Ulutui v The Queen
[2014] VSCA 110
•4 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0108 | |
| PETER ULUTUI | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NEAVE, REDLICH and TATE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 February 2014 | |
DATE OF JUDGMENT: | 4 June 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 110 | |
JUDGMENT APPEALED FROM: | DPP v Ulutui (Unreported, County Court of Victoria, Judge Chettle, 19 October 2012 (date of conviction)) | |
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CRIMINAL LAW – Whether admission of evidence of appellant’s participation in a prior assault should have been excluded under s 137 of the Evidence Act 2008 (Vic) – Prior assault provided motive for and inextricably linked to offences charged – Appellant bound by rational forensic decision of counsel not to object to admission of evidence – Nudd v The Queen (2006) 80 ALJR 614; Suresh v The Queen (1998) 102 A Crim R 18; and James v The Queen [2013] VSCA 55, followed – Appeal dismissed.
CRIMINAL LAW – Whether admission of evidence of appellant’s participation in a prior assault controverted the appellant’s acquittal for that assault – Fact of acquittal not placed in evidence – No manifest inconsistency between evidence adduced and the fact of the appellant’s acquittal – Whether trial judge erred in failing to direct the jury that it could not reach a conclusion that the appellant was guilty of the prior assault – Storey v The Queen (1978) 140 CLR 364; R v Carroll (2002) 213 CLR 635; Gilham v The Queen (2012) 224 A Crim R 22; R v VN (2006) 15 VR 113; and Washer v Western Australia (2007) 234 CLR 492, followed.
CRIMINAL LAW – Whether trial judge erred in failing to give an anti-propensity warning in relation to the evidence of appellant’s participation in the prior assault – No requirement to give an anti-propensity warning where there is minimal or non-existent risk of evidence being used for propensity reasoning – R v Georgiev (2001) 119 A Crim R 363; Conway v The Queen (2000) 98 FCR 204; and FDP v The Queen (2008) 74 NSWLR 645, followed.
CRIMINAL LAW – Kidnapping – Whether directions to jury impermissibly expanded Crown case – Whether kidnapping is a continuing offence – Davis v The Queen [2006] NSWCCA 392 and R v Vu [2011] BCCA 112, followed – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr D A Trapnell QC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I have had the advantage of reading the reasons of Redlich JA and I agree, for the reasons that his Honour gives, that the appeal should be dismissed and the application should be refused.
REDLICH JA:
Following a trial in the County Court the appellant was convicted on one charge of kidnapping, one charge of recklessly causing injury, two charges of threat to kill, one charge of false imprisonment, one charge of blackmail and one charge of intentionally causing injury. He was sentenced to a total effective sentence of five years and six months’ imprisonment, with a non-parole period of three years and nine months.
In brief, the case against the appellant was that he, Mehmet Kurt, Laki Ulutui (‘Laki’) (the appellant’s brother) and Peter Federpoulai acted together to kidnap, threaten, assault and attempt to extort money from Cihan Ayna. The Crown case was that the motive for this offending was Ayna’s previous co-operation with police investigating an assault by the appellant, Laki and others on a person in a Coles supermarket car park (‘the Coles assault’) in 2006. The appellant had been charged with, but acquitted of, the Coles assault.
On 7 November 2013, Coghlan JA granted the appellant leave to appeal against his conviction on two grounds:
Ground 1: The learned trial Judge erred in permitting evidence to be led that the appellant had participated in a serious assault and that the witness Ayna had changed his evidence about that assault because he had been threatened; and
Ground 2: The learned Judge erred in failing to warn the jury against inferring that the appellant was a person of bad character or was the kind of person who would be more likely to commit the offences charged as a result of Ayna’s allegation that he had taken part in the assault in the supermarket car park.
Coghlan JA deferred the question of leave on a third ground:
Ground 3: The learned trial Judge erred in his directions to the jury about the basis on which the appellant could be convicted of kidnapping.
At the hearing, the appellant was granted leave to appeal on a further ground:
Ground 4: Evidence of the appellant’s participation in the assault in the supermarket car park should not have been admitted because it controverted the appellant’s acquittal in relation to that episode.
Following the hearing the appellant filed a further ground on which he sought leave to appeal:
Ground 5: The evidence of the appellant’s participation in the assault in the supermarket car park should not have been admitted without the jury being directed that they could not use that evidence to reach a conclusion that the appellant was guilty of that assault.
Factual background
The Crown case, which was principally based on the evidence of Ayna, was as follows. On 13 February 2010, the victim, Ayna, was at the Sandown Park Hotel. Shortly after midnight, Kurt contacted Ayna several times by telephone and requested a meeting. An arrangement was made to meet at the front entrance of the hotel.
The appellant travelled to the hotel with Kurt, Federpoulai and Laki in a four wheel drive vehicle. When the vehicle arrived at the entrance, Ayna could only see Federpoulai, who was driving, and Kurt in the vehicle. The appellant was not inside the vehicle, and Laki was hidden in the rear of the vehicle.
Kurt told Ayna to get into the vehicle and that Laki and the appellant wanted to see Ayna. He said to Ayna that if he did not get into the vehicle, they would go to Ayna’s parents’ house. Ayna then got into the rear of the vehicle.
Once Ayna was in the vehicle, Laki came out of his concealed position in the rear of the vehicle and pointed an air rifle at Ayna’s head. The car drove into the hotel car park, where the appellant got into the vehicle and sat beside Ayna. Laki sat on Ayna’s other side.
In the car, Laki and the appellant told Ayna that he owed them two years’ gaol. This was a reference to the Coles assault in 2006.
After entering the vehicle, Ayna was driven away, leaving the grounds of the hotel. This constituted the charges of kidnapping and false imprisonment.
Federpoulai produced a machete and stopped the car near Heatherton Road. Federpoulai then threatened to cut Ayna’s throat and kill him. This constituted the first charge of threat to kill. The machete was placed on Ayna’s cheek and throat and, as he pulled away, he received a small scratch on his face. This constituted the charge of recklessly causing injury. The appellant emphasised that Ayna’s life was in his hands and threatened to kill him. This constituted the second charge of threat to kill.
Demands were made for money from Ayna. This constituted the charge of blackmail. Ayna asked to be taken to the Keysborough Hotel in order for him to get the money. Around this time, Federpoulai used the machete and pushed it into Ayna’s arm, causing a deep wound. This constituted the charge of intentionally causing injury. Ayna was then driven to the Keysborough Hotel.
Laki and the appellant walked Ayna into the Keysborough Hotel to obtain the money. Hotel staff noticed Ayna’s wounds and became suspicious. The police were contacted and attended shortly afterwards.
Kurt and Federpoulai were arrested near the four wheel drive vehicle upon arrival of police at the Keysborough Hotel. The appellant decamped from the vehicle and hid. The air rifle and machete were located on the ground near the vehicle. The appellant was arrested after being located by a police dog approximately 200 metres away.
The appellant was interviewed by police on 14 February 2010. The appellant stated that he had been drinking with friends, that they had gone for a drive and had ended up at the RSL, and that he had been drunk. The appellant admitted that they had picked up Ayna and driven to Keysborough. He stated that he did not know the reason they went there but that he went inside to gamble and there were police there. He stated that the reason he was found approximately 200 metres away was because he felt sick and was vomiting in the bushes. The appellant denied involvement in any of the offending, stating that he did not see a firearm or make any threats to Ayna.
