R v Ritchie
[2005] VSCA 166
•29 June 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 238 of 2004
| THE QUEEN |
| v. |
| NEIL ANDREW RITCHIE |
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JUDGES: | ORMISTON, CHARLES and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 June 2005 | |
DATE OF ORDERS: | 8 June 2005 | |
REASONS FOR JUDGMENT: | 29 June 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 166 | |
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CRIMINAL LAW – Suborning perjury – Found guilty by jury though acquitted of armed robbery – Allegation that accused sought to threaten and persuade (and successfully persuaded) other armed robber to give false evidence of accused’s non-participation in robbery – Verdicts inconsistent.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Mr S. Carisbrooke |
| For the Applicant | Mr M.J. Croucher | Haines & Polites |
ORMISTON, J.A.:
As already announced on 8 June 2005, the Court granted this application for leave to appeal against conviction, allowed that appeal, set aside the verdict on count 2 and directed the entry of a verdict of not guilty on that count. The following are the reasons which led me to join in those orders.
The applicant for leave to appeal against both conviction and sentence was convicted last year on one count of suborning perjury (count 2 on a presentment containing two counts), for which he was sentenced to a term of four years’ imprisonment, three-and-a-half years of which was to be served cumulatively upon the sentence he was currently serving. The County Court judge fixed a new non-parole period of four-and-a-half years before the applicant could become eligible for parole. The critical fact for this appeal was that at the same trial the applicant had been acquitted on count 1 on the presentment charging armed robbery, which it was said had been committed in complicity with two other offenders who gave evidence against him. The second count, that for suborning perjury, arose out of what was alleged to have been said by the applicant to one of his alleged accomplices in a prison van on the way to the County Court for the first trial of the armed robbery count. During that journey he sought to induce the principal witness to say that the third participant in the armed robbery was not the applicant. At court that witness, the first of the perpetrators of the armed robbery, one Scott Gamble, told the judge that he wished to change his statement and then gave evidence on the voir dire that his original statement was untrue and that the applicant had not been involved in the armed robbery. The second of the perpetrators, another major witness, said that, although the applicant was involved in some planning, the third person at the scene could not be identified by him and was only someone who was of a similar build to the applicant. Nevertheless, even at that trial, the second witness gave evidence of the applicant’s alleged threats to Gamble. As a result the trial was aborted and a direction given for a new trial.
On the second trial, from the conviction on which this application is brought, the principal witness Gamble gave clear evidence, so it seemed, both of the participation of the applicant in the planning of the armed robbery and of his presence at the bank where it was committed. Nevertheless the jury found the applicant not guilty of the count of armed robbery, while they immediately thereafter found him guilty of suborning perjury which was expressed in count 2 in terms that he “unlawfully caused and procured Scott Gamble, being a witness upon a trial in the County Court of the said Neil Andrew Ritchie, to knowingly give false evidence.” The sole ground of appeal on the application for leave to appeal against conviction was that the verdict of guilty on the count of subornation of perjury was “unsafe and unsatisfactory because it is inconsistent with the verdict of not guilty on count 1 (armed robbery) in the sense that no reasonable jury properly instructed could find the applicant guilty on count 2 having found him not guilty on count 1.” The written outline also referred to some other matters which suggested that the verdict was unsafe and unsatisfactory for other reasons. The application for leave to appeal against sentence included grounds that the sentence was manifestly excessive and that the extent of cumulation and the new single non-parole period offended against totality, but that application is no longer relevant.
