favour. That is a fundamental principle of our system of justice. The law regards them, each of them, as innocent until their guilt has been proved to your satisfaction beyond reasonable doubt. I will go through with you in a moment what is meant by that.
Secondly, as you have been reminded by both the prosecutor and by defence counsel, the burden of proving the charges against each accused is wholly upon the prosecution. The accused do not have to prove anything. If they put forward a defence, they do not have to prove it. It is for the prosecution to disprove it or to show you in some other way how it is irrelevant and if any of the accused make a point or offer any explanation which is consistent with their evidence they do not have to prove it. Again it is the prosecution that has to disprove it, otherwise the prosecution will not have proved its case.
When discussing the matters mentioned by defence counsel or using words to suggest that the accused when they put forward a particular explanation for something alleged against them, you may be confused and think ‘Well, that sounds like they have to prove something’. Now please do not get that idea at all. They do not have to prove anything. I cannot repeat that too many times. It is the prosecution who does all the proving in this court and that includes, importantly, proving each of the elements of each of the offences charged beyond reasonable doubt. I will take you through those elements shortly.
I turn briefly to reasonable doubt. Sometimes words are used which might convey different impressions and if I use words in relation to the question of proof that are not always exactly the same, you must understand that when I use any of those words to describe the burden of proof beyond reasonable doubt that is exactly what I mean. The burden of proof remains on the prosecution to prove the case beyond reasonable doubt. When you get to deal with the individual elements of the offences as I have just told you, each element has to be proved beyond reasonable doubt and sometimes there might be words which I use which do not actually put all the words together and say ‘beyond reasonable doubt’ but you will understand when I use those words what I am talking about.
After that he gave the impugned direction set out in [35] above.
When commenting on the fact that the appellants Vince Votino and Mavropoulos did not give evidence the trial judge once again said:
It is for the prosecution to prove the case against them beyond reasonable doubt and I direct you that you should draw no inference from either of those two accused not having given evidence.
Once again, when directing the jury on the principle of joint enterprise, the trial judge emphasised the onus of proof correctly. When directing the jury on the elements of each of the offences he also emphasised that each element must be proved beyond reasonable doubt.
In those circumstances, I am of the view there was no need to give a “Calides[12] direction”. It is very clear that in the circumstances of this case, failure to prove an element beyond reasonable doubt embraces the concept of not being sure whether an element has been proved or not, or not knowing where the truth lies. That would have been abundantly clear to the jury. Nevertheless, the matter was finally dealt with after the jury retired and were brought back for further directions at the request of counsel, the trial judge said:
You will remember I gave you an example of differences between what Mr Carroll had said and what Mr Enrico Votino had said. I would like to make it clear to you that it is not a contest as between the respective versions. The burden remains on the prosecution to prove beyond reasonable doubt the elements of the offence and is not a matter of just was selecting one over the other or preferring one over the other. It is for the prosecution to prove their case as I told you beyond reasonable doubt.
[12] Ibid.
I also reject the argument that when talking about the assessment of witnesses generally, the trial judge had the effect of reversing the onus of proof by asking the jury to find out where the truth lay between the evidence of V and the evidence of Enrico Votino. That comment has to be read against the background of what the judge was discussing at the time and in the light of the continued directions on the onus of proof.
I accept that the trial judge’s directions shortly after the jury was empanelled and his directions concerning his analysis of reasonable doubt are not to be encouraged. However, in my view, bearing in mind the summing up as a whole, the directions in this case would not amount to a misdirection. Throughout the course of his summing up, the trial judge’s directions as to the onus of proof were extensive and they were conveyed to the jury clearly.
Further argument on this topic was put in relation to the trial judge’s summing up. When summarising the address of counsel for the appellant Mavropoulos to the jury he said:
Mr Boucaut told you about what he, that is Mr Boucaut, had reconstructed about the struggle as to where it took place in the kitchen and asked you to conclude from his reconstruction and from the other matters he mentioned to you that Mr Carroll was the aggressor. Now ladies and gentlemen Mr Carroll is not on trial and I repeat that self‑defence by Mr Mavropoulos does not arise on the evidence in this case.
