Thatiya Terdputham v The Queen
[2017] VSCA 123
•29 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0125
| THATIYA TERDPUTHAM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY, FERGUSON and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 May 2017 |
| DATE OF JUDGMENT: | 29 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 123 |
| JUDGMENT APPEALED FROM: | R v Terdputham and Seehaverachart [2015] VSC 740 (Beale J) |
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CRIMINAL LAW – Application for leave to appeal – Conviction – Murder – Joint criminal enterprise – Deceased attacked for coming to aid of another – Start of prosecutor’s opening address focused on deceased’s actions as ‘Good Samaritan’ and co-accused’s guilty plea – Refusal by trial judge to discharge jury following prosecutor’s opening address – High degree of necessity test – Whether substantial miscarriage of justice – No miscarriage – Leave refused
CRIMINAL LAW – Application for leave to appeal – Sentence – Murder – Joint criminal enterprise – Sentence 24y – Non-parole period 18y – Parity – Same sentence imposed on co-offender – Whether sentencing judge properly distinguished personal circumstances of applicant and co-offender – No error by sentencing judge – Leave refused
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Ann Valos Criminal Law |
| For the Respondent | Mr G J C Silbert QC with Ms S A Flynn | Mr J Cain, Solicitor for Public Prosecutions |
ASHLEY JA:
FERGUSON JA:
KAYE JA:
On 9 September 2015, a jury in the Supreme Court found Thatiya Terdputham and Sarud Seehaverachart (‘SS‘) guilty of the murder of Luke Mitchell at Brunswick on 24 May 2009. A third man, Teparat Tepsut (‘TT’) had pleaded guilty to Mr Mitchell’s murder before the trial of Terdputham and SS commenced.
On 17 December 2015, after a plea hearing, each of Terdputham and SS was sentenced to 24 years’ imprisonment. The judge fixed, in each case, a non-parole period of 18 years’ imprisonment.
Now, Terdputham applies for leave to appeal against both conviction and sentence.
Proposed ground of appeal – conviction
The applicant relies upon this proposed ground:
1.A substantial miscarriage of justice has occurred because of intemperate, inflammatory and prejudicial comments by the trial prosecutor during the opening address.
Circumstances generally described
According to the Crown case, in the early hours of 24 May 2009, a Mr Bartlett, walking along Sydney Road, Brunswick, observed the applicant and SS arguing with a woman. He told them to leave her alone. He was punched and chased by the applicant and SS, with TT in close attendance.
At the time, Luke Mitchell, his sister-in-law and other friends were in the vicinity. Mr Mitchell (sometimes we will refer to him as ‘the deceased’) and his sister-in-law observed what was happening. They attempted to assist Mr Bartlett. In consequence of this intervention, Mr Mitchell became involved in an altercation with the applicant and SS. TT was nearby. Punches were thrown. Mr Mitchell gave as good as he got. The other men left the scene, whilst Mr Mitchell, his sister-in-law and others in their group drove a short distance to a 7-Eleven store, parking in a bay outside the store. The bay was close by Sydney Road.
Meanwhile, the applicant, SS and TT returned to a massage parlour operated by TT, which was not far away. TT collected knives and a machete. The men then drove off in search of Mr Mitchell and his friends. They found the group, and parked in such a way as to prevent the other vehicle leaving. Then the men got out of their car and attacked Mr Mitchell. He was both stabbed and kicked. A number of stab wounds were inflicted upon him. Despite emergency treatment, the wounds proved fatal.
Just who wielded the knife or knives used in the attack was a matter in issue at trial. The Crown adduced evidence that the applicant and SS had inflicted the various stab wounds, but said that whether this was so ultimately did not matter, because the attack had been undertaken in the course of a joint criminal enterprise.
The fatal wounds having been inflicted, the three attackers returned to their vehicle and departed. Within the day, each of them had fled the country. Each returned to his native country, Thailand.
In September 2013, SS was arrested by the Thai authorities. The applicant was arrested a month later. Both of them remained in custody until being extradited to Australia — the applicant in late September 2013 and SS in January 2014. TT, to complete the picture, was arrested in Thailand on 1 July 2014, returned to Australia on 17 July 2015, pleaded guilty to the deceased’s murder on 24 July 2015 and was sentenced on 7 August 2015 to 15 years’ imprisonment with a non-parole period of 11 years.[1]
[1]The judge imposed a significantly discounted sentence because of TT’s plea of guilty and his co-operation with the authorities in the prosecution of his co-accused.
Chronology and significant events in the trial
All of the events to which we now refer occurred in 2015:
● 5 August: The applicant and SS were arraigned and pleaded not guilty. The jury was empanelled. The judge made opening remarks. They included a warning against sympathy or prejudice distracting the jury from its task. The senior prosecutor for the Crown then partly opened the Crown case.
● 6 August: Counsel for the applicant foreshadowed an application to discharge the jury. The application was deferred pending the completion of the Crown opening, which then continued. The total time taken to open the Crown case, over the two days, was a little more than two and a quarter hours. Thereafter, counsel for both the applicant and SS applied for the discharge of the jury. The application was opposed by the prosecutor. The judge ruled that he would not discharge the jury. His Honour then gave the jury a further warning against sympathy or prejudice influencing its consideration of the matter. After this, counsel for the applicant and SS made opening remarks. The first Crown witness was then called.
