Simon Mareangareu v The Queen
[2019] VSCA 101
•7 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0206
S APCR 2018 0216
| SIMON MAREANGAREU | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, HARGRAVE and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 May 2019 |
| DATE OF JUDGMENT: | 7 May 2019 |
| DATE OF REASONS: | 8 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 101 |
| JUDGMENT APPEALED FROM: | DPP v Mareangareu (Unreported, County Court of Victoria, Judge Morrish, 21 June 2018 (Conviction); [2018] VCC 1181 (Sentence)) |
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CRIMINAL LAW – Appeal – Police officer convicted of common assault and attempting to pervert the course of justice – Whether common assault an alternative to intentionally causing injury – Whether prosecution improperly split its case – Whether judge’s comments on facts occasioned a substantial miscarriage of justice – Whether conviction for attempting to pervert the course of justice inconsistent with acquittals for perjury – Appeal allowed – Judgment of acquittal entered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis QC with Ms C Dwyer | Tony Hargreaves & Partners |
| For the Respondent | Mr J Gullaci | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
HARGRAVE JA
EMERTON JA:
Introduction
Simon Mareangareu, the applicant, and Dennis Gundrill, were members of Victoria Police.
When on mobile patrol duty together on Christmas Day 2014, at about 2.30 am they encountered two youths, Stuart Laird, aged 16, and Kyan Foster, aged 17 (for convenience, ‘Laird’ and ‘Foster’ respectively), in the vicinity of a 7-Eleven store in Canterbury Road, Vermont. What occurred during that encounter was the subject of dispute between the applicant and Gundrill on the one hand, and Laird and Foster on the other. One thing that is certain, however, is that, having arrested the two youths, the applicant ultimately charged them with assaulting an emergency worker on duty, resisting arrest and possession of cannabis.
In circumstances which we will later discuss in more detail, the applicant’s and Gundrill’s encounter with, and the arrest and charging of, Laird and Foster led ultimately to the two police themselves facing charges.
Hence, an indictment filed in the County Court charged the applicant with intentionally causing injury to Foster (one charge — charge 1); falsely imprisoning Foster (one charge — charge 2); attempting to pervert the course of justice (two charges — charges 3 and 4); and perjury (three charges — charges 5, 6 and 7). Gundrill was charged on the same indictment with falsely imprisoning Laird (charge 8); attempting to pervert the course of justice (charges 9 and 10); and perjury (charge 11).
After a 23 day trial, a jury found the applicant guilty of common assault (as a purported alternative to the first charge, intentionally causing injury) and one of the two charges of attempting to pervert the course of justice (charge 4), but not guilty of all other charges. Gundrill was acquitted on all charges.
Following a plea on 31 July 2018, on 23 August 2018 the trial judge sentenced the applicant to be imprisoned for 12 months on charge 4, attempting to pervert the course of justice,[1] and imposed a fine of $5,000 on the conviction for common assault.[2]
[1]Attempting to pervert the course of justice is a crime at common law. By virtue of s 320 of the Crimes Act 1958 the maximum penalty is 25 years’ imprisonment.
[2]Common assault is a crime at common law. By virtue of s 320 of the Crimes Act 1958 the maximum penalty is five years’ imprisonment.
The applicant seeks leave to appeal against both conviction and sentence. For reasons that follow, we consider that the applicant’s convictions cannot stand. We would grant leave to appeal; allow the appeal; set aside the convictions and sentences; and enter judgments of acquittal on both charges upon which the applicant was found guilty.
Given our conclusions with respect to conviction, it is unnecessary to consider the application touching sentence.[3]
[3]The applicant’s notice of application for leave to appeal against sentence contained one ground:
1. The sentencing judge’s discretion ought to be re-exercised by this Court as a result of:
(a)information discovered after sentence which, were it known to the sentencing judge, would have been relevant to an appreciation of the true significance of facts in existence at the time of sentence; and
(b)the discovery of information regarding the Applicant’s status as a permanent resident which, if admitted by the Court of Appeal, would avoid a miscarriage of justice.
The thrust of the putative sentence appeal was that after plea and sentence it was discovered that the applicant was a citizen of New Zealand, liable to deportation as a result of having been sentenced to a term of imprisonment of 12 months or more. See Migration Act 1958 (Cth), ss 501(3A), (6)(a) and (7)(c). In the written case, counsel cited Allouch v The Queen [2018] VSCA 244; Guden v The Queen (2010) 28 VR 288; and Da Costa v The Queen (2016) 307 FLR 153.
Grounds of appeal
So far as conviction is concerned, the applicant relied on the following grounds of appeal:
1.The circumstances in which the jury returned its guilty verdict on the offence of common law assault betrayed a fundamental irregularity in the trial process on that charge. In particular:
(a) common law assault is not an included, lesser (or common law) alternative to the offence of causing injury intentionally; and
(b) it was not open to the trial judge to have left to the jury a charge of common law assault as an ‘invisible’ or ‘included’ alternative in circumstances where it was not pleaded on the indictment.
2A.A substantial miscarriage of justice occurred on Charge 4 as a result of the prosecutor’s production and tender – for the first time and after the close of the prosecution case – of Exhibit U (email correspondence (with attachments) from the Applicant to his partner GUNDRILL dated 21st March 2016).
2B.A substantial miscarriage of justice occurred on Charge 4 as a result of the unfairness of the trial judge’s charge to the jury. In particular, the trial miscarried as a result, inter alia, of:
(a) the judge having invited the jury, by reference to Exhibit U, to find that it betrayed on the Applicant’s part an implied admission of wrongdoing; and
(b) the judge and prosecutor failing to take the necessary steps to cure the vice of the judge’s intervention.
2C.The Applicant’s trial on Charge 4 miscarried by proceeding in a manner that:
(a) resulted in a guilty verdict on Charge 4 which is inconsistent with the jury’s not guilty verdicts on Charges 5, 6 and 7; and
(b) led to a guilty verdict that is bad for uncertainty or ambiguity.[4]
3.A substantial miscarriage of justice was occasioned on Charge 4 as a result of an aggregate of errors or irregularities relied upon under cover of Grounds 2A, 2B and 2C and which of themselves did not suffice to cause the Applicant’s trial to miscarry.
[4]In the course of the hearing in this Court, counsel for the applicant sought leave to amend ground 2C (as indicated). We granted leave, the respondent not having opposed that course.
In our view, grounds 1, 2A, 2B and 2C should succeed. As a result, the applicant’s convictions must be set aside and, as we have indicated, judgments of acquittal entered. Our reasons for those conclusions follow.
Factual background
Before turning to a consideration of the grounds, however, it is necessary to set out the essential facts.
In the early hours of Christmas Day 2014, the applicant, a senior constable of police with nine years’ experience, and Gundrill, a leading senior constable, were on mobile patrol in a divisional van in the vicinity of Canterbury Road and Boronia Road, Vermont. Both officers were stationed at Nunawading police station.
At about 2.30 am, as they approached the intersection, they noticed two youths, Laird and Foster, at or near the intersection, facing a 7-Eleven store on the other side of the road. Both youths were wearing ‘hoodies’ and carrying backpacks, and appeared to be heading in the direction of the 7-Eleven.
The applicant called out to the youths and asked them to approach. He asked them what they had been doing that night. They replied that they had come from a friend’s house and were on their way home. The applicant then informed the youths that there had been burglaries and vandalism in the area. Both youths lifted their backpacks and shook them to indicate they had no graffiti implements. At that stage, police did not know who they were and were wondering what they were doing out at that time of morning. The applicant asked them to provide their details.
Laird activated the video and audio recording function on his mobile telephone as he was spelling his name. He identified himself as ‘Stuart Laird’. The applicant then asked for his date of birth, which Laird provided. The applicant then asked for his address. Laird asked whether he had to give his exact address. The applicant responded by asking him whether he had been in trouble with the law before. After Laird said that he had never previously been in any trouble the applicant told him that he was required to provide his full address saying, ‘Right now I suspect you blokes are doing burglaries’. In evidence, the applicant said that he did not in fact have that suspicion, but was ‘poking the bear’ to provoke a response. Both youths ridiculed the expressed suspicion. Laird did, however, provide his correct address.
The applicant then asked Foster for his name. Foster asked whether the applicant was talking to him. The applicant said that he already had Laird’s details and said, ‘aren’t you listening, smart arse?’ The conversation continued:
Foster:No man, fuck. Alright. KYAN. K-Y-A-N.
The applicant: Pardon?
Foster:K-Y-A-N.
The applicant: Yep.
Foster:F-O-S-
The applicant: This is one word?
Foster:No, this is my name man. Kyan is my name.
The applicant: Yep.
Foster:Then you’ve got my last name.
The applicant: Hey sonny. Don’t get smart. Just …
Evidence at trial indicated that before Foster could complete spelling his surname, the applicant either grabbed him by the ear, or by the shoulder strap of his backpack. Foster slapped his hand away, and the applicant then punched him in the jaw with a clenched fist.
The following exchange was captured on Laird’s mobile telephone:
Laird:Oi Oi Oi.
The applicant: Fucking assaulted me.
Foster:What the fuck.
Laird:What are you doing Kyan? Kyan. Oi please, please. Sorry, I’m sorry.
Gundrill:You don’t look sorry.
Laird:I didn’t do anything man.
The applicant: You don’t fucken hit police, alright.
Gundrill:Sit down there. Sit down.
Laird:Can I please get my phone …
Gundrill:No.
Foster:What the fuck?
Gundrill: Sit down.
The applicant: You don’t fucken hit police.
Foster:I’m not trying to cause trouble, man. Can I just …
The applicant: Well just fucken give us your details and you’re on your way.
Gundrill:What did I just tell you? I said no, get up. No means no.
The applicant: Sit down.
Foster:What do you want him for, he’s done nothing man.
The applicant: Sit down.
Foster:Alright.
The applicant: Now don’t touch fucken police.
FosterK-Y-A-N. You touched me first man. What’s with you man?
The applicant: Because you’re being a smart arse.
Foster:I’ll give you my details, just calm it down, man. Fucken …
Unknown male: Do you need a hand mate?[[5]]
[5]The ‘unknown male’ was a security guard, Adrian Myszka, who had been patrolling nearby.
Gundrill:Hey?
Unknown male: Do you need a hand mate?
GundrillYeah, we’re alright now. Sit down.
Laird:Sorry.
Gundrill:You’re not sorry. You’re stupid. You don’t listen.
Laird:I didn’t do anything, man.
Gundrill:You did. You’re here one o’clock in the morning, or two o’clock in the morning.
Laird:I’m about to go home …
Gundrill:Get rid of that video right now.
Laird turned off the video and audio function but soon after activated it again. Over Laird’s objections, the police endeavoured to search the youths’ backpacks. The youths were arrested and Foster was handcuffed. The backpacks were searched and each youth was found to be in possession of a small quantity of cannabis and a bong. Foster and Laird were then taken separately to the Nunawading police station where they were interviewed.
Laird’s backpack, containing his mobile telephone, had been seized at the scene. On arrival at the police station the backpack was logged into the property register. Laird did not see the phone again until he was released later that morning into his father’s care at about 6.00 am. In the car on the way home, Laird told his father that he had recorded the incident on his mobile phone. When he attempted to retrieve the recording, however, he realised that it was gone.
The applicant prepared briefs of evidence against Laird and Foster and submitted them to a superior to be authorised for prosecution. He proposed that each youth be charged with assaulting an emergency worker (police) on duty, resisting arrest and possessing a drug of dependence, cannabis. The briefs were eventually authorised for prosecution; and, on 7 May 2015, charges were filed against both Laird and Foster. Authorisation to lay the charges was given on the basis of the material that the applicant put in the briefs, including his notes and statement. At trial, the prosecution contended that the notes and the statement, and the briefs as a whole, were false and misleading and omitted relevant facts.
