Smith v The Queen
[2013] VSCA 112
•14 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0211
| WOLFE JAMES SMITH | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | HARPER, PRIEST and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 March 2013 |
| DATE OF JUDGMENT | 14 May 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 112 |
| JUDGMENT APPEALED FROM | Unreported, County Court of Victoria, 23 July 2012 (Conviction) and 31 August 2012 (Sentence), Judge Tinney |
---
CRIMINAL LAW – Application for leave to appeal against conviction and Application for leave to appeal against sentence – Applicant convicted of intentionally causing serious injury and attempting to pervert the course of justice – Whether the judge erred by impermissibly dictating the sequence of the jury’s deliberations – Whether the conviction on the charge of pervert the course of justice is reasonable and/or can be supported having regard to the evidence – Application for leave to appeal against conviction and application for leave to appeal against sentence dismissed.
---
| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Schembri & Co |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions` |
HARPER JA:
I have had the benefit of reading, in draft, the judgment of Priest JA. I agree with him, for the reasons he gives, that leave to appeal against both conviction and sentence should be refused.
The resolution of one of the issues in this case requires, as it did in that of Medici v The Queen,[1] an examination of the directions to be given to a jury where alternative charges have been preferred by the Crown. I refer to my judgment in Medici, in which I endeavoured to articulate how in my opinion jurors may appropriately be assisted in discharging their duty in the circumstances with which the jurors were confronted in the present case.
[1][2013] VSCA 111.
PRIEST JA:
Introduction
In my opinion, the application for leave to appeal against conviction, and the application for leave to appeal against sentence, should each be refused. My reasons follow.
The charges and sentences
There were four counts on the Indictment – affray, charge 1; intentionally causing serious injury, charge 2; recklessly causing serious injury, charge 3; and attempting to pervert the course of justice, charge 4.
Following a trial in the County Court at Melbourne, on 23 July 2012 the applicant was convicted of intentionally causing serious injury (charge 2) and attempting to pervert the course of justice (charge 4). He was found not guilty of affray. Owing to the verdict on the second charge, no verdict was taken on the
alternative charge of recklessly causing serious injury, or on the ‘included’ offences of intentionally causing injury or recklessly causing injury.[2]
[2]See Criminal Procedure Act 2009, s 239. See also R v Kane (2001) 3 VR 542; LLW v R [2012] VSCA 54; James v R [2013] VSCA 55.
On 31 August 2012 the trial judge sentenced the applicant to be imprisoned for four (4) years and six (6) months on charge 2, and for 16 months on charge 4. Three (3) months of the sentence on charge 4 was ordered to be served cumulatively on charge 2, leading to a total effective sentence of four (4) years and nine (9) months’ imprisonment. A non-parole period of two (2) years and nine (9) months’ imprisonment was fixed.
Application was made for leave to appeal against both conviction and sentence. In order to give these applications adequate consideration, it is necessary to say something of the factual background to the charges.
Factual background
Each charge arises from an assault by the applicant upon the victim at the Tower Hotel in Hawthorn East in the early hours of 28 March 2010.
The applicant’s girlfriend, Amanda Farina (‘AF’), had gone to the hotel in the early hours after an argument with the applicant. At about 4.50am the applicant, who was affected by drugs or alcohol or both, arrived at the hotel looking for her.
AF was in the smoking area of the hotel as was the victim, Luieyzdegois Falina (‘LF’). This area has a balcony rail fronting onto the street. LF was drinking with two friends who had just finished their shift as crowd controllers at the venue. It seems that at some point before the applicant arrived at the hotel, there had been some unpleasant interaction between AF and the victim, LF. Indeed, at one point AF handed her phone to LF, and he spoke to the applicant. According to LF the applicant threatened him, saying that he would come and ‘smash’ him and his family.
About 10 or 15 minutes after the telephone call, a taxi pulled up and the applicant and an unidentified dark-skinned man got out and approached the balcony rail. What occurred was captured on closed circuit television footage. The applicant, who had removed his shirt, can be seen walking up and down outside the smoking area in a state of apparent agitation. He made gestures whilst apparently challenging LF to come out and fight.
On the footage, which was an exhibit in the trial and viewed by the jury – and which has been viewed by the members of this Court – the applicant can be seen to throw a number of blows or kicks at the victim within the smokers’ area. It would clearly have been open to the jury to conclude from this footage that the applicant was the aggressor.
