Firbank v R

Ground 1: The trial miscarried and the verdict of guilty to count 4 is a nullity because count 4, as pleaded, discloses no offence known to law in that the purported circumstance of special aggravation was an essential element of the serious indictable offence of reckless wounding pleaded therein.

Ground 2: The trial miscarried in that the jurors were provided, at their request, with a transcript of the evidence, including cross-examination of the applicant, which was incorrectly transcribed at page 335 point 9 and at page 372 point 39.

Ground 3:(a) that leave be granted pursuant to Rule 4 to argue this ground.

(b) The trial judge erred at law in not giving a direction of law that the jury have to be satisfied of four things before they could use lies told by the applicant as evidence of consciousness of guilt as suggested by the Crown Prosecutor in her final address and questions of the applicant in cross-examination.

Ground 4:(a) That leave be granted pursuant to Rule 4 to argue this ground.

(b) The trial judge erred in law in not giving a direction in accordance with Zoneff v The Queen in the form of a warning that the jury not follow a process of reasoning that just because the applicant is shown to have told a lie about something that that is evidence of guilt.

Ground 5:(a) That leave be granted pursuant to Rule 4 to argue this ground.

(b) The trial judge erred in law in interpreting in his summing up that the Crown Prosecutor submitted that the complainant did not have an axe to grind in seeking to make untrue allegations against the accused.

Ground 6:(a) That leave be granted pursuant to Rule 4 to argue this ground.

(b) The trial judge should have stayed count 3 and withdrawn the count from the jury once he directed the jury on an alternative Crown case on count 4.

Ground 2 20It is convenient to deal first with ground 2. 21Two errors of particular significance occurred in the original transcript of the trial. Both errors occurred when the appellant was being cross-examined. The errors would not be of particular concern but for the fact that during the course of their deliberations the jury asked for a copy of the appellant's transcript. This request was made after the jury had indicated to the trial judge that although they were agreed on some counts (probably counts 1 and 6) they were divided in relation to the other counts. The jury were provided with a copy of the transcript some time after 2.21 pm on the final day of the trial. They returned to court at 3.36 pm that day and returned a verdict of guilty to all counts. Accordingly it is most likely that the jury, or at least some of its members, were assisted by an examination of the transcript. 22The first error in the transcript concerns a question asked by the prosecutor when he was questioning the appellant about the allegation that he had returned to Vincenzo's premises and used a golf club to smash the windows. He was asked: "Q: You were very aggressive when you first got there?" 23The answer in the transcript is recorded as: "That is correct." 24This was an error. The audiotape indicates that the answer which the appellant gave was: "That's incorrect." 25The second error occurred when the appellant was being asked about his interview by the police and lies he may have told. He was asked: "Q: I suggest you lied because you were the man that was attacking Vincent with the knife, not the other way around? 26The answer incorrectly recorded is: "That's correct." 27It should have been recorded as: "That's incorrect." 28Both of these answers were given in response to questions which had considerable significance in the trial. Evidence from the appellant that he had been aggressive when he first returned to Vincenzo's premises was damaging to his defence. Furthermore, evidence in which he accepted that he was the attacker with the knife was of critical significance. 29The Crown submitted that the errors were unlikely to have influenced the jury in a manner which was unfair to the appellant. It was submitted that a careful reading of the whole of the transcript would have made plain to the jury that the errors did not accurately reflect the appellant's response to the Crown's case. Furthermore, it was submitted that if the errors had been significant it could be expected that the Crown would have attempted to utilise the transcript in the course of submissions. 30I do not accept the Crown's submissions. It is regrettable that a transcript containing errors of this level of significance found its way to the jury. Although a reader of the transcript may have been alerted to the possibility that the answers which had been given were erroneous the jury did not ask for any clarification of the situation. Accordingly, I am satisfied that it must be assumed that the jury accepted the evidence as having been faithfully recorded. That evidence contained admissions which were potentially fatal to the appellant's case and I am accordingly satisfied that this Court should conclude that a serious injustice has occurred. Whatever be the strength of the Crown case the appellant was entitled to a fair trial. Once the jury's request was complied with, but an erroneous transcript provided, any opportunity which the appellant may have had of an acquittal was entirely lost.