By arrangement, the applicant served Foster’s charges and associated paperwork on his mother, Lisa Foster, on 18 May 2015. In a conversation of about twenty minutes’ duration — which Lisa Foster covertly recorded — the applicant said that he hit Foster because, ‘He fired up and he wanted to have a crack at the coppers and lost’. The applicant mentioned the pending Children’s Court hearing and suggested that Foster’s mother inform the Magistrate of her son’s medical circumstances. The applicant told her to speak to the prosecutor and try to ‘work something out’.
Prior to this conversation, in February 2015, Laird’s father had engaged an expert in an effort to recover the video files on his son’s telephone. The expert was able to recover the two video files on Laird’s phone recording the interaction between the youths and the police. The recovered video and audio footage was enhanced and was tendered as a prosecution exhibit at trial.
After the recovered footage was submitted to independent investigating police, all charges against Laird and Foster were dropped.
Charge 4, upon which the jury found the applicant guilty, alleged that the applicant
at Nunawading in Victoria between the 25th day of December 2014 and the 19th day of May 2015 attempted to pervert the course of justice by acting in a way which had the tendency to pervert the course of justice in that he
i.Made a false statement for inclusion in briefs of evidence against Stuart Laird and Kyan Foster;
ii. Compiled a brief of evidence in respect to charges against Stuart Laird and against Kyan Foster knowing that the said briefs of evidence contained evidence which was false;
iii. Caused charges to be filed against Stuart Laird and against Kyan Foster knowing that the evidence relied upon and included in the briefs of evidence was false;
iv. Served a Charge Sheet and Summons, together with a Preliminary Brief and Statement made by the Informant upon the mother of Kyan Foster, knowing that evidence relied upon and included therein was false;
v.Attempted to persuade the mother of Kyan Foster to encourage her son to not contest the summary hearing.
Charge 3, of which the jury acquitted him, alleged that the applicant
at Nunawading in Victoria between the 25th day of December 2014 and the 19th day of May 2015 attempted to pervert the course of justice by acting in a way which had the tendency to pervert the course of justice in that he
i. Deleted, or assisted encouraged or directed another to delete, video and audio footage from the mobile telephone belonging to Stuart Laird.[6]
[6]Charge 9 against Gundrill contained the same particulars.
The applicant was also acquitted of perjury, charges 5, 6 and 7. Each charge was premised on the applicant having made, signed and acknowledged a statement which was false in a material particular. The false statements were said to be:
·I explained that over the Christmas period police would speak to any person who was out and about at unusual times. [charge 5]
·i. Both males appeared affected by an unknown substance,
ii. I could sense the strong smell of cannabis. [charge 6]
·… as I reached out to FOSTERS [sic] back pack, FOSTER has slapped my right arm, with his open right hand, sensing an immediate threat, I punched FOSTER to the nose … [charge 7]
As will become clear when we turn to consider grounds 2A and 2B, an email sent by the applicant to Gundrill on 21 March 2015 — which, together with a draft statement prepared by the applicant which was attached to it, became part of Exhibit U — assumed a deal of significance in the trial. The email was in the following terms:[7]
Gunners,
Can you bang up a statement regarding those two blokes we grabbed on Xmas morning, attached is my statement as well as the security guards. El pronto if you can I’m getting grief from one of the dads who’s taken it to the boss and maybe beyond
[7]Spelling, syntax, grammar and punctuation as in original.
Ground 1: Common assault is not an alternative to intentionally causing injury
As we have indicated, charge 1 on the indictment alleged that the applicant intentionally caused injury to Foster. Significantly, although it was not charged on the indictment, the judge left common assault to the jury as an asserted alternative to the first charge; and, as previously mentioned, the jury returned a verdict of guilty on that supposed alternative.
It happened this way. At the close of the prosecution case, counsel for the applicant submitted that there was no case for the applicant to answer on the charge of intentionally causing injury, since there was no evidence that Foster had suffered ‘injury’. As part of that submission, counsel for the applicant contended — in our view, quite incorrectly — that common assault was a statutory alternative to intentionally causing injury.
Rejecting the no case submission on charge 1, the trial judge referred to Foster’s evidence that the applicant had punched him and it had ‘hurt a lot’. Her Honour said that Foster’s evidence that the blow ‘really hurt’ was capable of meeting the description ‘substantial pain’, and thus was capable of being considered ‘physical injury’.[8]
[8]By s 15 of the Crimes Act 1958, ‘injury’ includes ‘physical injury’; and ‘physical injury’ includes ‘unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function’.
Thereafter, when charging the jury, the judge left common assault to them as an alternative to intentionally causing injury. She directed the jury that they could only return a verdict on common assault if they had first found the applicant not guilty of intentionally causing injury. In the result, the jury purported to find the applicant guilty of common assault.
In this Court, counsel for the applicant submitted that common assault is not an alternative to intentionally causing injury. Counsel submitted that the latter does not ‘amount to or include’ the former. It fails, for example, ‘the red pencil test.’ For common assault properly to have been left to the jury, it needed to be charged on the indictment. In our opinion, those submissions must be accepted.
The respondent’s counsel submitted that the charge of intentionally causing injury does ‘amount to or include’ the charge of common assault. Thus, if the jury were satisfied the applicant struck Foster, but did not cause an ‘injury’, the jury were entitled to return a verdict of guilty of common assault. There was, therefore, no irregularity in the trial. But even if there were an irregularity, so counsel submitted, no substantial miscarriage of justice occurred, because: first, during his no case submission, counsel for the applicant had submitted that the charge of common law assault should be left to the jury as an alternative to charge 1; and, secondly, there was evidence on which the applicant could be convicted of that charge. It was also of some relevance, counsel submitted in writing, that the applicant ‘was only convicted and fined in relation to this charge’. In our opinion, those submissions must be rejected.
Counsel for the respondent also advanced the following written submissions. Incompetence on the part of the applicant’s trial counsel is not alleged, but he ‘is pilloried for his decisions at trial’. It was submitted that what the applicant ‘is really trying to do is lay the blame for his convictions at the feet of his trial counsel, who would appear to have had sound practical reasons for making the tactical decisions he did, concerning how the case would be left to the jury’. The respondent’s counsel submitted that to ‘now seek to run points, not taken at trial is to attempt a second bite or revision to the decisions made during the trial’ by the applicant’s counsel.
With respect, these last submissions by the respondent’s counsel — somewhat extravagantly expressed — are ill-conceived. If common assault were not a lawful alternative verdict, so that the applicant could not lawfully have been convicted of it, it is wholly irrelevant that the unlawful conviction resulted from a mistake on the part of the applicant’s trial counsel, or that trial counsel led the trial judge into error. If it simply were not open to convict on common assault as an alternative to charge 1, there has been an error or an irregularity in, or in relation to, the trial, resulting in a substantial miscarriage of justice.[9] The unlawful conviction cannot be saved on the basis that it was the product of trial counsel’s deliberate — but flawed — forensic decision-making. As Hunt J in a different context observed in Stokes:[10] ‘Counsel cannot concede a matter of law to the disadvantage of the accused’.
[9]See Criminal Procedure Act 2009, s 276(1)(b).
[10]R v Stokes and Difford (1990) 51 A Crim R 25, 32.
At common law, an accused might be convicted of a lesser offence than that charged, provided that the definition of the more serious offence necessarily included the definition of the lesser offence and that both offences were of the same degree, that is to say, were either felonies or misdemeanours.[11]
[11]Saraswati v The Queen (1990) 172 CLR 1, 13 (Dawson J).
Salisbury[12] provides an example of the application of the common law rule. In that case, the applicant had been convicted of one count of maliciously inflicting grievous bodily harm. On appeal, the applicant contended that the trial judge ought to have directed the jury that they were entitled to find the applicant guilty of the lesser offences of assault occasioning actual bodily harm or common assault. It was submitted that the judge’s failure to do so vitiated the verdict. Refusing leave to appeal against conviction, the Court said:[13]
The first question raised by the applicant’s contention is: In what circumstances may a jury convict an accused of an offence not laid in the presentment? In some cases provision is made by statute for a jury to return what is sometimes for convenience called an ‘alternative verdict’. See e.g. Crimes Act 1958 s 423. It was not suggested that any such statutory provision applied in this case but it was said that at common law the alternatives suggested were open to the jury.
The common law position with respect to alternative verdicts was stated by the Court of Appeal in R v Lillis [1972] 2 QB 236, at p 240; [1972] 2 All ER 1209; in these words: ‘On an indictment charging felony the accused could be convicted of a less aggravated felony of which the ingredients were included in the felony charged and, similarly, as regards misdemeanours; but except under statute a conviction for a misdemeanour was not allowed on a charge of felony.’ See also: R v Taylor (1869) LR 1 CCR 194; R v O’Brien (1911) 6 Cr App R 108; 22 Cox CC 374; Smith v Desmond [1965] AC 960, at p 970; [1964] 3 All ER 587; R v Nisbett [1953] VLR 298; R v Williamson [1969] VR 696.
That is to say, where an accused is indicted for a felony the jury may find him guilty of any lesser felony that is necessarily included in the offence with which he is charged and where an accused is indicted for a misdemeanour the jury may find him guilty of any lesser misdemeanour that is necessarily included in the offence with which he is charged.
Whether the lesser offence is necessarily included in the offence charged is a matter which has to be determined upon a consideration of the terms in which the offence is laid. It is not a matter which depends upon the evidence led at the trial, except to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge.
[12]R v Salisbury [1976] VR 452 (Young CJ, Nelson and Harris JJ) (‘Salisbury’).
[13]Salisbury, 454. See also Reid v The Queen (2010) 29 VR 446, 450 [15].
Further, in a passage that is of some importance to the disposition of this ground, the Court in Salisbury went on to say:[14]
In our opinion, grievous bodily harm may be inflicted, contrary to s 19A [of the Crimes Act 1958], either where the accused has directly and violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm. Hence, the lesser misdemeanours of assault occasioning actual bodily harm and common assault, contrary to s 37, are not necessarily included in the misdemeanour of inflicting grievous bodily harm, contrary to s19A.[15]
[14]Salisbury, 461. See also R v Wilson [1984] AC 242, 259–60.
[15]See also R v Nisbett [1953] VLR 298 (Lowe ACJ, Martin and Smith JJ), where it was held that on a presentment for assault with intent to rape, a verdict of indecent assault is not open; R v Williamson [1969] VR 696 (Winneke CJ, Little and Menhennitt JJ), where it was held that a verdict of common assault is not open as an alternative verdict to unlawful and indecent assault in those cases where the absence of consent is not an ingredient of the offence of indecent assault; R v Cameron [1983] 2 NSWLR 66 (Slattery, Maxwell and Hunt JJ), where it was held that an alternative verdict of guilty of assault occasioning actual bodily harm is not available on a charge of maliciously inflicting actual bodily harm with intent to have sexual intercourse; and R v Caple (1984) 14 A Crim R 106 (Kaye, Fullagar and Beach JJ), where it was held that an alternative verdict of common assault was not available on a charge of causing grievous bodily harm with intent to cause grievous bodily harm. Compare R v Wilson [1984] AC 242, 260–61, where, having considered Salisbury — described by Lord Roskill (at 259) as ‘a most valuable judgment’, from which his Lordship derived ‘assistance’ in preparing his speech — the House of Lords held that an alternative verdict of assault occasioning actual bodily harm was open on a charge of maliciously inflicting grievous bodily harm.
