R v Roberts
[2016] SASC 193
•14 December 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROBERTS & ORS
[2016] SASC 193
Reasons for Decision of The Honourable Justice Peek
14 December 2016
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
Disputed Facts Hearing.
Messrs Roberts, Kotz and Fraser each pleaded guilty to one count of participation in a criminal organisation and one count of aggravated theft, contrary to ss 83E(1) and 132(1) of the Criminal Law Consolidation Act 1935 respectively.
There was a dispute between the prosecution and the accused as to the circumstances of the offending. The three accused disputed the prosecution’s contention that they attended at the property with an expectation that if the resident was at the house, they were to detain him for the purpose of collecting a sum of money from him, and that they were directed to do so by the President of the Nomads Outlaw Motorcycle Club. Mr Kotz also disputed that it was him who kicked in the door. None of the accused persons gave evidence.
Factual basis for sentence.
Discussion of the doctrine in R v Perre (1986) 41 SASR 105.
Held:
1. The prosecution has proven beyond reasonable doubt that it was Mr Kotz that kicked in the front door.
2. The prosecution has proven beyond reasonable doubt that Messrs Kotz and Roberts attended at the property with the expectation that the resident of the house was to be detained for the purpose of collecting a sum of money from him, and that they were directed to do so by the president of the Motorcycle Club.
3. The prosecution has not proven beyond reasonable doubt that Mr Fraser attended the property with that expectation.
Criminal Law Consolidation Act 1935 ss 83E, 132, referred to.
R v Perre (1986) 41 SASR 105, applied.
R v ROBERTS & ORS
[2016] SASC 193Criminal: Disputed Facts Hearing
PEEK J.
The Director of Public Prosecutions laid an Information for arraignment on 17 June 2016 containing 12 counts against the nine defendants, Messrs Pishdari, Beedar, Mackay, Johnston, Roberts, Kotz, Reynolds, Mitchell and Fraser (the nine defendants).[1]
[1] Originally, an Information was laid for arraignment on 21 March 2016 containing seven counts against the defendants Pishdari, Mackay, Johnston, Roberts, Kotz, Mitchell and Fraser. That Information was superseded by the 12 count Information charging the additional defendants Beedar and Paul Reynolds.
Following various applications by defendants, on 12 July 2016 an order was made severing counts in the Information such that there would be three trials. In accordance with the preference of the Director of Public Prosecutions as to the order of conducting those trials, they became as follows:[2]
[2] Originally, count 3 was intentionally not allocated to any of the three trials pending further consideration by the Director of Public Prosecutions concerning that charge.
Trial Counts
Defendants Trial 1 4, 11 and 12 Pishdari, Mackay, Johnston and Mitchell Trial 2 1, 8, 9 and 10 Pishdari, Roberts, Kotz and Fraser Trial 3 2, 5, 6 and 7 Pishdari, Beedar, Roberts, Kotz & Johnston
On 30 August 2016, trial 1 was completed with the jury delivering verdicts in relation to all defendants on counts 4, 11 and 12.
On 31 August 2016, a directions hearing was held in relation to trial 2 (counts 1, 8, 9 and 10) which was due to commence the following week. Discussion ensued as to the wording of a number of the counts. Some minor amendments were made by consent to the Information during the hearing, with further consideration to be given by counsel to more substantive amendments. The case was adjourned with trial 2 to commence on 7 September 2016.
Late on 6 September 2016, the Court was notified that the defendants Roberts, Kotz and Fraser would be pleading guilty to the counts concerning them (counts 9 and 10) after foreshadowed amendments had been made to those counts; and that the trial of Mr Pishdari on counts 1 and 8 would still proceed.
On 7 September 2016, the Court was convened. Mr Pearce QC made an application to make amendments to counts 9 and 10 of the Information (as well as to count 8 which applied only to Mr Pishdari) and the amendments were made with the consent of each of the counsel for the defendants. The defendants Roberts, Kotz and Fraser then pleaded guilty to those amended counts, being the offences of participation in a criminal organisation and aggravated theft.
However, it then transpired that there was a dispute as to the precise ambit of count 9, and in particular, the precise intention with which the three defendants Roberts, Kotz and Fraser each entered the premises of Mr R. Discussion ensued and the proceedings were adjourned to the following day on the basis that counsel for each of the three defendants would meet together with Mr Pearce and reduce an agreement to writing which would be signed by each counsel.