The basic facts may be simply stated. The prosecution case was that on Saturday 10 June 2000 three persons including the applicant committed an armed robbery on the National Bank in Werribee. Michael Woods was a security officer in the employ of the bank. Gamble, Woods and the applicant, so it was said, decided on a plan involving Woods whereby Gamble and the applicant would first go to the bank and damage the automatic teller machine. In turn they correctly anticipated that in the course of his duties with the bank Woods would attend so that the machine could be put right. He arrived at the front of the bank where he met the branch’s flexiteller service officer but, as they entered the bank, he deliberately left the front door unlocked, so that Gamble and the third man, alleged to be the applicant, could slip in. Woods followed the service officer inside the bank where she opened the ATM and found what had caused it to jam. Immediately there was a man standing next to her holding a gun, namely Gamble, who instructed her to open part of the ATM so as to extract money from the machine. Another man in a balaclava and overalls appeared and she was forced to help them to take the cash, amounting to about $183,000, from the machine. She was then forced to lie on the floor with her hands tied with tape behind her back. At about the same time, so it seems, Woods was also forced to lie on the floor with his hands taped behind him. It further appeared that, apart from leaving the bank’s front door unlocked, he had taken no further part in the robbery, his treatment doubtless being intended to give the impression that he was just another innocent victim of the two armed robbers. It was Gamble and the other robber, alleged to be the applicant, who had extracted the money from the automatic teller machine while threatening the service officer and, so it seemed, the security officer Woods in order to achieve their ends. Two guns had been brought in by the robbers and at least one had been used by Gamble to threaten the service officer into showing them how to open the machine. The two robbers had taken the money and then had driven off together. In due course both the service officer and Woods untaped themselves and the police arrived not long afterwards, the alarm having been set off at some earlier stage. It was all over in about ten minutes and a few days later the three men met in a hotel car park where they shared the proceeds of the robbery, with the applicant being alleged to have received some $60,000 of the total. None of the money was ever recovered.
In due course, Gamble and Woods were arrested and interviewed. In the first place they both made full admissions and gave statements implicating the applicant, who was later arrested but denied any involvement. Gamble and Woods pleaded guilty and were sentenced. Gamble, at least, was sentenced upon the basis that he would give evidence against the applicant at his trial.
Eventually, on 17 March 2003 the applicant’s trial was listed in the County Court. He was on remand at Port Phillip Prison while at the same time Gamble and Woods were serving their sentences. By chance, indeed by appalling mismanagement, it was arranged that all three including the applicant should be transported to the County Court in the same prison van. Gamble and Woods were in fact placed in the protection section at the front of the van but opposite the main entrance door and it seems that they took their seats first. Then, again unfortunately, the applicant is alleged to have boarded the van after them, walked up to and past their “cage” and, seeing Gamble, said to him: “Tell ‘em it wasn’t me”, and then “I’ll walk”. Thereafter he went and sat down in the other section of the van for non-protected prisoners. Although Gamble and the applicant could not directly see each other, they were only about ten feet or so apart. On the way to court there were further warnings allegedly uttered by the applicant to Gamble to the effect: “Don’t be stupid”; “Do the right thing”; and “You know you’ve got a family out there”.
As it happened neither Gamble nor Woods gave evidence that day, although the trial had commenced before Judge Coate and the first witness was called on that first day. They returned the next day and as soon as Gamble, the next witness, was called he said in the presence of the jury that he wished to change his statement. That led to evidence being taken on the voir dire in which he confirmed that he wished to change what he had earlier stated and in particular what he had said about the applicant. Asked to elaborate he said “He didn’t do it, wasn’t there”. He then asserted that the co-offender was in fact one Tony, and was questioned in some detail as to his name and address and other characteristics. The original, allegedly false, statement was tendered. For continuity’s sake, although I do not believe it was expressly adduced in evidence at the second trial, this led to considerable discussion before the first judge, in consequence of which Woods was called. As part of his evidence he said then and at the later trial that the applicant had threatened Gamble in the prison van, although the only particular expressions he remembered were: “Tell them it wasn’t me” and “Remember your family”. In consequence and after further discussion with counsel Judge Coate decided to abort the trial and discharge the jury.
Returning to the evidence adduced at the second trial, it appears that Gamble changed his mind again and agreed to give evidence along the lines of his original statement. In substance he gave evidence of the planning and carrying out of the armed robbery, identifying the roles of himself and Woods and in particular what he alleged the applicant had done as the other robber who entered the bank with him on the Saturday morning in question. He then gave evidence as to the matters alleged in the second count. He went through the history of the alleged threats made by the applicant to him in the van and then agreed with an account, largely a repetition of the transcript, of what had occurred so far as his evidence was concerned at the first trial. He was asked whether his answers had then been truthful, in particular his statement that the applicant “didn’t do it, wasn’t there”. When asked at the second trial whether those answers were truthful he said, “No”. When asked why he had given those answers, he engaged in some vituperation of those responsible for his transportation, but then said that his untruthful answers at the earlier trial were made “because of the threats made on the bus on the way in and, you know, the way they just handled the whole affair”.