Ground 1: 31The appellant submitted that because wounding was an essential fact to be proved in relation to the pleaded serious indictable offence (count 4) it could not also be relied upon as a circumstances of special aggravation. The pleaded count identified wounding as the circumstance of special aggravation. 32In support of this argument the appellant relied upon the judgment of Simpson J in R v Price [2005] NSWCCA 285. In that case, when sentencing an offender the primary judge had regard, as an aggravating factor, to the actual use of violence. The serious indictable offence had been pleaded as assault occasioning actual bodily harm. On appeal the Crown argued that the actual use of violence could be taken into account under s 105A of the Crimes Act where violence is identified as a circumstance of aggravation. Simpson J with whom Johnson and Rothman JJ agreed rejected the argument. 33The Crown responded to the appellant's submission by referring to the decision of this Court in R v O'Donoghue [2005] NSWCCA 62;151 A Crim R 597. In that case the accused was charged with breaking and entering a dwelling and committing a serious indictable offence being assault occasioning actual bodily harm in circumstances of aggravation being the use of corporal violence. 34The relevant section of the Crimes Act reads as follows: "112 Breaking etc into any house etc and committing serious indictable offence (1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or (b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. " Serious indictable offence" means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.(S 4 Crimes Act)." 35Under s 112(1) the elements the Crown has to prove are: (1) that the accused broke into a (dwelling): and (2) committed a serious indictable offence therein. 36In the indictment it is necessary to identify the serious indictable offence the Crown relies on. 37Section 112(2) provides for a more serious offence where a person commits an offence contrary to s 112(1) in circumstances of aggravation. 38Pursuant to s 105A(1), "circumstances of aggravation" means circumstances involving any one or more of the following: (a) the alleged offender is armed with an offensive weapon, or instrument (b) the alleged offender is in the company of another person or persons (c) the alleged offender uses corporal violence on any person (d) the alleged offender maliciously inflicts actual bodily harm on any person (e) the alleged offender deprives a person of his or her liberty, and/or (f) the alleged offender knows that there is a person, or there are persons, in the place where the offence is alleged to be committed. 39Section 112(3) provides for an offence of greater seriousness still where a person commits an offence contrary to s 112(1) in circumstances of special aggravation. 40Pursuant to s 105A(1), "circumstances of special aggravation" means circumstances involving either or both of the following: (a) the alleged offender wounds or maliciously inflicts grievous bodily harm on any person; (b) the alleged offender is armed with a dangerous weapon. 41Under s 105A (2) the matters referred to in: (a) paragraph (c), (d) or (e) of the definition of "circumstances of aggravation"; or (b) paragraph (a) of the definition of "circumstances of special aggravation", can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred. 42In O'Donoghue the appellant was charged with an offence contrary to s 112(2). The charge read as follows: "On (date) at (place) he did break and enter a dwelling house at (address) and commit a serious indictable offence therein, namely, did assault (victim), occasioning to him actual bodily harm in circumstances of aggravation, namely, that corporal violence was used on (the victim)." 43The facts supporting this charge were that after the appellant had broken and entered the premises he picked up a scooter and threw it at a Mrs Grey. It missed her but hit the wall and the handlebars broke off. The victim was asleep in an adjoining room at the time. The commotion woke him and he came into the room where the appellant and Mrs Grey were. When the appellant saw (the victim) he picked up the handlebars and ran at him. The victim tried to fend off the appellant and get away from him, but the appellant pursued him through the house and hit him with the handlebars, bruising his forehead and his left wrist and cutting his hand. 44On appeal it was submitted on behalf of the appellant that the evidence did not support the conviction on the first count because the Crown relied on the same act, namely the striking with the handlebars, in order to prove the two elements of the charge, the commission of the serious indictable offence and the use of corporal punishment. It was submitted that because the serious indictable offence involved no more than the occasioning of actual bodily harm, the result was that the appellant had been punished twice for one act. 45In his judgment, Barr J with whom Spigelman CJ and Wood CJ at CL agreed, made reference to both Pearce v The Queen (1998) 194 CLR 610 and R v De Simoni (1981) 147 CLR 383 and said the following: "In my opinion, the appellant's act of attacking Mr Tenkate with the scooter handlebars and injuring him was sufficient to constitute both a serious indictable offence, namely an assault occasioning actual bodily harm and the circumstance of aggravation, namely the use by the appellant of corporal violence on a person. [22] 46His Honour said in relation to Pearce: "...it is important to note that what the justices in Pearce v The Queen did not say was that single act cannot be a component of more than one offence or that a single act may constitute more than one component of a single offence." [13] 47In relation to De Simoni his Honour said: "There is, in my opinion, no significant difference between the facts of De Simoni and those of the present case. In each case, a single act was held sufficient at once to constitute an element of the simple offence and the circumstance which aggravated it exposing the offender to the risk of a higher sentence". [20] 48De Simoni is authority for the proposition that when sentencing an offender a court is entitled to consider all the conduct of the accused, including that which may aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. An offence that carries a higher maximum penalty than the offence for which the offender is being sentenced will be a more serious offence for the purposes of this principle. 49In O'Donoghue, Barr J further said at [23]-[25]: "There is another argument, which I think is really a manifestation of the first, that because it has a component which, however described, amounts to corporal violence, the simple offence created by subs (1) cannot be aggravated by the addition of the element of corporal violence created by subs (2). The appellant was punished once for corporal violence under subs (1) and again for corporal violence under subs (2). I think that the submission mistakes the nature of the relevant element in subs (1), which is not assaulting or doing bodily harm or corporal violence. All subs (1) requires is proof of an act which constitutes a serious indictable offence. The reference in the charge to the occasioning of actual bodily harm stated a particular of the element of the offence, not the element itself. The analogy of an assault with an act of indecency is again instructive. All that that offence requires is an assault which has a particular quality, namely that of being an indecent act. All that the aggravated offence of which the appellant was convicted requires is corporal violence which has a particular quality, namely that of constituting a serious indictable offence." 50The respondent submitted that this Court was required to follow O'Donoghue which was in essence on "all fours" with the present case. 51In the present case, the serious indictable offence was particularised as "reckless wounding". The special circumstance of aggravation under s 105A(1) was "wounding." Accordingly it was submitted that the reference to reckless wounding referred to a particular of an element of the offence, namely a serious indictable offence being an offence contrary to s 35(4) of the Crimes Act, not the element itself. It followed that the wounding of the victim was a circumstance of special aggravation under s 105A(1) of the Crimes Act and accordingly the indictment as framed was not bad in law. 52Although it was suggested by the appellant that the decision in O'Donoghue is not correct, leave was not sought to argue that it should be overruled. When a submission is made that a previous decision of this Court is wrong it would be usual for a bench comprising five members of the court to be convened. No application for a bench of five was made. 53Price was concerned with the sentence for the relevant offence and whether the court could have regard to an aggravating factor under s 21A being the use of violence (s 21A(2)(b)). Although Simpson J passed some comment which could be understood to be critical of the form of the indictment (see Simpson J at [31]) the Court was not required to consider whether the indictment was valid. However, O'Donoghue was concerned with an appeal against conviction, and as it is directly on point I would not depart from it. The issue may be raised in another case but has not been appropriately raised for consideration in the present matter. 54Accordingly ground 1 of the appeal must be rejected.

