Booth v The Queen [2014] VSCA 258

CRIMINAL PROCEDURE ACT 2009)

CRIMINAL LAW - Application for leave to appeal against conviction - Witness unavailable at trial - Statement admitted in to evidence - Evidence Act 2008 s 65 - Whether content relevant to issue in trial - Motive - Whether statement should have been excluded pursuant to s 137 - Leave to appeal refused.

CRIMINAL LAW - Application for leave to appeal against sentence - Principles in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 invoked on the plea - Sentencing judge rejected expert evidence of mental disorder and intellectual disability - No error in findings of fact.

1 The applicant was convicted in the County Court at Melbourne on charges of criminal damage, aggravated burglary, common law assault and kidnapping and was sentenced to a total effective sentence of nine years and three months with a non-parole period of seven years. He seeks leave to appeal against his conviction and sentence.

2 The relevant facts may be briefly summarised. In the early hours of the morning of 26 April 2011 the applicant had been at Vault nightclub in Werribee with Steven Kane. A man named Enzo Fornito was also at the club. Mr Fornito was the boyfriend of the complainant, Cassie Hunt. There was a verbal confrontation at the nightclub between Mr Fornito and the applicant in relation to Ms Hunt. There was an escalation in the argument in the club between Mr Fornito and his friends and the applicant and his friends and the two groups were asked to leave the club. A physical fight erupted outside the club between the two groups. During the fight outside the club, Mr Kane was knocked to the ground and the applicant assisted Mr Kane to leave. The applicant drove away from the club with Mr Kane and a third male. As the applicant left the nightclub around 3.10am, the vehicle he was driving sustained some damage in a single vehicle accident. At 3.30am, Ms Hunt and her mother, Karen Hunt, were asleep in their unit in Altona. The applicant and other men descended on the unit and from outside the premises, broke every window in the unit. That conduct constituted the charge of criminal damage. The car that had been driven by the applicant away from the nightclub had been parked in a street around the corner from the unit, close enough to walk to the Hunts' residence and then return to the car. A picket had been removed from the fence near where the car was parked and had been carried to the scene of the damage. The applicant's voice was recognised at the scene. An occupant of the unit saw the men return to the car and leave the vicinity. A portion of the bumper had fallen off in the area where the car had been parked. The men who had broken the windows of the unit said prior to leaving that they would be back.

3 At around the same time the next morning the applicant, accompanied by two other men, returned to the property in a different vehicle. On this occasion the complainant and her mother were sharing the same bed because they felt insecure. The windows of the property had not been repaired. The complainant and her mother awoke to find three masked men in their bedroom ordering them to get out of bed. That conduct constituted the charge of aggravated burglary. The applicant was holding a sawn-off shotgun. Ms Hunt was dragged out of the bedroom to the lounge by her hair. The applicant and the co-offenders sought to ascertain the whereabouts of the complainant's boyfriend, Mr Fornito. The complainant responded that she did not know. In the midst of this, her mother was physically assaulted by a co-offender. This conduct constituted the charge of common law assault.

4 The complainant was then abducted at gunpoint. She was dragged out physically to the car and ordered into the boot. The complainant and her mother were terrified and stunned neighbours looked down on the disturbance from adjacent properties. One of the men were seen to raise the gun and discharge it into the air out in the street. A fired wad of a shotgun cartridge was found in that location in the street. The car then left. Cassie remained locked in the boot of the car for several hours until her release at about 10.57am. The car had been parked outside the applicant's house from the early hours of the morning until the complainant was released. That conduct constitutes the charge of kidnapping. The complainant was seen walking away from the car in a dazed and emotional state, in her pyjamas; wet and dishevelled. The complainant described a number of occasions when the boot was opened during the kidnapping, on one occasion in order to provide the applicant with Mr Fornito's phone number. On another occasion she was bound with masking tape and on another she had a bucket of water thrown in at her.

5 Mr Fornito made a statement to investigating police concerning the events at the Vault nightclub. It appears that he was made available on one of the days assigned for the committal hearing but he was not reached on the day he first attended and was subsequently not required to attend.

6 At the time of the trial, the prosecution was unable to locate Mr Fornito. Application was made by the prosecution to the trial judge pursuant to s 65(1) of the Evidence Act 2008 to have his statement read into evidence. That application was granted. The sole ground of appeal against conviction is that the trial judge erred in admitting that statement into evidence.

7 Section 65 of the Evidence Act sets out the circumstances in which such a statement may be admitted into evidence. The defence contended at trial that the statement of Mr Fornito was irrelevant to any issue in the trial and in the alternative that it should be excluded pursuant to s 137 of the Act. It was not otherwise in issue that the preconditions to admission of the statement set out in s 65 were satisfied.

8 In his ruling on 25 July 2013 the trial judge found that the content of the statement of Mr Fornito was highly relevant to the facts that were live and in dispute at the trial. His Honour refused to exclude the evidence pursuant to s 137 as he was not satisfied that there was any risk of unfair prejudice to the applicant, the evidence being strongly probative of matters in issue. The ruling was, if I may say so, impeccable.