In the same way that grievous bodily harm might have been ‘inflicted’ for the purposes of the former offence under s 19A of the Crimes Act 1958 by doing something intentionally which was not itself a direct application of force to the body of the victim, it is tolerably clear that injury may be ‘caused’ for the purposes of the current s 18 of the Crimes Act 1958 by doing something intentionally which is not itself a direct application of force to the body of the victim. That is, injury may be ‘caused’ by other than an assault.
Various provisions of the Crimes Act 1958 make specific provision for alternative verdicts in particular cases.[16] Thus, for example, if a person is charged with an offence of causing serious injury intentionally in circumstances of gross violence, s 422(1) permits the jury to acquit of that offence but find the accused person guilty of causing serious injury intentionally.
[16]See, e.g., ss 77C, 421, 422, 422A, 426, 427, 428, 429 and 435.
Section 239 of the Criminal Procedure Act 2009 is a general provision which authorises alternative verdicts in the case of ‘included offences’. It provides:[17]
[17]Emphasis added.
239 Alternative verdicts on charges other than treason or murder
(1) On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence.
In LLW, the Court explained the two principal kinds of case in which a jury may return an alternative verdict:[18]
There are two principal classes of case in which a jury may deliver an alternative verdict. The first is where allegations in the indictment ‘amount to or include’ the allegation of another offence. That is the position at common law and it is now reflected in a specific statutory provision.[19] For example, where the accused is charged with intentionally causing serious injury, the allegations include the allegation of intentionally causing injury, which is therefore an available alternative.[20]
The second class of case is where the Crimes Act 1958 (‘the Act’) creates a statutory alternative to the principal count. An example of the latter is s 425(1), which applies where a person is on trial for rape. If the jury are not satisfied that the defendant is guilty of rape or attempted rape, they may find the defendant guilty of one or other of several sexual offences specified in the subsection.
[18]LLW v The Queen (2012) 35 VR 372, 374 [2]–[3] (Maxwell P, Weinberg JA and Williams AJA) (‘LLW’) (citations as in reported version).
[19]Criminal Procedure Act 2009 s 239(1): see Pollard v R (2011) 31 VR 416 at 423, [33] (‘Pollard’).
[20]R v Kane (2001) 3 VR 542 at 584–5, [105].
As counsel for the applicant in this Court submitted, the question of whether an alternative offence is expressly or impliedly included in the indictment is answered by the application of what is often described as the ‘red pencil test’. The red pencil test involves the deletion of words from the particulars of an offence contained in the indictment, thus leaving the particulars of an appropriate alternative offence.
In Lillis,[21] which was applied in Salisbury, the Court discussed the application of the red pencil test.[22] Dealing with s 6(3) of the Criminal Law Act 1967 (UK)[23] — which bears some similarity to s 239 of the Criminal Procedure Act 2009 — the Court said:[24]
[21]R v Lillis [1972] 2 QB 236 (Lord Widgery CJ, Edmund Davies and Lawton LJJ, and Shaw and Wien JJ) (‘Lillis’).
[22]See also R v Wilson [1984] 1 AC 242.
[23]Section 6(3) provided (emphasis added):
Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.
[24]Lillis, 241.
The problem in this case is whether the Criminal Law Act 1967, in seeking to put the common law rule and the provisions of certain statutes into the statutory form, has used words which prevent courts from taking a course which might have been open to them before the passing of that Act. In the judgment of this court s 6(3) has had no such effect. The allegation in the indictment included expressly an allegation of another offence falling within the jurisdiction of the court of trial. This can be shown by striking out of the indictment all the averments which had not been proved — the red pencil test as it was referred to in the course of the argument. …
And also:[25]
[W]hen, as in this case, the court has to decide what was included expressly in the indictment, the proper course is to look at the words of the indictment and to apply the red pencil rest. To do otherwise would be to ignore the word ‘expressly’. If what is left after striking out all the averments which have not been proved leaves particulars of another offence within the jurisdiction of the court of trial which the accused can then and there defend, the judge can and should ask the jury to consider whether that other offence has been proved. ...
[25]Ibid 241-2.
Quite plainly, no matter the ingenuity with which one wields a red pencil in the present case, it is impossible to produce particulars apposite to a charge of common assault from those of intentionally causing injury.
We consider that, had the prosecution sought conviction for common assault as an alternative to intentionally causing injury, a charge of common assault needed to have been included on the indictment. In circumstances where common assault was not on the indictment, neither common law nor statute permitted the jury to convict of that offence. For these reasons, the judge should not have left common assault to the jury as an alternative verdict. Common assault not having been included as a charge on the indictment, the jury simply were not entitled to convict the applicant of it.
As a result, the conviction on charge 1 must be set aside. Given that the charge of intentionally causing injury cannot be revived, and that any retrial would permit the prosecution to put a different case to that initially sought to be put, we would enter a judgment of acquittal on the charge of common assault.[26] We would do so acknowledging the apparent incongruity of acquitting the applicant of an offence of which, in the circumstances at trial, he could not lawfully have been convicted.
[26]See Criminal Procedure Act 2009, s 277(1)(b). See also Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630; Parker v The Queen (1997) 186 CLR 494, 519–520.
Ground 2A: The prosecution split its case
Although the particulars of charge 3[27] — of which the applicant was acquitted — may obliquely have raised the possibility of collusion between the applicant and Gundrill with respect to that particular charge of attempting to pervert the course of justice, the particulars of charge 4 did not.[28]
[27]See [26] and footnote 6 above.
[28]See [25] above.
Further, the written Summary of Prosecution Opening — which must outline ‘the manner in which the prosecution will put the case against the accused’ and ‘ the acts, facts, matters and circumstances being relied on to support a finding of guilt’[29] — did not directly allege collusion between the applicant and Gundrill. The nearest it came to raising collusion was to be found under the heading, ‘The basis of the charges’:[30]
Attempt to pervert the course of justice — Both accused did a series of acts that had the tendency to pervert the course of justice in that they:
i. Deleted or was a party to the deletion of the video and audio footage from the mobile phone belonging to Stuart Laird, and/or,
j. Made a false statement for inclusion in briefs of evidence against Stuart Laird and Kyan Foster.
[29]Criminal Procedure Act 2009, s 182(2).
[30]Emphasis added.
Moreover, we consider that collusion was not raised in the prosecutor’s opening to the jury. We hold to that view despite the submission made by the respondent’s counsel in writing that the following passage towards the end of the prosecutor’s opening address ‘directly’ raised collusion:[31]
And I merely pause at this stage to observe that neither of the accused in that note describe for the consideration of a senior officer the taking of a video, let alone the deletion of it. And that feeds into the perjuries and the attempting to pervert the course of justice, because what that led on to was this: in due course, a brief was approved, charges were laid and filed; Mr Mareangareu the main person in those regards.
And then on what you will be satisfied was 18 May 2015, he, himself, Mr Mareangareu went out seeking to serve the process for the summary hearing on Kyan. And you will hear that he spoke with [Foster’s] mother and she met him outside, and you can hear traffic in the background, and said amongst other things ‘you hurt my son’ in a fairly vigorous way. And you will hear that, on no less than three occasions, Mr Mareangareu said he didn’t deny that and never has denied it.
It’s more complex than that, and no doubt an argument from me and my learned friends will address the use that you can make of that. But further than that, really to complete the bookends of the attempt to pervert the course of justice. Something ugly had happened. ‘We’ve done something to help us get rid of the video but let’s lay these charges of assault police, resist arrest. Let’s get it into the court, let it be disposed of and then we will be all free’.
I will be urging upon you when you hear that 30 minute conversation, that there were overt attempts by Mr Mareangareu to have [Foster’s] mother persuade Kyan to go to the Magistrates’ Court, talk to the prosecutor, talk to the magistrate, do a deal, and then, of course, all of that’s over, done and dusted, and the perversion of justice is no longer an attempt, but it’s complete.
[31]Emphasis added.
Read in context — and notwithstanding the respondent’s submission — we consider that the passage extracted immediately above should be understood as referring to the respective subjective motivation of the applicant (particularly) and Gundrill, and not as raising collusion.
Of some significance to the resolution of this ground, the jury were provided with a Jury Book, Exhibit A, in the course of the prosecutor’s opening. The Jury Book contained various documents upon which the prosecution sought to rely. Initially, the Jury Book contained seven documents, including the video and audio footage recorded by Laird on 25 December 2014, and the conversation recorded by Lisa Foster on 18 May 2015. Although various other exhibited documents were added to Exhibit A throughout the prosecution case, so that by the end of the case the Jury Book contained a large number of documents behind 23 separate tabs, it is important to note that the Jury Book in its original form — which might reasonably have been expected to contain the documents upon which the prosecution sought to rely to establish its case — did not contain the email which subsequently became part of Exhibit U.[32]
[32]Exhibit U consisted of the email from the applicant to Gundrill dated 21 March 2015 — the terms of which is set out above at [28] — together with the attachments to the email. The attachments consisted of a ‘Preliminary Brief – Statement Made By Informant’ in relation to Foster — which included a ‘Statement of alleged facts’, a ‘Witness list’ and an ‘Exhibit list’ — and an unsigned statement by the applicant dated 21 March 2015.
Alleged collusion between the applicant and Gundrill was not squarely raised until after the close of the prosecution case, in the course of the prosecutor’s cross-examination of the applicant. There was the following exchange:
Yes. You see, Mr Mareangareu, what I’m saying to you, to put it in context, is this, that both you and Mr Gundrill got your heads together despite your denial to paint a false picture of what happened that night. Correct?---No.
Yes. And it was important in painting that false picture for you to include both a statement from yourself and a statement from Mr Gundrill into the brief both for approval and prosecution. You understood that process, didn’t you?--- So what are you saying? We conspired?
Yes. If you want to use that word. I’m saying you got together because you realised that on that night you had done a very bad thing and it might come home to bite you?--- I’ll say this once again, Mr [Prosecutor]. We have never ever spoken about this job from the day it happened until today.
I see?---Never. The only thing I can recall is maybe an email or we passed each other in the watch-house saying, ‘Mate, I need a statement for that job at Christmastime’. We have never spoken about it. We’ve never text, Facebooked or anything. We’ve never ever spoken about this job.
The cross-examination provoked the following objection from the applicant’s counsel:
Your Honour, I’m most concerned regarding the — there was questions that were asked by my learned friend that (indistinct) the way the indictment is charged. Matters have been put expressly that there is a form of collusion between Mr Mareangareu and Mr Gundrill, that there is some form of joint criminal enterprise or conspiracy based on some sort of agreement.
And those questions, Your Honour, in my submission, having regard to the way in which this prosecution has clearly and squarely put its case — impermissible questions — and I would seek that the learned prosecutor in front of the jury withdraws them.
This objection did not find favour with the trial judge, however, who said it had ‘always been the case’ that the prosecutor had been saying that the applicant and Gundrill ‘put their heads together’. (With respect, based on the record of the trial, it is not readily apparent to us that it had always been the case that the two police had put their heads together.)
After a short break, counsel returned to the subject, and submitted that ‘there has been no suggestion, as I have understood the way matters have unfolded, that there was any agreement or any enterprise in connection with that coincidence‘. In the course of the ensuing exchange between the applicant’s counsel and the judge there was the following:[33]
HER HONOUR: I just don’t understand why the prosecutor is obliged or the person signing the indictment is obliged to put the evidence that the Crown relies upon in order to prove the charge. The charge is the perjury. The evidence that makes the occurrence more probable are the circumstances in which the statement is made. And surely the prosecutor is entitled to adduce evidence that makes it more probable that the statement was a lie and could only have come about by collusion.