It is now argued that by suggesting that V was not on trial, that somehow reversed the onus of proof. I am unsure what that comment was meant to convey, except that it stated an obvious fact. I cannot see how it could be interpreted as either qualifying the trial judge’s directions on the onus of proof, or indeed, reversing the onus of proof.
I would dismiss the grounds of appeal concerning the onus of proof.
The flight of the appellant Vince Votino
Counsel for Vince Votino argues that the trial judge erred in not directing the jury about Vince Votino’s flight from the Women’s and Children’s Hospital as described above.
The trial judge should have given directions to the jury about flight. He should have told the jury that, in the circumstances, the appellant Vince Votino’s flight from the Women’s and Children’s Hospital could not amount to evidence of consciousness of guilt. In not doing that he clearly erred.
However, it is to be noted that in the context of this case the fact of flight was not mentioned by the prosecutor in his address. There was never any suggestion that the flight by Vince Votino could be evidence of a consciousness of guilt, and none of the counsel for any of the appellants requested the appropriate directions. It obviously played no part in the trial.
In my view, in those circumstances the lack of an appropriate direction raises no risk of a miscarriage of justice.
I would dismiss the grounds of appeal concerning the flight of the appellant Vince Votino.
An initial misdirection by the trial judge in relation to count 2
This ground of appeal applies to all appellants. It is conceded by the respondent that when directing the jury as to the elements of count 2 on the Information the trial judge erred. When directing the jury on the elements of count 2 he said:
I will move to the second count on the information which does involve a couple of alternatives and I will take you through those. The second count as you know is aggravated causing serious harm with the intention to cause serious harm. Each of the accused has been charged with that offence and the same comments I made to you earlier regarding the joint enterprise as alleged are relevant also to this offence.
For the prosecution to succeed in proving the second count beyond reasonable doubt it would be necessary for them to prove each of five separate elements which I will take you through. First is that each of the accused caused serious harm to Mr Carroll. This means that the harm which is caused endangers a person’s life, or is harm that consists of, or results in, serious and protracted impairment of a physical or mental function, or is harm that consists of, or results in, serious disfigurement. I will repeat those matters to you later. That is the first element, causing serious harm.
The second element is that the accused’s act causing serious harm was a conscious and deliberate act as opposed to being accidental. The third element is that at the time the accused inflicted serious harm to Mr Carroll the accused either specifically intended to inflict serious harm or as an alternative was reckless in causing serious harm. Now, ladies and gentlemen, a person is reckless in causing serious harm if the person is aware that there is a substantial risk that his or her conduct could result in serious harm and engages in that conduct despite the risk and without adequate justification.
The fourth element is that the accused must have acted unlawfully, that is without any lawful authority or excuse. In this case I tell you, ladies and gentlemen, you do not have to consider self-defence. I direct you that there is no issue raised on the evidence in the trial which requires you to consider self-defence. I will repeat that again in due course. So that is, the accused must have acted unlawfully, the fourth element.
Then, finally, the fifth matter again in relation to the second count relates to the allegation that the offence is aggravated and in this instance it is on the information that it is alleged that Mr Mavropoulos carried the gun into the home and that the accused were in company with each other, and they are the elements of aggravation for count 2 and again if you find any of the accused guilty of that count you will be asked the details of aggravation.
[Emphasis added.]
The trial judge then went on and directed the jury on possible alternative verdicts to count 2. Such direction is also the subject of a ground of appeal. He said:
If you are satisfied that the prosecution has proved each of the ingredients of this second count beyond reasonable doubt but you are not satisfied that serious harm was caused, then you would consider whether the accused intended to cause harm, that is, harm as distinct from serious harm. So if all of the other elements have been proved beyond reasonable doubt but there remains a reasonable doubt as to whether serious harm was caused, you could convict for the lesser or alternative charge of causing harm, and ‘harm’ simply means ‘physical or mental harm whether temporary or permanent’.