● 10–14, 17, 18, 20, 25 and 27 August: The Crown prosecuted its case by calling 39 witnesses.
● 27 August: Counsel for the applicant and SS indicated that their clients would give no evidence and call no evidence.
● 28 and 31 August: The prosecutor made his closing address.
● 1 and 2 September: Counsel for the applicant and SS made their closing addresses.
● 3 September: There was discussion between the judge and counsel with respect to his Honour’s charge.
● 4, 7 and 8 September: The judge charged the jury, which retired just after midday on 8 September.
● 9 September: The jury returned its verdicts at 11.21 am.
From the above chronology, it can be seen that the jury’s involvement in this matter extended for more than a month — that is, from 5 August to 9 September 2015.
The application to discharge the jury
As we have said, the application to discharge the jury was foreshadowed and later pursued on 6 August 2015. The application focussed upon things said by the prosecutor in the first nine and a half minutes or thereabouts of the prosecutor’s opening address — that is, about nine and a half minutes of an address which lasted for more than two and a quarter hours. It is desirable that we set out the entirety of the impugned passage:
Well, members of the jury, sometimes it can be a little worrying, can’t it, even frightening just being a normal human being going about our day-to-day lives, because even in such a wonderful and safe place as the city in which most of us live, the City of Melbourne, despite all its virtues as a place, and despite the wonderful society in which we live with all of its great features and virtues, bad things can happen. We all know this. It’s a fact of life. We hear almost every day of people for some reason picking on other people, focussing their aggression and their violence towards other people for no apparent reason. We hear about it happening on trains and in buses and at railway stations and in the street, in all sorts of places and in all sorts of situations. Often alcohol is involved, sometimes it’s not. Sometimes it’s quite inexplicable. As decent normal human beings we would all like to help in any situation such as that to which we’re exposed. If we ever saw someone vulnerable or in a position of being outgunned and outnumbered, being picked on by some bully in some public area and we are in a position to maybe do something about it, to speak out against it, or to come and lend a hand, we’d all like to think that we could do that. We would all like to think that we would have a natural inclination to exactly do that when someone is being set upon by some bully for no reason.
But our experience of the world, even the good world in which we live, our knowledge of things that we have heard, things that have happened in our lives, might cause us to hesitate, might overcome that normal human tendency to try to help our fellow man or woman. Our understandable fear might outweigh the very strong desire to try to do the right thing, to try to lend a helping hand. This is a sad thing to say, but it is the reality, but in some people, of course, the desire, the need to stand up in the face of something that is wrong, to do something to help, to assist their fellow human being is very strong and will not be overcome, will not be put to one side, and that’s a good thing. But sometimes that can have tragic consequences.
Luke Mitchell was a 29-year-old man who had the courage of his convictions. His sister-in-law Daniella also had the courage of hers. They saw three men ganging up on another man late at night in a street in Brunswick and they would not be quiet and do nothing. They stood up for what they thought was right, for something that was clearly right, and they decided to do something and they intervened. Not in some violent or aggressive way, but just in a way to make it known to these other three people, these violent aggressive people, don’t do that, that’s not right. So they intervened to help, help another person who was being subjected to aggression and violence and unfortunately the attention of the aggressors swung away from their initial victim on to Daniella Mitchell and Luke Mitchell.
The other person ran away, but as I say, the attention had switched, and for his trouble, for the decent efforts that he had made Luke Mitchell was then assaulted violently in Sydney Road, Brunswick in a main area of our city in a public area, but he gave as good as he got during that and the aggressors didn’t like that.
Luke and his sister-in-law and their friends left the scene thinking that it was all over and they drove a short distance thinking it had all come to an end, as would any other person who had witnessed what had occurred. But Luke Mitchell’s unwanted intrusion into that first incident that he had observed would not be so readily forgotten by the three men who had instigated hat incident. They got into a motor car, having armed themselves with knives and a machete. They drove after the car in which Mr Mitchell and his friends were leaving that scene, innocently going about their business, they found them in a car park at the 7-Eleven store on the corner of Sydney Road and Brunswick Road in Brunswick, they drove their car into that car park, blocking in the other car, the three men, the three attackers got out of their car, they chased down Luke Mitchell, cornered him, attacked him, as what the prosecution would suggest was a brutal team of three men, and they stabbed him fatally in front of his horrified sister-in-law and her friends and numerous other onlookers.
Having carried out that violent crime, the three attackers drove away, got back into their car and slunk off quickly. Hid the motor car, disposed of the weapons and before that day was out all three of them had fled the country and returned to their native Thailand seeking to avoid responsibility for their crime. That all happened in 2009.
After a time two of those men were found in Thailand and they were arrested and they were eventually brought back here to face justice, which is what this criminal trial represents, and those two people are the two accused sitting in the dock. They are two of the three men who acting as a frighteningly efficient and effective team carried out the murder of Luke Mitchell.