On 7 September 2016, the Court was convened. Mr Pearce, with the consent of defence counsel, handed up a memorandum signed by himself and each of the counsel for the defendants Roberts, Kotz and Fraser (“the disputed facts memorandum”) which recited as follows:
The following facts are agreed as between Prosecution and Counsel for Messrs Kotz, Fraser and Roberts
1. Some time after about 1am on 20 March 2015 the accused Roberts, Kotz and Fraser arrived at the house of 84 Cashel Street, St Mary’s.
2. They went with [Mr S].
3. They approached the front door. No-one knocked on the door.
4. The front door was kicked in.
5. The three accused and [Mr S] entered the house. Their intention was to search the house to locate any clothing carrying the Nomads insignia.
6. When they entered the house they knew they did not have permission to enter the home.
7. They knew they did not have permission to search through the house.
8. None of the accused assert that they had any claim of right to remove any property from the house.
The following matters remain in dispute
9. The Prosecution allege that the three accused and [Mr S] went to the house with an expectation that if [Mr R] was at the house he was to be detained. That was at the direction of Mr Pishdari. The detention would have been for the purpose of collecting a sum of money from [Mr R]. The three accused dispute that fact.
10. The Prosecution allege that Kotz kicked in the door. The accused Mr Kotz disputes this fact.
11. The Prosecution allege that Roberts had been to the house 84 Cashel Street on an earlier occasion. That attendance was on the 15th of February 2015 for the purpose of collecting [Mr R]’s club property after he had been evicted from the Nomads. The accused Roberts disputes the fact that he had been to the house at 84 Cashel Street on an earlier occasion.
It was the position of all counsel that the memorandum properly supported the pleas of guilty that had been taken; that such pleas should not be set aside; and that it was necessary to have a disputed facts hearing to resolve the disputes as there set out. I considered that to be the correct position, and accordingly the sentencing proceedings for the defendants Roberts, Kotz and Fraser were adjourned for a disputed facts hearing to be heard following the completion of the trial of Mr Pishdari on counts 1 and 8.
On Friday 9 September 2016, trial 2 commenced with Mr Pishdari being the only defendant. A nolle prosequi was entered on count 1, a jury was empanelled to try count 8 and the trial proceeded. On Monday 12 September 2016, a mistrial was declared for reasons not presently relevant. On Tuesday 13 September 2016, a fresh jury was empanelled to try count 8 and the trial proceeded until 16 September 2016 when Mr Pishdari was found guilty of count 8 and remanded for sentencing proceedings.
On Monday 19 September 2016, a directions hearing was held concerning the disputed facts hearing scheduled for the following day. Counsel for the defendants indicated that they did not intend to call their clients to give evidence. The Court referred counsel to the decision in R v Perre. King CJ there stated:[3]
The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant’s role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge.
…
In the present case, counsel put forward a version of the appellant’s role which the learned sentencing Judge found to be in conflict with the inferences which he drew from the primary facts deposed to in the sworn statements. There was ample material to support those inferences and he was perfectly entitled to discard the appellant’s version of his role. (Emphasis added)
[3] (1986) 41 SASR 105, 105-106.
To the same effect, Prior J stated:[4]
[4] (1986) 41 SASR 105, 107-108.
The principles applicable to disputed questions of fact were authoritatively stated by this Court in Reg v Maitland. The Court there agreed with what was said by Travers J in Reg v Vecsey. On sentencing.
One should prima facie act on what is disclosed in the depositions as being the facts. Those facts have already been sworn to. Supplementary and additional matters put by the defence, if not disputed by the Crown, may be accepted and acted upon without being supported on oath, but if those matters are disputed, they can be decided only by the sworn evidence of both parties.
In Maitland, the Court of Criminal Appeal added:
If an accused person agrees that he is guilty of conduct constituting the crime charged, but does not admit the truth of the evidence given by prosecution witnesses as to matters which do not affect the question of his guilt, but are relevant only on the question of penalty, his proper course is to give and, where appropriate, call evidence at the preliminary hearing, or failing that, after notice to the prosecution, to seek leave of the trial Judge to give or call evidence when he comes before the Criminal Court for sentence.