Grounds 3 and 4 55I have previously referred to that portion of the cross-examination of the appellant when the Crown Prosecutor put to him that he had lied to the police when he was interviewed because "he was the man attacking (Vincent) with the knife, not the other way around" and "... you lied at that stage because of fear of your own guilt." The appellant admitted that he lied but said that he did this to protect Vincenzo. 56In her closing address the Crown Prosecutor said to the jury: "He couldn't tell you the truth in my submission because he lied in the video interview because he is guilty." 57In the course of his submission to the jury defence counsel also referred to the lies and submitted to the jury that they could: " consider his evidence to be plausible that he was protecting himself at that stage regarding the windows and protecting Ritorto. He was brought up not to dob and so on. He was confused, it is submitted and that was prior to the police interview. He was misguided at the time. He did not fully understand his rights but now he does and he has (sic) given the freedom and the chance to say what actually happened. ...it is submitted to you quite accurately if you believe that the accused's account might possibly be true, then you would necessarily find the accused not guilty of counts one to five because that would really mean that you have a reasonable doubt about his guilt." 58During the course of the summing-up the trial judge referred to the lies which the appellant had acknowledged when giving his evidence. His Honour referred to the submissions of both the prosecution and defence counsel but did not give either an Edwards ( Edwards v R (1993) 178 CLR 193) or a Zoneff (Zoneff v The Queen (2000) 200 CLR 234) direction. 59After the trial judge had finished summing-up the jury was sent out following which the Crown Prosecutor said to his Honour: "I was just questioning my mind in relation to whether the lie direction was sufficient but I think it was clear that it's used in relation to the accused's credibility. I think that was clear." 60Defence counsel responded: "I wouldn't be seeking any further directions." 61In these circumstances leave pursuant to rule 4 is required in relation to both grounds 3 and 4 of the appeal. I would not grant that leave. 62It is apparent from the context in which the Crown Prosecutor told the jury that the appellant lied to the police because he was guilty that this remark was an incidental observation forming part of a more comprehensive attack on the appellant's credibility. Although reference was made to the guilt of the appellant that remark played only a minor role in the overall submission. 63The credibility of the appellant was very much at issue in the trial. The fact that he admitted to having lied raised serious difficulties for the defence and it is not surprising that defence counsel did not want to return to that subject after the trial judge had finished summing-up. If defence counsel had opened up the prospect of either an Edwards or Zoneff direction it would have necessitated the trial judge returning to the question of lies, reminding the jury of the appellant's propensity to lie either in his own interests or as he said to protect others. The latter statement was inherently improbable and a repetition of it would almost certainly have reinforced an adverse impression of the appellant in the mind of the jury. To my mind this was a sensible tactical reason why counsel did not seek a further direction. See R v Villa [2005] NSWCCA 4. 64In these circumstances it is unnecessary to determine whether the lie which was told required an Edwards or Zoneff direction. However, it is pertinent to observe that the appellant admitted the lie and gave his reason for telling the lie. The jury did not have to be reminded that there may have been an innocent but unknown explanation for the lie, the explanation was proffered by the appellant. The available and to my mind inevitable conclusion was that if the jury did not accept the explanation for the lie the only other reason for the lie was to avoid an admission which would support his guilt. However, for the reasons I have indicated it is unnecessary to resolve that issue in this case.