The third man was also eventually found and arrested in Thailand and as recently as a few weeks ago was extradited to Australia. He, unlike the two men in the dock, has been willing to answer for his crime and he has done so. He pleaded guilty to murder last week. He will be sentenced before you hear from him for his crime and he will be called as a witness in the prosecution case and he will give you a window into the minds and the behaviour of the two men in the dock who, along with him on that shocking night six years ago, were willing to kill a decent and blameless man for no better reason than because they were angry and resentful and full of aggression.[2]
[2]Transcript of Trial, DPP v Terdputham and Seehaverachart (Supreme Court of Victoria, Beale J, 6 August – 9 September 2015), 33-6 (‘Trial Transcript’).
Applicant’s counsel submitted below that the portion of the address which we have just set out was inflammatory, pejorative, and designed to raise prejudice and bias in the minds of the jury. He particularly focused upon the prosecutor’s reference to TT’s plea of guilty, by contrast with the pleas of the two men in the dock. The gist of what had been said, counsel submitted, was that the men in the dock were also guilty of murder, but would not admit it. This was said to infringe the applicant’s right to remain silent, and was a matter which could not be addressed in the defence response under s 225 of the Criminal Procedure Act 2009 (Vic) (‘the Act’).
Counsel submitted, further, that the mention of TT’s plea of guilty — by contrast with the not guilty plea of the applicant — took place in the context of a ‘highly inflammatory address’ which had preceded it. He mentioned the prosecutor’s references to a city which was not as safe as one might believe, which he submitted was irrelevant. He mentioned also that the prosecutor had lauded Mr Mitchell’s courage and bravery. He submitted that this was inappropriate in an opening address. It was both unfairly prejudicial and beside the point.
Again, counsel submitted that it had been objectionable for the prosecutor to speak of the attackers having got back in their car and ‘slunk off quickly’; and objectionable for the prosecutor to say that the attackers ‘were willing to kill a decent and blameless man for no better reason than because they were angry and resentful and full of aggression’. This was an appeal to passion and prejudice.
Counsel referred to and relied upon a passage in the dissenting judgment of Priest JA in Woods (a pseudonym) v The Queen,[3] a case in which the obligations of a prosecutor in final address were in point.
[3][2014] VSCA 233 [97]-[98]. As to what the prosecutor said in that case, see judgment of Hansen JA at [54]-[61].
Counsel for SS also submitted that the jury ought be discharged. He said that within two hours of the judge instructing the jury that it should weigh the evidence dispassionately, logically and with an open mind, ‘not according to passions feelings or their heart’, ‘they were then more or less implored to act in accordance with sympathy towards the deceased and an antipathy towards the accused’. The prosecutor had used language to paint people ‘in stark moral terms’. Before any evidence had been adduced, the jury had been encouraged to ‘very much sympathise with the deceased and those close to him’, and the accused men’s conduct had been characterised, in effect, as ‘wicked and cowardly’.
The prosecutor opposed the application to discharge. He submitted that nothing he had said went beyond what was permissible. He was not bound to ‘deliver a colourless, flavourless boring address that did not go beyond a dull recitation of the fact’. We also note the prosecutor’s statement that it had been agreed between counsel that in opening some reference could be made to TT, who was to be a witness in the trial, having pleaded guilty to murder; and his submission that, if the judge considered that he had gone too far, then it could be addressed by a direction.
The judge refused to discharge the jury. This is what his Honour said:
I am of the view that there is a problem, and the problem arose because so much time was devoted to Mr Mitchell’s actions as a Good Samaritan, and to a lesser extent, his sister-in-law. When I heard the beginning phase of Mr Tinney’s opening address, I was struck by how much time he devoted to that and, as I have said in discussion with counsel, I wondered at the relevance of that.
That Mr Mitchell did perform that selfless function in coming to Mr Bartlett’s aid would inevitably come out in the trial and so, too, would the courageous actions of his sister-in-law, Daniella, and it would have been more prudent to downplay that in the prosecutor’s opening address rather than to highlight it, as I thought he did, but I am of the view that by giving — reiterating actually, I reiterated to the jury directions I gave them before the opening address, not long before the opening address, about deciding this case on the evidence, not based on sympathy or prejudice, that the problem can be cured. The test to be applied when a discharge of a jury is sought is set out in Crofts v R (1996) 186 CLR 427. Justices Toohey, Gaudron, Gummow and Kirby said at [page] 440, ‘No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence [in] the context of [the] contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and,’ I underline this, ‘the likely effectiveness of a judicial direction designed to overcome its apprehended impact.’
Here we are at the start of the trial. That cuts both ways, of course. On the one hand, not much time will be lost if I were to discharge the jury. On the other hand, we are a long way from the point where the jury will retire to consider their verdict having heard the evidence and it being reinforced by me in my closing charge that they decide purely based on the evidence. The law, for instance, as expounded in Dupas regarding the efficacy of jury directions takes, and rightly takes, a high view of a jury’s capacity to put to one side matters of sympathy, matters of prejudice, and so what I propose to do at this point is reiterate, to mention to the jury that I am going to revisit the issue of ‘you decide on the evidence, not on sympathy or prejudice because of what was said at the beginning phase of Mr Tinney’s opening address’, and I may return to the issue in the coming days and give further directions about that, but for all those reasons, I reject the application for a discharge.[4]
[4]Trial Transcript, 115-16.
