Janes v The Queen [2015] VSCA 133

1 On 7 October 2014, a jury in the County Court found the applicant guilty of armed robbery,[1] but acquitted him of a second charge of common assault.[2]

2 The applicant now seeks leave to appeal on two grounds which assert, first, that the verdict of guilty on the armed robbery charge (charge 2) is unsafe and unsatisfactory; and, secondly, that the verdict on that charge is inconsistent with the applicant's acquittal on the charge of common assault (charge 1).

3 For the reasons that follow, we would refuse leave to appeal.

4 Although the principles which guide the Court are well-established, we should briefly acknowledge them.

5 A complaint that a verdict is unsafe and unsatisfactory is to be resolved according to the principles spelled out in M v The Queen.[3] The essential question is, was it reasonably open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt?[4] In determining whether it was open to the jury to be satisfied of his guilt beyond reasonable doubt, the essential inquiry is whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt.[5] The court must carry out its own independent assessment of the evidence. But it is insufficient for the applicant to show merely that there was material which might have led the jury to entertain a reasonable doubt.[6]

6 An inconsistent verdict may render a conviction unsafe and unsatisfactory.[7] Six propositions concerning inconsistent verdicts were distilled by Gaudron, Gummow and Kirby JJ in MacKenzie.[8] The present case involves alleged factual inconsistency. Establishing inconsistency between verdicts is the applicant's obligation. Since the supposed inconsistency arises in the jury's verdicts on different charges in the indictment, the applicable test is one of logic and reasonableness. Thus, if there is a proper way by which the two verdicts may be reconciled, and there is some evidence to support the verdict of guilty claimed to be inconsistent with the acquittal, it is not this court's role to substitute its own opinion of the facts for one which was open to the jury. In cases such as the present, it is necessary always to bear in mind that the jury may have followed the direction to consider each charge separately, or may have taken a 'merciful' view of the facts.

7 Shaun Beck ('Beck') was the alleged victim on both charges on the indictment. He gave evidence that on 15 July 2014 he was living with his 'Nan' in Keilor Downs and was paying her rent. Since he was unemployed, he relied on Centrelink benefits.

8 At around 4am or 5am he walked to the house of a friend, Candace, to collect some clothes, but nobody was at home. Although he had known Candace for a couple of years, he did not know her surname or telephone number.

9 By coincidence, as Beck was leaving Candace's house, he saw another friend, Joanne Camilleri, driving past and he waved her down. She took him to a service station in Deer Park, and he there withdrew $200 to $300 from an ATM, so as to have money to pay rent to his Nan and to cover other bills and expenses. Beck said that he wanted to do this early in the morning because he had a lot of things to do that day.

10 In cross-examination, however, Beck gave a different version. He said that he had remembered that before he went to Candace's house he had already walked to a 7/11 store and had withdrawn money from an ATM at that store, later catching a taxi to Candace's house. Beck said that when he saw Camilleri they went to a 7/11 store to get petrol, not money. The 7/11 store that they went to was not the store where Beck had earlier withdrawn money. Beck denied that he got into Camilleri's car for the purpose of going to buy drugs. He merely wanted to go for a drive.

11 Later that day, Beck went to collect a prescription for methadone from his doctor in Footscray. Although Beck was unable to recall what he was doing between the time he saw Camilleri and the time when he went to his doctor, he was sure he was with Camilleri during that period. Cross-examination elicited, however, that Beck recalled that after getting into Camilleri's car, and before he went to his doctor, he and Camilleri visited one of Camilleri's friends in Sunshine, because Beck owed money to Camilleri's friend. They stayed there for a couple of hours. Beck could not, however, recall anything else he did with Camilleri that morning.

12 Once Beck had been to his doctor, he and Camilleri were stopped, and had their names taken, by mounted police. They then drove to Sunshine so that Beck could collect his methadone. On the way to Sunshine, Beck saw a friend, Cooper, waiting for a bus. Camilleri stopped the car to give Cooper a lift, and both Cooper and another person with him, 'Nuts', got into the car. There is no dispute that 'Nuts' is the applicant.

