R v Piltz

[2004] NSWCCA 34

Reported Decision: 59 NSWLR 538

New South Wales

Court of Criminal Appeal

CITATION:	R v Piltz [2004] NSWCCA 34 revised - 21/06/2004
HEARING DATE(S):	26/02/04
JUDGMENT DATE:	26 February 2004
JUDGMENT OF:	Levine J at 1; Barr J at 2; Buddin J at 45
DECISION:	Dismiss the appeal against conviction; Grant leave to appeal against sentence but dismiss the appeal.
CATCHWORDS:	Criminal law - firearms - whether proof of a charge that a loaded firearm was possessed "so as to" endanger life requires proof of an intent to endanger life - Criminal law - defence assertion that complainant lied - theory posited why complainant lied as asserted - whether direction like that suggested in R v Jovanovic necessary
LEGISLATION CITED:	Crimes Act 1900 s93G Criminal Appeal Act s6
CASES CITED:	Hardman v The Director of Public Prosecutions (NSW) [2003] NSWCA 130 Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 R v Jovanovic (1997) 98 A Crim R 1
PARTIES :	Regina Jeremy Kenneth Piltz
FILE NUMBER(S):	CCA 60394/03
COUNSEL:	Crown: E A Wilkins Appellant: S M Kluss
SOLICITORS:	Crown: S E O'Connor Appellant: R S James

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/51/0028
LOWER COURT JUDICIAL OFFICER :	Blackmore SC, DCJ

60394/03

LEVINE J
BARR J
BUDDIN J

Thursday, 26 February 2004

REGINA v Jeremy Kenneth PILTZ

Judgment

1 LEVINE J: I agree with the orders proposed by Barr J.

2 BARR J: Jeremy Kenneth Piltz appeals against convictions recorded in the District Court and seeks leave to appeal against the resulting sentences. He stood trial before a jury and was found guilty on charges that may be summarised as follows-

1. That on 6 September 2001 at Lismore he detained Deborah Anne Host with intent to hold her for advantage;
2. That at the same time and place he assaulted the same complainant and committed an act of indecency upon her;
3. That at the same time and place he assaulted the same complainant and committed an act of indecency upon her; and
4. That at the same time and place he possessed a loaded firearm so as to endanger the life of another person.

3 Judge Blackmore of Senior Counsel sentenced the appellant as follows-

On the second and third counts concurrent terms of imprisonment for two years commencing on 6 September 2001 and expiring on 5 September 2003. A non-parole period of eighteen months was fixed.
On the first count imprisonment for a term of eight years commencing on 6 September 2002 and expiring on 5 September 2010. A non-parole period of five years was fixed.
On the fourth count imprisonment for a fixed term of four years commencing on 6 September 2002 and expiring on 5 September 2006.

4 The effective result was a head sentence of nine years with a non-parole period of six years.

5 The facts were summarised by his Honour in the remarks on sentence in the following way-

All of the offences involve the victim Deborah Host. On 6 September 2001 Miss Host went to the offender’s premises to deliver a video. She had done that before. The video apparently contained some Christian message on the topic of hope. Both the offender and the complainant regularly attended the Presbyterian Church at Lismore. The complainant was also involved in a Christian group at high school and the videos were used by that group. The offender assisted the group by editing those videos.

The visit to his house was planned, either she or her then fiancé having contacted the offender prior to that day. When she met the offender at the doorway he told her that his mother wanted to speak to her for a second and by that means lured her into the house. She walked into the house and said, “Where is she?” The offender closed the door and she heard a clicking sound. She turned around and saw that he was pointing a gun at her. She said that he used a lever on the gun whilst it was pointed at her. She said she did not know anything about guns. She said it was held at shoulder level.

Miss Host asked the offender what he was doing and he said that he just wanted to talk to her. She said “I can’t talk with a gun in my face”. She moved forward to grab the barrel of the gun and push it up. Then there was some lengthy conversation and interaction between the two whilst they were in the hallway. During that conversation the offender relinquished the gun for a short period of time. The complainant also said she wanted to go home and the offender said she could go soon. For a time they were seated in the hallway. At that time he asked her then to go into the bedroom. She did not want to go but he insisted.