Submissions in this Court
Applicant’s submissions
Counsel for the applicant, in written submissions, highlighted various short passages in the first minutes of the prosecutor’s opening address which we have already set out. He submitted that the address was ‘quite extraordinary and went beyond the permissible limits of advocacy in an opening address by a prosecutor’. In that connection, he referred to the decision of the Full Court of the Federal Court in Tran.[5] He referred also to Deriz[6] and, with respect to the obligations of prosecutors more generally, he referred, inter alia, to Wood (a pseudonym) v The Queen[7] and Spence v The Queen.[8] He described the opening in ‘short compass’ as ‘emotive, argumentative, inflammatory, divisive, intemperate, florid and unfairly prejudicial’.
[5](2000) 118 A Crim R 218, 237-8 [128]-[132] (Black CJ, Weinberg and Kenny JJ).
[6](1999) 109 A Crim R 329, 338-9 [64]-[70] (Parker J).
[7][2014] VSCA 233.
[8][2016] VSCA 113.
In greater particularity, counsel submitted that —
(1)the initial part of the address was inflammatory, prejudicial and encouraged bias against the applicant ‘by creating a binary of good and evil between the deceased and the accused and encouraging the jury to reason in that very same way’;
(2)the impugned part of the address offended s 224 of the Act. Although a prosecutor is not confined to a verbatim account of the prosecution opening, this opening went beyond what was acceptable;
(3)the address was ‘clearly thought out’ by an experienced prosecutor. The rhetorical flourishes ‘must have been calculated to have some effect upon the jury’;
(4)the deceased was elevated to the status of a Good Samaritan, a person who would stand up to bullies when others would not. This conveyed to the jury the prosecutor’s personal opinion of the moral character of the deceased;
(5)the address impinged upon the applicant’s right to silence ‘by linking [TT’s] plea of guilty with the trial of the accused in an unfavourable manner’;
(6) no direction could cure the prejudice to the fair trial of the applicant;
(7)the trial being at a very early stage, no evidence having been adduced, little court time having been wasted, the only proper and sensible course was to discharge the jury and empanel another jury.
As a corollary, counsel submitted that the judge’s redirection was not sufficient.
Orally, counsel —
(1)contrasted the impugned part of the prosecutor’s address with the balance of the opening, which he described as being conventional;
(2)submitted that an audio-visual recording of the prosecutor’s opening underlined the objectionable characteristics of the impugned passage;
(3)submitted that the prosecutor had in effect conceded to the judge, in argument on the discharge application, that the impugned passage was intended to have an impact;
(4)correctly accepted what was implicit in the ground of appeal as formulated — that is, that the appeal is against conviction. So, upon an assumption that the impugned part of the prosecutor’s opening address was impermissible, counsel accepted that the burden lay upon his client to demonstrate that a substantial miscarriage of justice had occurred. Seeking to support a conclusion to that effect, counsel submitted that in this case there had been a serious departure from proper process, this denying the applicant his right to a fair trial. It was not decisive, counsel submitted, that conviction might be regarded as having been inevitable.
Submissions for the Crown
In written submissions, counsel for the Crown —
(1)contended that the prosecutor had not strayed beyond what was permissible. There is no obligation for an opening address to be bland, dull or insipid. A prosecutor, in properly carrying out his or her duties, is not required to cease to be an advocate, or be unable to deliver an address with any flair or flourish. Authorities emphasise that it is only undue prejudice or emotion which is to be avoided. The circumstances of the alleged offence were capable of exciting feelings of sympathy towards the deceased, and setting out those circumstances in the way that the prosecutor did revealed no impropriety, even if such topics might evoke prejudice or emotion;
(2)submitted that it was correct to say, as the trial judge opined, that what was said by counsel would inevitably come out in the course of the trial;
(3)submitted that no aspect of the prosecutor’s address sought to create a binary of good and evil, of ‘us’ and ‘them’. Reference to the accused being Thai nationals was a statement of no more than the fact, particularly as they had fled to Thailand, a matter relied upon by the Crown in the trial;
(4)noted that there had been some delay in the making of the application. This was said to ‘not enhance the applicant’s argument’;
(5)submitted that there was nothing to the contention for the applicant below respecting the prosecutor’s reference to TT having pleaded guilty. It did not impinge upon the applicant’s right to silence. Mention of the topic had been agreed between counsel before the prosecutor’s opening;
(6)relied upon the circumstance that the impugned passage was of short duration in the context of a long trial in which comprehensive directions were given by the judge immediately after he had refused to discharge the jury, and in which further directions were given to dismiss feelings of sympathy or prejudice both before the prosecutor’s address and in the judge’s charge. Additionally, notwithstanding the complaint by applicant’s counsel that he would be unable to address the issue in his opening remarks if the jury was not discharged, he had, in fact, specifically addressed the issue.