Woods’ evidence was less convincing as to the events surrounding the armed robbery in that, although he admitted participating in it by leaving the front door of the bank open as he entered as a security officer, and, although he tried to identify Gamble at least by recognising his voice, he said that he could only “assume” that the other man was the applicant and was unable to identify him further, except to the extent of describing generally the size and shape of the second armed robber. Woods, nevertheless, gave evidence again of certain of the threats to Gamble made in the prison van by the applicant, although he did not purport to remember all the expressions which Gamble said had been used by the applicant.
The trial in the County Court was conducted on the basis that the issues relating to both counts were simple. The Crown asserted that the evidence relating to the armed robbery was clear and that the identification of the applicant was convincing. On the count of suborning perjury the Crown relied on the evidence of both Gamble and Woods as to the threats in the van and on Gamble’s explicit assertions that what he had said was not true and that he had told those untruths because of the threats made by the applicant. The case as opened, and indeed put to the jury, so far as one can ascertain in the absence of the final addresses (and any summary of them), was that the applicant had improperly influenced Gamble and eventually procured or suborned him “to give knowingly false evidence that he, Mr Ritchie, was not involved in the armed robbery as alleged, and through fear that the threats made against him or his family might be carried out”. There can be no doubt that the only basis upon which it was said that there had been a suborning of perjury was the actual evidence given by Gamble which was characterised as “knowingly false”, inasmuch as Gamble had been persuaded to say before Judge Coate that the applicant was “not involved” in the robbery. The issue therefore was simple in that the critical aspect of that which was knowingly false was Gamble’s earlier assertion of non-participation by the applicant. There could be no other way of proving that element of the prosecution case beyond reasonable doubt in those circumstances other than by proving that the applicant was in fact present and thereby Gamble’s evidence at the first trial was false. Of course, the case involved only a charge of suborning these answers which was laid solely against the applicant, but it was clear that what the prosecution said the applicant had wished to achieve and procure by his threats was a statement that he was not the other person at the robbery. The untruthful or perjurious statement which the applicant wished to procure and suborn by his threats, if this part of the evidence was to be believed, was that Gamble should explicitly tell the Court that “it wasn’t me”, i.e. that the applicant was not involved in the robbery. That untruthfulness was sought to be established by the Crown by the only obvious way of proving it, namely by adducing evidence that in fact it was the applicant who together with Gamble robbed the bank that Saturday morning.
The trial on these two counts was conducted on this relatively simple basis. The primary, indeed the critical, witnesses on each count were the two admitted participants in the armed robbery, Gamble and Woods, so that the evidence of the other witnesses, including the service officer, merely tied details together but provided no corroboration of the evidence given against the applicant, as the judge directed the jury. It may fairly be said that the principal concentration at the trial was on the evidence which sought to link the applicant with the robbery and to identify him as the other armed robber who entered the bank that Saturday morning after Woods had left the front door unlocked. The evidence on the second count was also challenged but the concentration there was as to whether anything of consequence was said in the van on the way to court for the start of the first trial. We do not have the closing addresses but it is clear enough from defence counsel’s response to the Crown opening that necessarily he challenged any conclusion that “what Gamble said in his evidence on the 18th March 2003 [was] perjury at all” or, as counsel continued, “Was it in fact the truth?” Counsel naturally said that the evidence of the two witnesses, being the two admitted co-offenders, had to be scrutinised carefully on all these matters.
The judge’s charge to the jury was brief. At first he did not even condescend to define the elements of armed robbery, but was persuaded to do so later, although he said that there was no real issue as to those elements. At the instigation of the judge but with the acquiescence of counsel, no summary of the facts was given, largely because, as he said, the evidence had taken only some two days, although the jury retired to consider its verdict some days later following counsel’s addresses, the weekend and the judge’s summing up, circumstances which might suggest that the untrained memories of at least some members of the jury may have been challenged. Nor was there any summary of the submissions of counsel, although in relation to some matters, especially the evidence of accomplices and as to certain inconsistencies, the judge repeated certain of counsel’s contentions.