[DEFENCE COUNSEL]: Well, respectfully, Your Honour, if that’s the only inference that can be drawn, it could well and — it could easily and readily — and as it’s been — as an indictment, reflects that it has been — that the falsities have been done independently and that the limit or the length to which the prosecution could go by way of inference is that it has been copied.
But in terms of suggesting that the two had put their heads together, in my submission that’s going way beyond what has ever been raised by the prosecution in terms of how it puts this case with respect to those two respective charges.
HER HONOUR: Well, like I say, Mr [Prosecutor] was very clear right from the start that that’s how he was putting the case. And I just don’t see that it is necessary or even proper in an indictment that alleges perjury in the making of a particular statement, and it’s this witness’s statement, to detail all of the evidence upon which an inference is later going to be relied upon.
[33]Emphasis added.
It is reasonable to conclude from her Honour’s remarks in the passage above, first, that she was of the view that the prosecution had not been required to give prior disclosure of the evidence upon which it relied to establish collusion; and, secondly, that it was acceptable for the prosecution to adduce evidence to establish collusion during cross-examination of the applicant.
A little later, the prosecutor — who had not yet resumed his cross-examination of the applicant following defence counsel’s objection — indicated that he was awaiting an email from the applicant to Gundrill upon which he wished to cross-examine. He told the judge that his ‘knowledge of the massive quantity of documentation … [led him] to call for something that’s apposite here’. There was then discussion between the judge and counsel during which the judge — quite remarkably — asked the applicant to leave the courtroom.[34] When cross-examination resumed, the prosecutor was permitted to tender an email sent by the applicant to Gundrill on 21 March 2015 (and associated documents).[35] The email (and associated documents) became Exhibit U.
[34]Although nothing turns on it, the judge should not have made the applicant absent himself. It is a fundamental principle that, unless there is some disentitling conduct or waiver, all aspects of a trial for an indictable offence must be conducted in the presence of the accused. See Lawrence v The King [1933] AC 699, 708; R v Abrahams (1895) 21 VLR 343, 347–8; R v Vernell [1953] VLR 590, 596; R v Jones (1998) 72 SASR 281, 294–5.
[35]See [28] above.
Arguments based on Exhibit U became a prominent feature of the prosecutor’s final address to the jury, during which he contended that the applicant and Gundrill had colluded to cover up the improprieties in their dealings with Laird and Foster. (Indeed, he referred to Exhibit U as ‘the blueprint for concocting’.) And as will be seen, Exhibit U became a prominent feature of the judge’s charge to the jury.
In our opinion, the prosecution should not have been permitted to cross-examine the applicant on, and to tender, the email of 21 March 2015 so as to advance an allegation of collusion. It is clear from the record of the trial that the prosecution had been in possession of the email well in advance of the trial. It is also clear that, had he thought it appropriate to do so, the prosecutor could from the outset of the trial have ventured a case for collusion based upon it. But he did not do so. As we have said, neither the email itself, nor its supposed significance with respect to collusion, was adverted to in either the written Summary of Prosecution Opening or the prosecutor’s oral opening. Given that the prosecution sought to build a case of collusion on its back, the prosecutor was wrong to have endeavoured to introduce it for the first time in cross-examination of the applicant. In our opinion, if the prosecution wished to try and build a case on it (even if only partially), the email should have been tendered in the course of the prosecution case, and the defence have been apprised of its alleged significance.
In Chin,[36] the respondent had been convicted of being knowingly concerned in the importation of heroin. The respondent had been tried with another, Choo, a fellow Malaysian, who was found not guilty on a charge of having heroin in his possession without lawful excuse. At trial, the prosecution claimed that the respondent and Choo knew each other and had arranged to import heroin. They denied any prior relationship. During cross-examination, after the close of the prosecution case, the prosecutor questioned the respondent about his application form for a visa to Australia, but not about a Malaysian telephone number that appeared on the form. After the respondent’s case was closed, Choo was cross-examined about his visa application form and he admitted that the Malaysian telephone number on his form was the same number as that on the respondent’s form. The respondent was recalled and questioned about the identical telephone number. Having been convicted, the respondent appealed. His conviction was set aside on the principal ground that the prosecution, by cross-examining him about the telephone number at a late stage of the proceedings, had split its case and caused justice to miscarry.[37] The High Court dismissed a subsequent appeal by the prosecution. Gibbs CJ and Wilson J observed:[38]
[36]R v Chin (1985) 157 CLR 671 (‘Chin’).
[37]See R v Chin (1984) 13 A Crim R 288.
[38]Chin, 678–9.
In general, it would be unfair to raise, in cross-examination, some entirely new matter which was affirmatively probative of the guilt of the accused but which had not been the subject of evidence either at committal proceedings or in the prosecution’s case in chief, unless the accused had been given prior notice of such matter.
And Dawson J (with whom Mason J agreed) said:[39]
[39]Ibid 685–6 (citations as in the original).
The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for the defence.
The principle of fairness which underlies the general rule that the prosecution must lead the evidence, upon which it relies to establish its case, in the course of presenting that case, has an application beyond the exercise of the discretion to allow the reopening of the prosecution case. If in the course of cross-examination of an accused person or his witnesses, the prosecution asks questions with a view to eliciting evidence for the first time which could and should have formed part of its evidence in chief, then that evidence may be exclude in the discretion of the trial judge if its admission for the first time during cross-examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case: see Reg. v. Kane.[40]
And also:[41]
As with [the respondent’s] form, there is nothing to warrant the conclusion that the prosecution could not have proved and tendered in evidence Choo’s visa application form in the course of the presentation of its case. Such indications as there are suggest that it could have done so and, if that were so, the proper course would have been for the prosecution to have so tendered it, having previously given notice of its intention to adduce additional evidence. Such notice was necessary because of the absence of any reference to the document in the committal proceedings. The effect of permitting the prosecution to tender the document by way of reply was to allow it to split its case in circumstances which, on the material before us, were unexceptional and did not warrant any departure from the rule that the prosecution must offer all its proofs during the progress of the prosecution case.
[40](1977) 65 Cr App R 270.
[41]Chin, 689.
In our view, the prosecution wrongly was permitted to split its case by cross-examining the applicant on, and tendering, Exhibit U. As we have said, had the prosecution sought to use the contents of the relevant email and associated documents as a springboard to establishing that the applicant and Gundrill had colluded, the email and other documents should have been introduced as part of the prosecution case. The course that the prosecution was permitted to adopt highlighted the contents of Exhibit U in an unfair way, and gave the evidence an undue emphasis that it would not have enjoyed had it been tendered in an orderly fashion as part of the prosecution case.
It is no answer to submit, as the prosecutor did to the trial judge, that the email was part of a large body of documents disclosed by the informant.[42] Given the way in which the prosecution had opened and run its case, the defence were entitled to expect that the prosecution did not seek to rely on the contents of Exhibit U to establish collusion.
[42]See Criminal Procedure Act 2009, ss 42, 111 and 185.
For these reasons, ground 2A is made out.
Our view that permitting the prosecution to split its case occasioned a substantial miscarriage of justice is further strengthened when consideration is given to the judge’s treatment of Exhibit U in her charge to the jury. We will turn next to that topic.
Ground 2B: The trial judge’s intervention and comments on the evidence
Until the High Court’s recent judgment in McKell,[43] the prevailing view was that, when conducting a criminal jury trial, a trial judge might comment strongly on the facts provided that he or she informed the jury that they were the judges of the facts and were not bound by the comments.[44] In light of McKell, that view — at least without significant qualification — can no longer be accepted.
[43]McKell v The Queen (2019) 363 ALR 668 (‘McKell’).
[44]See for example R v Kerr(No 2) [1951] VLR 239; R v Tikos (No 2) [1963] VR 306; R v Mawson [1967] VR 205; R v Hughes (1989) 42 A Crim R 270; R v Boykovski (1991) 58 A Crim R 436.
Having set out a passage from RPS[45] — in which the Court had said that the ‘fundamental task of a trial judge is ... to ensure a fair trial of the accused’ — Bell, Keane, Gordon and Edelman JJ in a joint judgment observed:[46]
A trial judge’s ‘broad discretion’ to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put ‘accurately and fairly’ to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judges summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.
[45]RPS v The Queen (2000) 199 CLR 620, 637 [42] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
[46]McKell, 669–70 [3] (footnotes omitted).
In McKell, the Court of Criminal Appeal (NSW) had by a majority (Payne JA and Fagan J, Beech-Jones J dissenting) upheld convictions in a drug case, rejecting the notion that the trial judge’s comments in the course of his summing up had caused the trial to miscarry. The High Court quashed the convictions, however, concluding that the comments made by the trial judge during the summing-up so favoured the prosecution, and were so unfair in their lack of balance, that justice had miscarried. In the joint judgment it was said:[47]
What has sometimes been described as the ‘right’ of the trial judge to comment on the facts of a case is not some form of entitlement standing free of constraints imposed by the judge’s duty to give the jury accurate and fair instruction to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Where a trial judge’s summing-up so favours the prosecution as to deny the accused a fair trial, the miscarriage of justice that results cannot be justified or excused by invoking the judge’s ‘right’ to comment on the facts. Accordingly, in the present case, Beech-Jones J was right to conclude that the trial judge’s summing-up was so unfair in its lack of balance that a miscarriage of justice occurred. In consequence, the appeal must be allowed, the conviction quashed and a new trial had.
[47]Ibid 677 [45].
In a concurring judgment, Gageler J observed:[48]
[48]Ibid 680 [58].
I agree with Bell, Keane, Gordon and Edelman JJ that the tone and content of the trial judge’s comments on summing up so much favoured the prosecution as to have given rise to a substantial risk of those comments having persuaded the jury of the appellant’s guilt. That conclusion is sufficient to require that the appellant’s conviction be set aside on the ground that there has been a miscarriage of justice.
His Honour added:[49]
It being unnecessary to do so in order to dispose of the appeal, I refrain from addressing the general question of when a trial judge may or may not express an opinion on a disputed question of fact consistently with the due administration of justice.
[49]Ibid 680 [59].
The general question to which Gageler J alluded was dealt with in the joint judgment at some length, as a general discussion of the scope for comment by a judge in a criminal trial conducted with a jury.[50] Although what was said in the joint judgment concerning the scope of judicial comment was not dispositive of the appeal,[51] their Honours’ statements on the topic must be regarded as seriously considered obiter dicta, from which this Court cannot feel itself at liberty to depart.[52]
[50]Ibid 677–80 [46]–[55].
[51]Ibid 677 [46].
[52]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151 [134], 159 [158] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). For a discussion of the precedential effect of obiter dicta by the High Court, see Matthew Harding and Ian Malkin, The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts, (2012) 34 Sydney Law Review 239.
It was made plain in the joint judgment that a judge in a criminal trial must bring judicial circumspection to bear when exercising his or her discretion to comment on the facts, and should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury. A judge’s right to comment must be seen as an aspect of the fundamental task of ensuring a fair trial for the accused, and ensuring that the facts are put to the jury accurately and fairly.