The issues at trial
At trial, the appellant did not challenge Ayna’s account of events in the car save for Ayna’s evidence as to what the appellant said to him. The appellant admitted his presence in the car as Ayna alleged but testified in accordance with his interview that, because of his intoxication, he was unaware of the events described by Ayna and played no role in the offending.
Although the primary issue for the jury was whether Ayna was a reliable and credible witness, the Crown case was a very strong one, as most of Ayna’s account was conceded and corroborated. It was not in issue that the appellant had been in the company of the other men in the car for some hours before the alleged offending. Nor was it in issue that Ayna was threatened and got into the car, and that the appellant then entered the vehicle. It was not disputed that an air rifle and a machete were wielded, and that Ayna’s arm was cut. It was conceded that Ayna was threatened in the car by Laki and the driver Federpoulai. It was not contested that the appellant entered the Keysborough Hotel with Ayna and was there observed by staff. In the face of that uncontested evidence, the appellant testified that he was unaware of the plan by the others to kidnap and extort Ayna, that he coincidentally entered the car after Ayna had got in, that he did not threaten Ayna and that he was oblivious to all the unlawful conduct because he was drunk. The appellant gave an innocent explanation for why he departed the scene when the police arrived at the Hotel and how Ayna came to be injured.
Ground 1 — Admission of evidence regarding Coles assault and threats
In evidence, Ayna stated that he had witnessed the Coles assault and that Laki, the appellant and the appellant’s brother-in-law, Stacey Mee, were involved. He said that he had made a statement to the police to that effect. Ayna also testified that the men involved, including the appellant, later threatened him not to tell anyone about the assault.
The appellant submits that this evidence, and in particular Ayna’s statements that the appellant had participated in the Coles assault and that Ayna had changed his evidence about that assault because he had been threatened, should have been excluded under s 137 of the Evidence Act 2008 (Vic) on the basis that its probative value was outweighed by the danger of unfair prejudice to the appellant. For the reasons that follow, as a result of defence counsel’s failure to object to the admission of the impugned evidence, this submission must fail.
As it was anticipated that Ayna would give that evidence, defence counsel initially sought to have it excluded on the grounds that it would be unfairly prejudicial to the appellant. In discussion with counsel, the trial judge expressed the strong view that as the evidence provided the alleged motive for all of the offending charged and was integral to the evidence of Ayna, the probative value of the evidence outweighed its prejudicial effect:
HIS HONOUR: That’s admissible, isn’t it?
DEFENCE COUNSEL: Pardon, Your Honour.
HIS HONOUR: Isn’t that relevant?
DEFENCE COUNSEL: It’s highly prejudicial —
HIS HONOUR: Let’s go one step at a time. It’s clearly relevant because it goes to why this all —
DEFENCE COUNSEL: Allegedly.
HIS HONOUR: And it’s integral in what he says. The discretion is the prejudicial probative value, but you were acquitted of that offence.
DEFENCE COUNSEL: Correct. That’s in fact correct.
…
HIS HONOUR: … He changes his position like the wind blows.
DEFENCE COUNSEL: Yes, Your Honour. That’s correct.
HIS HONOUR: That’s what he does do. At one stage, he said, ‘No, I didn’t see anything.’ At the other stage he says, ‘I did,’ and here he says, ‘I did.’ But you’re entitled to the full benefit of your acquittal. It should be led as best as possible without the fact that [he was] there, but it’s going to be difficult. But certainly [he] gave evidence against [his] brother.
…
HIS HONOUR: [I]t goes to motive and he says the whole reason these fellows as a group get hold of him —
DEFENCE COUNSEL: No, I appreciate that.
HIS HONOUR: So it’s clearly relevant and admissible and can’t be kept out.
…
HIS HONOUR: But I understand the prejudice. The difficulty is he says your clients made assertions that night —
DEFENCE COUNSEL: That related to —
HIS HONOUR: — that related directly to that. You would be able to undermine the whole thing by saying that’s just not even true.
DEFENCE COUNSEL: Yes. I understand what Your Honour says. The prejudice can be overcome because of the factual inaccuracy of —
HIS HONOUR: Of it, and it’s integral to his whole story.
DEFENCE COUNSEL: I understand what Your Honour says and I’m guided by Your Honour’s views.
It is apparent that the trial judge was not only of the view that the Coles assault could not be excluded. He also suggested that the defence could fully explore the differences in Ayna’s account and could establish the appellant’s acquittal.
The appellant submitted that, in the above passage, counsel for the defence was overborne by the trial judge and so withdrew his objection to the admissibility of the evidence. That submission cannot be sustained. Defence counsel, upon seeing the force of the trial judge’s view, adopted it. He clearly recognised in his discussion with the trial judge that evidence of Ayna’s inconsistent accounts could be used to impugn Ayna’s credibility and that this was advantageous to the appellant. Thereafter he did not raise any further objection to the introduction of evidence that Ayna observed the Coles assault and implicated the appellant or that Ayna had been threatened by the appellant to retract his police statement.
As the Crown properly conceded, exclusion of evidence under s 137 is a question of law for this Court to determine,[1] and therefore the fact that objection was not taken to the admission of the evidence does not preclude a conclusion on appeal that a miscarriage of justice occurred as the result of failure to exclude the evidence. That said, a deliberate decision by defence counsel made for rational forensic reasons not to take or maintain an objection to the admissibility of evidence will usually be fatal to this ground of appeal.
[1]McCartney v The Queen (2012) 226 A Crim R 274, 281 [32], 286 [50]; Dupas v The Queen (2012) 218 A Crim R 507, 578 [241].
A central feature of the adversarial criminal trial is that it is solely for the accused to determine what matters are put in issue. Where it is proper to characterise the course followed by the defence as a failure to object to the admission or use of evidence, the appellant would need to demonstrate that there was no tactical advantage to the appellant and that it presented a very obvious and overwhelming prejudice to the appellant before it could be said that a miscarriage of justice had been occasioned.[2]
[2]Papakosmas v The Queen (1999) 196 CLR 297, 319 (McHugh J); FDP v The Queen (2008) 74 NSWLR 645, 649 (‘FDP’).
As Gleeson CJ observed in Nudd v The Queen,[3] ‘[i]t is the fairness of the process that is in question; not the wisdom of counsel’ when an appellate court considers whether a miscarriage of justice has occurred as a result of a decision by counsel, and counsel is afforded wide discretion in the running of a criminal trial.
[3](2006) 80 ALJR 614, 618 [9].
It will not be uncommon for counsel to rationally seek the admission of evidence to which different counsel might have strenuously objected. In Suresh v The Queen,[4] McHugh J held:
Having regard to the way in which the case was conducted, it is impossible to conclude that the admission of the complaint evidence constituted a miscarriage of justice. The evidence was admitted without objection because it was perceived to be highly supportive of the defence theory of the case. Other counsel may have elected to fight the case on a different basis from that selected by the appellant’s counsel, but no one could reasonably say that a competent counsel would not have run the case in the way that defence counsel ran it at the trial.
The appellant wanted the evidence of the complaint to be admitted because its admission was perceived as giving the appellant a better chance of acquittal than if the tender of the evidence had been rejected. The admission of the complainant’s statement to her schoolfriends therefore did not deny the accused a fair trial or result in a miscarriage of justice. On the contrary, by not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused’s acquittal.