The applicant can be seen on the footage to throw at least one apparent punch with his fist from the street side of the balcony rail which either struck, or came close to striking, the victim, before vaulting the rail into the smoking area with his companion. From the CCTV footage, and from the evidence from the victim, it again would have been open to the jury to find that the applicant was the aggressor. The applicant threw another punch at the victim, seemingly striking his head and knocking him to the floor. Once he was on the ground the applicant kicked out at him at least twice, the second visible kick being delivered to the applicant’s front in what appears to be the style of a martial artist.
As a result of the attack upon him, the victim suffered a spiral fracture of the fibula some inches below the right knee. He also sustained an injury to the ankle joint, involving a widening of the joint together with some ligament damage. The assault upon him also inflicted a deep cut across the inside of the victim’s right wrist, which partially lacerated the ulnar nerve and lacerated the ulnar artery. I will later discuss the treatment undergone by the victim.
These events form the basis of the conviction on the second charge, intentionally causing serious injury. The conviction on the fourth charge, attempting to pervert the course of justice, arises from the aftermath.
The licensee of the hotel, Joe Rumero, was known to the applicant. At about 5.39am the applicant telephoned Mr Rumero and asked him to get rid of the CCTV footage or he (the applicant) would go to gaol. The licensee told the applicant, however, that it was not possible to get rid of the footage as the police were already there and the matter had already been reported. Notwithstanding what he was told, the applicant persisted in his request at a later stage that morning, at around 8.53am.
It seems plain enough that the applicant asked for the destruction of the CCTV footage because of an awareness that his assault would be investigated, and he would very likely be charged with serious criminal offences which might land him in gaol. An inference might readily be drawn that the applicant’s request to the licensee to destroy the footage was designed to avoid his identification, apprehension and prosecution. He wanted to cover up his crime. The ramifications of his request to destroy the evidence of his offending are pertinent to ground 5, which I will later discuss.
Grounds of appeal against conviction
There are five grounds of appeal relating to conviction. They are:
1. The judge erred in his directions to the jury by dictating to the jury the sequence in which the jury must deliberate upon the alternative charges.
2.The judge erred in his directions to the jury by directing the jury not to give any consideration to the question of the applicant’s guilt of any alternative charge unless and until the jury had reached agreement that the applicant was not guilty of the relevant principal charge.
3.The judge erred in his directions to the jury by directing the jury that the jury could only consider charge 3 (recklessly cause serious injury) on the indictment if the jury had first acquitted the applicant on charge 2 (intentionally cause serious injury) on the indictment and, further, the jury could only consider the alternative charge of intentionally cause injury if the jury had first acquitted the applicant on charges 2 and 3 and, further, the jury could only consider the alternative charge of recklessly cause injury if the jury had first acquitted the applicant on charges 2 and 3 and the alternative charge of intentionally cause injury.
4.The judge erred in his directions to the jury by effectively directing the jury that the jury could not deliberate upon charge 3 (recklessly cause serious injury) on the indictment unless and until the jury had acquitted the applicant on charge 2 (intentionally cause serious injury) on the indictment and, further, the jury could not deliberate upon the alternative charge of intentionally cause injury unless and until the jury had acquitted the applicant on charges 2 and 3 on the indictment and, further, the jury could not deliberate upon the alternative charge of recklessly cause injury unless and until the jury had acquitted the applicant on charges 2 and 3 on the indictment and the offence of intentionally causing injury.
5.The verdict of the jury on charge 4 on the indictment (attempting to pervert the course of justice) is unreasonable and/or cannot be supported having regard to the evidence.
It will be seen that grounds 1 to 4 relate to directions given by the trial judge as to the sequence of considering verdicts, while ground 5 claims that the verdict on charge 4 is, in effect, unsafe and unsatisfactory.
In my opinion, none of these grounds can be upheld.
Directions on order of considering verdicts
Before turning to consider the directions given by the trial judge impugned under cover of grounds 1 to 4,[3] it is necessary to set out the principles which will guide the consideration of these grounds.
[3]These first four grounds largely mirror the grounds in Medici v R [2013] VSCA 111, which, since both cases raised essentially the same issue, was argued at the same time as the present case.