When they were inside the bedroom they walked to the other side of the partition that was in his room. He showed her some photos of a girl and rolled up his sleeve and showed her some scars on his arm. He said that showed how he loved that girl. The complainant said that she backed out of the door of the bedroom and started for the front door but the offender stood in front of the door and said, “You can’t go yet”. He said that he wanted to see a lady one last time. She said “I am not a lady, I am just a child”. He said “You’ve got everything”. She said she wanted to go and he said no, and said “What if I do this?” and then he pulled out a knife. He put the knife to her throat. She made a noise and tried to get it away from her throat. There was a struggle and they fell to the floor. During that struggle she got control of the knife and said she could have stabbed him but she knew it was wrong. The offender eventually got control of the gun and pointed it directly at her. He said, “Before I asked you to take them off, now I am going to tell you to take them off”. He ordered her back into the bedroom. He went to the video camera which was in the bedroom as if to turn it on and she said “no” and he said “okay”. He then told her to take her clothes off.

Once she was undressed he was looking her up and down and then produced some handcuffs and told her to put them on tight. She put them on loosely so he tightened them. He then ordered her to lie on the bed and he started touching her body. He then touched her buttocks and tried to reach around and touched her on the breast. After the offender had touched her when she was lying on her front he ordered her to roll over on to her back. He then commenced to rub his hands up and down her leg and rubbed his hand over her vagina area and then moved his hands up and was feeling her breasts. He was kneeling over her at this time.

After he had been touching her for a time there was a noise at the door. It was the offender’s mother coming home. He ordered the complainant to be quiet and went out to speak to his mother. His mother told him she would like to see Deborah before she left. The complainant and the offender’s mother had been quite friendly in the past. The offender came back and ordered the complainant to dress and come out. When the complainant came out she spoke to the offender’s mother and then she left.
She went directly to her church minister’s house. He observed her to be in a very distressed state. She immediately complained to him in terms largely consistent with her evidence. The matter was then reported to the police.
Later in the day the police approached the offender’s home. Because they believed he possessed a loaded firearm the State Protection Group was called to handle the arrest. Ultimately the offender left the house without any violence. The police searched the house at the invitation of the offender’s mother. They found a number of items that were relevant to the offence. They found a loaded rifle in the offender’s bedroom, two sets of handcuffs, a video camera on a tripod facing the offender’s bed. In addition they found a number of items of a bizarre nature. They found bowls of blood and rifle cartridges apparently with people’s names written on them. There was also some of the offender’s writing that appeared to be of a religious nature. The offender declined the opportunity for an interview with police.

6 The first ground of appeal is expressed as follows-

That his Honour erred in permitting the count of possess firearm with intent to endanger life to go to the jury.

7 This ground relates to the fourth count, the precise terms of which were not as stated in the ground but were as follows-

And the Director of Public Prosecutions further charges that Jeremy Kenneth Piltz on 6 September 2001 at Lismore in the State of New South Wales possessed a loaded firearm at 9 Cromer Street so as to endanger the life of another person.

8 This count was laid under s93G(1)(a)(ii) of the Crimes Act. The section is as follows-

(1)Any person who:
(a) possesses a loaded firearm or loaded spear gun:
(i) in a public place, or
(ii) in any other place so as to endanger the life of any other person, or
(b) fires a firearm or spear gun in or near a public place, or
(c) carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person,

is liable to imprisonment for 10 years.
(2) For the purposes of this section:
(a) a firearm is to be regarded as being loaded if there is ammunition:
(i) in its chamber or barrel, or
(ii) in any magazine or other device which is in such a position that the ammunition can be fitted into its chamber or barrel by operation of some other part of the firearm, and
(b) a spear gun is to be regarded as being loaded if a spear, or an instrument or thing similar to a spear, is fitted to it.

(3) A person is not guilty of an offence under this section for possessing or doing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or doing it or possessed it or did it for a lawful purpose.

9 I note the inconsistency between the words of this ground of appeal – with intent to endanger life – and the words of subpara (1)(a)(ii) – so as to endanger the life of another person.