As to the charge of suborning perjury the judge gave, and indeed repeated with some further explanation, directions to the jury as to the four elements required to establish that count in terms to which neither party took no exception, nor have they been criticised before this Court. In short he said that the jury had to be satisfied, first, that the applicant said what the two admitted armed robbers alleged he had spoken in the van or words to that effect; secondly, that the applicant intended to cause Mr Gamble to give false evidence; thirdly, that Gamble gave evidence at the previous trial, “when in effect he said Mr Ritchie was not there”, was “false evidence”, and finally, that they had to be satisfied that Mr Gamble gave that false evidence because of what had been said to him by the applicant. In repeating the four elements he elaborated in a little more detail the first requirement, as well as the second requirement. As to the third, for present purposes important, element, he said:
“The third matter involves you being satisfied beyond reasonable doubt that Mr Gamble did in fact give false evidence in that earlier trial, that is, that what he said in that earlier trial about Mr Ritchie not being there, was false.”
His Honour then gave a little more detail in his direction on the fourth element. If the jury had paid close attention to that description of the elements of the charge of suborning perjury, and if they had doubts as to the applicant’s part in the robbery, they must also have had doubts whether Gamble’s evidence given before Judge Coate was untruthful. Doubtless, according to the uncontroverted evidence at the second trial Gamble had admitted that the evidence given in those answers were not truthful, but, as the case was presented, there still had to be proof of falsity in the sense that the jury had to be satisfied of their actual falsity, for the answers of the witness Gamble as to untruthfulness were not necessarily conclusive, unless he were to be believed as to the applicant’s participation in the robbery.
The judge also spent some time giving legal directions to the jury emphasising the legal requirements relating to the acceptance of the evidence of accomplices, including, after an exception, a direction that one accomplice could not corroborate the evidence of another. However, there can be no doubt that his detailed directions were expressed conventionally and strongly in the sense that he emphasised to the jury in unqualified terms that it would be “dangerous to convict an accused person on the uncorroborated evidence of an accomplice, either of these two men”. He explained the reasons for the customary direction in some detail, the charge on this issue extending over some four pages, including references to the fact that the two witnesses were admitted armed robbers, that on their pleas and by their admissions that they had obtained special sentencing treatment and that there was no independent corroborative evidence. It is not surprising, having regard to the strength of these directions, that the jury saw sufficient in the evidence of the two robbers, especially Gamble, to create a doubt sufficient to entitle them to bring in a verdict of not guilty on the first count.
What is more surprising, however, is that the jury were able to overcome their doubts so far as the second count was concerned and to find the applicant guilty on that second count notwithstanding their conclusions on the first count. As to some matters it may be said that the Crown case was in fact stronger on the second count than on the first inasmuch as the two principal witnesses, Gamble and Woods, both gave reasonably clear evidence of the threats to Gamble in the van which, notwithstanding their background, may have been accepted by the jury. What, of course, is harder to comprehend is how they were able to find beyond reasonable doubt the third element, namely that Gamble had relevantly given false evidence about the applicant’s presence at and participation in the robbery. This was not a case where there could be any doubt about the facts about which the witness Gamble gave evidence. Those participating in the robbery, more especially the two robbers who entered together with their guns, must have known each other’s identities. There could be no doubt on the evidence that those two people, whoever they were, committed an armed robbery and so it was accepted by the defence throughout, although denying strenuously that the second participant was the applicant. There could be no question that the witness Gamble was expressing merely an opinion or a conclusion based on inference or inferences from a series of facts about which he might have been uncertain. Gamble’s statement and his evidence at the second trial clearly identified the applicant as that other robber and gave elaborate detail as to his participation: His evidence on the voir dire before Judge Coate had directly denied that the applicant was there at all at the time of the robbery and it was that evidence which was alleged to be perjurious for the purposes of the second count. Whether Gamble was to be believed was the principal issue before the jury.
Nor is this one of those cases where, so it seems at common law, one is permitted to prove perjury or the suborning of perjury without proof of the falsity of the impugned statement. Whatever be the correctness of that approach, namely that in certain circumstances it is unnecessary to prove the untruthfulness of the perjurious statement, this was not such a case. It was opened as being false, clearly the prosecution had gone to the jury on the basis that it was false and the judge summed up by relevantly repeating this requirement that in the present case the jury were being asked to conclude and find that Gamble did in fact give false evidence at the earlier trial. Moreover, it makes no difference that the charge here is that of suborning perjured evidence for the alleged suborner had, on the Crown case, the same direct knowledge.