[4](1998) 102 A Crim R 18, 24–5 [22]–[23], cited with approval in Patel v The Queen (2012) 274 CLR 531, 562–3 (French CJ, Hayne, Kiefel and Bell JJ).
Maxwell P, in James v The Queen,[5] reviewed the relevant authorities on the consequences of a forensic decision made by counsel at trial[6] and said:[7]
[I]n the appellate consideration of whether the course of a trial has occasioned a miscarriage of justice, very great significance is attached to informed decisions made by defence counsel about the best way to conduct the trial in the interests of the accused. As will appear, the proposition which underpins those decisions is that, in an adversarial system, the making of such decisions on behalf of an accused is itself an exercise of the right to a fair trial.
[5][2013] VSCA 55 (‘James’), affirmed (without comment on Maxwell P’s judgment) by James v The Queen (2014) 88 ALJR 427.
[6]Patel v The Queen (2012) 274 CLR 531, 562–3 (French CJ, Hayne, Kiefel and Bell JJ); Suresh v The Queen (1998) 102 A Crim R 18, 24–5 [22]–[23] (McHugh J); Ali v The Queen (2005) 79 ALJR 662, 664 [7], 677 [99] (Callinan and Heydon JJ); TKWJ v The Queen (2002) 212 CLR 124, 133 (Gaudron J); Nudd v The Queen (2006) 80 ALJR 614, 618–19 [9] (Gleeson CJ); Re Ratten [1974] VR 201, 214; R v Miletic [1997] 1 VR 593, 598, 600.
[7]James [2013] VSCA 55, [4].
As the trial judge observed, the impugned evidence here had the potential to be advantageous to the defence case that Ayna was not a reliable witness. The
evidence was introduced after the abandonment of any objection and with a clear forensic purpose for the defence. The appellant cannot now complain that the admission of the evidence constituted a miscarriage of justice. As Maxwell P concluded in James,[8] ‘rational forensic judgments made by defence counsel constitute an exercise, rather than an infringement, of the accused’s right to a fair trial’. Furthermore, where counsel makes a considered judgment not to object to the introduction of inadmissible evidence, the party may thereafter be treated as having waived any right to appeal on that point.[9] There is a distinction between ‘a mere failure to object to evidence so that it is received as it were per incuriam and a conscious decision by counsel whether to object or not to object’.[10] In the latter case, the party will usually be bound by counsel’s decision. Counsel’s abandonment of his objection to the introduction of the evidence of the appellant’s participation in the Coles assault, and the absence of any objection to the introduction of the evidence concerning the threats made by the appellant, were rational forensic decisions that now preclude the appellant from claiming that the introduction of that evidence constituted a miscarriage of justice.
[8]Ibid [13].
[9]Radford v The Queen (1993) 66 A Crim R 210; R v Clark (2005) 13 VR 75.
[10]R v Gay [1976] VR 577, 584.
Finally, even if the decision to abandon and waive any objection was not determinative, the probative value of this evidence plainly outweighed any prejudicial effect. The trial judge would have fallen into error had the evidence been excluded.
The Crown’s case at trial was that the appellant was part of a premeditated plan to commit the charged offences and that he did not happen to coincidentally enter and remain in the car at a time while his brother and others committed the alleged offences. It was accepted on appeal that Ayna’s evidence that he had witnessed the Coles assault and the appellant’s involvement therein, and that he had changed his statement about the assault because of the threats made to him by the appellant and others, was relevant for the following reasons. First, it provided the appellant with a motive to commit the offences charged. The substance of Ayna’s testimony was that by cooperating with the police he had implicated the appellant and Laki in the Coles assault. The evidence explained why the appellant and Laki were likely parties to the plan to visit retribution on Ayna and why they were seeking to extort money. Second, it added force to the Crown’s case that the appellant was an interested and active participant in the plan for Kurt to telephone Ayna to arrange a meeting at the hotel. The appellant had testified that there had been a family gathering at his house that day at which Laki, Federpoulai, Stacey Mee and others were also present. He said that they left and travelled to Kurt’s house and from there to the Sandown Park Hotel. The impugned evidence made it improbable that the appellant would not have been involved in the discussion and planning that evening to kidnap Ayna, obtain retribution and extort money from Ayna. Third, the evidence explained why Ayna, when told by Kurt at the car that the appellant and Laki wanted to speak to him, got into the car against his will after a threat was made as to what they would otherwise do to his parents. Ayna said he was fearful of the appellant and thought he would carry out the threat. Fourth, it provided a more cogent explanation for why the appellant as well as Laki would tell Ayna that he owed them two years’ gaol. Finally, it also explains why Ayna succumbed to the further threats and attempt to extort money from him when the appellant told Ayna that his life was in the appellant’s hands.
The trial judge’s instinct during argument was plainly correct that the probative value of such evidence clearly outweighed the prejudice arising from the fact that Ayna would allege that he had witnessed the Coles assault, implicated the appellant to police and was threatened by the appellant not to continue to cooperate.
It is now contended that the Crown should have led evidence about the Coles assault and threat without including the fact that the appellant was involved in the assault or the threat. The argument assigns no weight to the probative value of the evidence that he was involved in the Coles assault and was party to the threats made to Ayna which caused him to change his evidence. For the reasons already discussed, the appellant’s direct involvement in the assault and the threat rendered Ayna’s account of the appellant’s role in the offences charged more likely.
As counsel for the appellant made a rational forensic decision to abandon any objection to the admission of the evidence, he cannot now complain that its introduction rendered the trial unfair. The evidence was so inextricably linked to the offences and possessed such probative value that had the objection been maintained, its exclusion under s 137 would have been erroneous.
This ground of appeal is not made out.
Grounds 4 and 5 — Admission of evidence said to controvert acquittal — What direction to the jury was required?
On appeal, the argument was raised for the first time that an unfair prejudice arose from the introduction of evidence that would controvert the appellant’s acquittal of the Coles assault. The appellant, invoking the rule that an acquittal cannot be controverted, contends that no evidence should have been led about his role in the Coles assault or the threat that might have suggested that he was involved.
To put this contention in its right perspective, it is necessary to appreciate that the Crown was not intending to lead any evidence that the appellant had been charged with or acquitted of the Coles assault. As the above quoted passage of the exchange between the judge and defence counsel suggests, defence counsel could have cross-examined Ayna about the different accounts he had given of the Coles assault and might have established that the appellant had been charged and acquitted. But whether that would emerge depended upon what defence counsel chose to establish in cross-examination of Ayna or lead in evidence from other witnesses, such as the appellant.
Ayna gave evidence that he had made a statement to the police about his observations of the Coles assault. That was the entirety of the evidence given by Ayna from which it might be inferred that he had said in his statement that he had witnessed the assault and that the appellant was involved. Ayna testified that at the committal he was unwilling to give evidence as to what he had said in his statement. In very brief cross-examination, it was put to Ayna that he had changed his evidence concerning the Coles assault. He agreed that he had changed his account but said that he had done so because he had been threatened. Defence counsel did not explore to any great extent what he had said in his statement. He did not seek to establish that the appellant had been charged with or acquitted of the Coles assault. He did not explore any inconsistencies between Ayna’s statement and any evidence he gave at the committal relating to the Coles assault, or between his evidence at that committal and at the appellant’s trial. In re-examination, Ayna stated that he had changed his evidence because he was threatened by Laki, Mee and the appellant.