Stanton[4] was a case of wilful murder, where there were two lesser alternative verdicts available to the jury. Complaint was made on appeal that, by his directions, the trial judge wrongly had dictated the order in which the jury should consider the available verdicts. In the High Court, the majority (Gleeson CJ, McHugh and Hayne JJ) expressed the general rule to be that, ‘Jurors are free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient’. [5]
[4]Stanton v The Queen (2003) 198 ALR 41, 77 ALJR 1151.
[5]Ibid 49 [35].
It is useful, I think, to briefly review the way in which the issues were exposed for the High Court’s consideration in Stanton. The directions given by the trial judge, Anderson J, included the following:[6]
[6]Ibid 45 [14].
You first consider wilful murder and if you’re unanimously of the view that the accused is guilty of wilful murder, that will be your verdict. If you are unanimously of the view that he’s not guilty of wilful murder, then you proceed to consider whether you find him guilty of murder. If you are unanimously of the view that he is guilty of murder, then that will be your verdict.
If you are unanimously of the view that he’s not guilty of murder, then you will consider manslaughter.
And later, in answer to a question from the jury:[7]
You can’t come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder.
[7]Ibid 46 [18].
Both of these passages were challenged in the Court of Criminal Appeal (WA), which dismissed the appeal.[8] Each of Malcolm CJ and Murray J concluded that these passages were in error, but they applied the proviso which is to be found in the common form criminal appeal statutes.[9] Owen J, in dissent, found that the second passage involved an error of law which could not be saved by the proviso. All members of the Court held that the second passage was erroneous, not because it directed a sequence in which the jury had to consider its verdict, but because it directed a sequence in which the jury had to consider the charges.[10]
[8]Stanton v R (2001) 24 WAR 233.
[9]The proviso is not replicated in s 276 of the Criminal Procedure Act 2009.
[10]Malcolm CJ 236 [10]; Murray J 240 [33]; Owen J 251 [89].
The majority in the High Court observed that, were it a ‘fair appreciation’ of the answer in the second passage that it ‘dictated to the jury a sequence of deliberation, and impermissibly restricted them in the manner in which they might properly exercise their function’, then error would have been demonstrated.[11] In their opinion, however, that is not what the trial judge’s directions did. Gleeson CJ, McHugh and Hayne JJ said:[12]
[11]Stanton v The Queen (2003) 198 ALR 41, 77 ALJR 1151, (ALR) 49, [35]–[36].
[12]Ibid (ALR) 49-51, [36]–[41] (emphasis added).
36 A proper appreciation of what Anderson J said requires attention to three matters: the issues as they emerged at the trial; the other directions that the jury had already been given; and the precise question to which he was giving an answer.
37As to the first, it was common ground in argument in this Court that, ultimately, this was a single issue case. The critical question was whether the jury were satisfied beyond reasonable doubt of the appellant’s intent to kill his wife. As a practical matter, if they were so satisfied, they would find willful murder, and if they were not so satisfied they would find manslaughter. On the evidence, any other verdict was not a realistic possibility. There being, for practical purposes, only one issue, the answer to which (if agreed upon unanimously) would resolve the matter one way or the other, it is difficult to understand how any possibility of sequential reasoning on that issue could have arisen. In whatever order they examined the evidence, and considered the primary facts, when they came to decide whether the case was one of willful murder or manslaughter, the jury would necessarily do that by reference to the single issue, of intent, on which the outcome depended.
38As to the second matter, as the extracts from the directions quoted above show, the trial judge had in fact made a suggestion (as he was entitled to do) as to what the jury might find to be a convenient approach to their deliberations. He suggested that they start by considering whether the killing was unlawful in the sense that it was not accidental. If they were not satisfied of that, the verdict would be not guilty. He pointed out that, although it was entirely a matter for them, it was unlikely that they could bring in a verdict of not guilty, for reasons he explained. He then said that whether the guilty verdict was manslaughter or willful murder depended on the issue of intent. Thus, having suggested that the jury first consider and dispose of the possibility that the killing was not unlawful, the judge said that would bring the jury directly to the issue of intent, and, depending on their view about that issue, the appellant was either guilty of manslaughter or guilty of willful murder. No exception was taken, either at trial or in this Court, to what the judge there said. It was one of the last things he said to the jury before they retired. This reinforces the point made in the preceding paragraph.