Orally, senior counsel for the Crown accepted that the prosecutor may have gone too far in a few instances. He particularly identified the prosecutor’s references to Melbourne, apparently a safe city, not being as safe as one might think. He also accepted that what the prosecutor had said when informing the jury that TT had pleaded guilty may have gone too far. But he submitted that whatever few faults might be found in the impugned passage were incapable of demonstrating, as the applicant must demonstrate, a substantial miscarriage of justice.
Analysis
The starting point for this appeal against conviction,[9] brought under s 276 of the Act, is the judge’s discretionary decision not to discharge the jury. The function of an appeal court in such a case was described this way in Crofts v The Queen:[10]
It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?[11]
[9]Maric v The Queen (1978) 52 ALJR 631, 634-5 (Gibbs ACJ), cited, inter alia, in R v Halliday (2009) 23 VR 419, 437 [71] (Buchanan, Ashley and Weinberg JJA).
[10](1996) 186 CLR 427 (‘Crofts’).
[11]Ibid, 440-1 (Toohey, Gaudron, Gummow and Kirby JJ) (citations omitted).
Crofts[12] was a case about evidence, not about an address by counsel. But the approach in the latter situation should be no different. So, even if a judge in refusing an application for discharge applies the correct test, it may be that a court on appeal, allowing proper leeway to the judge, will be persuaded that the refusal occasioned a substantial miscarriage of justice.
[12]Ibid.
His Honour, formerly a very experienced criminal trial advocate, and an experienced judge, cognisant of the atmosphere of the trial, concluded that parts of the impugned passage had travelled beyond what was permissible. He concluded that the prosecutor had given too much time to Mr Mitchell’s actions, and to a lesser extent those of his sister in law, as Good Samaritans. A question of relevance arose. But balancing the various considerations to which he referred, his Honour was not persuaded that there was a high degree of necessity to discharge the jury.[13] Notwithstanding that the trial was at an early stage, he concluded that directions, to which a jury should be expected to adhere,[14] would be a sufficient remedy for the prosecutor’s transgression.
[13]The test stated many times — in Victoria, from R v Harrison [1957] VR 117, 125-6.
[14]His Honour referred to Dupas v The Queen (2010) 241 CLR 237. See, especially, at 246-51 [26], [28]-[29], [36]-[38]. If a jury could be relied upon to adhere to a judge’s directions in that case, then a fortiori in the present case.
We have no doubt that the judge applied the correct test in considering the discharge application.[15] His finding that the prosecutor had travelled beyond what was permissible was to the applicant’s advantage, in that it was the sine qua non to an exercise of discretion. No circumstance to which his Honour adverted was irrelevant. The question then becomes whether there was some material circumstance to which his Honour did not advert; or whether the decision at which he arrived was unreasonable or plainly unjust so as to bespeak a failure in some undiscernible way to properly exercise his discretion — either such error giving rise to a substantial miscarriage of justice.
[15]That is, he applied the considerations outlined in Tran (2000) 118 A Crim R 218, 237-8 [128]-[132]. The circumstances of the present case would inevitably excite emotions. This makes pertinent the observation that it is undue prejudice or emotion which is to be avoided: Deriz (1999) 109 A Crim R 329, 338-9 [64]-[67] (Parker J); and see judgment of Wallwork J at 330 [8]-[9].
In our opinion, his Honour’s exercise of discretion was soundly based and it is not reasonably arguable that his ruling occasioned a substantial miscarriage of justice.[16] That can be confidently concluded when one has the advantage of knowing how the trial played out. The following considerations are in point.
[16]That is so although his Honour did not mention every matter to which counsel for the applicant and SS had adverted.
First, for the most part the impugned passages in the prosecutor’s opening conveyed two interrelated themes: (1) that the city of Melbourne is not as safe as it might look. Bad things happen. Circumstances can arise where a choice must be made about whether or not to help a fellow human being; (2) that in such circumstances some people, Mr Mitchell and his sister in law being exemplars, act courageously. Their doing so led to the fatal assault.
The impugned passages also addressed the way in which the prosecutor introduced the subject of TT’s plea of guilty, and contrasted it with the circumstance that the applicant and his co-accused were standing their trials. We will call this ‘the TT plea matter’.
Second, the judge identified the interrelated matters when he referred in his ruling to ‘so much time [being] devoted to Mr Mitchell’s actions as a Good Samaritan, and to a lesser extent, his sister in law’. It was there, his Honour concluded, that the prosecutor had overstepped the mark. That is a conclusion with which, respectfully, we agree. We do so having both read the transcript and watched the audio-visual recording of the prosecutor’s opening — the latter of which, in our opinion, detracted rather than added to the force of the applicant’s submissions.
Third, his Honour did not refer to the TT plea matter in his ruling. But in argument, he had made it clear that he was ‘not so concerned’ about it, saying:
It necessarily follows from you bringing this case and pursuing this case that you say these two men are guilty, and you are setting out to prove it beyond reasonable doubt, and you contrast that with Mr Tepsut’s situation, he has pleaded guilty.[17]
[17]Trial Transcript, 111.
In our opinion, what his Honour there said was correct. We do not accept the correctness of the Crown’s tentative concession in oral argument in this Court respecting the matter. Further, we agree with the submission for the Crown, made at the trial and in this Court, that what the prosecutor said in no way impinged upon the applicant’s right to silence.
