R v Pulitano
[2004] VSCA 191
•12 October 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 141 of 2004
| THE QUEEN |
| v. |
| ANTHONY PULITANO |
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JUDGES: | CHERNOV and VINCENT, JJ.A. and GILLARD, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 October 2004 | |
DATE OF JUDGMENT: | 12 October 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 191 | |
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Criminal Law – Conviction – Armed robbery – Whether verdict unsafe and unsatisfactory – Credibility and reliability of victim’s evidence – Jury appropriately instructed in relation to all necessary legal and evidentiary aspects – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.A. Trapnell | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | In Person |
CHERNOV, J.A.:
I will ask Vincent, J.A. to deliver the first judgment.
VINCENT, J.A.:
The applicant was presented before the County Court at Melbourne on 20 April 2004 on one count of armed robbery. At the conclusion of a trial, at which he gave evidence in his defence, the jury returned a verdict of guilty.
After hearing a plea in mitigation of penalty, he was, on 4 June 2004, sentenced by the learned sentencing judge to imprisonment for 26 months in respect of which a non-parole period of eight months was fixed. An order for compensation to the victim was also made in the sum of $1,200.
He now seeks leave to appeal against his conviction.
His Notice of Appeal contains the single ground that the verdict of the jury was unsafe and unsatisfactory in all of the circumstances. However, in the course of his submissions in this Court he has raised two further matters.
First, he has suggested that the judge may have fallen into error in her charge when she referred, at one point, to the commission of a robbery at knifepoint. The applicant asserted that it was clear on the evidence of the victim himself that the knife was never open. The applicant denied that there was any knife present and certainly that a robbery occurred at knifepoint. I do not understand that her Honour was saying more than that, according to the evidence of the complainant, a knife was used to extract the money from him. It was also said in the same context that the judge may have fallen into error in her description of the elements of the offence of armed robbery inasmuch as she referred to a knife being employed. There was no error at this level.
The second matter to which Mr Pulitano has referred arises from his contention that counsel appearing on his behalf did not explore aspects of the credibility and reliability of the evidence of the alleged victim of the offence. I will return to this aspect.
The trial was relatively short and the evidence adduced can be summarised quite briefly.
According to the victim of the offence, Brett McLean, he was, on 28 January 2003, employed as an apprentice cabinet maker in the workshop of JPH Cabinets in Louvain Street, Coburg. At about 5 p.m., on that day, the applicant entered the premises carrying a white bag and approached various workers offering to sell its contents, which consisted of men's and women's perfumes. He also approached McLean who expressed no interest. McLean was then asked by the applicant whether he wished to purchase a plasma screen television receiver. On seeking further information, McLean was told that the receiver was "a big one in a box" and that it was "legitimate". The price mentioned was $1,200 and McLean said that he would like to see it. The applicant asked him when he would be available to do so. McLean responded that he had to work back and provided him with his mobile telephone number. The applicant informed McLean that he would call him at about 7 o'clock and left the premises.
Shortly before 7 p.m. McLean received the expected call and they arranged to meet at the Moreland Hotel at 8.10 p.m. Telephone records confirm that at 6.58 p.m. a telephone call of about 70 seconds duration was made from the applicant's home telephone to McLean's mobile phone. McLean then contacted his cousin, Matthew Leury, and asked him if he could assist in the collection of a television set. When Leury agreed to do so, McLean then drove to Leury's home, taking $1,200 in cash with him. They then proceeded to the Moreland Hotel car park, arriving there at about 8.10 p.m.
On their arrival, the applicant approached McLean's vehicle on foot and explained that they would have to drive to a house to inspect the television set. The applicant walked to the passenger side of the vehicle and asked Leury to get out. Leury did so and the applicant took his place in the passenger seat. The applicant and McLean then drove away, with the applicant giving directions.
A security camera at the Moreland Hotel car park recorded the arrival of McLean's car at about 8.11 p.m. and the applicant could be seen approaching it. It then recorded the vehicle driving off with McLean and the applicant, about ten minutes later.
After about three to five minutes of driving, McLean was, he said, directed to stop outside a garage at the rear of a house on a corner block. The applicant told him that he had to go into the premises to make sure that “everything was all right”. He stepped out of the vehicle and walked out of sight around the corner. He returned, approximately three minutes later, and entered the vehicle, saying, "Everything's still okay and we'll be able to get it through the garage shortly". The applicant asked McLean whether he had the necessary money. McLean responded that he did. The applicant then said, "You better give it to me, I've got a knife in my pocket." McLean was startled and responded, "You're joking." The applicant replied, "Does this look like I'm joking?" and produced a black handled folding knife from his left pocket. He then repeated his demand for the money. McLean handed to him the $1,200 cash that he had brought with him. The applicant then left the vehicle and walked around the corner.