Ground 5 65The appellant submitted that the effect of the prosecutor's submission was to reverse the onus of proof. It was submitted that when dealing with the issue the trial judge compounded the problem. In the course of her address to the jury the Crown Prosecutor said: "...if you are listening to somebody giving evidence or any person in your life one of the factors you may look at is that a person who appears to have an axe to grind, is that a person who seems to have some sort of nastiness in relation to the person. Well when you listen to Vince Ritorto's evidence he was very clear that the accused is a good person who had helped him in the past, a person who'd gotten a fridge for him and gotten a television for him He was a person that he'd told about his problems and about his background. A person that he had trusted to discuss his family with. He knew the accused's mother also suffered from a mental illness because the two of them had been in hospital together. And over the time period he had actually discussed his life and his back ground with the accused..[P 404.29] 66In the summing up the trial judge dealt with this submission in the following terms: "The crown submitted to you, or asked the rhetorical question, "Does the accused have an axe to grind?" and submitted that the answer to that is "No" that he himself said that it was out of character for the accused , the accused was a good person, he said who had helped him in the past, and so on. So he does not have an axe to grind in seeking to make untrue allegations against accused." 67It is apparent that the reference to the accused in the second line should have read Vincenzo. 68When dealing with the question of onus the trial judge referred to the fact that the Crown carried the onus and said: "Now the accused I have told you already but I remind you is not obliged, except in the limited case of count 6 in the area that I explained to you, to disprove anything or prove anything or to raise a reasonable doubt about anything. The accused's evidence when he chose to give evidence, he did not have to, becomes part of the whole body of evidence to be assessed by you in the same way as other witnesses. If you happen to disbelieve the accused on any important matter or in its entirety, I am not suggesting that you would, all of these things are a matter for you to decide, but consistently with the onus being on the Crown if you disbelieve the accused's evidence in important respects that does not automatically mean that you find the accused guilty. You would still need to examine Ritorto's evidence carefully and decide whether on his evidence you are satisfied to convict the accused beyond reasonable doubt. So it is not a case of which witness you prefer, whether you prefer Ritorto over the accused or the other way around for that matter, you need to examine each or all of the evidence in its context in the case that you need to analyse each witness." 69These directions were given shortly before his Honour referred to an "axe to grind." Although his Honour referred to the accused at the earlier point in his summing up I am satisfied that it would have been plain to the jury that his Honour was referring to the Vincenzo. The jury had been addressed in these terms by the prosecution and the remainder of his Honour's remarks confirm that the "he" that he was referring to in the last sentence was Vincenzo. 70In these circumstances a direction that an accused bears no onus to prove a motive to lie was not required. It would have been plain to the jury that there was no onus on the accused to prove anything except to the limited extent required in relation to count 6. 71I would refuse leave to argue ground 5.