It was inevitably the case, counsel having agreed that the jury would be informed of TT’s guilty plea, that the jury would contrast that plea with the circumstance that the applicant and SS were standing their trial. But this did not mean that the jury was at all likely to reason, because TT had admitted guilt, that the applicant and SS were also guilty of the crime. Indeed, when TT gave evidence, there was an evident attempt by counsel for the applicant and SS to pin guilt for the murder upon him. There was an argument available to the applicant and SS that TT had pleaded guilty to the murder because he was a murderer, whilst the applicant and SS had pleaded not guilty because they were not murderers.
In summary, the fact that the judge did not refer to the TT plea matter in his ruling was of no consequence.
Fourth, the judge was correct to say that what we have called the interrelated matters would inevitably come out in the trial. Indeed, they became plainly evident in the course of what was accepted by applicant’s counsel as being — very largely — a conventional opening address. That was a reason why the trial should proceed, always bearing in mind the need for the judge to give firm directions with respect to sympathy and prejudice.
Fifth, it is related to the circumstance which we have just mentioned, on the Crown case it was necessary to show that an agreement was reached between the applicant, SS and TT to assault the deceased either intending to kill him or to cause him really serious injury. This necessarily harked back, as the Crown put its case, to Mr Mitchell’s intervention to assist Mr Bartlett, and to his fight with the applicant and SS — this altercation leading to the accused men returning to the massage parlour operated by TT, arming themselves, entering the applicant’s motor vehicle, going in search of Mr Mitchell, then alighting from their vehicle and assaulting him; the murder being in revenge for Mr Mitchell’s earlier intervention, and one done in furtherance of an agreement between the three men.
It was thus inevitable that the deceased’s role as a courageous Good Samaritan, attacked for having come to the aid of another man, would be a part of the narrative. As the applicant’s counsel himself stated in his opening remarks to the jury:
[T]his is a case that of its very nature engenders strong emotions, and it’s important that you maintain that dispassionate, intellectual assessment of which I have spoken and which his Honour has just reminded you about.[18]
[18]Trial Transcript, 122.
Equally, counsel’s remarks to the effect that Melbourne is not as safe a place as might superficially appear to be the case said no more than what would — and did — become plainly apparent in the course of the trial. The whole circumstances of the affair bespoke the accuracy of those remarks.
Sixth, it is related to the fourth and fifth matters which we have mentioned, in counterpoint to the Crown’s reliance upon joint criminal enterprise it was an absence of proven agreement upon which the applicant and SS relied at trial; as well as upon a dispute as to who had been armed and who had inflicted the fatal wounds.
Seventh, as we have attempted to make clear, the case was one where, inevitably, sympathy and prejudice, respectively, were apt to arise. The judge warned against the jury being deflected from its intellectual task in his opening remarks. Then, immediately after he had refused to discharge the jury, his Honour revisited the matter. This is what he said:
Ladies and gentlemen, there is a direction of law that I will give to you now before we hear the responses by defence counsel to Mr Tinney’s opening address. I’m really going to repeat a direction that I gave you just before Mr Tinney commenced his opening address. What I said to you was this: ‘It is your duty to decide this case only on the basis of evidence. You must ignore all other considerations. In particular, you should dismiss any feelings of sympathy or prejudice you may have, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision. You are the judges of the facts. That means that in relation to all of the issues in this case, you must act like judges, you must dispassionately weigh the evidence logically and with an open mind, not according to your passion or feelings, your duty is to consider the evidence using your intellect, not your heart.’
At the beginning of Mr Tinney’s opening address to you, he spoke to you about the actions of Mr Mitchell in intervening on behalf of Mr Bartlett. He also spoke about the actions of Mr Mitchell’s sister-in-law, who intervened on [Mr Bartlett’s] behalf and [of whom], to use a colloquial phrase, he sung praises. He spent quite a bit of time on their selfless actions, too much time.
You are not to decide this case on anything but the evidence, not on sympathy, for instance, Mr Mitchell, the deceased, or his sister-in-law or anybody else, or prejudice against the accused men. You are just to decide the case on the evidence. That is so important that I have taken the unusual step now of repeating it. You will hear that again, that particular direction, when I reach my closing charge to you before you retire to deliberate on your verdict, having heard all the evidence, all the speeches, but keep that principle firmly in mind. Decide this case on the evidence, not on sympathy or prejudice.[19]
[19]Trial Transcript, 118-19.
That was not the end of it. In his final address, the prosecutor addressed the risk of the jury approaching its task in an impermissible way:
Now, that brief statement of the bare bones really of the events surrounding the killing of Luke Mitchell perhaps serves to highlight the need for you to be careful to ensure that the normal human emotions that all of you would feel, that all of us feel, that any person feels in response to such a matters [sic], play absolutely no part in your performance of your function, your critical function in this trial, your duty in this trial. And equipped as you are with at this stage 13 doses of intelligence and common sense, it will be reduced to 12 in the end, but armed with that intelligence and commonsense and also armed with the directions his Honour has already given you on this matter and will repeat in due course to decide the case on the evidence and not on sympathy and prejudice and such normal human emotions. You will, members of the jury, fully understand that your task in this trial is all about evidence. It’s entirely about the evidence and not about simplistic notions of good and evil or right and wrong or any such things. It’s about the evidence.