McLean said that he remained where he was for about two minutes before he walked into the street into which the applicant had proceeded. On being unable to see the applicant he returned to his car and drove down that street but did not sight him. McLean then went back to the Moreland Hotel car park and, whilst driving, received a call on his mobile phone. He answered but no one spoke to him. Telephone records indicate that at 8.24 p.m. a telephone call was made from the applicant's mobile phone to McLean's mobile phone, the duration of which was 11 seconds.
On arrival at the Moreland Hotel car park, McLean met up with Leury. Leury gave evidence that McLean appeared distressed and told him what had happened. Two minutes later, McLean drove Leury home. It was not until two days later, however, on 30 January 2003, that McLean made a report of what he said had occurred to the police at the Coburg police station.
The applicant was, in due course, interviewed by the police. He said in that interview that he could not recall what occurred on 28 January 2003, but agreed that it was likely that he had been selling perfumes and watches in Coburg on that day. He said that he had received legal advice and answered "no comment" to all specific allegations put to him.
The applicant gave evidence in his defence. He said that he could now recall attending the premises of JPH Cabinets, on 28 January 2003, for the purpose of selling perfumes. There were about six or ten people in the factory at the time. He said that when other workers showed no interest, he approached McLean, who purchased some perfume from him. As he was leaving, McLean, who had accompanied him to the door of the factory, asked, "What about a TV, can you get a TV?" McLean indicated, he said, that he was after a "big screen television". The applicant said that he responded, "There's a bloke that has got a TV. I'm not sure if he has sold it or not, but he did have one earlier when he was trying to sell it to me. Give me your number. I will ring you and let you know." McLean gave the applicant his telephone number and they exchanged names.
The applicant stated that he then contacted a man who he knew only as Corey and who, he ascertained, still had a television set for sale. He then telephoned McLean, indicating that "the bloke has got the TV and he will be at Moreland, what time can we go and have a look at it?" They arranged to meet at the Moreland Hotel at 8.10 p.m. He asserted that it was in the course of this telephone conversation that the price of $1,200 was mentioned for the first time. The applicant said that he telephoned Corey and suggested that they meet at the hotel at about 8 p.m. Corey responded that this arrangement would not be suitable as the set was in a house in Barrow Street and the transaction would have to be conducted at that location.
When McLean and his cousin Leury arrived at the hotel car park, the applicant told McLean that they had to go "down the road". McLean then requested his cousin to wait in the car park for them. The applicant directed McLean to Barrow Street, Coburg, and they parked near a corner. It was his understanding, he said, that the television set was located in a house nearby. He went around the corner alone and met Corey who was standing on the footpath near his car. Corey asked the applicant whether he had the money. The applicant said that he did not, the buyer had it, and that he was waiting in his car. Corey asked him, "Do you want to get it?" The applicant then walked back to McLean's car and spoke to him through the passenger side window. He asked McLean for the cash and McLean handed it over. He denied entering the vehicle or producing a knife or demanding money. He said that he was not carrying a knife on that night. He returned to Corey who directed him to get into his car. The applicant claimed that he thought that Corey was going to take him to collect the television set. They drove towards Bell Street. As they were approaching the vicinity of the old Pentridge Gaol, the applicant asked Corey where they were going. Corey responded, "Just up the road, alright?" The applicant said that he called McLean and told him that it was going to take more time and that they should meet at the Moreland Hotel. The applicant stated that McLean responded, "Yep, fine."
The applicant and Corey stopped at a 7-Eleven service station on Sydney Road and Corey told him to get out. Corey asked the applicant for the money and it was handed over. The applicant asked Corey where he was going and received the response, "I'm just going to get the TV." Corey drove away while the applicant remained at the service station. He stayed there for about half an hour before going home.
He said that after he was interviewed and charged with armed robbery, he went back to the Moreland Hotel and other places looking for Corey. When he tried to enter the hotel, he was refused entry. He believed that this was due to the fact that the hotel staff had learned that he had been charged.
In cross-examination he said that it was agreed between Corey and himself that Corey would receive $1,000 for the television set and that he would retain $200. He said that he handed the $1,000 to Corey and not $1,200 as he stated in his evidence in chief.
The version which was given in the court at that time, and on oath, was significantly different from the description that he has put before us today. He has indicated, first, that the arrangement was based upon a belief by McLean that he was purchasing a stolen television receiver. However, the object of the exercise was in the nature of “a scam” under which Mr Pulitano would take the money from him and depart. That version, as I have indicated, cannot stand with that given on oath by Mr Pulitano and, if it were correct, would suggest very powerfully that he perjured himself in the proceedings in the court below.
As a consequence of the nature of the ground on which reliance has been placed by the applicant in his Notice of Appeal and the complaints that he has made in this Court today, it has been necessary to conduct a review of the evidence given at the trial and the manner in which the judge instructed the jury. The first observation that I would make is that I have been unable to detect any error in her Honour's approach to her task. All relevant instructions of law were provided, with the jury being directed appropriately in relation to all necessary principles. The issues in the case were both relatively straightforward and clearly identified by the judge, who related the legal and evidentiary aspects in, what appears to me to be, a satisfactory fashion. I observe in this context that no exceptions were taken to the charge by either the prosecutor or the experienced member of counsel appearing on behalf of the applicant.