The Court of Criminal Appeal also said:
Whether an accused person is to be sentenced on the basis of the depositions or statements submitted under s 57a of the Criminal Law Consolidation Act, or after the trial Judge has heard evidence in so far as the depositions, statements or evidence leave any matter open, the accused is entitled to have the benefit of any doubt that there may be.
The statements used in these proceedings were statements verified in accordance with sub-s (3) of s 106 of the Justices Act, 1921. Those statements are, by sub-s (2) of s 106, “deemed to have been duly taken by” the Magistrate at the committal proceedings, which in this case, occurred at Adelaide on 30th April, 1985. On that occasion statements verified were accepted. Those statements are therefore to be treated in the same way as depositions or evidence given at a preliminary hearing for the purposes of the statement of principle in Maitlandand Vecsey. The appellant is entitled to the benefit of any doubt if any matter is left open on the statements, but a matter is not “left open” within the meaning of that phrase in Maitland simply because a matter may be dealt with in one statement and not referred to in another. … Any submissions put by the defendant’s counsel could only be acted upon if not disputed by the Crown. If disputed by the Crown, the defendant had to give sworn evidence. If he gave sworn evidence, that might have generated the benefit of doubts in his favour. (Emphasis added)
On Tuesday 20 September 2016, the disputed facts hearing commenced. Mr Pearce called Mr S and briefly adduced evidence on a matter he had previously foreshadowed at the directions hearing. Counsel for each of the defendants cross-examined Mr S and then indicated that they did not call their client or adduce any further evidence. The Court again referred counsel to the Perre line of authorities, but the position of defence counsel was that the defendants would not give evidence and that the statements by Mr S were so inconsistent that they could not support findings beyond reasonable doubt.
I turn to the three matters in the memorandum said to be in dispute.
The dispute at paragraph 11 of the 8 September 2016 memorandum
At the disputed facts hearing, Mr Pearce conceded that, on correct analysis, the matter of an attendance on 15 February 2015 could not aggravate the offences charged in count 9 or 10 and that it was therefore not necessary to determine if Roberts had been present.
The dispute at paragraph 10 of the 8 September 2016 memorandum
Mr Pearce here relies upon a very clear statement by Mr S in his witness statement dated 27 March 2015 at page eight that it was the defendant Kotz that kicked the door in, which was as follows:
I saw Mick walk straight to the front door, the front door was located at the end of the driveway. Mick kicked in the front door of the address, he used a front kick in the middle of the door, there was not much damage to the front door it was a clean break the lock appeared undamaged. There was no screen door on this house only a front door. When Mick did this I was standing just behind Mick on a front porch area, Jason and Shannon were next to me also on the porch. No one said anything. As soon as Mick kicked the door open, Mick entered the house and went into the right side, I followed Mick and went to the kitchen area which was straight through from the door. I was aware that Jason and Shannon also entered the house.
Mr Allen seeks to rely upon a passage of transcript during trial 1 as follows:
Q How was it you ended up going around to his house? Who did you go with?
A Mick Kotz, Jason Fraser, Shannon Roberts.
Q Whose car did you travel in?
A Jason Fraser’s I think.
Q What suburb, where was this particular house?
A I can’t - I don’t know.
Q Had you ever been there before?
A Nope.
Q Tell us what happened when you got to the house.
A Kicked in the front door and looked for Demir.
Q Was he there? Was anyone home?
A No.
Q Apart from Demir, were you looking for anything else?
A Clothing. Anything that belonged to the Nomads. (Emphasis added)
Of course, if one were to look at that passage alone, it might be assumed that Mr S was referring to a kick administered by himself. However, if one reads it while having in mind his written statement dated 27 March 2015 above, it can be seen that this passage is not at all inconsistent with that previous statement. The fact is that his answer in Court would have sounded to Mr Pearce as being in accordance with Mr S’s witness statement. Importantly, the identity of the person who kicked in the front door was not relevant to any issue in trial 1, and neither Mr Pearce nor defence counsel asked any further questions on that matter for the rest of that trial.
Mr Allen also makes submissions about the general bad character of Mr S, his status as a person in the position of an accomplice and the matter of him obtaining an indemnity from prosecution from the Director of Public Prosecutions in return for undertaking to give evidence as recited in his witness statements.