The only other relevant evidence as to the Coles assault came from the appellant who testified that Ayna had made a statement to the police implicating Laki and Mee and had given evidence against Mee at the committal hearing. The appellant said that Laki and Mee had been charged for the assault, and Mee spent two years in gaol. In chief, he was not asked whether he had been charged with or acquitted of the assault. In cross-examination, the appellant said he did not know whether Ayna had implicated him in the assault.
The evidence concerning the Coles assault was deliberately left in an uncertain state by the defence. No evidence was placed before the jury as to whether the appellant had been charged with or acquitted of the Coles assault or whether there was any evidence led by the prosecution at the committal hearing that the appellant had been involved in the Coles assault. There was no suggestion that there were any proceedings taken against the appellant.
That is the setting in which the well-established rule that an acquittal must not be controverted in later proceedings must be considered.[11] In a much-cited passage from Storey, Barwick CJ explained that evidence admissible to establish an earlier offence is not inadmissible merely because it was tendered in the earlier proceedings, but ‘a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion’.[12]
[11]See Garrett v The Queen (1977) 139 CLR 437, 445; R v Storey (1978) 140 CLR 364, 372 (‘Storey’); R v Carroll (2002) 213 CLR 635, 647–51 (‘Carroll’); Washer v Western Australia (2007) 234 CLR 492 (‘Washer’).
[12](1978) 140 CLR 364, 372.
The appellant submits that the rule extends so far as to preclude the leading of any evidence that the appellant participated in the Coles assault and that, the evidence of his participation in the Coles assault having been wrongly adduced, the trial judge was then obliged to have directed the jury that they could not use that evidence to reach a conclusion that the appellant was guilty of that assault. The submissions thus advanced raise the questions whether the introduction of the impugned evidence prevented the appellant from having the ‘full benefit’ of the acquittal, how the rule is to be observed where the charge and acquittal are not before the court, and whether there was an obligation upon the judge to introduce the fact of the acquittal and instruct the jury as to how they must approach the issue.
No application was made at trial that the evidence be excluded on the basis that it controverted the acquittal. During oral argument before this Court concerning ground 1 it became clear that s 137 did not provide a basis for the exclusion of evidence that controverted an acquittal. Ground 4 was then proposed and later ground 5. The submissions then advanced in support of those grounds commenced with the assumptions that such evidence, being relevant, was admissible[13] and that the trial judge had a power to and failed to exclude such evidence on the basis that it controverted the acquittal. Although the issue was not the subject of argument I accept the assumption to be correct that if a trial judge is faced with evidence that is directly and manifestly inconsistent with an acquittal or which infringes the principle against double jeopardy, the trial judge, rather than stay the proceedings as an abuse of process, may exercise the common law discretion to exclude any evidence that would be unfair to the accused.[14]
[13]See Evidence Act 2008 (Vic) s 56.
[14]In relation to the common law discretion, see Haddara v The Queen [2014] VSCA 100.
Was the impugned evidence manifestly inconsistent with the acquittal so that it should have been excluded? The degree of inconsistency between the acquittal and the impugned evidence requires identification of the effect of the earlier acquittal and its relationship to the later charge;[15] that is, what it is that the earlier acquittal establishes and what the prosecution seeks to establish in support of the subject charge. A comparison of the elements of the offence of which the person was acquitted and those of the offence with which the person is later charged may provide guidance as it is the verdict which is incontrovertible.[16]
[15]Washer (2007) 234 CLR 492, 505 (Gleeson CJ, Heydon and Crennan JJ).
[16]Carroll (2002) 213 CLR 635, 650–1.
In Carroll, Gleeson CJ and Hayne J observed that the principle that an acquittal may not be controverted allows room for the admission of evidence that suggests that the accused did in fact commit the offence for which the accused was acquitted.[17] The finality of a verdict of acquittal ‘does not necessarily prevent the … tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision’.[18] In Storey it was said that evidence tending to show that the accused was guilty of an offence of which he had been acquitted may be admitted subject to appropriate direction that it must not be taken as proving guilt on the previous charge.[19] Thus similar fact evidence is not rendered inadmissible merely because it shows that the defendant was guilty of an offence of which he had been acquitted.[20]
[17]Ibid 650.
[18]Ibid 651.
[19](1978) 140 CLR 364, 372, 397, 408–9, 424–5; see also Carroll (2002) 213 CLR 635, 675–6 (McHugh J).
[20]Carroll (2002) 213 CLR 635, 663–4 (Gaudron and Gummow JJ); R v Z [2000] 2 AC 483; R v Arp [1998] 3 SCR 339; R v Degnan [2001] 1 NZLR 280.
In Gilham v The Queen,[21] the applicant had previously admitted killing his brother on the basis of provocation, that provocation being that his brother had killed their parents. The applicant was acquitted of the murder of his brother and was convicted of manslaughter. At a later trial of the applicant after new evidence emerged, the applicant was convicted of the murder of his parents. The New South Wales Court of Criminal Appeal held that the trial judge did not err in allowing the Crown to adduce evidence which cast doubt upon the applicant’s previous acquittal while prosecuting the later charges:[22]
[T]he Crown was entitled to undermine the earlier acquittal solely as an incident of, or step along the way to, proving that the applicant murdered his parents. The Crown could not, and did not, mount a standalone argument that the applicant was criminally responsible for murdering [his brother]. The Crown made that insinuation only to the extent necessary to prove that the applicant murdered his parents.
[21](2012) 224 A Crim R 22 (‘Gilham’).
[22]Ibid 39.
This question was raised in R v VN[23] where, after a review of relevant authority, I concluded (Maxwell P and Buchanan JA concurring) that:[24]
It can be seen that compliance with the principle that an acquittal must be recognised fully and without qualification for all purposes in criminal proceedings does not necessarily entail the exclusion at a later trial of relevant evidence led in the previous trial.
[23](2006) 15 VR 113.
[24]Ibid 136.
This was not a case in which there was any inherent inconsistency between the appellant’s prior acquittal on the Coles assault and evidence of the charged offences. The jury was not required to determine whether the appellant was guilty of the Coles assault in order to find that he was guilty of the charged offences. Moreover, the jury was not required to come to any conclusion with respect to any element of any of the charged offences that was inconsistent with any element of the appellant’s acquittal for the Coles assault. The jury was not asked, and nor in context was the jury required, to determine whether the appellant had committed an offence against the criminal law in relation to the Coles assault.
Here, as in Gilham,[25] the Crown adduced the evidence of the appellant’s participation in the Coles assault only for the purpose of essential context and to establish motive. The Crown did not seek to rely on the evidence to prove that the appellant was guilty of the Coles assault. In closing the prosecutor submitted to the jury:
[I]f you take the view of the evidence that I’ve suggested, really there is only one conclusion available — it is quite inescapable — and that is that Mehmet Kurt and Peter Ulutui, the accused, along with brother [Laki] and [Peter Federpoulai] formed an agreement to kidnap and to terrorise Mr Cihan [Ayna] and these offences were committed in accordance with that agreement and the purpose of the agreement was basically to get $2000 out of [Ayna] and to take some sort of revenge on him for making that statement some time earlier implicating members of the Ulutui family for that assault outside the Dandenong Coles.
[25](2012) 224 A Crim R 22.