10 During closing addresses counsel took the opportunity upon an adjournment to raise with his Honour directions that were desired. Defence counsel said this about the fourth count-

Your Honour, the concern that I wished to raise was that clearly the section adds an element to offences under the Firearms Act legislation, that is so as to endanger life aspect. It’s my submission to your Honour that that aspect is clearly an aspect of the matter which, given the penalty, may be considered – your Honour might consider requires full mens rea, that is, that there is shown to be an awareness on the part of the accused person that the conduct concerned is such as to endanger life, or, if that not be the case, that there be at the very least recklessness in that regard.

11 His Honour told the jury that the Crown had to prove two elements to succeed on the fourth count. The first was that at the asserted time and place the accused possessed a loaded firearm. The second was that such possession was so as to endanger the life of another person. No issue arose at trial or arises on appeal about the first element, and I can pass over what his Honour said about it. As to the second, his Honour said this-

The second element requires that you be satisfied beyond reasonable doubt that when the accused possessed the loaded firearm he did (so) so as to endanger the life of another person. In this case the other person clearly is the complainant. Further, I instruct you that to endanger someone’s life is to put his or her life in peril. It is not necessary that the gun be actually discharged or that someone was killed or injured. What must be established is that there was a real risk to someone’s life and in this case the complainant’s life…

12 His Honour then summarised the evidence, reminding the jury that the Crown case was that the danger or risk was constituted by the accused’s having pointed a loaded gun at the complainant at close quarters.

13 It was submitted on appeal that s93G requires that the possession of the firearm be with the intention to endanger life. Secondly, it was submitted that the evidence was not capable of establishing that the firearm was in a condition to endanger life.

14 Whether an accused person in possessing a firearm intends to endanger life does not seem to depend necessarily upon the answer to the question whether the firearm is capable of endangering life. An accused person might have the state of mind contended for but act upon a mistaken belief about the quality of the firearm possessed. However that may be, two questions seem to have been raised under this ground.

15 The first is whether the section requires the intent contended for. Counsel for the applicant put forward no authority in support of the submission.

16 The principles of construction require the words in a statute to be given the meaning intended by the legislature. Ordinarily this will correspond with the grammatical meaning of the words as they appear. Regard must be had to the context, the consequences of a literal or a grammatical construction and the language and purpose of all the provisions of the statute: Hardman v The Director of Public Prosecutions(NSW) [2003] NSWCA 130; Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355.

17 In Hardman v The Director of Public Prosecutions the Court of Appeal considered s93G. The issue in that case was not directly relevant to the present appeal but it was convenient for the Court to deal with the purposes of the legislation which, the Court said, were to strike a fair and reasonable balance between safeguarding the community from firearms misuse and providing reasonable though stringent controls for those that wish legitimately to use and possess firearms (second reading speech, Legislative Assembly, 2 March 1989, Hansard 5605.5)

18 S93G concerns itself with possession of a loaded firearm either in a public place or in any other place so as to endanger the life of any other person. In Hardman v The Director of Public Prosecutions the Court was concerned with the question whether the defendant was at the relevant time in a public place: see subpara (1)(a)(i). There was no suggestion or finding in that case that it was an essential element of the offence that the defendant knew that he was in a public place or intended to be in a public place. It followed that the test for what constituted a public place was to be determined objectively.

19 Subpara 93G(1)(a)(ii), under which this charge was brought, creates a similar offence. The same maximum penalty applies to each offence. To read into subpara (ii) a requirement that a defendant has to be proved to have intended to endanger the life of any other person would raise an inconsistency between the elements of the offences created by the two subparagraphs. In the second there would be a requirement that an offender must have intended to have endanger a life whereas under the first the Crown would not have to show that the offender intended to possess the firearm in a public place.

20 Moreover, subs (3) provides a defence where the defendant shows that he or she had a reasonable excuse for the possession in the circumstances or carried out a relevant act for a lawful purpose. A defence of reasonable excuse is consistent with the possession of a loaded firearm which incidentally endangers life but inconsistent with an intent to endanger life.