Bell, Keane, Gordon and Edelman JJ made clear that a trial judge must not comment on a disputed issue in such a way as to suggest how the jury should resolve that issue.[53] Such comments have two vices. First, since the jury is the constitutional tribunal for deciding issues of fact, a trial judge’s expressions of opinion on a disputed issue of fact is inconsistent with the function of the trial judge as it is now to be understood. It is ‘difficult to conceive of a situation in which the performance of the trial judge’s fundamental task of instructing the jury would be advanced, consistently with the role of the jury, by suggesting the determination of a disputed question of fact, the resolution of such questions being the exclusive province of the jury’.[54] Secondly, there is a tension between suggesting to the jury how they might think and then directing them that they should feel free to ignore the suggestion if they think differently. A jury may be swayed by the trial judge’s suggestion.[55] There remains scope, however, for comment by a trial judge, including where an expression of opinion on the determination of a matter of disputed fact may be necessary to maintain the balance of fairness between the parties.[56] Thus, judicial comment to correct errors that might otherwise adversely affect the jury’s ability to decide the case fairly on the merits is not objectionable.[57]
[53]McKell, 677 [46].
[54]Ibid 678 [49].
[55]Ibid 678–9 [50].
[56]Ibid 679 [53].
[57]Ibid 679 [54].
Regrettably, we are of the opinion that the trial judge’s comments concerning Exhibit U exceeded proper bounds and occasioned a substantial miscarriage of justice. Indeed, even viewed with pre-McKell eyes, we consider that the impugned comments would have been seen as having caused unacceptable imbalance in the charge.
It is necessary to put the matter into some context. As we have indicated, the applicant sent a draft of his statement to Gundrill by email on 21 March 2015, that draft being part of Exhibit U. In large part (but with some variation) the terms of the draft statement were reproduced in a statement which the applicant signed, and acknowledged the truth of, on 5 May 2015. The signed statement, which became Exhibit S in the trial, was in the following terms:[58]
[58]Formal particulars omitted.
On Thursday the 25th of December 2015, I was working divisional van duties with Leading Senior Constable GUNDRILL in and around the Nunawading area.
At approximately 2:36am, I observed two males on the corner of Mitcham Road and Canterbury Road Vermont, we decided to talk to these males. Both males were uncooperative when spoken to in relation to there [sic] movements during he [sic] evening. I explained to them that we have had a spate of theft from motor vehicles and criminal damage over the Christmas period and that Police would speak to any person who was out and about at unusual times.
Both males appeared affected by an unknown substance, as a I stepped closer to the male closest to me, I could sense the strong smell of cannabis. I explained to both males that they were going to be searched, starting with their back packs, both males refused to be searched.
I obtained the names of both males Kyan FOSTER (30/12/97) and Stuart LAIRD (24/9/97), FOSTER in particular was very verbally aggressive towards me. I told both male [sic] again that they were going to be search [sic] starting with there [sic] back packs as I reached out towards FOSTERS [sic] back pack, FOSTER has slapped my right arm with his open right hand, sensing an immediate threat, I punched FOSTER to the nose and took him to the ground, where I held him while he struggled, It’s then that I was aware of another male present who was dressed in a uniform this male offer assistance.
FOSTER was then told his back pack was going to be search [sic], FOSTER who was sitting at the time sprang to feet and struck me with his right hand to my head, I defended myself by grabbing the male by his clothing and attempted to force him to the ground and with the assistance of the male dressed in uniform we manage [sic] to gain control of FOSTER by laying on the ground [sic] and placing him in handcuffs.
I reached for FOSTERS [sic] back pack and opened the main pocket where I located a plastic container containing Green Vegetable Matter and a home made plastic Bong. FOSTER then managed to get to his feet where he attempted to head butt me, I am unsure if he made contact, the male in uniform then pulled FOSTER back from me.
Shortly after I observed FOSTER bleeding from the nose, I offered him medical assistance which he declined and advised him that he was under arrest for possession of a drug of dependence. I then cautioned FOSTER and advised him of his rights.
FOSTER was then placed in a divisional van that had come to assist, I then obtained the details of the male dressed in uniform who was a Guardian Security Patrol Officer.
I seized all evidence and kept it in my possession until it was entered it into the Property and Laboratory Management System at Nunawading Police Station.
In the course of her charge, the judge made a number of comments on the facts, including the following, relating principally to the email of 21 March 2015:[59]
… Now, but there’s more evidence on the intentionally cause injury, assault, and self-defence. There’s evidence to be found in Exhibit S, which is Mr Mareangareu’s statement. Now, you will remember the prosecution says parts of the statement are false, but Exhibit S is behind tab 9 [of the Jury Book].
Now, if I might just make a comment and put this into context. The statement that you have as the Exhibit S is made on 5 May 2015, but there was a draft statement that was made on 21 March 2015, in pretty much this form, and that’s Exhibit U. It’s an attachment to Exhibit U. And as at 21 March, Mr Mareangareu is emailing Mr Gundrill with a copy of his draft statement and he also sends him a copy of Mr Myszka’s[[60]] statement.
Now, you’ve heard that as at the date that he made the statement Mr Mareangareu did not know that Mr Shepherd[[61]] had launched a formal investigation, however this is a matter for you. It’s a comment that I make. If he did not know that there was a formal investigation, it had not been launched at that stage, you might well think that he was aware there was a prospect of it, because in the email he says, on 21 March: ‘Gunners, can you bang up a statement regarding those two bloke we grabbed on Christmas morning. Attached is my statement, as well as the security guard’s. El pronto, if you can. I’m getting grief from one of the dads, who’s taken it to the boss and maybe beyond’.
Now at this stage, of course, the video that Mr Laird made has been – has disappeared off the phone and there’s no suggestion that, by this stage of course, it has been recovered. So Mr Mareangareu says in his statement at paragraph 3, ‘Both males were uncooperative when spoken to in relation to their movements during the evening’. Matter for you. You’ve got part of the taped conversation, but you don’t have the preamble conversation.
[59]Emphasis added.
[60]Mr Myszka is ‘the male dressed in uniform who was a Guardian Security Patrol Officer’, referred to in the applicant’s statement.
[61]This is a reference to the police officer who investigated the applicant’s and Gundrill’s conduct, leading to the charges against them.
Plainly, the judge’s comment in the extracted passage invited nothing less than ‘consciousness of guilt’ reasoning. It amounted to an adverse reflection upon the applicant’s credibility, in circumstances where the prosecution had not sought to rely on lies or incriminating conduct.[62] Moreover, the comment had the potential to affect the jury’s assessment of the applicant’s truthfulness and reliability in circumstances where credit was crucial. Self-evidently, given its potential to diminish the applicant’s credit in the eyes of the jury, the comment was gravely prejudicial.
[62]Had the prosecution sought to rely on incriminating conduct, it would have been necessary to serve a notice under s 19 of the Jury Directions Act 2015.
Unfortunately, there was material in the hands of the prosecution which was capable of casting an innocent light on the applicant’s email, but which the prosecutor had not sought to introduce when cross-examining the applicant so as to balance the ledger.
During a break in the charge, the applicant’s counsel took exception. Initially, he sought a redirection that made clear to the jury that the content of the email founded other inferences, and not just that the applicant’s email correspondence to Gundrill had betrayed a guilty mind.
The next day, the applicant’s counsel once more raised the matter. He submitted (among other things):
The comment that Your Honour made can be understood in circumstances where Your Honour has never been seized of the series of emails leading up to 21 March. It’s not part of the depositionary [scil., depositional] material. It formed part of the form 32 additional material.
In a nutshell, those emails, Your Honour, are referrable and only referrable to the status, as I indicated yesterday, the status of the progress in preparation of the charges and the briefs. At no time is there anything discussed in relation to any complaint or allegation arising specifically with respect to Mr Mareangareu’s conduct on the night.
They didn’t — those preceding emails were known to defence on behalf of Mr Mareangareu, and then they — they’re not in evidence and they’re not before the jury, and that was for good reason. The content of the email dated 21 March was never joined in issue other than with respect to the chronology in which the statements respectively made by Mr Mareangareu and Mr Gundrill were created and signed.
My friend did not put to Mr Mareangareu that what he said in his email was indicative of any form of guilty state of mind or any hint of an understanding that there were things going on in the background, and I can say that had that been — had that puttage been undertaken, it would’ve opened my friend to re-examination and the emails would’ve been introduced into evidence.
Now, I appreciate that Your Honour’s pre-empted what was said by indicating that it was a comment, and Your Honour’s indicated the weight that can be attached and what the jury can do with comments of that nature. This comment, Your Honour, concerns a fundamental matter, and the situation is that we now face a position where the jury may reason on a basis that parties are aware is not open.
Defence counsel then tendered a letter, dated 19 June 2018, from his instructing solicitor to the Office of Public Prosecutions, which the judge marked with her ‘personal initials’. Counsel made it clear that if the jury were not made aware of the additional material adverted to in the letter — which provided the proper context in which Exhibit U had in fact been prepared and sent — the trial would miscarry. The letter, marked as Exhibit JM2, was in the following terms:[63]
[63]Formal parts omitted. Emphasis in original.
We refer to this trial which is ongoing before Her Honour Judge Morrish and, in particular, the Judge’s charge to the jury during courser [sic] of yesterday afternoon, 18 June 2018.
As you are aware, during the course of the charge Her Honour referred to the email forwarded by Simon Mareangareu to Dennis Gundrill on 21 March 2015 which attached a copy of Mr Mareangareu’s draft statement prepared for the purpose of the briefs of evidence for prospective charges against Kyan Foster and Stuart Laird (Exhibit U). That email made reference to Mr Mareangareu ‘getting grief’ from one of the fathers of the boys and the matter possibly going further.
In the course of referring to the email, Her Honour stated, as a comment to the jury, that whilst Mr Mareangareu’s defence advanced the fact that he had no knowledge of the investigation being conducted by the Informant into the conduct of Messrs Mareangareu and Gundrill, and indeed it was true that the investigation had not commenced at that point, an open inference from the content of the email was that Mr Mareangareu may have suspected that allegations had been made and/or that the alleged conduct of the police members may yet be investigated.
As you are aware, there are a series of emails in the possession of the prosecution, which were disclosed to the defence in the course of this proceeding, which include emails passing between Stuart Laird’s father, David Laird, Mr Mareangareu, and Mr Mareangareu’s superior officer, Senior Sergeant Mick Jones (Jones) in March 2015. These emails deal exclusively with David Laird’s enquiries on the status of the progress of the preparation of charges and briefs of evidence against Stuart Laird. Those emails comprise the following:—
A. Email from David Laird to himself on 9 March 2015 at 6.39pm, recording a file note of a telephone conversation with Mr Mareangareu at 6.24pm that day;
B. Email from Jones to Mareangareu (and possibly copied to Jones, because he responds to it) on 16 March 2015 (no time stated);
C. Email from David Laird to Jones, and copied to Mareangareu, on 16 March 2015 at 9:50am;
D. Email from Mareangareu to Jones on 16 March 2015 at 10:58pm;
E. Email from David Laird to Mareangareu, and copied to Jones, on 17 March 2015 at 6:21am;
F. Email from Mareangareu to David Laird on 17 March 2015 at 7:02am;
G. Email from David Laird to Mareangareu and Jones dated 17 March 2015 at 7:27am;
H. Email from Jones to David Laird, and copied to Mareangareu, on 17 March 2015 at 9:16am.
Copies of these emails, marked A–H as set out above, are enclosed. Due to the ‘email chain’ nature of the print-out, they are in reverse chronological order.
From these emails, the following is clear:
1. David Laird appears dissatisfied with the time that it was taking for the investigation of Stuart Laird (and, indirectly, Kyan Foster) being concluded and the filing and service of charges in that regard. Mr Laird requests advice of when Mr Mareangareu would next have a ‘correspondence shift’ and he references the impact that the delay was having on his son’s year 12 studies. Mr Laird also complains of being advised of the ‘disconnect’ between what he was being advised and what was occurring, stating he was initially told that the summons (ie. charges) would be ready by late January that year. The communications with David Laird involve Mr Mareangareu’s direct superior, who in turn requests Mr Mareangareu to expedite the process.