It was for the jury to determine whether to accept Ayna’s evidence that the appellant regarded Ayna’s co-operation with police investigating the Coles assault as providing a motive for the crimes with which the appellant was charged. The jury was not asked to reach a conclusion as to the appellant’s criminal guilt in respect of the Coles assault. On the evidence that was elicited, all the jury could say about the Coles assault was that Ayna now claimed that the appellant had been involved, that it was not clear whether Ayna had previously claimed that to be so, that Ayna had implicated Laki in the assault, that Laki and the appellant’s brother in law (Mee) had been charged, that Mee had been convicted, and that Ayna had been threatened and had refused to testify as to the content of his statement.
As there was no manifest inconsistency, the rule does not prohibit the admission of evidence of the appellant’s participation in the Coles assault. The impugned evidence of Ayna did not directly and necessarily negative or impeach the prior acquittal, though it might have supported the inference that the appellant was wrongly acquitted.[26] It was open to the Crown to lead evidence from which it might have been inferred, though not necessarily, that the earlier acquittal was incorrect. While the appellant is entitled to the ‘full benefit’ of his acquittal for the prior assault, evidence of his participation in the prior assault was admissible as it was relevant and was able to be used by the jury in a way that did not negative the appellant’s acquittal. The evidence went directly to the charged offences and did not, by its admission, controvert the appellant’s acquittal. Ground 4 cannot be sustained.
[26]Carroll (2002) 213 CLR 635, 666 (Gaudron and Gummow JJ); DPP v Humphrys [1977] AC 1.
The appellant ultimately contended that, despite the absence of evidence that the appellant had been charged or acquitted, the trial judge should have informed the jury of the acquittal when it became apparent that no one else intended introducing it and directed them that they could not conclude from the evidence of the prior assault that the appellant was guilty of that assault. That led to the formulation of proposed ground 5, which I would grant leave to add to the appellant’s grounds of appeal.
In Washer, Gleeson CJ, Heydon and Crennan JJ observed that the admissibility of such evidence is conditioned upon a direction to the jury ‘not to interpret it in such a way as to deny the acquittal’.[27] The nature of the direction to the jury, once evidence of an acquittal is admitted, was explained in Gilham in these terms:[28]
Once it became apparent that the acquittal was relevant, the applicant became entitled to the ‘full benefit’ of that acquittal: [Garrett v The Queen (1977) 139 CLR 437, 445 (Barwick CJ)]. Where evidence of an acquittal is admitted, it is not enough for a trial judge to instruct a jury, without further explanation, that a defendant is to be given the full benefit of his or her acquittal. The jury must be told what it means in the circumstances of the instant case to give the defendant the full benefit of the earlier acquittal: [Washer (2007) 234 CLR 492, 506 (Gleeson CJ, Heydon and Crennan JJ)]. In the context of the trial, that required the trial judge to inform the jury that the applicant’s acquittal of murder constituted a formal acknowledgement by the sentencing court that the Crown could not, as at April 1995, negative the reasonable possibility that [his brother] had killed [their parents], and that in doing so he provoked the applicant to kill him. …
[T]he weight to be given to the assumptions that underlay the acquittal was entirely a matter for the jury. However, the jury were unable to consider whether to attach any weight to the fact of the acquittal because the trial judge did not inform them of it.
[27](2007) 234 CLR 492, 506 (emphasis added), citing with approval Storey (1978) 140 CLR 364.
[28]Gilham (2012) 224 A Crim R 22, 38 [152].
During counsel’s abortive attempt to object to the admission of the evidence of the Coles assault, the trial judge did acknowledge that the appellant was entitled to the full benefit of his acquittal but this was upon the assumption he made that evidence of it would be introduced during the trial. The proposed ground raises the question whether, given the state of the evidence, the trial judge was under an obligation to give the direction now suggested. Critical to this issue is the fact that the appellant’s charge and acquittal were not placed in evidence, with the result that there was no discussion at any point in the trial as to the need to warn the jury that the impugned evidence could not be used to negative the appellant’s acquittal.
Even if there was a risk that the jury might treat the evidence of Ayna as to the appellant’s conduct in the Coles assault as establishing the appellant’s guilt, thus potentially controverting the appellant’s acquittal on the Coles assault, the rational forensic decisions made by the appellant’s counsel at trial preclude an argument now that the trial judge should have directed the jury that they could not use Ayna’s evidence of the appellant’s participation in the Coles assault as evidence of his guilt of that offence. One cannot ignore the manner in which the trial was conducted. The decisions of the defence as to the evidence that was placed before the jury, the absence of any request that the trial judge give the direction now sought and the absence of any exception to the charge pose insuperable obstacles to the success of such a ground.
There is likely an entirely rational forensic explanation for why experienced defence counsel chose not to inform the jury of the fact of the appellant’s acquittal of the Coles assault or that the appellant had been charged in the matter. Had counsel explored the detail of Ayna’s statement to police and his observations of the appellant’s involvement in the Coles assault, the jury may have more readily concluded that the appellant was in fact involved. The fact that the appellant was charged would very likely have emerged. That may have led to an elucidation of the prosecution case against the appellant on the Coles assault. There is no material before the Court as to the evidence that may have established the appellant’s guilt. It is unknown what would have emerged had there been any focus upon the Coles assault and the appellant’s role therein, or upon the threats from the appellant and others that induced Ayna to refuse to testify at the committal in accordance with his statement. All of that may have increased the likelihood that the jury thought Ayna’s account — that the appellant was involved — to be truthful, and given greater prominence to the Crown’s alleged motive for the charged offences and Ayna’s reasons for co-operating with the appellant. The defence may for these reasons have been unwilling to pursue the course of informing the jury about the appellant being charged with and acquitted of the Coles assault.
There is a further insurmountable difficulty facing the appellant. For the trial judge to have given the jury the suggested direction in order that the appellant receive the full benefit of his acquittal, the judge would have had to inform the jury that the appellant had been charged with the offence. In giving the suggested direction, he would have had to outline the way in which the evidence could be interpreted such that it did not controvert the acquittal, as explained in Storey[29] and Washer.[30] The necessary amplification of the direction would have required explanation as to how they were not to use the evidence to find that the appellant was guilty of the Coles assault.
[29](1978) 140 CLR 364.
[30](2007) 234 CLR 492.
There are no circumstances, save with the consent of the parties, in which a trial judge may place matters before a jury that are not the subject of evidence. The verdict of a jury must rest entirely upon the evidence adduced at trial. Where an issue arises that enlivens the duty to ensure that the trial is ‘fair’, the trial judge may pursue an inquiry with the parties as whether certain evidence should be placed before the jury. But that would be an unusual circumstance. For example, the judge may, in very rare circumstances, call a witness of his or her motion when the Crown will not do so and the defence wishes the witness to be called. Such exceptional circumstances aside, it is for the parties to determine the scope of the evidence.
In the absence of evidence that the appellant had in fact been charged and acquitted, the judge had no duty to do as the appellant now suggests. Even if the forensic reason for the state of the evidence was not readily apparent, the judge had no obligation to inquire of the defence why these facts were not elicited. The absence of such evidence did not give rise to some fundamental unfairness which would require the trial judge to become involved. There was no perceptible risk of a miscarriage of justice if the judge did not intervene.
For the reasons given above, an appellate court must defer to considered rational forensic decisions by counsel. In this case, counsel for the defence may have wished to avoid emphasising the prior assault; leading evidence of the acquittal was, as I have said, likely to have provoked greater elucidation by Ayna of the actual assault and his reasons for his change of position, which would likely have been highly prejudicial to the appellant.