13 Cooper and Nuts said that they wanted to pick up some jackets or clothes in McLennan Street, Braybrook. At McLennan Street, Cooper and the applicant got out of the car, whilst Beck and Camilleri waited around the corner in the car. Cooper and the applicant were absent for about ten minutes. Although Beck at first denied that Cooper wanted to go to McLennan Street to buy drugs, in cross-examination he agreed that in his police statement he had said that they drove to McLennan Street so the boys 'could get a taste'. He then conceded that they went to McLennan Street to purchase drugs, not collect clothes. Beck said that he had not told the truth during evidence in chief because he did not want to make Cooper look bad for doing drugs. He claimed that he had not purchased any drugs.

14 When Cooper and the applicant returned, they all travelled to Sunshine, because Camilleri wanted to visit a car mechanic. She parked the car next to a football oval, about 20 to 30 metres away from the mechanic. Beck denied that they drove to this location to use drugs. Beck remained in the car, whilst Camilleri, Cooper and the applicant got out and had a conversation. He could not hear what they were talking about, so he also got out. When they got back into the car, the applicant told Beck that he 'needed to be spoken to'. They got into the back seat. Camilleri sat in the driver's seat, and Cooper sat in the front passenger seat. Whilst seated in the back seat, the applicant asked Beck whether he could borrow some money. Beck said the most that he could lend him was $30. In response, the applicant just 'rambled'.

15 The applicant then asked Beck to get out of the car. Beck and the applicant both got out. The applicant then told Beck that he wanted to see his wallet, since he had earlier seen the wallet and knew that Beck had money on him. Beck did not, however, produce it. The applicant then took out a red 'Swiss Army knife'. It had tools on it, and a blade of about two and a half inches in length. When first describing the sequence of what occurred, Beck said that the applicant produced the knife, grabbed his wallet and began to punch him - 'he's produced the knife ... grabbed the wallet out my hand and that's when he's proceeded to punch me'. Within a very short time after recounting that sequence of events, however, Beck gave a different version. Thus, he said that the applicant had punched him before taking the wallet from him. Beck said that the applicant punched him in the 'mouth area' with his left hand, whilst holding the knife in his right. (Beck did not explain how the applicant managed simultaneously to hold the knife and the wallet and to punch him.) After being punched, Beck's mouth was bleeding and his teeth were loose. The wallet contained about $250.

16 After attacking Beck, the applicant threatened Camilleri. Beck said he grabbed the car key out of the ignition through the driver's window, and bent it in the process. The applicant straightened the key on the gutter, however, and he and Cooper drove away. When cross-examined, Beck denied that he went to a vacant area of land to urinate and left his wallet in the back seat of the car, following which the car drove off.

17 Beck then went to the 'mechanic shop' for help, but got none. He then called the police on '000'. (The 000 recording, Exhibit B, was played to the jury.) Police came. They gave Beck a bottle of water and he washed blood off his face 'a bit', and also rinsed blood from his mouth. An ambulance officer treated him at the scene. Two photographs, Exhibit C, were taken of his teeth and gums.

18 In cross-examination, several prior findings of guilt for theft and burglary were put to Beck. He admitted that he had used illicit drugs prior to 15 July 2013, but denied drug use that day. He denied telling police who attended the scene that earlier that morning he and Camilleri had bought heroin in McLennan Street, Braybrook, and had used it. Beck denied that any drugs were smoked following their purchase at McLennan Street, and he denied that a Swiss Army knife was used to place the drugs into a 'crack pipe'. He denied the suggestion that the Swiss Army knife 'was never used in a threatening way' towards him. As to the '000' call, he said that the reason why he said 'they just ripped me' as opposed to 'he just ripped me' was because he had schizophrenia - he claimed he used methadone for his schizophrenia - and he 'wasn't thinking straight'. Beck also claimed that he used the word 'they' instead of 'he' throughout the call because he finished school in Year 10, and when he used the plural it could also mean the singular. Beck also denied that at the time he made the '000' call he was upset at losing his wallet because he had wanted to buy drugs. He told an ambulance officer that he wanted to get his wallet back because his family would be upset with him because he would not be able to pay rent. When speaking to the ambulance officer, however, he was most concerned about his teeth, not compensation. Beck agreed that he told the ambulance officer that he was 'unsure' whether his teeth were 'normally loose'.