At no time in the email communications from Mr Laird does he raise any complaint or allegation concerning the conduct of the police members (other than the delay in the process) and the emails are focused solely on the delay in the finalisation of the investigation processing of the paperwork concerning charges against Stuart Laird.
2. It is in the context of the emails referred to above that Mr Mareangareu sends an email to Mr Gundrill on 21 March 2015 enclosing his (Mareangareu’s) draft statement and the statement of Adrian Myszka, and requested the provision of a statement from Mr Gundrill.
It is also in the direct context of the enclosed emails that Mr Mareangareu states in his email to Mr Gundrill,
‘EI pronto if you can I'm getting grief from one of the dad's who's taken it to the boss and maybe beyond’
It is clear that the ‘grief’ that Mr Mareangareu is getting is from D avid Laird and referable — and only referable — to the delay in the process. That is the issue that Mr Laid has taken to Mr Mareangareu’s boss and what Mr Mareangareu considers could go further (ie. ‘maybe beyond’).
Whilst is correct that the enclosed emails are not before the Jury, they nonetheless shed direct light on Exhibit U in the context in which Her Honour made a comment to the Jury yesterday afternoon in respect of the inferences that may be open from the content of that email. The defence did not seek to adduce in evidence those emails in the course of the trial as the content of Exhibit U was never joined in issue between the parties other than in respect of the chronology in which the statements of Messrs Mareangareu and Gundrill were created & signed, and particularly the fact that Mr Mareangareu had prepared a draft statement well prior to the date on which his statement was ultimately finalised and signed. The enclosed emails do not bear upon that issue in any way.
The learned Trial prosecutor did not argue to the jury in his closing address that the content of Exhibit U was indicative of knowledge or suspicion (either expressly or implicitly) on the part of Mr Mareangareu that the conduct of the police members was under suspicion, notwithstanding the defence argument — which had clearly been identified and advanced in the cross-examination of the Informant and in the course of Mr Mareangareu’s own evidence — that as of 21 March 2015 Mr Mareangareu had no knowledge of any allegations being made against himself or Mr Gundrill, nor of any investigation (or potential investigation) into such alleged conduct.
Accordingly, the prosecution has in its possession evidence which clearly indicates the context in which the email from Mr Mareangareu to Mr Gundrill (Exhibit U) was sent and has a duty of fairness to bring the issue to the attention of the Trial Judge. Whilst the Judge’s comments to the jury yesterday afternoon were clearly stated to be just that; that is, a comment which may or may not assist the jury, the comment nonetheless advanced to the Jury a possible inference to be drawn from the content of Exhibit U which the prosecution knows to be erroneous in light of the enclosed emails.
In circumstances where the prosecution clearly has knowledge of the relevant emails which directly precede the email from Mr Mareangareu to Mr Gundrill on 21 March 2015, in our view the prosecution has a duty to the Court, and a duty of fairness to the Accused, to bring the issue to the attention of Her Honour and invite Her Honour to withdraw the comment on the basis that not only are there alternative hypotheses that are open in respect of the interpretation of content of Exhibit U, but in fact information and evidence in the possession of the prosecution would strongly tend to indicate the argument advanced by Her Honour should not be open for the jury’s consideration. This could be achieved by Her Honour redirecting the jury that it has been brought to Her Honour's attention by the parties that it is agreed that the email from Mr Mareangareu to Mr Gundrill on 21 March 2015 does not permit an inference to be drawn from the content of the email that he (Mareangareu) may have at that time suspected any focus or scrutiny on the conduct of the police members, including the potential for an investigation.
For the avoidance of doubt, we do not seek to reopen the case to admit the enclosed emails, nor do we wish to advance any further argument to the jury in the context of the emails. No criticism is made of the prosecution in relation to the comment raised by Her Honour, of her own volition, yesterday afternoon as in our view such an argument was not made by the prosecution to the jury (which may have enlivened this issue earlier). If the comment had not been made by Her Honour this issue would not have arisen. We are however of the view that to leave the comment of the Judge before the Jury in circumstances where there is evidence available (albeit not presently before the jury) to squarely refute the inference, and having the force of a comment from a Judge, the comment could give rise to a substantial miscarriage of justice should the jury adopt the argument in the course of their deliberations. The jury should be urgently disavowed of the argument, which can be achieved by further direction on the basis of a common position between the prosecution and defence.
Our client otherwise reserves his rights in respect of the issues raised herein.
Among other things — and assuming the accuracy of its contents — the following may be drawn from Exhibit JM2:
· whilst the defence had advanced the fact that the applicant had no knowledge of the investigation being carried out by the informant into his and Gundrill’s conduct — and it was true that the investigation had not commenced at that point — the judge’s comment was an invitation to the jury to conclude erroneously from the content of the email that the applicant had a guilty mind;
· the whole of the email chain shed direct light on Exhibit U and any inferences that the jury might legitimately draw from it, and demonstrated that the ‘grief’ the applicant was experiencing related to Laird’s father’s pressure to finalise his son’s charges;
· the prosecution had not argued that the contents of Exhibit U betrayed a guilty mind on the applicant’s part;
· the defence did not put the email chain before the jury because issue had not been joined between the prosecution and the applicant relevant to the subject-matter of the judge’s comments;
· the prosecution had in its possession material — the complete email chain — which clearly indicated that the inference invited by the judge’s comments was not open;
· accordingly, the prosecution had a duty to correct the matter; and
· had the judge not made the comment ‘of her own volition’, the issue ‘would not have arisen’.
Ultimately, the judge agreed that the email chain ‘changes the landscape’, but told defence counsel that
the fault lies with you for not re-examining to bring out the reason for the email or what your client understood or meant when he used the words, he ‘was getting grief’. He was in the witness box. He was able to explain it for himself.
With due respect to her Honour, her criticism of defence counsel was unjustified. The criticism ignores the fact that the invitation to view Exhibit U as the possible foundation of an inference adverse to the applicant only arose when her Honour made the unasked-for comment about it in the course of her charge. The judge’s comment was gratuitous, and was made in circumstances where her Honour had not apprised counsel in advance of what she intended to say. Had her Honour advised counsel of her anticipated comment, so that the applicant’s counsel was made aware that the judge intended to put forward an argument about Exhibit U which might support a guilty inference, counsel may well have employed the forensic strategy that the judge criticised him for not employing. Furthermore, had the judge raised the subject-matter of her comment with counsel in advance, the applicant’s counsel may have been able to persuade the judge — on the basis of the same material set out in Exhibit JM2 —that the intended comment was unwarranted and unfair.
Lamentably, despite acknowledging that the further material might put the contents of Exhibit U into their proper context, the prosecutor submitted unhelpfully: ‘But so what, and it isn’t in evidence’. He resisted the adoption of an agreed strategy to put further contextual material before the jury.
Having heard submissions, the judge said that she proposed
in the interests of justice, to go back to the actual transcript, to go back to the exhibit and to state to the jury that I made a comment yesterday, but, in light of the transcript and in light of the evidence, we don’t know what Mr Mareangareu meant by uttering the words in the email he's ‘getting grief’. We don’t know what he is referring to, and the evidence does not assist us.
In the result, when her Honour resumed her charge to the jury she said:[64]
Now, I made a comment yesterday in my directions to you about that exhibit. I did not bring to your attention the transcript of evidence relating to Exhibit U. The exhibit says, ‘I’m getting grief from one of the dads who’s taken it to the boss and maybe beyond’, but we don’t know what Mr Mareangareu meant by using the words, ‘I’m getting grief from one of the dads who’s taken it to the boss and maybe beyond’.
We don’t know precisely what he was referring to. The evidence doesn’t tell us, and you must not speculate on what he meant by, ‘I'm getting grief from one of the dads, who’s taken it to the boss and maybe beyond’.
[64]Emphasis added.
As may readily be appreciated, the judge did not unequivocally withdraw her comment, or, more importantly, direct the jury not to embrace the proscribed form of reasoning that it may have invited.
During a subsequent break, counsel for the applicant sought a discharge of the jury. He submitted that the ‘redirection’ that her Honour had given had not ‘cured the situation’. The ‘only way’ that it could be cured, counsel submitted, is for the judge to tell the jury to disregard the comment. Counsel for the applicant argued that ‘justice will miscarry if the jury act upon the comment in circumstances where the parties are aware there is information contrary to that which was asserted, and it’s compounded now because the jury cannot entertain any inference favourable to Mr Mareangareu having been told not to speculate about what he meant when he said that he was getting grief’.
The prosecutor resisted the application to discharge the jury. He said that, ‘doing [his] best to drop emotive terms’ — we are not sure why the prosecutor would have felt any inclination to resort to emotive language[65] — the application for discharge is ‘a tactical application for another place, and it’s a nonsense, and it’s been well-canvassed, both actually and factually’. He submitted that the judge had ‘ruled on it’, and ‘ought merely note the application and deny it and proceed with the trial’.
[65]As Sir John Young observed in R v Bazley (1986) 21 A Crim R 19, 29, the ‘long tradition of prosecutors is that they should perform their task as ministers of justice rather than as advocates seeking a particular result’, and that although it is ‘clearly their task to present the Crown case fairly and fearlessly’, they should do so ‘in a detached way’.
We do not understand what the prosecutor meant when he said that the application had been ‘well-canvassed, both actually and factually’. But we reject his description of the application as being ‘tactical’ and a ‘nonsense’. In our view, counsel for the applicant was well-justified in submitting that the judge’s further remarks did not ‘cure the situation’, and that the jury needed to be discharged. Indeed, we consider that counsel had no option conscientiously open to him other than to seek the jury’s discharge, since we regard the judge’s further remarks as wholly insufficient to remedy the prejudice engendered by her comments about Exhibit U. In the circumstances, the applicant’s counsel had no realistic choice other than to seek the jury’s discharge.
In rejecting the application to discharge the jury, the judge remarked that the tender of Exhibit U was made without objection, her Honour considering that ‘when the cross-examination was conducted it raised the possibility that Mr Mareangareu was cognisant of the possibility that there was a prospect of an investigation’. Defence counsel did not re-examine on Exhibit U, and ‘no application was made to limit the use of Exhibit U or of the cross-examination on the topic’. The judge said that the prosecution did not rely on the contents of Exhibit U as ‘an implied admission’, and, so the judge thought, she had ‘not directed the jury that it could be used that way’. Counsel for the applicant ‘made no reference to the words used by [the applicant] in the email in his final address, so the matter was simply left at large on the evidence as it stood before the jury’. Her Honour also said:[66]
The comment was just that, and I identified it clearly as a comment. Had I said nothing, the jury, having access to the whole of the transcript and having listened carefully to a powerful cross-examination on the subject, may well have come to the opinion that even though Mr Mareangareu did not and could not know he was going to be the subject of a formal investigation, given the words he used, ‘El pronto if you can. I’m getting grief from one of the dads who’s taken it to the boss and maybe beyond’, he must have turned his mind to the prospect of the matter going beyond his boss and further, higher up the chain.
The evidence does not say what grief Mr Mareangareu was getting and what aspect might be taken further. Yesterday afternoon and again this morning, before the jury came into court, [defence counsel] objected to the comment that I made yesterday at the transcript pages I have just identified. He said there were other reasons why Mr Mareangareu was getting grief, and it had to do with how long it was taking to launch the criminal charges against Stuart Laird, and although he did not say it, it is implied — this is from the words ‘El pronto if you can’.