I would refuse leave to appeal on ground 5.
Ground 2 — Jury direction regarding propensity
This is, yet again, a complaint about the absence of a direction made for the first time on appeal. The appellant submits that, having admitted evidence of the Coles assault, the trial judge should have given a conventional anti-propensity direction. The submission is that he ought to have directed the jury that it is impermissible to reason from the evidence of a prior criminal act that the accused is of bad character or is the ‘kind of person’ likely to commit the charged offence.[31] His Honour did not give any such direction. For the reasons that follow, I do not consider that the circumstances that pertained required the trial judge to give such a direction.
[31]See R v Grech [1997] 2 VR 609, 614.
It is well established that the admission of evidence of prior criminal acts will usually give rise to a risk that the jury may engage in tendency or propensity reasoning and will require an anti-propensity direction. Such a direction will not be required in those cases where there is no or negligible risk that the jury will use the evidence in that impermissible way. In R v Georgiev,[32] the applicant had carried out a revenge killing in response to a previous violent attack by the victim against the applicant’s partner in a drug trafficking business. The critical piece of evidence in the Crown’s case against the applicant was his confession to a third person, which was only explicable in the context of a history of drug dealing by the applicant. Complaint was made on appeal that the trial judge had erred in failing to give appropriate directions to the jury, including an anti-propensity warning in relation to evidence of the applicant’s history of drug dealing.
[32](2001) 119 A Crim R 363 (‘Georgiev’).
Brooking and Phillips JJA in their joint judgment concluded that the trial judge had not been required to deliver a propensity warning to the jury as ‘there was no real risk that the present jury, in the course of reasoning to a conviction, would make an impermissible use of the evidence that the applicant was a heroin trafficker’.[33] They said:[34]
The evidence of motive … was tied by the judge to the evidence of the confession; the jury were told that they were to be satisfied of the first before they could be satisfied of the second, and further that proof of the confession beyond reasonable doubt was critical to a finding of guilt. In the circumstances of this case any danger that the jury would act on a view about the propensity of heroin traffickers to murder seems to us to have been non-existent or at least insignificant.
[33]Ibid 370.
[34]Ibid 369.
Similarly, in Conway v The Queen,[35] the appellant appealed against his conviction for the murder of his wife on the ground, inter alia, that the trial judge had erred in failing to give an anti-propensity warning in respect of evidence that the appellant had drugged his wife’s coffee with heroin on a previous occasion. The Crown case was that the appellant had later hired two men to murder his wife by injecting her with heroin. The Court found that the Crown had led the evidence to support its contentions relating to the appellant’s preparatory acts and motive for the murder, and held:[36]
We consider it to be almost fanciful to suggest that the jury may have reasoned that merely because [the appellant] was prepared to put heroin into the deceased’s coffee on the morning of 25 April 1997, he was therefore by disposition likely to have hired Steer and Williams to inject heroin into her arm a week or so later. Although the evidence concerning the coffee incident was led with a view to persuading the jury that [the appellant] had engaged in conduct preparatory to the murder, the process of reasoning by which they would come to that conclusion was not propensity reasoning.
[35](2000) 98 FCR 204.
[36]Ibid 247.
In FDP,[37] the appellant appealed to the New South Wales Court of Criminal Appeal against his convictions for the malicious wounding of his estranged wife and three counts of abduction for removing his children from the lawful custody of their mother, submitting that the trial judge had erred in admitting evidence relating to an earlier incident involving threats made by the appellant against his wife and children and a related apprehended domestic violence order (‘ADVO’) taken out against the appellant. As here, the appellant argued that, despite a lack of objection by trial counsel to the admission of the evidence, because the evidence suggested that the appellant had a propensity to behave in a violent or threatening manner towards his estranged wife, the lack of a protective anti-propensity warning was productive of a miscarriage of justice. The Court held that the evidence of the prior events and the ADVO constituted ‘background or context evidence’,[38] and rejected the submission that it could have given rise to propensity reasoning:[39]
[T]he category of evidence into which the [previous threats] and the making of the ADVO fall has never been considered as propensity evidence even though it is admitted to explain the conduct giving rise to the criminal charges by reference to conduct on another occasion. Nor has it ever been seen to carry with it the type of prejudice that has accompanied the introduction of uncharged sexual activity in child sexual assault cases. In the present case … there can be no concern that the jury could reasonably have used the evidence for propensity reasoning. The Crown in opening described it as ‘background’. It was never elevated to anything more than that either in addresses or in the summing up.
[37](2008) 74 NSWLR 645.
[38]Ibid 654.
[39]Ibid 654–5.
In FDP, the Court considered that the evidence of the prior events was probative of the major issue to be determined by the jury (whether the appellant or his estranged wife had brought the knife that was the weapon used in the charged offences to the meeting between them), as those events were clearly relevant to the appellant’s state of mind at the time of the charged offences.[40]
[40]Ibid 655.
The degree of nexus of the evidence of other criminal conduct to the issues in the case, and the importance of those issues to the resolution of the accused’s guilt, is critical to the question whether there is a real risk of propensity reasoning. Where such evidence is directly linked to issues which will determine the accused’s guilt, the danger of the evidence being used for propensity reasoning may be minimal or non-existent.
In its closing address, the Crown relied upon the evidence of the Coles assault only as providing motive for the charged offences. It also relied upon the appellant’s statement in cross-examination that he was aware that Ayna had made a statement to the police implicating the appellant’s brother and brother-in law, and a statement at a committal hearing implicating the appellant’s brother-in-law, in the assault. This provided independent support for Ayna’s version of events, supporting Ayna’s credibility in relation to his evidence as a whole. The evidence of the Coles assault was inextricably tied to the motive for the charged offences and whether the appellant had said what Ayna claimed. In his charge to the jury, the trial judge briefly summarised the evidence of the Coles assault and explained its use as an alleged motive for the offences. That the Coles assault was the motive for the offending by the other men was not put in issue — the defence was that the appellant was not so motivated and was not a party to the purpose of the other men. The Coles assault was thus introduced to explain and support Ayna’s account of what the appellant and the other men did.
The key issue at trial was whether Ayna’s evidence as to the appellant’s involvement in the conduct of the other men in the vehicle could be believed. The criminal conduct of the other men was largely unchallenged, as was their asserted purpose, namely retribution and an attempt to extort money from Ayna because of his co-operation with investigating police. In order to convict the appellant on the charged offences, the jury had to have accepted Ayna’s account that the Coles assault was the asserted motive for, and explained, all of the behaviour of all of the men including the appellant. Acceptance of Ayna’s evidence that the appellant had been involved in the Coles assault and had threatened him to remain silent advanced the likelihood of Ayna’s account in the various ways I have earlier set out. The probability that the appellant was also a party to the plan to seek retribution and extort money from Ayna was increased once the jury accepted Ayna’s evidence of his involvement in the assault and his threats. If the jury accepted that those facts made Ayna’s account of what occurred in the car more probable, there was no real risk of further impermissible reasoning arising from a finding that the appellant had been involved in the assault. It was directly relevant to issues which, if resolved adversely to the appellant, would be conclusive of his guilt. The jury having accepted Ayna’s account of the references made by the appellant and his brother to him owing them two years’ gaol for the Coles assault, the jury would then have been satisfied of the appellant’s complicity in the offences charged. The Coles assault could otherwise serve no purpose in their reasoning such that a perceptible risk of misuse of the evidence existed.