Don’t take anything I say at any time during what will be, sadly for you, a fairly lengthy address as being an invitation to view things any differently or do anything other than act, and act entirely, on the evidence in this case.
It’s true that this case involving, as it does, the violent and clearly unjustified killing of a man in full view of the public, a man who clearly did not deserve to be killed, that that would understandably around sympathy for Mr Mitchell and his family and perhaps engender some ill will towards anyone who would attack him in such a manner. But your task, members of the jury, as it’s sometimes described, is one of the head and not of the heart.
You’ll realise the need to put aside any such feelings and not allow them to intrude upon your performance of your important duty in this trial.[20]
[20]Trial Transcript, 1154-5.
Counsel for the applicant also addressed the matter. He contrasted Mr Bartlett’s evidence with a part of the prosecutor’s opening address. He also made this submission:
You have bound yourself to determine this case on the evidence, not on sympathy, bias or prejudice. You are not being asked to make a moral judgment about good or bad behaviour, and it’s important that you bear that in mind because there is evidence in this case that does reveal bad behaviour by Mr Terdputham. You may think he is clearly affected by drink and aggressive in the bottle shop in Barkly Square earlier in the evening, and there’s evidence that may well persuade you he was behaving aggressively in fighting with Luke Mitchell in Sydney Road. But those facts, even if you do find them to be so, while they do him no credit, don’t make him guilty of the charge of murder.[21]
[21]Trial Transcript, 1311.
For his part, counsel for SS made this submission:
So, how to approach your task? If we didn’t make the concession, and I think we probably did in the opening, this is a sad case, and this is a tragic case, and you would be inhuman not to come to that conclusion. But you are now judges and you are not afforded that luxury of acting on sympathy or prejudice or pity or anger or really any moral perspective about goodies or baddies or the brace or the cowardice. You are here to act as judges.[22]
[22]Trial Transcript, 1391.
Finally, we should refer to this passage in the judge’s charge:
It is your duty, ladies and gentlemen, to decide this case only on the basis of the witnesses’ evidence, the exhibits, what you observed on the view and the formal admissions of fact. You should consider the evidence which is relevant to a particular matter in its individual parts and as a whole and come to a decision one way or the other about the facts. In doing this, you must ignore all other considerations, such as any feelings of prejudice or sympathy you may have for anyone involved in the case. You should not, for example, be influenced by any racial prejudice against the accused or by any sympathy for Luke Mitchell or his family. Such emotions have no part to play in your decision. Remember, you are the judges of the facts. That means that in relation to all of the issues in this case you must act like judges. You must dispassionately weigh the evidence logically and with an open mind, not in accordance with your passions and feelings.[23]
[23]Trial Transcript, 1495-6.
In all, having regard to the issues which were alive at trial, it is certain that Mr Mitchell’s role as a Good Samaritan, who was attacked by three men (not necessarily all being involved in the physical attack) in a studied revenge for a previous altercation, those men then fleeing to their native country, was inevitably going to provide the context in which the guilt or otherwise of the applicant and SS was determined. The judge was, with respect, correct to conclude, on the discharge application, that in the context of this particular trial a discharge was not required, and that the problem, to the extent that the opening added to it, should be dealt with by directions. With the advantage of knowing how the trial played out, the correctness of his Honour’s ruling is apparent. It certainly was not productive of a miscarriage of justice, still less a substantial miscarriage of justice.
This, of course, is not to say that the prosecutor was right to add to the emotion which the circumstances were certain to evoke. Those circumstances certainly bespoke a need for caution in the prosecutor’s opening. But we cannot accept that, insofar as the prosecutor travelled beyond what was permissible in his opening, it had any impact upon the jury’s determination of the necessary issues at the end of a quite long trial. Warnings were repeatedly given by the judge, and as well mentioned in counsel’s addresses, about the risk of impermissible reasoning. At least the jury must be understood to have acted upon the judge’s directions. As has been said, the experience of the law is that juries do adhere to directions. In our opinion, in those circumstances, the applicant could not establish a substantial miscarriage of justice. The contrary, we consider, is not reasonably arguable.
Proposed ground of appeal—sentence
The applicant relies upon this proposed ground:
Ground One: The sentence imposed upon the applicant was not sufficiently disparate from the co-offender, Sarud Seehaverachart, given the applicant’s post-traumatic stress disorder diagnosis.
Sentencing remarks
The judge described the attack which led to Mr Mitchell’s death, and expressed satisfaction to the criminal standard that each of the applicant and the co-accused, SS, stabbed the victim, the crime being perpetrated pursuant to an agreement between the applicant, SS and TT. His Honour was further satisfied that the three men hunted their victim down because he had tried to stop them from assaulting Mr Bartlett.
His Honour next pointed to the fact that there had been an elapse of time between the initial altercation and the fatal incident, it being the necessary corollary that this was not a killing on the spur of the moment.