But I was unaware of other evidence that might shed light on this. It was not until this morning that [defence counsel] tendered a chain of emails he said supported this proposition. He asked the prosecutor to concede there was evidence tending to show that Mr Laird was getting — was going — or was giving Mr Mareangareu grief. Let me just repeat that. He asked the prosecutor to concede there was evidence tending to show that Mr Laird was giving Mr Mareangareu grief about the timing of the charges and nothing else (see Exhibit JM2).
The prosecutor refused to make the concession and tendered another email in the chain, Exhibit JM3. ...
[66]Emphasis added.
We pause to observe that, contrary to the thrust of her Honour’s observations above, her comment concerning Exhibit U was not calculated to steer the jury away from an illegitimate path of reasoning. Rather, her Honour’s comment tended to steer the jury towards a path of reasoning which, with the benefit of a complete set of relevant material, may not have been open. Moreover, the judge’s acknowledgment that she was ‘unaware of other evidence that might shed light on this’ underscores the High Court’s admonition towards judicial circumspection, and the undesirability of judges failing to resist the temptation to descend into the arena.
Having said that she was unaware of other relevant evidence, the judge then assigned seven reasons for finding that there was no ‘high degree of necessity to discharge the jury’:
First, the comment made yesterday was just that. As the transcript shows, the jury were free to reject the comment. (2) The redirection today was based entirely on the state of the evidence. The direction could not be given on the basis of matters that were not in evidence. (3) The jury were told in plain terms that the evidence does not say why Mr Mareangareu used those words and what grief he was referring to, that is, what he meant. (4) The jury was told not to speculate. (5) The manner in which the evidence emerged is a relevant factor; namely, it was without objection. There was no re-examination when counsel was apparently well aware that there was other evidence available that might cast Exhibit U in a different light. There was no application made to limit the use of the evidence. There was no mention of it in the discussions we had under the Jury Directions Act. There was no explanation by [defence counsel] in his final address as to how the evidence could be used, and, more importantly, how it could not be used. My comment may have made no difference, in any event. Any complaint made yesterday and this morning was cured by the direction I gave this morning. (6) The point in the overall scheme of things is of little moment in the trial because the prosecution has always been that the accused destroyed evidence to cover up unlawful conduct. (7) The trial is now almost at an end, and finally, in all of these circumstances, I consider there to be no high degree of necessity to discharge the jury in the case of Mr Mareangareu.
With respect, the judge’s view that her comment ‘may have made no difference’, and in the overall scheme of things were of ‘little moment’, cannot be accepted. The comment made by her Honour was apt to suggest to the jury that the applicant’s email betrayed a guilty mind. And the comment was made in circumstances where, had the prosecution sought to have relied on Exhibit U as an implied admission by way of incriminating conduct, the prosecution would have been required to give notice at least 28 days before the trial.[67] Quite plainly, in the context of a trial where credit was critical, the comment had the tendency to cause significant — and, perhaps, irreparable — damage to the defence case. The remedy attempted by the judge was insufficient. Indeed, even had the judge distinctly directed the jury to disregard her comment entirely — which she did not do — the situation may well have been beyond repair.
[67]See Jury Directions Act 2015, s 19.
In these circumstances, it is impossible to conclude other than that there has been a substantial miscarriage of justice. Conviction was far from inevitable. The applicant may well have lost a chance of acquittal that was fairly open.
Before leaving this ground, we note that counsel for the applicant drew the Court’s attention to a number of other comments on facts that the judge had made in the course of her charge which were said to ‘all but obliterate’ his credibility. Whether the comments would have completely destroyed the applicant’s credit is a matter of some speculation. It is, however, fair to say that, although they would probably have been interpreted by the jury as adverse to the applicant’s case — in the sense that they picked apart aspects of the narrative contained in his statement, Exhibit S — none of the comments individually approached the gravity of the judge’s comment concerning Exhibit U. But bearing in mind the encouragement towards circumspection invited by McKell, the comments should not have been made. That is so particularly given that the question of credit was finely balanced.
Finally, we do not ignore the fact that early in her charge the judge told the jury that it was ‘likely’ she would make some comments about the facts, and they were not ‘bound’ by any comments she made about the facts. She told the jury that if they were ‘attracted to the comment’, they can ‘adopt it’. The judge told the jury that any comment she made ‘does not have any extra weight to it’ just because she is the judge, and that they could disregard any of her comments with which they disagreed. In the circumstances of the present case, however, we find it impossible to say that, notwithstanding these directions, the jury might not have been influenced by the judge’s comments concerning Exhibit U.
Ground 2B must be upheld.
Ground 2C: Is the conviction for attempting to pervert the course of justice bad for uncertainty or inconsistency?
As originally formulated, the complaint embodied in ground 2C was that the trial ‘miscarried by proceeding in a manner that led to a guilty verdict that is bad for uncertainty or ambiguity’. In the course of oral argument, however, it emerged that the real vice in the conviction for attempting to pervert the course of justice on charge 4 was its inconsistency with the acquittals on the three charges of perjury, charges 5, 6 and 7. That being so, we permitted the amendment of ground 2C indicated above.[68]
[68]See [9] and footnote 4.
Charge 4 had five particulars, the first of which alleged that the applicant ‘[m]ade a false statement for inclusion in briefs of evidence against Stuart Laird and Kyan Foster’.[69]
[69]See [25] above.
The Summary of Prosecution Opening (as amended) alleged that the applicant’s statement (Exhibit S at trial) contained four discrete false statements, which, so as to distinguish them from the complete statement, we will refer to as ‘falsehoods’. Thus, the Summary of Prosecution Opening contained the following paragraph:
55 The statement contains the following false statements:
(a) I explained to them that we have had a spate of theft from motor vehicles and criminal damage over the Christmas period and that police would speak to any person who was out and about at unusual times;
(b) Both males appeared affected by an unknown substance;
(c) I could sense the strong smell of cannabis; and,
(d) … as I reached out to FOSTERS back pack, FOSTER has slapped my right arm, with his open right hand, sensing an immediate threat, I punched FOSTER to the nose …
In her directions, the judge instructed the jury that before they could return a verdict of guilty on charge 4 of attempting to pervert the course of justice, they would have to be satisfied unanimously beyond reasonable doubt of one or other particular. Her Honour’s directions were as follows:[70]
[70]Emphasis added.
… Now, looking at Charge 4, there are a number of allegations that are said to have been conduct in which Mr Mareangareu engaged that had the tendency to pervert the course of justice.
The first one is that he made a false statement for inclusion in briefs of evidence against Stuart Laird and Kyan Foster, and, again, no one is arguing that if a false statement was made, that that wouldn’t have the tendency to pervert the course of justice. The issue in the case is whether a false statement was made.
And you might well imagine a policeman deliberately making a false statement to be used in a prosecution would have the tendency to pervert the course of justice, so that’s not the issue. The issue is whether Mr Mareangareu actually … deliberately made a false statement for inclusion in the brief.
The second allegation for Charge 4, compiled a brief of evidence in respect to charges against Stuart Laird and against Kyan Foster knowing that the said briefs of evidence contained evidence which was false. Again, no one is arguing that if you put together a brief of evidence that’s going to be used in the prosecution of a person and you do that knowingly and deliberately, that that would not have a tendency to pervert the course of justice.
Again, the real issue is whether Mr Mareangareu knowingly and deliberately compiled a brief of evidence in respect of charges against Laird and Foster knowing that the briefs of evidence contained evidence which was false.
Third allegation, he caused charges to be filed against Stuart Laird and against Kyan Foster knowing that evidence relied upon and included in the briefs of evidence was false. And you will recall I’ve been using the phrase ‘trumped up charges’, but what the allegation is, that he caused charges to be filed knowing that the evidence relied upon and included in the briefs of evidence was false.
And again, no one is suggesting that if that was done deliberately, if charges are brought on an improper basis on false evidence, that that would not have the tendency to pervert the course of justice. The real issue is whether that was done knowingly and deliberately.
The fourth allegation: served a charge sheet and summons together with a preliminary brief and statement made by the informant upon the mother of Kyan Foster knowing that evidence relied upon and included therein was false. So again, that is really following on from the previous allegation. One is causing the charges — or, I should say, (iii), is causing the charges to be filed; and (iv), is serving the charges; and (v), is attempting to persuade Mrs Foster to encourage her son to not contest the summary hearing.
And again, what seems implicit in this charge is — and perhaps it has been argued this way by the prosecution — the complaint is that an attempt is made to persuade Kyan Foster to plead guilty or not contest the summary hearing in circumstances where Mr Mareangareu knew that the charges were based on false evidence. But it’s the attempt to have someone not contest a hearing when, if the true facts are known, the person has every right, as they do whether the facts are known or not, to contest the hearing.
Now, that charge, as I say, Charge 4 is made up of a number of allegations. You’ve been correctly told by the prosecutor that you don’t have to be satisfied of all of them. If you are satisfied beyond reasonable doubt of one of them, that would be sufficient. However, I direct you, you must all be agreed on the same one.
So, for example, let’s say you’re not satisfied with number (v), attempting to persuade Mrs Foster to encourage her son to not contest the summary hearing, but you are satisfied — let me pull one at random, number (i), make a false statement for inclusion in briefs of evidence. Let's say you’re satisfied of that, but you’re not satisfied of (v), and you only want to consider number (i), then you may do that.
And if you all agree that number (i) is the one that you’re all satisfied of beyond reasonable doubt, that is sufficient. So it matters not which one or how many of them, provided you are all satisfied beyond reasonable doubt of the same one or ones.
Ordinarily, directions such as those set out above would not be the source of any difficulty. Where several particulars of an alleged attempt to pervert the course of justice are alleged in one charge, axiomatically the judge must direct the jury that, before they can return a verdict of guilty, they must be satisfied unanimously beyond reasonable doubt of one or other — but the same — particular or particulars.
The difficulty in this case arises from the fact that the applicant’s allegedly false statement was said to contain four separate falsehoods, any one of which could have made out the allegation that the applicant ‘[m]ade a false statement for inclusion in briefs of evidence against Stuart Laird and Kyan Foster’. Counsel for the applicant contended that, in circumstances where any one of four different falsehoods might have founded the allegation that the applicant’s statement was false, the verdict on charge 4 is bad for latent ambiguity. In the circumstances, so the argument went, it is impossible to know whether the jury were unanimous on any one of the possible four falsehoods.
A curious feature of this case is that the four alleged falsehoods relied upon by the prosecution to demonstrate that the applicant’s statement was false also formed the foundation of the three perjury charges upon which the applicant was acquitted.[71] Given that there was no dispute that the applicant had made the statement, and that (as the judge told the jury) it had ‘been acknowledged as being true in the knowledge that to make a false statement renders [a person] liable for perjury’, the jury’s acquittal of the applicant on the three perjury charges is explicable only on two possible rational bases: first, that the jury were not satisfied beyond reasonable doubt that, when he acknowledged the statement as being true, the applicant ‘knew that the statement was false or did not believe it was true‘; or, secondly, that the judge having directed the jury that there must be evidence from either two witnesses as to the falsity of the statement, or there must be evidence of one witness, corroborated by other evidence,[72] the jury were not satisfied beyond reasonable doubt that this element was satisfied.
[71]See [27] above.
[72]See R Muscot (1713) 10 Mod Rep 192; 88 ER 689; R v Allsop (1899) 24 VLR 812; R v Linehan [1921] VLR 582; R v Sumner [1935] VLR 197; R v Townley (1986) 24 A Crim R 76; R v Keskin (Unreported, 20 June 1988, Vic, CCA); R v Hoser [1998] 2 VR 535.
It strikes us as being highly unlikely that the jury acquitted the applicant on all three of the charges of perjury because of a lack of corroboration. By and large, Laird’s and Foster’s evidence was mutually corroborative, and their accounts were supported to an extent by the footage recovered from the telephone.