The experienced trial judge did not perceive the need for a propensity warning. The conclusion that a propensity warning is not required in a given case may be strengthened by the prospect that giving a direction as to propensity may have the prejudicial effect of drawing the jury’s attention to the possibility of using the impugned evidence in an impermissible way.[41] Counsel for the defence may in any case make a forensic decision not to request that prophylactic directions be given to the jury in respect of prejudicial evidence, for this or another reason. Here counsel for the defence did not request that the trial judge give a warning against propensity reasoning or explain to the jury how they might permissibly use the evidence of the appellant’s role in the prior assault. A forensic decision by defence counsel not to ask for a warning to the jury may be significant. In Georgiev, Brooking and Phillips JJA opined that:[42]
[T]he omission of counsel to ask for a direction may well have been due to a forensic decision on his part, and a sound one at that, the view having been taken that it was better to have nothing said about propensity and motive than to have a direction from the judge about the use it was open to the jury to make of the suggested motive if they found it established.
[41]See, eg, R v Bastan [2009] VSCA 157, [25] (Buchanan JA).
[42](2001) 119 A Crim R 363, 367.
The animating concern of a propensity warning is to protect the accused from unfair prejudice. In its submissions, the Crown conceded, contrary to the view I have reached, that the trial judge ought to have warned the jury against impermissible reasoning from the evidence. But the Crown contended that if the direction should have been given, it did not occasion any miscarriage of justice. As McHugh J explained in BRS v The Queen,[43] the real question in determining whether a failure to direct has produced a miscarriage of justice is whether ‘the direction which should have been given would have given the appellant a real chance of acquittal that he did not have because the judge said nothing about [the] evidence’.
[43](1997) 191 CLR 275, 308.
For the reasons I have already given, there was no risk that propensity reasoning could have contributed to the verdict, as the evidence of motive based upon that Coles assault was inextricably linked to the offending conduct. I accept the Crown submission that the absence of such a warning did not give rise to the risk of a miscarriage of justice. The Crown case was overwhelming. The appellant’s defence was highly implausible. Almost all of Ayna’s account was not in issue. Ayna’s account was supported by the other evidence adduced during the trial. In order to deliver a guilty verdict, the jury must have accepted that Ayna was an honest and reliable witness. For the reasons given above, the lack of a propensity warning was highly unlikely to have resulted in any impermissible reasoning on the part of the jury. Had such a warning been given, it is in my view clear that the jury would not have entertained any doubt about the appellant’s guilt. A conviction was inevitable. Even if the trial judge had been obliged to give an anti-propensity direction in relation to the impugned evidence, the lack of such a direction was not productive of a substantial miscarriage of justice.
This ground of appeal is not made out.
Ground 3 — Kidnapping direction
In response to a jury question seeking explanation of the distinction between kidnapping and false imprisonment, the trial judge gave the following redirection to the jury (emphasis added):
HIS HONOUR: Really the elements are set out in the wording of the charge itself and I will repeat it for you. I explained to you that kidnapping is a very old offence that has been around for the common law in England and Australia for many years. It is not an offence created by statute where it is by an Act of Parliament.
The Crown must prove each of the elements in these words, ‘took’, ‘carried away’, ‘unlawfully against his will’. You'll see the wording of the charge alleges that on 14 February, Kurt and Ulutui unlawfully took and carried away Mr [Ayna] against his will. To take means simply to seize, or to physically deprive Mr [Ayna] of his liberty. In this case the kidnapping is said by the Crown to be constituted by impelling him to get into the car. It's as simple as that. That's when the Crown say the kidnapping occurred, by the demand by Mehmet saying to him, according to Mr [Ayna], ‘If you don't get in, we'll go round and visit your family,’ or words to that effect. You'll recall the threat that was said to be made. So by compelling him to get into the car, the Crown case is that this was, although the words were said by Mehmet, the others were either acting in pursuance to a plan or aiding and abetting him in what was occurring. It was all part of a plan or aided and abetted him.
He must therefore be made to move to, or carried away, is taken from the place where he wanted to be. You can kidnap somebody by moving them a foot, but grabbing them and moving them, or compelling them to move from where they want to be. The offence is complete once that has been done. Obviously we think of kidnapping in the classic terms of children being taken and then held for ransom and demands made of parents and all that sort of thing, that's what we read about. The kidnapping is in fact taking them away, the actual movement of them, taking them from where they want to be, unlawfully against their will. Unlawfully, there's no suggestion of any lawful excuse here. The issue really is, there was not a kidnapping. He got in voluntarily, he was not made to get into that car by any threat, but you need to be satisfied that he was taken or moved from where he wanted to be, without any lawful excuse, against his will. It is as simple as that. They are the elements of kidnapping. Does that answer your question in relation to that?
You are then asked what point does the act of kidnapping stop and the act of false imprisonment begin. There is a huge overlap. When he is kidnapped he — the offence of kidnapping is complete really the moment somebody is moved the slightest distance from where they want to be. It's an ongoing offence in the same sense, it might go for some minutes or even hours thereafter, but the false imprisonment arises only at the point when he is unable to leave from where he is, when he is made to remain in the spot he's in.
Although you haven’t asked for it, false imprisonment involves compelling someone to remain in a particular place. It’s really the opposite side of the coin. If in this case you accept the Crown’s scenario the kidnapping occurs when he’s compelled to get into the car, the false imprisonment arises when he’s not allowed to get out, when he’s reached the point where he has to remain there.
His Honour had previously given the conventional direction on joint enterprise and aiding and abetting, and no complaint is made in relation to that direction.
Three different arguments can be discerned from the appellant’s written and oral submissions.
(i) First, that the direction unfairly and erroneously expanded the basis of the Crown case. It was not in issue that the appellant had arrived at the Sandown Park Hotel in the vehicle with his co-offenders and had left the vehicle just prior to Ayna being asked to get into the car, and that the appellant had re-entered the vehicle after the vehicle was driven a short distance in the hotel car park. What was in issue was Ayna’s further evidence that the appellant upon entering the vehicle pushed him to the middle of the back seat between the appellant and Laki, told Ayna that he owed them two years’ gaol and told the driver to ‘drive’. It was the Crown case that from the time that Ayna entered the car, the appellant was a party to a joint criminal enterprise with the other offenders or aided and abetted the commission of the offences. The direction was said to leave open the possibility that the jury could have found that the appellant became party to the joint enterprise or aided and abetted upon re-entering the car, but not before that time.
(ii) Second, it was said that the appellant could not have become complicit in the kidnapping by what he did after re-entering the vehicle as the offence of kidnapping was already complete.
(iii) Third, it seems also to have been contended that the evidence could only support a finding that the appellant was guilty of the charge of kidnapping on the basis of pre-concert but could not support a finding that he was an aider and abettor, as there was no evidence that he had done anything to encourage the commission of the offence before the appellant left the car.
No such exceptions were taken to the trial judge’s direction at trial.
Each of these submissions rests upon the quite artificial contention that the appellant re-entering the car could not be treated as conduct bearing upon his complicity. That the car travelled a short distance in the car park to where the appellant was concealed behind a tree and the appellant then entered the vehicle and extorted the victim while his brother held a gun to the victim’s head provided support for either of the bases for complicity. It demonstrated that his prior conduct in exiting the car was in pursuance of the joint enterprise or, in the highly unlikely event that the jury was not satisfied of any prior understanding, it was conduct which permitted the conclusion that in leaving the car and remaining concealed he intended to encourage and assist the principal offenders.