If you are not satisfied it has been proved beyond reasonable doubt that the accused had the intention to inflict serious harm but you are satisfied beyond reasonable doubt that the accused was reckless or any of them, then again you could find a lesser offence proved. I repeat that a person is reckless in causing either harm or serious harm to another if that person is aware of the substantial risk that his conduct could result in either harm or serious harm and then engages in that conduct despite the risk and without adequate justification.
There is no dispute that the trial judge was clearly wrong in putting that recklessness was an alternative to the intention to inflict serious harm. It is to be noted that there were three alternative verdicts on count 2 other than guilty as charged or not guilty of anything. They were:
1.aggravated recklessly causing serious harm;
2.aggravated causing harm with intent to cause harm; and
3.aggravated recklessly causing harm.
As can be seen, the trial judge when initially directing the jury as to the elements of count 2, amalgamated those elements with the alternative available verdict of aggravated recklessly causing serious harm.
When the jury retired to consider their verdicts at 1.24 pm, and whilst there was still dialogue between the trial judge and counsel, the jury sent a note asking for a list of all of the elements that go towards proving an offence. To satisfy that request the trial judge provided a written memorandum to the jury setting out the elements of count 1, the elements of count 2 and the elements of the three alternative verdicts to count 2 described above. That memorandum corrected the original mistake that he made when directing on count 2 and also put clearly to the jury the alternatives to count 2. By the time that was prepared and given to the jury it was 3.22 pm. Having provided that memorandum to the jury, the trial judge then verbally took the jury through that document and explained its contents in detail. There was no argument either about the contents of the memorandum or his verbal directions explaining the memorandum.

Counsel for the appellants now argue that there was such a period of time between the erroneous direction on count 2 and the corrected direction that there was a real risk of a miscarriage of justice. The jury had been deliberating for about two hours before the correction was made. I do not agree. The corrected directions, both in writing and verbally, were clear and thorough and were at the request of the jury.
I would dismiss the grounds of appeal in relation to the initial misdirection by the trial judge in relation to count 2.
There was originally no adequate direction on the various alternatives to count 2
I have set out the trial judge’s directions on the alternative verdicts. I agree that they needed further clarification and elaboration. That was done by virtue of the written memorandum and the judge’s further directions in relation to that memorandum.
I would dismiss the grounds of appeal in relation to there originally being no adequate direction on the various alternatives to count 2.
There were inadequate directions about joint enterprise and the extended common purpose doctrine
Inconsistent verdicts in relation to the appellants Enrico Votino and Vince Votino
It is convenient to deal with these two grounds of appeal together. They apply to the appellants Enrico Votino and Vince Votino. Both grounds deal with the directions on complicity. As Mavropoulos, on any version of the facts was the principal offender, these grounds do not apply to him.
In short, the appellants Enrico Votino and Vince Votino argue that when the jury answered ‘No’ to aggravating factor (c) on a finding of guilt to count 1, they brought down a decision which was consistent with precluding any knowledge by the Votinos of a firearm being used when entering the house. That being so, they argue that if no such knowledge was proved, they could not be part of a joint enterprise to shoot one of the inhabitants of the premises, nor could they be guilty of recklessly causing harm pursuant to the extended common purpose doctrine. The appellants argue that as the Crown presented the case, it was on the basis that a verdict against the Votinos on count 2 (or any of its alternatives) was based upon the fact that they knew that Mavropoulos was armed with a gun when they went into the premises and with that knowledge they were part of a plan to shoot one of the inhabitants, or at the very least, they contemplated the possibility of the shooting.[13] The appellants argue that whether it be common purpose liability or the extended common purpose liability as a basis for the jury’s verdict, nevertheless, it depended upon there being knowledge by the Votinos of the existence of the gun when entering the house, and this was inconsistent with the answers as to aggravation in relation to count 1.
[13] McAuliffe v The Queen (1995) 183 CLR 108; Johns v The Queen (1981) 43 CLR 108.