That being so, the basis of the acquittals on the perjury charges can only rationally have been that the jury were not satisfied beyond reasonable doubt that, when the applicant signed and acknowledged the statement containing the four alleged falsehoods, he knew the individual statements to be false or did not believe them to be true.[73]
[73]Of course, the verdicts might also be a product of what King CJ described as a jury’s ‘innate sense of fairness and justice’. In R v Kirkman (1987) 44 SASR 591, 593, his Honour observed:
Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries.
I note, however, that in R v Appleby (1996) 88 A Crim R 456, 458 (Callaway JA), 472 (Smith AJA), the Court expressed the view that this statement in Kirkman should not be accepted without qualification, and the jury’s power to act in the posited way must be approached with caution. Compare MacKenzie v The Queen (1996) 190 CLR 348, 367–368 (Gaudron, Gummow and Kirby JJ), 351(Dawson and Toohey JJ); MFA v The Queen (2002) 213 CLR 606, 630–1 [85] (McHugh, Gummow and Kirby JJ).
Acquittals on that basis, however, do not sit comfortably with the conviction on charge 4, the first four particulars of which alleged that the applicant made a false statement for inclusion in the briefs of evidence; compiled briefs of evidence knowing that the briefs of evidence contained evidence which was false; caused charges to be filed knowing that the evidence relied upon and included in the briefs of evidence was false; and served a charge sheet, summons and preliminary brief and statement upon Foster’s mother, knowing that evidence relied upon and included therein was false.
In our view, the acquittals on charges 5, 6 and 7 can only rationally be explained on the basis that the jury were not satisfied that the four alleged falsehoods embodied in the statement were untrue, in the sense that the applicant either knew that they were false, or he did not believe them to be untrue. Those four alleged falsehoods were the foundation of the allegations in the first four particulars of charge 4 that the applicant made a false statement; that the briefs contained false evidence (that is, the false statement); that the charges were based on false evidence (that is, the false statement); and that the applicant served a brief and other documents knowing that the evidence relied upon was false (that is, the false statement). Thus, the jury’s failure to be satisfied beyond reasonable doubt that the particulars founding the three perjury charges were established, concomitantly should have led to a failure on their part to be satisfied that particulars (i) to (iv) of charge 4 were established. Logical consistency dictated so much.
But we also consider that the jury’s failure to be satisfied beyond reasonable doubt that the particulars founding the three perjury charges were established should also have led to a failure on their part to be satisfied that the fifth particular of charge 4 was made out. The fifth particular was that the applicant
attempted to pervert the course of justice by acting in a way which had the tendency to pervert the course of justice in that he
…
v. Attempted to persuade the mother of Kyan Foster to encourage her son to not contest the summary hearing.
Quite plainly, that particular was premised on the notion that the applicant attempted to persuade Foster’s mother to have Foster not contest the charges that he had laid, knowing that the charges were based on false evidence. Indeed, that was how the judge left that aspect of the charge to the jury.[74] Thus, it will be remembered that she told the jury the following:[75]
And again, what seems implicit in this charge is — and perhaps it has been argued this way by the prosecution — the complaint is that an attempt is made to persuade Kyan Foster to plead guilty or not contest the summary hearing in circumstances where Mr Mareangareu knew that the charges were based on false evidence.
[74]In Meissner v The Queen (1995) 184 CLR 132, 143 (Brennan, Toohey and McHugh JJ), it was held that any conduct designed to intimidate an accused person to plead guilty is improper conduct and necessarily constitutes an attempt to pervert the course of justice even if the intimidator believes that the accused is guilty of the offence with which he or she is charged.
[75]See [103] above.
Properly adhering to the judge’s instruction that the essence of particular (v) was an attempt made by the applicant to persuade Foster to plead guilty (or not contest the charges) in circumstances where he knew that the charges were based on false evidence, the jury’s failure to be satisfied of guilt on the perjury charges should also have led them to find that particular (v) was not made out.
For these reasons, we regard the conviction on charge 4 as being inconsistent with the acquittals on charges 5, 6 and 7.[76] The convictions and acquittals cannot logically and reasonably be reconciled. They constitute an unacceptable affront to logic and commonsense which strongly suggests a compromise of the performance of the jury’s duty.[77]
[76]That is, of course, unless the jury were satisfied unanimously of the fifth particular; that is, that the applicant ‘[a]ttempted to persuade the mother of Kyan Foster to encourage her son to not contest the summary hearing’.
[77]MacKenzie v The Queen (1996) 190 CLR 348, 366–9 (Gaudron, Gummow and Kirby JJ).
As we have indicated, ground 2C as formulated was concerned with the complaint that the verdict on charge 4 is bad for uncertainty or ambiguity. Addressing that complaint, counsel for the respondent submitted that the verdict on charge 4 was not bad for uncertainty or ambiguity. In order to return a verdict of guilt on charge 4 the jury simply had to be unanimous on which of the five particulars alleged was made out beyond reasonable doubt. Several particulars may be included in such a charge, but for a jury to return a verdict of guilty they only need to be satisfied beyond reasonable doubt unanimously of one particular. The respondent submitted that the applicant’s argument focuses on the alleged falsity as not being properly particularised. There was, however, consistency in the particulars. Thus, of the five particulars, the fifth related to attempting to persuade Foster to plead guilty by speaking with his mother, whilst the other four particulars all related to ‘false statements’ or ‘false evidence.’ Counsel submitted that the level of precision that the applicant now contends was essential, was unnecessary and did not render the verdicts bad for uncertainty or ambiguity. An analysis of the four particulars under charge 4, where ‘false statements’ or ‘false evidence’ was relied on, demonstrates the specificity of each of those particulars and how they stood apart from each other.
It is noteworthy that much of the first three days of the trial[78] was taken up with discussion of the form of the indictment and particulars of the charges of perjury and attempting to pervert the course of justice. A deal of that discussion was concerned with the possibility of the particulars of the alleged perjury being attended by latent duplicity by reason of insufficient particularisation of the false statements relied upon by the prosecution. In an effort to perfect the charges and particulars, the original indictment was filed over twice.[79] The applicant and Gundrill were arraigned before the jury on the third manifestation of the indictment on the fourth day of the trial, 24 May 2018. It does not appear to have been anticipated at any stage, however, that the drafting of the particulars of charge 4 might raise the prospect of inconsistent verdicts between charge 4 and the perjury charges.
[78]Those days were 21, 22 and 23 May 2018.
[79]The original Indictment No. C1610853 was filed over on 21 May 2018 by Indictment No. C1610853.1, which itself was filed over on 23 May 2018 by what became the trial indictment, Indictment No. C1610853.2.
After the close of the evidence, and prior to counsel’s final addresses, there was discussion between the judge and counsel as to the necessary directions to be included in the charge. That discussion included the following exchange between the trial judge and the applicant’s counsel concerning the charge of attempting to pervert the course of justice, charge 4, and the charges of perjury, charges 5, 6 and 7:[80]
[80]Emphasis added.
HER HONOUR: I did ask about doubling up of the charges, the perjury and the deletion, but clearly they are — the sections are directed at different conduct, although the making the false statement is the mere fact.
[DEFENCE COUNSEL]: Yes.
HER HONOUR: Not mere, but the fact of making a statement, knowing and believing it’s untrue. And the attempt to pervert the course of justice is the next step, using it for a particular purpose. But in this case, there is such a strong overlap between the conduct that is complained of in both charges.
[DEFENCE COUNSEL]: Well, I agree, Your Honour. I don’t take issue with the way it’s — the indictment at all because I think it’s — whatever the verdicts are, they can very easily be understood by the nature in which the indictment’s been now particularised.
HER HONOUR: All right. Well, then, I take it you agree that the order in which the jury should consider their deliberations, that the statement — the false statement — goes first.
[DEFENCE COUNSEL]: Absolutely.
HER HONOUR: If that fails, then the attempt to pervert the course of justice, relying on that statement, must also fail.
[DEFENCE COUNSEL]: Yes, (indistinct).
HER HONOUR: And what if they say guilty of the perjury, they — it doesn’t necessarily mean guilty of attempt to pervert the course of justice, although it’d be illogical not to.
[DEFENCE COUNSEL]: That’s right.
[PROSECUTOR]: Yes (indistinct) that. I agree with all of that, Your Honour.
It will be appreciated from this exchange that the agreed position was that the jury should first consider the issue of the falsity of the applicant’s statement (upon which the perjury charges were based) before turning to consider charge 4. The judge and counsel were at one, that if the jury acquitted the applicant of perjury, then the charge of attempting to pervert the course of justice, charge 4 — insofar as it related to the first particular[81] — must also fail. Counsel for the applicant also made plain, however, that he took no issue with the form of the indictment, because ‘whatever the verdicts are, they can very easily be understood by the nature in which the indictment’s been now particularised’. Given what has transpired, counsel’s assertion has, at the very least, turned out to be highly questionable.
[81]See [25] above.
Although the judge indicated that she would direct the jury in the applicant’s case to consider the charges of perjury before turning to consider charge 4, it does not appear that she did so.[82] Moreover, given the inscrutability of the jury’s verdict on charge 4, it is impossible to say with complete certainty which of the five particulars the jury purported to have found established. For the reasons we have discussed, however, the verdict of guilty on charge 4 must be seen as being inconsistent with the verdicts of not guilty on charges 5, 6 and 7.
[82]With respect to Gundrill, however, the judge directed the jury specifically to consider charge 11, perjury, before the charge of attempting to pervert the course of justice, charge 10.
Furthermore, if the convictions and acquittals cannot logically and reasonably be reconciled, it matters not whether the submissions of counsel or the directions of the judge contributed to that situation. If, as we regard them to be, the relevant verdicts are inconsistent, there has been a substantial miscarriage of justice which it is this Court’s duty to correct.
For these reasons, the conviction on charge 4 must be set aside.
In the unique circumstances of this case, it is proper to order a judgment of acquittal on charge 4. Were a retrial permitted on charge 4 with the same five particulars, there would be a live question as to whether any resulting conviction would not itself traverse the acquittals on the three perjury charges. And, self-evidently, to permit a re-trial on a charge of attempting to pervert the course of justice based on different particulars, would be to permit the prosecution to change the nature of the case first advanced. That would be unjust.[83]
[83]Parker v The Queen (1997) 186 CLR 494 (‘Parker’); Kotvas v The Queen [2010] VSCA 309. See also Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630; Dyers v The Queen (2002) 210 CLR 285, 314–5 [82]–[83] (‘Dyers’); R v Bartlett [1996] 2 VR 687, 698; Rabey v The Queen [1980] WAR 84, 95–96 (‘Rabey’). And see also C Corns, The Discretion of the Court of Appeal to Order a New Trial or Verdict of Acquittal (2006) 30 Crim LJ 343, where a useful summary of the applicable principles is set out.
Finally, the applicant has served in excess of two thirds of the sentence imposed, which itself is a matter tending to militate in favour of not subjecting him to another trial.[84] As was pointed out in Rabey:[85]
Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against the public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spent some time in prison and who has already been through one trial and an appeal.
[84]Parker, 520; Dyers v The Queen (2002) 210 CLR 285, 314–5 [82].
[85]Rabey, 95–6.
Ground 3: An aggregate of errors
In light of the conclusions above, it is unnecessary to consider the ‘aggregate of errors’ ground.
Conclusion
Leave to appeal must be granted and the appeal allowed. The convictions (and sentences) should be set aside. We would order a judgment of acquittal on the alternative verdict of assault on charge 1, and on charge 4, attempting to pervert the course of justice.
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