39As to the third matter, the question asked by the jury concerned the consequences of disagreement. It postulated that the jurors were ‘in conflict’, that some ‘believed’ the appellant was guilty of willful murder and, by implication, that others believed he was guilty of manslaughter. It asked whether, in that event, those who were in the former group ‘have to move down to the charge of manslaughter’. This was clearly a reference back to the judge’s direction in which he said: ‘If you are unanimously of the view that he's not guilty of willful murder, then you will consider murder ... If you are unanimously of the view that he’s not guilty of murder, then you will consider manslaughter’. The jurors were responding to that by asking a question as to their responsibilities if some of them were of the view that he was guilty of murder and others were not. They asked whether the former group would then be obliged to ‘move down’. That must have been a reference to the point of final decision; the finding of a verdict. Since the choice between willful murder and manslaughter turned upon the resolution of the one issue, intent, the question cannot have been directed to a sequence of reasoning, as distinct from the formal act of finding a verdict. It was clearly understood, by the judge and by trial counsel (who agreed with the judge's response), as a question about the formal act of finding a verdict. That was the sense in which he used the word ‘consider’ in the first sentence of his answer, as is further indicated by the terms of the second sentence of the answer. So understood, the answer was consistent with what the judge had earlier told the jury, and it involved no error. The trial judge asked the jury whether he had answered their question and, although the transcript records no verbal response, it is evident that the trial judge considered that the jury agreed that he had done so.
…
41The interpretation that was placed by the Full Court upon Anderson J's answer to the jury's question, upon analysis, was not correct. …
In LLW[13] this Court (Maxwell P, Weinberg JA and Williams AJA) emphasised that there was no constraint on a jury considering guilt on an alternative count before they had arrived at a verdict on the principal count. The Court said:[14]
The High Court decision in Stanton makes clear, however, that there is no such constraint on the jury’s processes of deliberation. The only constraint on a jury considering alternative counts relates to the order in which their verdicts are delivered. The jury cannot deliver a verdict on an alternative count unless they have first acquitted the accused of the principal count.
[13]LLW v R [2012] VSCA 54.
[14]Ibid [11] (footnote omitted).
On the hearing of the present application for leave to appeal against conviction, the applicant accepted as correct (as, respectfully, do I) the principles summarised by Jenkins J in Simms:[15]
1. It is impermissible for a trial Judge to direct members of a jury that they must consider alternative charges in any particular order as jurors are free to organize their deliberations in whatever manner appears to them to be convenient.
2. When determining whether a trial Judge’s directions have infringed this prohibition the question is whether the trial Judge might reasonably have been understood to convey anything to the contrary, or whether he or she was merely informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them.
3. In determining the answer to this question, an individual direction should not be construed on its own but must be considered in light of the issues that have emerged at the trial, the whole of the trial Judge’s directions and any questions from the jury.
[15]Simms v R (2004) 148 A Crim R 433, 442 [50].
Thus a direction which purports to direct a jury as to a sequence of reasoning is contrary to law. Juries are free to consider their verdicts in whichever order they choose. In this case, therefore, it is necessary to ask: was the effect of the trial judge’s directions to dictate the sequence in which the jury had to consider the alternative charges (rather than the sequence of delivery of the verdicts)? I would answer this question ‘no’.
To discern whether the directions infringed the relevant ‘rule’, it is necessary to set out the impugned directions in moderate detail. There were five separate sets of directions that were criticised.
The first passage[16] that was claimed to be a source of error was:[17]
If you find Mr Smith not guilty of intentionally causing serious injury, which is Charge 2 on the indictment, then of course you then go to consider Charge 3, which is recklessly causing serious injury. … That means that you only need to consider this offence if you are not satisfied that the prosecution has proven Charge 2, that is, intentionally causing serious injury, beyond reasonable doubt.
If you were to decide that Mr Smith was guilty of intentionally causing serious injury, so Charge 2, then you would not need to consider this alternative, or any of the other alternatives that I will shortly come to. …
[16]There is minor variation between the passages as set out in the Applicant’s Written Case and as contained in the transcript provided to the Court. Save where the Court’s transcript contains an obvious error, it has been preferred in these reasons.
[17]Charge 407-8 (emphasis added).
Secondly, the applicant said the following was infected with error:[18]
So I have dealt now then with Charge 2 on the indictment, intentionally causing serious injury. I have dealt with the alternative on the indictment to that charge, Charge 3 all right?