Alternatively the appellants argue that even without the knowledge of the existence of the gun before they went into the house, and even if the Crown were allowed to proceed by way of proving that there was a fresh agreement entered into after they entered the house and after they discovered the existence of a gun, then the judge’s directions in relation to that scenario were inadequate.
The Crown case as presented was always on the basis that it was to be proved that the Votinos knew of the existence of a gun before going into the premises for the purposes of committing theft. However, that does not bind the Crown to that factual circumstance. If the jury came to the conclusion that there was knowledge of the gun at a later stage, that would not preclude them from bringing in verdicts of guilty in relation to the Votinos on count 2 or any of the alternatives. However, as counsel for the appellant Vince Votino argues, if there was any reliance upon that alternative factual situation, clear directions had to be given in relation to joint enterprise and complicity relating to those alternative circumstances.
I have already noted that the jury were given further directions and a written memorandum at 3.22 pm. Shortly before 5.08 pm the jury sent a note to the trial judge. I set out that note in full:
There is confusion around “Joint enterprise”.
If one or more accused are completely unaware of the weapon being brought into the house can they still be classified as guilty of aggravated recklessly causing harm to the victim, due to joint enterprise?
¯
knowing that harm was caused.
Thank you.
As can be seen, the very question of the timing of the knowledge of the weapon was concerning the jury.
In answering the question on the note the trial judge said:
Thank you for the question, ladies and gentlemen. It is if I may say so a very sensible question. The answer - I will just give you a run in to orientate you - is this ‘If there was a joint enterprise to unlawfully enter the house, the question is did any of the accused contemplate that in carrying out that unlawful entry that one of the parties to the joint enterprise might use a gun?’. That is the question. The answers are ‘If not’ in other words they did not contemplate ‘and one of the parties produced the gun and fired it on the spur of the moment then it would be outside the contemplation of the others and they would not be responsible for that criminal act and they would not be guilty of aggravated recklessly causing harm. If they knew of the presence of the gun when they entered the house and they foresaw the possibility that in the course of carrying out the agreed crime of theft or an offence against the person that one of the others might commit the crime of shooting another person then they could be found guilty of aggravated causing harm’.
In his answer the trial judge appeared not to answer the question specifically. He appeared to repeat some of the appropriate directions he had given on joint enterprise and extended common purpose liability. The question, however, seemed to be directed at whether one or more of the accused, although completely unaware that a weapon was brought into the house, might still form a guilty intention at a later time. Bearing that in mind, the answer needed to say more. If the trial judge was of the view that the Crown were bound by the way in which they presented the case, namely that it relied upon knowledge of the gun before the appellants entered the house, he should have clearly directed the jury that lack of proof of such knowledge would be fatal to count 2 or its alternatives in relation to the Votinos.
If, however, he was of the view that the factual basis for joint enterprise for common purpose or extended common purpose could be changed to knowledge after they entered the premises, and that the Crown were not necessarily bound by their opening and the way that they presented the case, then what was needed was a clear and extensive direction to the jury about common purpose and extended common purpose, with the alternative factual situation more clearly referred to. It was even more important to do so in this case because as that alternative route to conviction was not presented by the Crown and not dealt with by the defence at trial, a careful direction was needed by the judge.
In my view, because of the lack of such direction there was a substantial chance of a miscarriage of justice in relation to the verdicts of aggravated recklessly causing harm against the Votinos.
I would allow that ground of appeal in relation to both Enrico Votino and Vince Votino.
The judge failed to give specific directions in relation to each of the appellants
There is no merit in this ground. The case against all accused was based upon joint enterprise, with the appellant Mavropoulos as the principal offender. The only evidence that was admissible against one appellant but not the others was the evidence of flight by Vince Votino. As I have already indicated, that was peripheral to the trial and it was not the basis of comment by any counsel, and failure to point out to the jury that it was not admissible against the other two appellants could not amount to a miscarriage of justice.
I would dismiss that ground of appeal.