The approach to be taken by a Court of Appeal when considering an application that the jury verdict in a criminal trial be set aside, not by reason of the presence of any identifiable defect in the proceedings, but by reason of its asserted unsatisfactory character was identified by the High Court in M. v. R.[1] as follows:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty … But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations …
…
[W]here the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence … In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty … " (Citations omitted.)
[1](1994) 181 C.L.R. 487 per Mason, C.J., Deane, Dawson and Toohey, JJ. at 493-494.
Essentially, as the judge pointed out, the prosecution case against the applicant rested upon the evidence of McLean. Her Honour stated on several occasions that before the applicant could be found guilty, that version of events, in its essential features, had to be accepted beyond reasonable doubt. Accordingly she took care in that situation to direct the attention of the jury to a number of matters which the defence asserted could be seen to cast doubt on the reliability of McLean’s evidence. Included in the matters to which specific reference was made in the charge were:
(1)The fact that McLean did not report the incident until two days after the alleged conduct had occurred. That delay, she instructed them, constituted one of the circumstances to which they would need to give consideration in assessing his evidence and in particular his reliability and credibility;
(2)The defence suggestion that McLean had fabricated an armed robbery in order to explain how, in what could be perceived as circumstances of embarrassment, he came to hand over $1,200 to a stranger;
(3)Attention was directed to some pieces of evidence that were given in the course of the trial, but were not included in the statements made by McLean, and which, it was suggested by the defence, cast doubt upon his reliability as a witness. They related to a number of matters of detail, none of which, I should add, and whether considered separately or in conjunction, appear to me to be of much significance. For example, McLean said in the court that at some stage he crossed the road to look down the street into which the applicant had gone, and there was no reference to this having occurred in his statements. There was a question as to whether Leury had been asked to get out of the car by the applicant or by McLean, and there was a failure of McLean to include in his statement any reference to a visit to his cousin's home after the events of the evening;
(4)Some minor differences between the versions given by Leury and McLean;
(5)A number of propositions that were put to the jury by counsel for the applicant in the course of his address which suggested the improbability of the version given by McLean.
I do not think that I need to set out these matters in detail. It is, I think, sufficient to state that they were appropriately addressed in the trial.
The particular matters of complaint which have been raised additionally before this Court do not, in my view, alter the situation. If it was the case that counsel, acting on behalf of the applicant, was hesitant or failed to put before the jury his client's assertion that he had induced McLean to bring $1,200 to the car park in order to buy a stolen television receiver, that hesitation or failure would be entirely understandable. It could hardly be seen to disadvantage the applicant in all the circumstances.
In my opinion, having regard to the evidence, it was not only open to a reasonable jury that was properly instructed, as this jury was, to be satisfied beyond reasonable doubt of the guilt of the applicant, but, attributing to them even a modicum of common sense, it was virtually inevitable that they would do so, particularly when regard is had to the highly implausible evidence given by the applicant himself.
Accordingly I would refuse this application.
CHERNOV, J.A.:
I ask Gillard, A.J.A. to give the next judgment.
GILLARD, A.J.A.:
I agree with the reasons delivered by Vincent, J.A. and the order proposed.
The first step in arguing the ground that the verdict was unsafe and/or unsatisfactory is to identify the evidence which is said to be unsafe or unsatisfactory.[2] Proper analysis of the facts shows that the factual matters in dispute were in a narrow compass. The main factual dispute was whether the applicant produced a knife to extract the money. This was the real fact in dispute between the Crown case and the defence. The victim, Brett McLean, was cross-examined for about half an hour on one afternoon and during the following morning session, finishing just before the luncheon adjournment. The applicant gave evidence that he did not have a knife and did not extract the money by force; he was also cross-examined. The victim was cross-examined at some length suggesting he was lying. A number of matters were put to him including waiting two days before reporting the matter to the police. There were also other attacks made on his credibility suggesting that some of the statements he had made did not accord with evidence given on a previous occasion or at court. In the end it was a factual matter for the jury to decide. The question was – did the applicant produce a knife and demand the money?
[2]See M. v. R. (1994) 181 C.L.R. 487 at 492-493 and Morris v. R. (1987) 163 C.L.R. 454 at 472.
By it's verdict, the jury was satisfied beyond reasonable doubt that each element of the offence had been established. It is clear that the jury did not believe the applicant's version. I have carefully considered the evidence. I am satisfied that there is no basis for suggesting that the verdict was unsafe and/or unsatisfactory. There was ample evidence to support the verdict.
CHERNOV, J.A.:
I also consider that the application for leave to appeal should be dismissed for the reasons given by Vincent, J.A.
The formal order of the Court is that the applicant's application for leave to appeal against his conviction, dated 11 June 2004 and filed on 15 June 2004, is dismissed.
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