The next offence that you may need to consider is that of intentionally causing injury, so not serious injury, injury, and as you understand, I am sure, this is an alternative to the offences of intentionally causing serious injury and recklessly causing serious injury, and what that means is that you only need to consider it, that is, intentionally causing injury, if you were to find Mr Smith not guilty of both of those offences, Charge 2 and Charge 3 on the indictment, and for that reason, then, if you turn back a couple of pages from the recklessly causing serious injury, you will find the checklist headed ‘Intentionally causing injury (alternative to Charge 2)’.
So you would do it in this order, ladies and gentlemen, just so you understand the order. You go to the intentionally causing serious injury, which is the most serious of those offences dealing with injury or serious injury being caused. Only if not guilty on that charge would you consider then Charge 3, recklessly causing serious injury, and if your verdict in relation to Charge 3 was one of not guilty, then of course you would come to consider this alternative of intentionally causing injury.
[18]Charge 412-3 (emphasis added).
The third passage which was said to disclose error was:[19]
Now I told you when instructing you in relation to Charge 2, intentionally causing serious injury, that for that offence it was not enough for that charge that the accused intended to cause injury, and serious injury resulted. That is because Charge 2 applies, proof of his intention to cause serious injury, but in considering this alternative, if you do, and you only would had you found him not guilty of Charge 2, intentionally causing serious injury, and not guilty of Charge 3, recklessly cause serious injury. If you were satisfied beyond reasonable doubt that the accused, without lawful excuse, intended to cause injury but happened to cause serious injury then you would find him guilty of this lesser alternative, that is of intentionally causing injury.
[19]Charge 414 (emphasis added).
Fourthly, the following passage was criticised:[20]
There is one more alternative offence that you may need to consider, and if you go towards the back of that pile, if you go beyond the elements of recklessly causing serious injury, then of course you will find the alternative of recklessly causing injury, which is the alternative to Charge 3.
… It is an alternative to – so you have intentionally causing serious injury on the indictment, Charge 2, you have recklessly causing serious injury on the indictment, Charge 3. You have intentionally causing injury, that I have just dealt with, which is the lesser alternative to Charge 2, and what that means is you only need to consider the offence or recklessly causing injury if you found the accused man not guilty of those other three offences. So intentionally causing serious, recklessly causing serious, intentionally causing injury. You would only consider this offence if you found them not guilty of those other three.
[20]Charge 415 (emphasis added).
Lastly, the following was urged as disclosing error:[21]
Well, as to the serious injury allegations, you would first need to consider the most serious of the charges, and that is Charge 2, intentionally causing serious injury. If you are satisfied beyond reasonable doubt that Mr Smith is guilty of that offence, then you do not need to consider Charge 3 or any of the lesser alternatives. No verdicts would be taken on the alternative charges.
However, if you all agree that Mr Smith is not guilty of intentionally causing serious injury, you must then consider whether or not the prosecution have proven beyond reasonable doubt all the elements of Charge 3, and as I have said, it is only if you were to all agree that he is not guilty of that charge, Charge 3, that you would then consider the unwritten alternatives, if I can use that term, that is, the alternative to Charge 2, intentionally causing injury, and of course, you would only consider the alternative to Charge 3 of recklessly causing injury if you had found Mr Smith not guilty of the first of the lesser alternatives.
[21]Charge 426-7 (emphasis added).
Giving a fair reading to each of the passages isolated by the applicant for criticism, in my opinion the directions contained within them neither contain any judicial command as to the order on which the jury should consider the alternative verdicts nor dictate any sequence of deliberation. By and large, the instructions in these passages inform the jury that they only need to consider lesser alternatives if they acquit of the more serious. So much is self-evident. But these instructions do not constrain the jury to consider the verdicts in any particular way or in any particular order. Indeed, in my view the only direction which arguably might approach support for the applicant’s submissions is in the second extracted passage, when the trial judge said, ‘So you would do it in this order …‘. In context, however, this remark merely informs the jury that the lesser alternatives need only be considered if there be acquittal on the more serious charges. Such a direction is necessary and proper.
Individual directions – including, of course, the five extracted above – must not be construed in isolation, but must be considered against the directions as a whole and in light of the issues that have emerged at the trial. In the directions in this case, there were two tracts in addition to those relied upon by the applicant which demonstrate, in my opinion, that the jury would not have laboured under any misapprehension that they were bound to deliberate in any particular order, and that they would have appreciated that they were free to order their deliberations as they saw fit. Thus the trial judge instructed the jury: [22]
[22]Charge 407-8 (emphasis added).