21 My last reason for concluding that this ground of appeal has not been made good is that the Parliament could easily have said that the relevant intent was necessary to constitute the offence, yet it did not. One can compare numerous sections in the same Act which expressly require proof of a particular intent or state of mind. By way of example only, s33 deals with the wounding, infliction of grievous bodily harm or the discharge of loaded arms with intent, among other things, to do grievous bodily harm. S33A deals with the discharge of loaded arms with intent to do grievous bodily harm. S33B deals, among other things, with the possession of an offensive weapon with intent to commit an indictable offence or to prevent lawful apprehension or detention. Each such section makes clear by its terms that the relevant intent must be proved. Unlike s93G, none uses the formula “so as to” lead to the relevant result.

22 The second question that seems to arise is based upon an implied assertion that the verdict on the fourth count is unreasonable or cannot be supported having regard to the evidence: Criminal Appeal Act s6. In my opinion there was abundant evidence upon which the jury were entitled to find the accused guilty on this count. It was the complainant’s evidence that the appellant pointed the gun at her and told her that it was loaded. Not long after the police were called they searched the appellant’s house and found the firearm with a round in the breach. The firearm had a safety catch and the evidence left it uncertain whether at the relevant time the catch was released, but in my opinion the jury were not thereby disentitled from concluding that the complainant’s life was endangered. The appellant always denied the incident and gave sworn evidence to the same effect, but the jury were entitled to reject his version as untrue.

23 In my opinion this ground of appeal fails.

24 The remaining grounds of appeal against conviction may be dealt with together. They are as follows-

2. That his Honour erred in not discharging the jury following the Crown Prosecutor’s address
3. That his Honour failed to adequately direct the jury as to the submissions of the Crown as to “why would the complainant lie?”

25 There was no application that his Honour discharge the jury, so leave is required to rely on the first of these grounds.

26 The evidence showed that the complainant was a young woman who was engaged to be married to a young man. The intended wedding was not far off. The complainant’s evidence was that she had never had any sexual interest in or relations with the appellant. The events she described were as unexpected as they were unwelcome. The appellant’s case was that although the complainant did visit his house on the day in question there was no violence and no use of a firearm or a knife as the complainant had said. Instead he and the complainant had consensual sexual intercourse, much as they had done on a number of occasions in the recent past. His case at trial was that the complainant had told this untrue story knowing that the appellant was likely to tell her fiancé about their relationship. So she intended falsely to conceal from her fiancé the fact that she had willingly engaged in sexual relations with the appellant and put an innocent complexion on the affair.

27 The problems with the defence were obvious. Why would the complainant have taken the trouble of complaining first to her minister if, calm and determined, she could have gone straight to the police to make her false report? Why would she tell a false story to the police at all if she might have hoped for a satisfactory result merely by keeping quiet? Other questions were raised as well, as the Crown Prosecutor told the jury.

28 During his closing address the Crown Prosecutor said this-

If I can just remind you, that we have to prove are the actual ingredients of the charges, that’s what we have to prove beyond reasonable doubt. We don’t have to prove what colour the car was that Deborah drove to the house for example or a number of other issues that are peripheral to the central issues in this trial, may be proved to you, they may not, they may assist you, they may not. We bear the onus of proof beyond reasonable doubt, and you’ll hear that said more than once, but only in relation to the actual ingredients of the charges, which you have before you in the indictment. And if I can just remind you what I said in my opening remarks to you, the first count is detaining Deborah with intent to hold her for advantage to the accused. What I want to say to you in relation to all four counts is that if you accept Deborah’s evidence, all four counts are made out. That is the issue for you, as I said to you in my opening, the Crown case relies entirely on Deborah.