9 The applicant's argument in substance was that, as the applicant was not the instigator of the verbal confrontation with Fornito nor was the applicant a party to the physical altercation in which Kane was knocked to the ground outside the nightclub, the evidence at best showed animus by Kane towards Fornito but not by the applicant.

10 The prosecution case was that the common motive of the applicant and Kane was animosity towards Fornito and that the conduct constituting criminal damage and the subsequent kidnapping of the complainant occurred in pursuit of that common motive. The argument which the applicant and Fornito had in public at the nightclub followed immediately by the physical fight which ensued outside the nightclub between Fornito and his friends on one side and the applicant and his friends on the other provided significant probative evidence of motive. The applicant left the nightclub in a particular vehicle with Kane and others and that vehicle was seen a short time later in the vicinity of the complainant's premises where the conduct the subject of the criminal damage charge occurred. In the course of the aggravated burglary and kidnapping the offenders sought to ascertain the whereabouts of Fornito.

11 As the main issue in the trial was whether the applicant was present and participated in the act of criminal damage and in the kidnapping the following day, the contention that Fornito's statement was irrelevant to any fact in issue is not reasonably arguable. The common motive of Kane and the applicant was, as the trial judge found, highly relevant.

12 I turn to the contention that his Honour erred in refusing to exclude the statement pursuant to s 137. It was submitted that as the statement of Fornito could not be challenged through cross-examination, it would serve to unfairly bolster the respondent's case giving rise to the risk that it would be given disproportionate weight by the jury in identifying the applicant as one of those complicit in the offences charged. The trial judge recognised that the evidence should be excluded if there is a danger that the jury would adopt an illegitimate form of reasoning or misjudge the weight to be given to that evidence. Although s 65 rests upon the relevant witness being unavailable for cross-examination, his Honour recognised that the inability to cross-examine the maker of the statement may be taken into account in the weighing exercise pursuant to s 137. As his Honour noted, there was, however, no challenge by the defence as to the reliability of the events described by Fornito in his statement. Satisfaction with the requirements of s 65(2)(c) was not in issue. His Honour found that no risk of unfair prejudice had been identified by the defence and accordingly refused the application to exclude the evidence.

13 The applicant's written case in support of the present application does not identify any unfair prejudice, let alone prejudice that outweighs its probative value. It is not reasonably arguable that the evidence should have been excluded.

14 The application for leave to appeal against conviction must be refused.

15 The applicant seeks leave to appeal against sentence on two grounds which overlap. They are:

1. rejecting the evidence of Dr Lindsay Vowels as to the applicant's intellectual quotient (IQ) and accordingly not applying the principles of R v Verdins;[1] and
2. preferring the evidence of Mr Ian Joblin to that of Dr Lindsay Vowels.

Ground 2: The trial judge erred in -

iii. failing to obtain a Forensicare assessment of the applicant.

16 On the plea in mitigation the applicant contended that he suffered from a diagnosis of intellectual disability, acquired brain injury, depression and anxiety, amnesic syndrome and dysexecutive syndrome for most if not all of his life. In doing so he relied upon the evidence of Dr Vowels who was called to give evidence before the sentencing judge. The respondent contested that opinion relying upon the contrasting expert evidence of the opinions of Mr Joblin, Mr Bernard Healy and Ms Elizabeth Warren. A summary of the opinions of Mr Joblin, Mr Healy and Ms Warren are set out in the respondent's written case and need not be repeated. The conflict in the evidence of these expert witnesses and his Honour's reasons for rejecting the opinion of Dr Vowels are set out carefully and fully by his Honour in his sentencing remarks.[2]

17 The finding made by the sentencing judge as to whether or not any of the principles in Verdins were enlivened was a finding of fact. It was for the sentencing judge to determine whether he was satisfied on the balance of probabilities that the applicant had an intellectual impairment and, if so, what effect it should have on the sentence. For the reasons fully explained by his Honour in his sentencing remarks, it was open to the sentencing judge to conclude that the applicant did not suffer from any relevant intellectual deficit or mental disorder. As the sentencing judge was satisfied that the evidence placed before him enabled him to reach a clear and unhesitating view that the applicant did not suffer from any such conditions, it was entirely within his Honour's province to refuse to order a Forensicare report and conclude that Verdins principles had no application.

18 In his written submissions, the applicant only submitted that specific errors rendered the sentences imposed manifestly excessive. The applicant did not otherwise seek to establish that the sentences were manifestly excessive. As no error has been demonstrated, this ground must also fail.

19 As the proposed grounds are not in my view reasonably arguable, the application for leave to appeal against sentence must be refused.

[1] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[2] DPP v Booth (Unreported, County Court of Victoria, Judge Tinney, 3 April 2014) [35]-[36].