If you were to decide that Mr Smith was guilty of intentionally causing serious injury, so Charge 2, then you would not need to consider this alternative, or any of the other alternatives that I will shortly come to. In those circumstances, were you to find Mr Smith guilty of Charge 2, the next verdict taken from you would be taken on Charge 4.
And perhaps more importantly: [23]
Now, the next offence that you may need to consider, and I say may, I have not the slightest idea what course your deliberations are going to take. I am making no assumptions one way or the other, but you must have some understanding as to the presence of the alternatives and the way in which they are to be approached.
[23]Charge 412 (emphasis added).
When due regard is had to the directions as a whole, in my opinion the jury would have understood that they were free to order their deliberations in any manner that they saw fit, and that they were not bound to approach their deliberations in any particular sequence. Hence, in my view, the general ‘rule’ recognised in Stanton was not infringed, and grounds 1 to 4 must fail.
Were I wrong about that, I would not, in any event, in the circumstances of this case, conclude that there had been a ‘substantial miscarriage of justice’.[24] Counsel, who was imbued with the atmosphere of the trial, took no exception, presumably because he foresaw no unfairness to the applicant. Further, the jury acquitted of the count of affray. Although, of course, affray was not an alternative to charges 2 and 3, the jury’s verdict on charge 1 indicates that they considered the charges separately.
[24]Criminal Procedure Act 2009, s 276(1)(b) and (c); Baini v The Queen (2012) 293 ALR 472; Andelman v R [2013] VSCA 25.
More importantly, there is no doubt that objectively the victim suffered serious injury, and that it was caused by the applicant. And no viewer of the CCTV footage could sensibly come to a view other than that the applicant at all times was the aggressor, so that there was no occasion for a lawful excuse such as self-defence to have arisen. Therefore the live issue in the trial must have been one of intent – did the applicant intend to cause serious injury; if not, did he foresee the probability of serious injury being caused; if he did not intend, or foresee the probability of, serious injury, did he intend to cause an injury other than serious injury; if not, did he foresee the probability of injury other than serious injury being caused?[25] It is inevitable,[26] in my opinion, that a jury would conclude that the applicant caused serious injury at a time when he was not acting in self-defence. The CCTV footage leaves no other view reasonably open. The central issue for the jury must therefore have been one of intent. In my view, any misdirection as to the sequence of considering the charges, had it occurred, could have had no effect on the consideration of this sole issue.
[25]James v The Queen [2013] VSCA 55.
[26]Baini v The Queen (2012) 293 ALR 472; Andelman v R [2013] VSCA 25.
I add this. In every case involving alternative verdicts, it is elemental that a judge will explain to the jury the order in which their verdicts will be taken. Further, although not a necessary direction in every case involving alternative verdicts, a trial judge would be wise to ensure that a jury specifically is made aware that they are free to conduct their deliberations, including consideration of the alternative verdicts, in any manner of their choosing. That does not mean, however, that a judge cannot suggest to a jury that they might find it useful to work through the alternatives from the more serious to the less serious offences (or some other means), so long as he or she makes it clear that the jury are not constrained to follow such suggestion, and that they are ‘free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient’. In my experience, trial judges often direct juries to the effect, ‘How you go about your deliberations is a matter for you’, and then offer suggestions – emphasised to be non-binding – as to how the jury might organise their discussions. There can be no criticism if such a course is followed.
For the reasons discussed, grounds 1, 2, 3 and 4 cannot be sustained.
Attempting to pervert the course of justice
There are several steps in the applicant’s argument under the cover of ground 5. First, it is submitted that an element of the offence of attempting to pervert the course of justice is that the relevant act had the tendency to pervert the course of justice, that is, have a tendency to impair the capacity of a court to do justice. So much may be accepted.
Next, it is submitted that the prosecution was required to prove on the criminal standard that ‘the act of the Applicant in asking Rumero to get rid of the video had a tendency to frustrate or deflect the criminal prosecution of the Applicant for the offence of assault’. So far as it goes, again so much may be accepted.
The applicant relies on ‘the unchallenged evidence’ that at the time of the telephone call to Mr Rumero the police had already been at the hotel investigating the incident and, in any event, the CCTV footage was incapable of deletion. Additionally, the evidence was that the police had already viewed the footage by the time that the applicant sought its destruction. In these circumstances – so it is submitted – no investigation or prosecution could have been deflected or frustrated, despite the intention of the applicant at the time he made his request of Mr Rumero. No matter what the applicant sought to achieve by his request, it simply was not possible. Thus the actions of the applicant could not be proven to have had the tendency to pervert the course of justice, so that it was not open to the jury to convict on charge 4. Further, it was submitted that in the circumstances there was ‘no tendency in an abstract or theoretical sense’ present, leading inevitably to a verdict of acquittal.