Dealing first with the third submission, the evidence pointed overwhelmingly to pre-concert before the appellant left the vehicle. The Crown put its case primarily on the basis that the appellant was a principal offender in a joint criminal enterprise. This was the focus of the Crown’s closing address to the jury. However, aiding and abetting was always a second basis of complicity relied upon by the Crown. The judge gave careful directions as to this alternative basis. There is no merit in the submission that it was not open to the jury to find the appellant guilty on this alternative basis of complicity. The evidence supported the view that the appellant either alighted from the car and hid in pursuance of the joint enterprise, or did so in order to make it easier for his co-offenders to induce Ayna to enter the vehicle. The appellant’s brother was concealed in the rear of the vehicle with a gun.
As to the first submission, the trial judge did not expand the basis upon which the prosecution sought to establish the appellant’s guilt. The jury was not directed that the offence of kidnapping was completed after the appellant re-entered the vehicle, or that it was open to them to treat the appellant as having joined the criminal enterprise to commit the crime of kidnapping or aided and abetted it as a consequence of his action upon re-entering the vehicle. The trial judge emphasised that the prosecution case was that the kidnapping occurred when Ayna, at Kurt’s demand, entered the vehicle and that the appellant and the others were acting in pursuance of a plan or were aiding and abetting Kurt in compelling Ayna to enter the vehicle.
In the context of answering the jury question as to the difference in principle between the offences of kidnapping and false imprisonment, the trial judge said that ‘the offence of kidnapping is complete really the moment somebody is moved the slightest distance from where they want to be’. That statement related to the element of ‘taking away’. It served to reinforce the prosecution case that the offence was committed when Ayna entered the vehicle against his will and the vehicle drove into the hotel car park but it unduly confined the element of ‘taking and carrying away’, as described below.
The second submission, that the appellant could not in law be complicit as a consequence only of his conduct upon re-entering the vehicle, must fail at the threshold because the first submission, that the judge gave the jury such an instruction, has not been made out. However, had the jury so reasoned, it would have occasioned no error.
The appellant’s submission — that the offence was complete before the appellant entered the vehicle and, therefore, that the appellant could not have been convicted of the kidnapping by his conduct upon re-entering the vehicle — misconceives the true nature of the offence. Although the Crown did not put its case in this way and the jury was not so directed, the appellant would have committed the offence as a result of re-entering the vehicle and taking the victim without the need to establish any antecedent complicity.
Historically, the forcible ‘stealing and carrying away’ of the victim was the gravamen of the common law kidnapping offence.[44] In R v D,[45] Lord Brandon of Oakbrook stated that the offence of kidnapping contains four ingredients: ‘(1) the taking or carrying away of one person by another; (2) by force or by fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse’.
[44]See Davis v The Queen [2006] NSWCCA 392, [27]–[29] (Howie J, Basten JA and Whealy J agreeing), citing Blackstone, Commentaries on the Laws of England (Lewis edition, 1897) vol 4, 21; East’s Pleas of the Crown (1803) vol 1; William Oldnall Russell, A Treatise on Crimes and Misdemeanours (4th ed, 1865) vol 1, 962.
[45][1984] AC 778, 800–1.
It is true that the offence of kidnapping is complete once the victim is taken or carried away.[46] Whether there was a taking away (and what conduct constituted the taking away) is a qualitative question,[47] and is a question of fact to be determined by the jury. Criminal liability will attach to the perpetrators at the moment that the taking away has occurred. However, although the offence is complete, the taking itself may continue. Others may commit the offence if they participate in a further taking away against the will of the victim.
[46]See R v Reid [1973] QB 299.
[47]See R v Campbell and Brennan [1981] Qd R 516, 521 (Demack J, DM Campbell and Kneipp JJ agreeing).
In Davis v The Queen,[48] the New South Wales Criminal Court of Appeal considered the NSW statutory formulation of the offence of kidnapping that included the element that a person ‘takes or detains a person’. After extensively reviewing the history of the common law offence of kidnapping Howie J (with whom Basten JA and Whealy J agreed) made the following observations:
Neither [R v Reid [1973] QB 299] nor [R v Campbell and Brennan [1981] Qd R 516] supports the proposition that a taking ceases to be a taking at the moment that the kidnapper becomes criminally liable for the offence. The offence might at that moment be complete in law, because the taking has been completed for the purposes of proving the offence, but it is not necessarily complete in fact. Once it has been established that a person has been ‘taken’, in the sense that he or she has been compelled to go where he or she did not want to go, the ‘taking’ continues until the compulsion ceases. It does not cease merely because the person has been taken for a certain distance or for a certain time or even because the kidnapper has ceased to physically move the victim and has commenced detaining that person in the one place. In a real sense, the kidnapper is taking the victim, that is causing the victim to accompany him or her, for the entire duration of the time, however long it is, that the victim is, as a result of the kidnapper’s conduct, involuntarily detained in a place that is not the place where the victim was first detained. The taking begins with the detention and asportation of the victim, and only ends when the victim is released or ceases to withhold consent to the detention.[49]
[48][2006] NSWCCA 392 (‘Davis’).
[49]Ibid [64].
In R v Vu,[50] the British Columbia Court of Appeal held, citing Davis, that a person who had not participated in the initial taking but had been present and participating while the victim was being held against his will was properly convicted as a party to the kidnapping. Finch CJBC stated:[51]
I consider the view expressed by Mr Justice Howie in [Davis] to be preferable. He makes the point that the offence at the moment of taking may be complete in law, but is not necessarily complete in fact.
[50][2011] BCCA 112.
[51]Ibid [56] (citation omitted).
As noted above, the trial judge instructed the jury that ‘the offence of kidnapping is complete really the moment somebody is moved the slightest distance from where they want to be’. Giving the element of ‘taking away’ a temporal limitation, the Crown rightly submits that the short distance the car travelled in the car park before the appellant entered the vehicle was not necessarily a ‘carrying away’ of the victim so that the offence was completed. The ‘carrying away’ required that the victim be removed to a different place to that in which he was first apprehended by the offender.[52] The question of the sufficiency of the distance in question for the purposes of the ‘carrying away’ was for the jury to decide. It would
have been open to the jury to find that at the time the appellant entered the vehicle the commission of the kidnapping offence was still underway as the movement of the vehicle a short distance into the hotel car park did not constitute the ‘carrying away’ of the victim against his wishes. Had they so reasoned, the appellant’s conduct following his re-entering the car would have been conduct which bore upon his complicity.
[52]See Davis [2006] NSWCCA 392, [32]–[33].
Even if the taking was complete once the victim was moved in the car park, the appellant would still in law commit an offence of kidnapping by entering the vehicle and instructing the driver to take the victim away against his will. It is unnecessary to express any view as to whether the appellant would then have become party to the existing offence or committed a discrete new offence of kidnapping.
I would refuse leave to appeal on this ground.
For the reasons given, I would refuse leave to appeal on grounds 3 and 5, and the appeal on grounds 1, 2 and 4 should be dismissed.
TATE JA:
I have had the considerable benefit of reading, in draft form, the reasons of Redlich JA. I agree, for the reasons his Honour gives, that leave to appeal should be refused on grounds 3 and 5, and otherwise the appeal should be dismissed.
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