I have regard to all of such matters, but there is no doubt that a Judge, just as much as a jury, is entitled to accept or reject certain portions of a witness’s evidence without accepting or rejecting the whole. The situation might well have been different if Mr Kotz had entered the witness box and given evidence that it was Mr S, rather than himself, who kicked in the door; such evidence might well have prevented satisfaction beyond reasonable doubt that Mr S’s statement is correct. However, counsels’ attention was very strongly directed to the Perre doctrine, both in the preceding directions hearing and at the disputed facts hearing. I consider that that doctrine is plainly applicable here and I find it to be established beyond reasonable doubt on the basis of Mr S’s statement that it was Mr Kotz that kicked in the front door.
The dispute at paragraph 9 of the 8 September 2016 memorandum
Mr Pearce here relies upon the following statement by Mr S in his witness statement dated 25 March 2015 at page 22 concerning a direction said to be given by Mr Pishdari at the Rose Garden Restaurant:
He said, “Luke is becoming a full member, all of you need to get [R]’s numbers and try and contact him. I want you to also go to [R]’s employer […] and ask [C] the owner where is [R] and how can we find him, we need an address. If you find him hold him until another member is contacted and someone will come straight away, were taking $60,000 from him”.”
[My cousin] Shannon asked H in reply
He said,“Who do we contact?”
H replied;“Only a full patched member”
There are really two questions to be addressed: “Who was present at the giving of Mr Pishdari’s Rose Garden Restaurant direction?” and “What was said by Mr Pishdari during the course of this direction?”
Who was present at the giving of the Rose Garden Restaurant direction?
It is to be remembered that, at the time of the Rose Garden Restaurant direction, Mr Fraser was not even a Nomads nominee; rather, he was a friend and housemate of Sean Nelson (who was closely associated with the Nomads). It is clearly the position that Mr S never stated in his witness statements, nor in Court, that Mr Fraser was present to hear the Rose Garden Restaurant direction; and there is no other evidence on which I could find that he was.
It is possible that Mr Fraser might have come to learn of the content of that direction by being later told those matters, and perhaps there is some oral evidence by Mr S in response to cross-examination at the disputed facts hearing that might tend in that direction.
However, there is no definite evidence on the matter and, that being so, the Perre doctrine is simply not engaged. As Prior J observed in Perre, the defendant “is entitled to the benefit of any doubt if any matter is left open on the statements”.[5] I therefore find that Mr Fraser is to be sentenced on the basis of paragraphs 1 to 8 only of the disputed facts memorandum.
[5] (1986) 41 SASR 105, 106.
However, as to the defendants Kotz and Roberts, Mr S clearly stated that they were both present to hear the Rose Garden Restaurant direction, and I did not understand either defendant to dispute such presence. Their dispute was confined to the terms of the direction, to which I now turn.
What was said by Mr Pishdari during the course of his Rose Garden direction?
The terms of Mr S’s witness statement are set out above and this, of course, is what Mr Pearce chiefly relies upon. He also points out that Mr S further stated two days later, in his statement of 27 March 2015, the following:
At about 11:00 am on Tuesday 17 March 2015, Michael Kotz arrived unannounced at Shannon’s house. Michael had not come to Sydney with us he had stayed in Adelaide. Michael said to me;
He said, “I know where [R] lives”
I said,“Alright, we will sort it we will go to his house”
Michael then left Shannon’s house. I didn’t ask Mick how he knew the address or where the house was, I was still tired from the flight the previous night and I figured I would go and check out any address that we thought [R] may have been regardless. I was still looking for [R] to retrieve a Nomads hat and $60,000. It was my belief that [R] owed H some of the amount of $60,000 because it was my understanding that H fronted the majority of the cash that was handed to the Sydney members back before I joined the club. I have outlined my understanding of this incident on in paragraph one, page 22 of statement dated 26 March 2015. I thought that any money out of the $60,000 we could get from [R] that didn’t go to H would have been split between the current Nomads members including myself.
However, the defendants Kotz and Roberts submit that Mr S’s two March 2015 witness statements are to be contrasted with the oral evidence that Mr S later gave in trial 1, at which time he did not refer to the matters of finding and detaining Mr R or taking $60,000 from him (what I will refer to as the critical matters in the Rose Garden direction).
There is a good deal of transcript of examination and cross-examination of Mr S on this topic in trial 1 and I accept that, if Mr S knew the position to be as he stated in his March witness statements, then a number of his answers during trial 1[6] were deliberately incomplete to the point of falsehood, in that a full and honest answer would have required him to mention the above critical matters in the Rose Garden direction. Further, some assertions of “I don’t remember” should also not be believed to proceed from a genuine lack of memory.