In my opinion, on the unchallenged evidence the inference is compelling that the applicant telephoned Mr Rumero cognisant of his wrongdoing, and with the clear intention of effecting a destruction of powerful incriminating evidence against him. The evidence is capable of no interpretation other than that the applicant sought to prevent the CCTV footage falling into police hands, because the footage would provide strong evidence of his wrongdoing. By endeavouring to inveigle Mr Rumero into destroying the evidence against him, the applicant had the intention of frustrating the anticipated investigation by the police and any resulting prosecution.
Aydin,[27] upon which the applicant relies, was a case where the accused had made threats to a police officer in an attempt to have the officer reduce the number of charges against another and to not oppose bail. Unknown to the accused, the police officer was covertly taping the conversation as part of a controlled operation, so that there was no possibility that the threats could ever bring about the results that they were designed to achieve. Callaway JA (with whom Buchanan and Eames JJA agreed) expressed the view:[28]
In my opinion, all that is necessary is a tendency to pervert the course of public justice in an abstract or theoretical sense. Practical impossibility is irrelevant if such a tendency is present. It would not be present if, for example, a person attempted to pervert the course of justice by sticking pins into a wax model of the prosecutor; but it would be present, again by way of example, if the accused wrote an intimidating letter in Portuguese to a judicial officer whom the accused wrongly believed to understand that language.
[27]R v Aydin (2005) 11 VR 544.
[28]Ibid 546 [7].
In a similar vein, in Healey,[29] Malcolm CJ remarked:[30]
In my opinion, there is no room for a defence of impossibility, in relation to the offence of attempting to pervert the course of justice, which may be available at common law in the case of an attempt to commit a substantive offence such as theft or robbery …
[29]Healey v R (1995) 15 WAR 104.
[30]Ibid 108.
By making the approach that he did to Mr Rumero, and asking him to destroy the incriminating footage, in my opinion the applicant did an act which had the ‘tendency to pervert the course of public justice in an abstract or theoretical sense’. And, as I have said, the inference is compelling that he made the request of Mr Rumero with the intention of frustrating the police investigation and possible prosecution. The fact that his attempt was not capable of actually perverting the course of justice is, in my view, irrelevant. Thus the conviction on count 4 was open.
Ground 5 cannot be upheld.
Sentence appeal
There are four grounds of appeal against sentence, three of which (grounds1, 2 and 4), in one way or another, complain that the sentences passed are manifestly excessive. One ground (ground 2) alleges discrete error. The grounds are:
1. The sentence imposed on charge 2 is manifestly excessive.
2.The judge erred in imposing sentence on charge 4 by failing to impose sentence on the factual basis that what the applicant had sought to achieve, namely, the destruction of the video, was impossible.
3. The sentence imposed on charge 4 is manifestly excessive.
4. The total effective sentence is manifestly excessive.
The attack mounted by the applicant had extremely serious consequences for the victim.
As I have observed, the victim suffered a spiral fracture of the fibula, an injury to the ankle joint and some ligament damage, together with a deep cut across the inside of the victim’s right wrist, which partially lacerated the ulnar nerve and lacerated the ulnar artery. The victim underwent surgery to repair these injuries. A plaster was applied to the lower leg and he required manipulation of the ankle injury and the related ligament damage. He required surgery in relation to the spiral fracture of the fibula with a number of screws being inserted, together with a further immobilisation. Plastic surgery was required to repair the partial laceration of the ulnar nerve and the laceration of the artery. He was in hospital for one week and three days, but he could not work for almost eight months, during which time he was constantly in plaster for eight months. Since he lived in an upstairs unit, the victim had difficulty accessing his home whilst his leg was in plaster. He has lost some strength in his hand, together with sensation in a number of his fingers. Due to his manifold injuries, the victim has stopped running and playing rugby.