Now inconsistency does not follow as the night the day merely because juries bring in verdicts which seem to accept a witness or witnesses on one count but not on another, for the evidence in support of particular charges is infinitely various and in many trials there is other factual material which a jury may bring into account or discard so as to reach verdicts acceptable on appeal in which they find the accused guilty on one count but not guilty on another. The principles have been examined or at least applied on many occasions but most recently by the High Court in: MacKenzie v. The Queen[1]; Osland v. The Queen[2] and MFA v. The Queen[3]. The question in every case is whether the particular verdict is unreasonable or otherwise there is shown to have been a miscarriage of justice. An appellate court cannot reach that conclusion merely because it thinks it strange that a jury should have accepted a particular witness as to some counts but not as to others. An appellate court must see more before setting aside a verdict as inconsistent, for example, because a particular verdict shows the jury must have failed to follow, or at least must have positively misunderstood, the directions in law given by the judge, or, occasionally, because “the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty” on the other count.[4]
[1](1996) 190 C.L.R. 348.
[2](1998) 197 C.L.R. 316, esp. at 356-359 paras.[113]-[127], per McHugh, J. with whom on this issue Kirby and Callinan, JJ. concurred.
[3](2002) 213 C.L.R. 606.
[4]Osland at 356-357 para.[116] per McHugh, J.
It is the latter inconsistency which has brought down the present verdict of suborning perjury, but it is also possible to perceive the first possibility, that of misunderstanding the judge’s directions. In this respect I am not referring to his Honour’s clear direction as to the need for a finding of falsity as to the suborned witness’s evidence, except to suggest that the jury must have ignored that direction or passed it over, for, if they had decided to accept beyond reasonable doubt that that evidence was false, that could only be because they accepted the applicant was present at and participating in the armed robbery itself. There are other reasons why, moreover, the jury may here have misunderstood their function. One may be technically a misdirection, albeit not one specifically relied on in the grounds of application. As explained by counsel, the judge gave in many respects a full and satisfactory charge with respect to separate verdicts, an essential part of any charge to a jury where there is more than one count on the presentment. Without doubt they were told that they must consider each count separately but, unfortunately, it is more than obvious that they took that advice literally. In the course of those directions the judge said that “it would be quite wrong to say that simply because you find him guilty or not guilty of this count, then he must be guilty or not guilty of the other count”. That may ordinarily be inoffensive, although the words “or not guilty” is to be eschewed merely for caution’s sake, but in the present case it was neither appropriate nor correct. The jury was faced with one of those presentments in which, at least as the case was advanced to the jury and, it must be said, probably had to be advanced to the jury, the finding on one count was really a precondition to a finding on the other count, in the following sense.
In this case certain of the basic facts relied on in relation to each count were the same, namely the robbery and, in particular, the evidence as to who participated in it. The second count did not relate to another robbery or to another offence of dishonesty or of violence subsequently committed, which would ordinarily require entirely separate consideration, though having regard to the ordinary rules of evidence applicable to each count. This was a case where the charge of suborning perjury involved (as a matter of fact) evidence both as to the pressuring, persuading, inducing, or influencing[5] of a witness to give false testimony, and also as to the carrying out of the suborned act, namely the alleged giving of perjured evidence. More importantly, the perjured evidence was not merely indirectly connected with the charge on the first count but it was directly connected in the sense that the evidence in question amounted to a direct denial of the evidence which the witness had proposed to give (and later in fact gave) for the purpose of the Crown case so as to establish, if that were possible, proof of that case on the first count. Gamble’s evidence was indeed the only “reliable” evidence on the subject in the sense that Wood’s evidence of identification was in most respects too vague, so that the Crown had to persuade the jury that Gamble’s evidence should be accepted beyond reasonable doubt in order to get a conviction on the first count. However, it failed to do so and the consequence was that it had failed to prove beyond reasonable doubt that the applicant had participated in the armed robbery at the bank.