Conclusion
For the reasons given:
·I would dismiss the appeals against conviction for aggravated serious criminal trespass in a place of residence against all appellants;
·I would dismiss the appeal against conviction for aggravated causing harm with intent to cause harm against the appellant Mavropoulos;
·I would allow the appeal against conviction for aggravated recklessly causing harm in relation to Enrico Votino and I would order a retrial of that count; and
·I would allow the appeal against conviction for aggravated recklessly causing harm against Vince Votino and I would order a retrial in relation to that count.
Appeals against sentence
Enrico Votino and Vince Votino
As I have come to the conclusion that a retrial should be ordered against Enrico Votino and Vince Votino in relation to the conviction for aggravated recklessly causing harm, and as the sentencing judge gave each of those appellants one sentence pursuant to s 18A of the Sentencing Act, I would set aside their sentence. It would not be appropriate to resentence at this stage.
Anthony Mavropoulos
I turn to the appeal against sentence of the appellant Mavropoulos.
The sole ground of appeal is that the sentence was manifestly excessive. Counsel for the appellant argues that the sentencing judge did not have enough regard for the fact that the appellant himself suffered severe injuries during the commission of the offence and that the admitted good prospects for rehabilitation of the appellant were not reflected in the sentence.
The sentencing judge, although acknowledging in his sentencing remarks that the appellant had suffered severe injuries, did not say that he took that fact into account. Counsel now argues that in not doing that he has erred. Counsel relies upon the decision of Barci & Asling,[14] where the Victorian Court of Criminal Appeal held that where the appellant in that case suffered severe injuries in an armed robbery when he was shot by police, that should have been taken into account to some extent. The court said:[15]
The fact is that these very serious injuries directly resulted from the commission of the crime itself. For the rest of his life, those injuries will serve as a savage reminder to Barci of his criminality, and as such, they must fairly be regarded as constituting some punishment for that criminality.
The question is not, of course, whether the members of this Court would, in the exercise of their discretion, have given greater weight than did his Honour to this factor in the “instinctive synthesis” process of sentencing. The question is whether notwithstanding the grave seriousness of the offences, committed by a man with a bad criminal record, the mitigating factors, of which the only one of real substance was that concerning Barci’s injuries, should necessarily have led to a lesser head sentence of 15 years, and a non‑parole period of 10 years. While we have said that, absent this factor, the sentences would have been regarded as perfectly proper, we have finally concluded that insufficient weight must have been given to this factor, and that the sentences must be regarded as excessive.
[14] (1994) 76 A Crim R 103.
[15] Ibid 111.
Mr Boucaut, for the appellant Mavropoulos, points out that in this case the appellant suffered injuries that necessitated him undergoing serious surgery and he has been left with a scar running the full length of his abdomen as well as other scarring. He argues that some regard should have been had to that in the sentencing process.
Also, there is no doubt that the appellant is relatively young, being aged 32 years at the time of sentence, that he has young children, a good work history, lacked any serious prior offending and had never been in prison. The sentencing judge found there were good prospects for rehabilitation.
In my view, even if an allowance should be made for the injuries sustained by the appellant, in the circumstances of this case that would not have resulted in a lesser sentence. On his assessment of the evidence he said:
Therefore, the basis of my sentencing each of you is that the three of you entered the premises with the intention of committing one or more crimes, knowing that Mr Carroll was present or being reckless as to whether he was present. In your case, Mr Mavropoulos, you entered the premises with a gun.
The sentencing judge also noted that the maximum penalty for count 1 was life imprisonment. It is clear that this was serious offending of its kind. The appellant entered the premises to steal. There was a forcible entry and he knew or was, at least, recklessly indifferent to the possibility of there being another person on the premises. He had a gun and he used that gun to shoot V. In considering all of those matters as well as the question of general deterrence, it could not be said that either the head sentence or the non‑parole period was manifestly excessive.
I would grant permission to appeal, but dismiss the appeal against sentence in relation to the appellant Mavropoulos.