Counsel for the applicant, Mr Holdenson of her Majesty’s Counsel, contended that the sentence of four and a half (4½) years’ imprisonment on the count of intentionally causing serious injury intentionally was outside the range of those sentences reasonably open. He pointed out that his client, who was 25 years of age at the time of the offences (born 27 May 1984), was relatively youthful. Moreover, he drew attention to the fact that no weapon was used; the attack was not sustained; the assault was attended by some provocation, and was ‘reasonably spontaneous’; the victim was not vulnerable or defenceless; and although serious injury had been caused, it was of a greater order than his client had contemplated. As I observed in Jackson:[31]
Since, as with manslaughter, the circumstances of the offence of intentionally causing serious injury widely vary, the sentences commonly imposed widely vary. Some cases involve protracted savagery, while others a single blow; some involve the use of an almost infinite variety of weapons, while others fists or feet; and some result in gross and permanently disabling injuries to victims, while in others the injuries barely cross the threshold of ‘serious’. Thus, at the low end of the spectrum, suspended sentences of imprisonment have been imposed by this Court; whilst at the high end, this Court has dealt with cases where the head sentence is in double figures.
[31]Jackson v R [2013] VSCA 14, [34] (citations omitted).
The sentence in this case fell to be passed after a contested trial. Although, of course, the applicant was not to be punished for having run a trial, he could not call in aid in mitigation a plea of guilty (whether attended by remorse or otherwise). Further, the applicant had a prior appearance in January 2004 for carrying a dangerous article, and in October 2004 he was fined $4000 without conviction for intentionally causing injury. Of very great concern, fewer than three weeks before the present offence, on 10 March 2010 the applicant was convicted of affray, and was released on a community based order for 24 months. Thus at the time of the commission of this offence he was subject to a court imposed order for an offence which involved public fighting. Again, although, of course, the applicant was not to be punished for having prior convictions, the applicant’s history with courts bears on the need for specific deterrence and his prospects for rehabilitation. Additionally, it cannot be gainsaid that there is a disturbing incidence of violence in the community fuelled by alcohol and drugs, attracting the need for sentences carrying an ample measure of general deterrence.
Synthesising, as I must, all relevant features, both aggravating and mitigating, I find myself unable to conclude that the sentence passed on charge 2 is other than proportionate. In my opinion it is well within the range of those properly open.
With respect to the sentence on charge 4, the attempt to pervert the course of justice, counsel for the applicant submitted that the judge paid insufficient regard to the fact that the object of the offence was impossible. Further, it was contended that the sentence was manifestly excessive. In my opinion, neither submission can be upheld. Though a sentence of 16 months’ imprisonment for the offence in this case might appear to some minds to be stern, in my view it is within the range of those properly open. Attempting to pervert the course of justice may embrace a wide spectrum of conduct, from trying to obtain an adjournment of a case on a false basis to assisting a fugitive criminal to flee the jurisdiction. The conduct in this case was designed to effect the destruction of incriminating evidence. This was a serious offence, despite the fact that its object was not capable of accomplishment. The individual sentence passed on charge 4 is not, in my view, manifestly excessive.
Three (3) months of the sentence on charge 4 was ordered to be served cumulatively of the sentence on charge 2. That was an appropriate level of cumulation to reflect the fact that the conduct making up charge 4 was distinct from
that on charge 2. It did not, contrary to the submissions made, infringe the principle of totality.
Finally, the non-parole period of two (2) years’ and nine (9) months’ imprisonment is, in my opinion, unexceptionable. It bears a proper relationship to the head sentence, and reflects the mitigating factors that were present. In percentage terms it is less than 60 per cent (60%) of the total effective sentence. It is not open to criticism.
None of the grounds of appeal against sentence can be upheld. The application for leave to appeal against sentence should be dismissed.
For the sake of completeness, I note that the Court received medical reports[32] bearing upon the applicant’s medical condition following an assault upon him in prison. It was accepted, however, that the Court could only have regard to this material if the sentencing discretion was reopened by success on one of the grounds touching conviction or sentence. Since none of the grounds has succeeded, there is no occasion to consider this material.
[32]Further material was provided on 13 May 2013, and included a report of Associate Professor Kenneth Myers, dated 1 May 2013, provided following a CT scan performed on the applicant on 22 March 2013 (a copy of the CT report also being provided), and a report of a neuropsychologist, Dr Nathaniel Popp, dated 12 May 2013.
Conclusion
The applications for leave to appeal against conviction and against sentence should each be refused
COGHLAN JA:
I agree with the reasons as expressed by Priest JA.
- - -
5
0