29 The Crown Prosecutor then recited the facts which the Crown asserted giving rise to each count. He then observed that the complainant and the appellant had given versions which could not stand together and that neither had backed down. He spoke about the assessment of the credibility of witnesses. He continued-

And as I say to you, and I’ll say it again, we have to prove the case, we have to satisfy you beyond reasonable doubt that Deborah’s telling the truth. If you decide she’s not telling the truth, then obviously the accused is entitled to be acquitted. If you don’t know whether she’s telling the truth or not, again he’s entitled to be acquitted. If you in my submission to you, accept that she is telling the truth, that she’s a reliable, honest, accurate witness, then according to the oath you took it’s your obligation to convict the accused at the end of your deliberations.
…

What you have here obviously are two conflicting versions. You have the version given by the complainant, which is completely different to the version given by the accused. Again he’s under no obligation to prove anything to you. What I want to do is just ask you a few questions about the contents of her evidence and ask you the question why. Definitely not in such a way as to reverse the onus and suggest that you should be looking at the accused to explain why she would complain about those sorts of things, but to use these questions to assess her credibility in relation to the contents of her statement. Because the scenario that you have is that she did not want any sort of public revelation of the relationship between her and the accused. She didn’t want Simon or anybody else to find out. That’s the accused’s version.

30 The Crown Prosecutor asked why, then, the jury supposed that the complainant went to her minister and not to the police station. He dealt with that topic. In dealing with the appellant’s version he said this-

You have the evidence of how traumatised she was when she got there, that could’ve been made up. It’s a matter for you to determine that. If the accused’s version be accurate, and this was all malicious and all fictitious, and all to get back at him because he was going to tell Simon what was going on, and that she wasn’t traumatised by the violent physical assault upon her, easy, just go to the police, you’re not traumatised, you’re not upset, you’re not worried, it’s something malicious, in the five minutes since you leave his house, you’ve decided you’re going to dob him in for some heinous crime, then you might think she might go straight to the police, but she didn’t, she went looking for support and sympathy. When you think about the version she’s given you, there’s just two things that she said to you which I’d ask you to think about very carefully. Assuming that her complete account is malicious and made up, why would she have the accused at the end of the episode saying he was sorry, and why when she was with the Crees would her primary concern be the safety and welfare of Mrs Piltz, why, unless what she said happened actually happened. I’d suggest to you that if she was making up a malicious complaint, they are not the sort of details that you would expect her to incorporate in this sobbing heartbroken account to the Crees. But she did, and she told you here the same thing. Her primary concern when they were discussing whether the police should be called, was not her own safety when she was in the arms of the Church, but the concern for the safety of Mrs Piltz. I suggest to you that speaks volumes about her credibility, and the believability of the story that she gave to the Crees and gave to you.

31 Later the Crown Prosecutor said this-

Now all the “whys” I’m asking you are not to criticise the accused, they’re to ask you to assess the credibility of the complainant. Look at the content of the evidence that she’s given you, the only possible reason you might think that all that is in there, is that it happened to her. She wouldn’t have struck you as being such a creative person that in five minutes she could make up the length and breadth and depth of detail that she gave the Crees and then gave the police the next day, is my submission to you.

32 The Crown Prosecutor told the jury repeatedly that it was for the Crown to prove its case.

33 There was an adjournment during the closing address of defence counsel. Counsel said this to his Honour-

O’CONNOR: Your Honour there’s one other matter if it’s convenient for me to raise, your Honour given the Crown’s submissions relating to a variety of whys, I wonder whether your Honour might consider whether a direction in the terms of Justice Sperling’s direction in Jovanovic’s case might be appropriate.

34 Discussion followed. During his charge to the jury the trial judge said this-

It has been suggested in address to you that the accused cannot explain why the complainant lied. Let me make it clear for you if it is not already clear, that the accused does not have to explain why the complainant might have lied. He can only answer what he has done and what he knows. The accused in a criminal trial does not have to prove anything, the Crown always has the onus of proof upon it.

35 In R v Jovanovic (1997) 98 A Crim R 1 this Court was concerned with a state of affairs that often arises in sexual assault cases. Typically an uncorroborated complainant says on oath that the acts constituting the offence took place. Whether by evidence or otherwise, the accused denies those assertions. Sperling J, with whom Priestley JA agreed, said this at 17-