Ground 6 72The final ground of appeal raises for consideration counts 3 and 4. 73Count 3 reads as follows: "that he on or about 11 September 2008 at (place) was armed with a knife with intent to commit an indictable offence namely intimidation with intent to cause fear of physical injury". This was contrary to s 114(1). The elements of this offence are: (1) the accused was armed with a weapon or instrument; (2) the accused intended to commit an indictable offence. 74Count 4 reads: "that he on or about 11 September 2008 at (place) did break and enter a dwelling house (of the victim) knowing that there was a person in the said dwelling house and did commit a serious indictable offence therein namely reckless wounding in the circumstances of special aggravation namely that at the time of the break and enter did wound (the victim). This was contrary to s 112 (3). The elements of this offence are: (1) the accused broke and entered a dwelling house; and (2) committed a serious indictable offence. (3) in circumstances of special aggravation. 75The appellant submitted that count 3 should have been stayed as it arises out of "more than substantially the same conduct" as that alleged in count 4. I do not accept the submission. 76The elements of count 3 involve proof of possession of the knife with the intention of intimidating the victim, by causing him to fear physical injury. Although this occurred in the circumstances of the appellant entering the victim's home, such entry was not an element of the offence, as it was an element of the s 112(3) offence. The possession of the knife was an element of count 3, but it was just a circumstance of count 4. 77The Crown's submissions contained a useful summary of the sequence of his Honour's directions in relation to these counts. The trial judge in summing up to the jury said in relation to count 3: "...you need to consider, first element is that he was armed...with a knife.. ..and when he was armed with a knife he had the intent; that is a mental intent...to commit an indictable offence namely intimidation with intent to cause physical violence." 78In relation to count 4 the trial judge said: "...Luke Firbank did break and enter a dwelling house. There are two elements there; did break-perhaps three- did break and enter a dwelling house (address). The next element is that he did that knowing that there was a person in the dwelling house. The next element of this is that he did commit a serious indictable offence therein, that is in the dwelling house, that is specified as reckless wounding....in circumstances of aggravation, namely that at the time of the break and enter he did wound Vincenzo Ritorto." 79The trial judge returned to count 3 saying: "...the crown case is that when the accused came in on the occasion referred to, he had a knife held in his hand, you have heard the description as to how that was, the accused [sic] gave evidence of the accused holding the knife by the handle and a torch in the other hand. Now if you are satisfied beyond reasonable doubt the accused entered the house holding a knife in that fashion, in the context of what had gone before, and so on, and pushing the door open, et cetera, you might readily conclude, although it is a matter for you, that the accused was armed with a knife." [sic] the transcript records the judge as saying "the accused" when clearly the reference was to the victim. 80His Honour then gave directions on what "can be described in law as being armed with something" and said: "So you would need to look at that element,... whether you are satisfied that beyond reasonable doubt the accused was armed with the knife ...you would need to further go on to decide whether that was with intent to commit an indictable offence, namely intimidation with intent to cause fear of physical violence." 81His Honour then gave directions on "intent" followed by directions on "intimidation" and said: "...the crown relies on Ritorto's evidence necessarily in relation to this as well, and if you were satisfied that he accurately described and correctly described this series of events, then it would be open to you to convict the accused of that count, provided that you were satisfied, looking at what the accused said and what he did, that he had that necessary intent to intimidate". 82His Honour then moved on to count 4 and gave directions of law in relation to "break and enter" and on "dwelling house" and then on the issue of whether the appellant knew the victim was in the dwelling. The trial judge then turned to the issue of the appellant having committed a serious indictable offence, namely reckless wounding and gave directions on recklessness, and then said: "... Ritorto described what he said had happened and in the course of this he gave evidence that the accused approached him holding the knife and Ritorto ran at the accused and a scuffle ensued in the course of which Ritorto was stabbed and wounded...So the act that the accused is alleged to have done in this context is that of holding the knife in the aggressive way that was described and continuing to hold it once Ritorto ran at him. ...if you are satisfied of these things beyond reasonable doubt, those elements, you would need to go on to consider whether the reckless wounding was committed in circumstances of special aggravation, namely that at the time of break and enter did wound Vincenzo Ritorto...if you are satisfied that there was the reckless wounding then the finding of the special aggravation would seem to follow as a matter of commonsense...." 83There is no immutable bar to the Crown prosecuting an accused person for a number of offences that arise out of the same sequence of events. However, if this occurs and a conviction follows the sentencing judge must be careful to avoid punishing the accused person twice for the same offending behaviour. This will normally be reflected in the adjustments made for accumulation and concurrency in the respective sentences. As it happens in the present case the trial judge imposed a sentence of 3 months for count 3 to be served concurrently with the sentence for count 4. 84In the circumstances I am not persuaded that there was an error because the trial judge did not stay count 3 or withdraw it from the jury. No request was made by defence counsel for the trial judge to take this course and I would refuse leave to argue this ground.