Next, the judge referred to letters which each of the applicant and SS had sent to Mr Mitchell’s family in 2013. For reasons which his Honour explained, he did not accept that they conveyed any true remorse.
His Honour concluded that the murder fell into the upper range of the spectrum of murder offences, the offenders having hunted down Mr Mitchell and attacked him with deadly weapons in a public place, not being deterred by the presence of many others. Moreover, this was a killing in revenge for the victim having courageously come to the aid of Mr Bartlett not long before. Again, all of the offenders had fled from Australia very soon after the fatal incident.
The judge considered the personal circumstances of the two men. We need not refer to them in great detail, but we do note the following matters:
First, the applicant was aged 34 at time of offending and was 40 at time of sentence. SS was aged 26 at time of offending and was 34 at time of sentence.
Second, the applicant had no prior convictions, and SS had no relevant prior criminal history.
Third, both men had a history of heavy drinking, and had been drinking heavily on the day of the murder.
Fourth, both the applicant and SS had spent some three years in custody in the Thai capital city of Bangkok before being extradited to Australia. In the Bangkok gaol, there was violence, suicides, and stabbings. Conditions were overcrowded and unhygienic. The light was left on all night.
Fifth, the applicant suffered post-traumatic stress disorder (‘PTSD’) in consequence, largely, of his detention in the Bangkok gaol. The condition was chronic and was such as would make his imprisonment more onerous for him.
Sixth, whilst the applicant had family members in Australia, SS did not. This circumstance would make SS’s imprisonment the more onerous.
The judge considered the question of parity. He said this:
43.As between the two of you, I consider there should be parity. In other words, you should each receive the same sentence. I have found that both of you stabbed Mr Mitchell. To my mind, there is no reason to distinguish between the two of you so far as your roles in the commission of the offence are concerned. You were parties to a joint criminal enterprise. You both attacked Mr Mitchell with knives. Whilst you Terdputham are entitled to some moderation of your sentence because of your PTSD; you have family here in Australia whereas Seehaverachart does not. He is entitled to some moderation of his sentence on that account. You have no prior convictions and Seehaverachart has no relevant prior convictions.
44.You Terdputham were aged 34 at the time of the offence and are now aged 40. You Seehaverachart were aged 26 at the time of the offence and are now aged 33. Whilst the fact that you were younger at the time of the offence works in your favour, Seehaverachart, it could not be said that you were an immature male, especially since you had lived independently for some time prior to the offence. As for Terdputham being older, that lends greater significance to his absence of prior convictions. In my view, it is not appropriate to distinguish between the two of you based on age.[24]
[24]R v Terdputham and Seehaverachart [2015] VSC 740 [43]-[44].
Submissions for the applicant
It was submitted for the applicant that the judge had accepted the diagnosis of PTSD made by the psychologist, Mr Ball. The fifth proposition in Verdins[25] was engaged, as the judge accepted.
[25]R v Verdins (2007) 16 VR 269, 276 [32].
It was then submitted that the trial judge, in effect, ‘equated the applicant’s PTSD with the co-accused’s isolation as a foreign prisoner, as justifying identical sentences’. This, counsel submitted, was an error. There was no equivalence between the accepted diagnosis of PTSD and the co-offender’s isolation as a foreign national. Those states were ‘radically different. One is a recognised medical condition; the other is not.’
Submissions for the Crown
It was submitted for the Crown that it was not reasonably arguable that the judge fell into error by misapplying the parity principle. There was no reason to distinguish between the roles of the two men in the commission of the offence. There were differences in the factors personal to each accused, but nothing which warranted or justified a difference in the length of time each would serve in prison. Both the applicant and SS were able to call into aid the existence of a circumstance which meant their time in custody would be more onerous than usual. This entitled them to some moderation of their sentences. The sentencing judge recognised each of these factors and effectively accorded them the same weight. So to conclude could not give rise to a justifiable sense of grievance.
Analysis
In our opinion, there is absolutely nothing to this proposed ground of appeal. Leave to appeal should be refused.
Overwhelmingly, the circumstances of the offending were the predominant sentencing consideration. It was not contended that the head sentence was manifestly excessive, and any contention to that effect must have failed. Indeed, the sentences passed upon the applicant and SS were, in our opinion, moderate in all the circumstances, as was the gap between the head sentence and the non-parole period.
Upon the question of parity, in the context which we have described, the somewhat different personal circumstances of the applicant and SS were of less significance than might be the situation in another case. Those different circumstances did not require, with respect to parity, any different head sentence or non-parole period in the case of the applicant and SS. The applicant’s proposed ground of appeal fastened upon a single matter. It was contended, as we have noted, that the judge was wrong to equate, in effect, the applicant’s PTSD on the one hand with the greater isolation of SS on the other hand. But, as the judge pointed out, each of those distinct circumstances made the particular offender’s imprisonment the more onerous. There was no error, in our opinion, in the judge equating, for sentencing purposes the common consequence of those different causes. There is no question of the judge’s resolution of the parity question not being reasonably open.[26]
[26]DPP (Cth) v K M D [2015] VSCA 255 [109].
Orders
The applications for leave to appeal against conviction and sentence must be refused.
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