[6] I have particular regard to his evidence at T433 to T439 relied upon by the defendants.
However, once again, one must bear in mind that a Judge is entitled to accept or reject certain portions of a witness’s evidence without accepting or rejecting the whole. In the present case, it is to be noted that subsequently to trial 1, Mr S asserted in examination-in-chief in trial 2 a position that was in accordance with that reproduced above from his statement of 27 March 2015. When cross-examined in trial 2 on this very matter of not having mentioned the critical matters in the Rose Garden direction in trial 1, he gave the following evidence:
QYes, but [Mr S], you gave sworn evidence on the last occasion where you were directly asked what was the direction given by Mr Pishdari in relation to [R] and you answered that the direction was to find him, get in contact with him and have the items returned. That is all you said, wasn’t it?
AYes.
QAbout the direction?
AYes.
QSo you made no mention of the $60,000 or, indeed, the holding of Mr [R], did you?
ANo, I didn’t mention it.
QYou just remembered that aspect of it, is that right, in the last -
ANot that I did, it is not that I didn’t remember or I didn’t forget, just wasn’t asked. I knew that some of that money was going to be returned to the Sydney Nomads as well and to be quite honest I don’t really want to talk about the Sydney Nomads as I have already painted a target on my back.
And in re-examination he further stated:
QIt is the topic of what you did or didn’t say at the previous trial about $60,000 and Sydney that I want to pick up on. So you are clear on that being the topic I am asking you about.
AYes.
QIn particular, what was said by you at the previous trial. So you follow that?
AOkay.
QEarlier in your evidence when answering some questions from Mr Healy you spoke about - you said this ‘To be quite honest I don’t really want to talk about the Sydney Nomads as I have already painted a target on my back’. First of all do you remember that question or that answer being given by you.
AYes.
QWhat did you mean by that?
AExactly that I don’t wish to speak about the Sydney Nomads.
QWhy is that?
ABecause they - because they are a lot more organised and they have a lot larger network than and can do bad stuff to me compared to the Adelaide Nomads.
QBy ‘target on your back’, what did you mean?
AIt is quite self-explanatory, isn’t it, I just don’t feel like being shot.
QNow, those factors were they on your mind when you gave evidence previously about these issues?
AYes.
QDid they have any bearing on whether you were prepared to volunteer information about the role of the Sydney Nomads?
AYes, I don’t want to speak about them [even] now.
In my view, the situation here is to be contrasted with the previous matter concerning the defendant Mr Fraser where the Perre doctrine was not engaged on the basis that there was no clear assertion that Mr Fraser was present during the giving of a direction. However, in the present case under consideration, there is a very clear statement by Mr S in his witness statement as to the content of the Rose Garden direction, and the fact that there is material that may affect the credibility of Mr S does not prevent the Perre doctrine being engaged.
As was observed above in the context of the matter of the kicking in of the front door, the situation here might well have been different if the defendant Mr Kotz or Mr Roberts had entered the witness box and given evidence that Mr Pishdari did not refer to the critical matters in the Rose Garden direction. Such evidence, if not damaged in cross-examination, may have prevented the Court from reaching satisfaction beyond reasonable doubt that the terms of the direction were as stated previously by Mr S in his witness statement. However, counsel’s attention was most strongly directed to the Perre doctrine, both in the preceding directions hearing and at the disputed facts hearing itself, and I consider that that doctrine is plainly applicable here. I therefore find it to be established beyond reasonable doubt that the terms of the direction were as stated by Mr S in his March 2015 witness statements.
I therefore conclude as follows.
As to paragraph 9 of the disputed facts memorandum, the defendants Mr Roberts and Mr Kotz will be sentenced on the basis that the assertions set out at paragraph 9 are established against them beyond reasonable doubt. The defendant Mr Fraser will be sentenced on the basis that the assertions set out at paragraph 9 are not established against him beyond reasonable doubt.
As to paragraph 10 of the disputed facts memorandum, the defendant Mr Kotz will be sentenced on the basis that the assertion set out at paragraph 10 is established against him beyond reasonable doubt.
As to paragraph 11 of the disputed facts memorandum, the prosecution do not press this as a matter of aggravation and it is unnecessary to resolve the disputed matter.
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