The proviso 85The respondent submitted that this appeal should be dismissed having regard to the proviso (s 6(1) of the Criminal Appeal Act ). As I have explained the problems occasioned by the jury having an incorrect transcript were of considerable significance in the events which happened and in my opinion resulted in a trial which was unfair to the appellant. Irrespective of the strength of the Crown case I am satisfied that in all of the circumstances ground 2 of the appeal should be upheld the conviction quashed and a new trial ordered. 86It would seem likely that the problem identified under ground 2 did not infect the jury's verdict in relation to counts 1 and 6 relating to the supply of cannabis leaf. However well founded that expectation may be the attitude which the jury took to the appellant and his credibility may have been adversely affected by consideration of the erroneous transcript. I would uphold the appeal in relation to each of the counts on the indictment.

Orders

1. Appeal upheld.
2. The convictions of the appellant in the District Court are quashed.
3. A new trial is ordered. 87HIDDEN J: As to grounds 1 and 6, one might question whether counts 3, 4 and 5 were all necessary to reflect the criminality alleged. Nevertheless, I agree with McClellan CJ at CL that those two grounds are not made out. I agree with his Honour's determination of the other grounds and with the orders proposed. 88JOHNSON J: I agree with the orders proposed by McClellan CJ at CL and his Honour's reasons for those orders. 89I wish to make a brief additional comment concerning Ground 1. McClellan CJ at CL refers to submissions made by the parties concerning the decisions of this Court in R v O'Donoghue [2005] NSWCCA 62; 151 A Crim R 597 and R v Price [2005] NSWCCA 285. As a member of the Court in R v Price , I note that the earlier decision in R v O'Donoghue was not drawn to the Court's attention. I endorse expressly the conclusion reached at [53] by the Chief Judge at Common Law concerning the approach to these two decisions in the determination of this appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2013