The gravamen of the question, Why would the complainant lie? is that is suggests an answer and is, therefore, in substance, a positive argument. The argument is that because there is no apparent reason for the complainant to lie, the complainant is likely to be telling the truth and should, therefore, be believed. The reasons why an invitation to follow this line of reasoning is illegitimate in a criminal trial were provided in E (1996) 39 NSWLR 450 at 461-466, and affirmed in Uhrig (unreported, Court of Criminal appeal, NSW, File No 60200, 24 October 1996). For a further illustration of the need to trim the sails of everyday thinking to the winds of the legal principle, see now OGD (unreported, Court of Criminal Appeal, NSW, File No 60480 of 1996, 3 June 1997).
In E it was made clear that what was said in that case did not prevent argument or comment about a motive to lie on the part of a complainant, where there was direct evidence of an actual motive to lie or evidence from which a specific motive to lie could be reasonably inferred. It is to be noted, however, that any such argument or comment would be adverse to the complainant’s credibility. If the complainant had the alleged motive to lie, that would be a reason for discounting the complainant’s evidence. If the complainant did not have the alleged motive, the complainant’s credibility would be unaffected one way or the other by the lack of it: the complainant might have no motive to lie or an undisclosed motive to lie.

36 At 24 Sperling J suggested a form of words a trial judge might include in his charge to the jury, namely-

It would be natural to ask yourselves why the complainant, X, would make up such serious allegations against the accused. I give you the following directions about that question:
1. As you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. If the case turns on the evidence of X, you must be satisfied beyond reasonable doubt that X has told the truth.
2. As you have been told, it is your duty to decide whether you accept the evidence of a witness in whole or in part. X is no exception to that.
3. It would be wrong to conclude that X is telling the truth because there is no apparent reason, in your view, for X to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. You cannot be satisfied that X is telling the truth merely because there is no apparent reason for X to have made up these allegations. There might be a reason for X to be untruthful that nobody knows about.

37 The Court in Jovanovic drew a distinction between the case in which there are a simple assertion and denial and no more and the case in which the evidence is capable of showing that the complainant had a motive to lie. Obviously, when in any case it is suggested to the jury that the complainant had a motive to lie that is a matter with which the jury must concern itself. It must consider the strength of the motive. It must consider whether the actions of the complainant are consistent with it.

38 The present case was not one of simple assertion and denial. The defence was at some pains to advance before the jury the theory that the complainant must have lied because she feared that the appellant was going to tell her fiancé about their affair. Since she did not want him to believe that it was consensual she had to lie and say that it was not. Nothing that the Court said in Jovanovic prevented the exploration of the issues thereby raised.

39 Two complaints were made in this appeal. The first was that the damage done by the Crown Prosecutor’s address was incurable, so nothing short of a discharge was enough. In my opinion that complaint has not been made good. I do not say so merely because that idea did not occur to defence counsel. The asserted motive of the complainant to lie was very important to the jury’s consideration of the issues they had to decide. In my opinion the Crown was obliged to invite the jury critically to examine the consequences of the defence reliance on that asserted motive.

40 The second complaint, made in the alternative, was that if the damage was curable his Honour’s direction did not go far enough. It left out the substance of the third paragraph of the direction suggested by Sperling J. I think that there is no substance in that complaint. Obviously a direction of the kind contended for is appropriate to a case where no particular circumstances are pointed to as giving rise to a motive and the complainant to lie. This was not such a case.

41 In my opinion this ground of appeal fails.

42 I would refuse leave to appeal on the second ground of appeal and would dismiss the third.

43 The appellant has sought leave to appeal against sentence. There is one submission, namely that the overall sentence and the non-parole period of six years was outside the range of his Honour’s sentencing discretion. It was submitted that the complainant had been released unharmed. There may be a question about that in view of the Victim Impact Statement, which gave some detail of the effect that the activities of the appellant had had upon the mind and emotional wellbeing of the complainant.

44 The sentencing judge found that the offences were at the more serious end of the range. It seems to me that his Honour was entitled to come to that view. There were very serious offences of their kind. The complainant was forced to strip naked and was handcuffed. In my opinion the sentences were well within his Honour’s sentencing discretion and I think that the application in relation to sentence also fails.

45 I propose the following orders-

1. Dismiss the appeal against conviction;
2. Grant leave to appeal against sentence but dismiss the appeal.

46 BUDDIN J: I agree with Barr J.

47 LEVINE J: The orders of the Court will be as proposed by Barr J.

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Last Modified: 06/28/2004