[5]Cf. per Smith, J. in R. v. Pikos [1967] V.R. 89 at 90.
If the jury were not satisfied of that fact, how could the jury be satisfied beyond reasonable doubt of one of the four essential elements of the second count, namely the untruthfulness of Gamble’s evidence on this very issue? In the circumstances of this case, as correctly directed by the judge, it was necessary for them to find that Gamble had in fact given false evidence on this issue, that of the applicant’s participation, if he were to be convicted. If they were not satisfied on Gamble’s evidence or indeed on the evidence, taken as a whole, on the first count, the jury could not have been satisfied beyond reasonable doubt of the falsity of Gamble’s evidence and thus of the applicant’s suborning of that evidence for the
purposes of the second count.[6] In short the two verdicts simply cannot stand.
[6]It must be repeated that this was not one of those rare cases, at common law, where objective falsity need not be proved. The alleged suborner (here the applicant) must have known what the true facts were.
Some may say that this is a regrettable outcome. Indeed any verdict of a jury which is set aside is a regrettable outcome in the sense that it denies the decision of what has been described as the constitutional body prescribed by law for the determining of the issue of guilt in a criminal trial. But if the verdict is erroneous, because the jury must have misunderstood the judge’s charge or because the verdict has some other defect such as true inconsistency, then in law and in justice it cannot stand. There has thereby been a miscarriage of justice, whatever others may think of the verdict on the first count. I would suggest that in essence the jury “took their eyes off the ball”. They were sensible and cautious enough to treat the evidence on the armed robbery count as sufficiently unreliable to create in their minds the reasonable doubt which led to a verdict of not guilty on that count. They seemingly forgot, perhaps because they accepted the evidence of both witnesses as to what occurred in the prison van, that they had to be equally satisfied of the untruthfulness of the relevant evidence of Gamble when he had earlier denied the presence of the applicant. They forgot about that, or seemingly so. If they had a doubt about the participation of the applicant in the robbery, then they must have had, if they were performing their functions properly, a similar doubt as to the third element in the count of suborning perjury.
Those are the reasons why the application had to be granted, the appeal allowed, the verdict set aside and a verdict of not guilty substituted. There was no suggestion, nor could there have been a suggestion, that there should be a direction for a new trial.
CHARLES, J.A.:
On 8 June 2005 I joined in the orders made by this Court leading to the acquittal of the applicant on the count of suborning perjury (count 2). I have read the reasons prepared by Ormiston, J.A., for joining in the making of those orders, and agree with them.
CALLAWAY, J.A.:
The background to this application and the orders made by the Court on 8th June 2005 appear from the reasons for judgment written by the learned presiding judge. The following are my reasons for joining in those orders.
The jury were directed that there were four elements to subornation of perjury. The third element, in the circumstances of this case, was said to be “that Mr Gamble did in fact give false evidence”. The learned judge elaborated that element as follows:
“The third matter involves you being satisfied beyond reasonable doubt that Mr Gamble did in fact give false evidence in that earlier trial, that is, that what he said in that earlier trial about Mr Ritchie not being there, was false.”
That direction was consistent with the prosecutor’s opening and the way in which the trial had been conducted. The Crown case was not put on the basis that Mr Gamble’s evidence was in fact true but was “not believed by him to be true”.[7]
[7]It was unnecessary to consider this point in order to join in the orders and I express no opinion on it. I am indebted to other members of the Court for references to R. v. Traino (1987) 45 S.A.S.R. 473 at 475 per King, C.J. and 479 per Jacobs, J. and Russell, A Treatise on Crimes and Misdemeanours (4th ed. 1865) vol. 3 at 2 – 3. The Perjury Act 1911 (U.K.) does not apply in Victoria but the common law has been modified by s.315 of the Crimes Act 1958. The reference to R. v. Aylett (1785) 1 T.R. 63, 99 E.R. 973 in Bourke’s Criminal Law (Victoria) (1996, service 37) appears to be mistaken.
As this was a single issue trial on count 1, the acquittal on that count meant that the jury entertained at least a reasonable doubt about the appellant being present at the armed robbery. That being so, they could not, in the terms of the
above direction, be satisfied beyond reasonable doubt that what Mr Gamble said at the earlier trial about the appellant not being there was false.
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