19 An ambulance paramedic, Julie Puddy, spoke to Beck at the scene upon arriving at 2.24pm. Beck said that he had been punched in the mouth and robbed. Ms Puddy described Beck as 'upset', 'very worked up', 'ranting and raving' and 'talking continuously'. There were no abrasions, cuts or bruises on Beck's face or lips. His top four front teeth were missing, which Beck told her was 'normal'. Beck's bottom four teeth were 'slightly loose' and he had a 'small amount of blood along the bottom of his gum line near his bottom four teeth'. When cross-examined, Ms Puddy said that Beck mentioned a number of times that he wanted 'compensation'. She noticed that Beck had 'poor dental hygiene'. Beck told her that he was not sure whether his bottom teeth were normally loose. Although Beck had blood in his mouth, he was not bleeding when assessed.

20 Michael Downes, a Sergeant of police, was the first to attend the scene, at about 1.45pm. Beck was acting irrationally and had dry blood on his mouth. He told Sergeant Downes that he had been assaulted and robbed by another male. Beck was 'very irrational' and 'highly emotional'. He appeared to be 'possibly' drug affected. Prior to the ambulance arriving, Sergeant Downes gave Beck a bottle of water from which he drank. Beck told Sergeant Downes that he had been with Camilleri before being robbed. They had driven to an address in McLennan Street to buy heroin which he had used. Beck said that they then drove to Footscray CBD to collect Beck's script. Although he could not say exactly where the crime had occurred, Beck told him that it had been outside a mechanic's shop. Sergeant Downes noted that Beck was not consistent in what he was telling him, and in his notes he had recorded 'validity questionable'. He said that he often received reports from people who were drug users who said they had been robbed so they could then make claims from Centrelink.

21 Another police officer, Karen Medwid, a First Constable, also attended the scene. Beck's demeanour was 'very erratic', and he appeared 'angry' and 'irrational'. Ms Medwid noticed that Beck had 'a little bit of blood' around his mouth, and 'a little bit of swelling around his facial area, around his mouth and chin, a bit of redness and swelling'. She gave Beck some water, and he gargled it and spat it out. Ms Medwid took photographs of Beck, Exhibit C. Upon viewing the photos when cross-examined, she agreed that the only swelling she observed was his left lip which was 'a bit fat'. Her notes taken at the scene revealed that Beck had said that he was going 'to try and score some drugs with some other people from a house in McLennan Street'. Beck told her that he got out of a car and two other males also got out of the car, one of whom had punched him in the mouth and taken his wallet. She noted that Beck's behaviour was consistent with someone who was drug affected. Beck told her that he had had a 'hit of heroin'.

22 Markus Koch, a Detective Leading Senior Constable, was the informant. On 16 July 2013 he went with Beck to the scene where Beck said the events occurred. There were a few mechanic shops in the area. The next day, uniformed police searched the applicant and found a Swiss Army knife with a red handle in his possession. In addition to a blade, it also had other tools. Detective Koch also conducted an interview with the applicant in which he said that he recalled getting a lift from a woman who was a friend of a relative. There were two other men in the car. He said he got a lift home and nothing happened. In cross-examination, Detective Koch confirmed that Beck had prior offences for dishonesty. He said that police had come into contact with Beck in drug areas on a number of occasions, and that Beck had appeared affected by drugs on those occasions. Investigations revealed that Beck had used his ATM card to withdraw $380 at a 7/11 store in St Albans at 4.32am on 15 July 2013, and that Beck's appointment with his doctor on 15 July 2013 was at 12.05pm.

24 Counsel for the applicant submitted that the two charges on the indictment relied entirely upon Beck's evidence. His credibility, which was dubious, was pivotal to conviction. Indeed, because of Beck's drug use, the trial judge was moved to warn the jury that he was potentially an unreliable witness 'owing to the effects of the drug use on the user's perceptions and recollections'. Counsel submitted that the unsatisfactory nature of Beck's account, however, went far beyond his intoxication. He contended that there were aspects of Beck's account that were implausible; other aspects about which he had been deliberately untruthful; and further aspects which showed that he was either unreliable or untruthful. Although counsel accepted that it was not enough to show that the jury merely might - as opposed to must - have had a reasonable doubt about guilt based on Beck's credibility, an analysis of the various aspects led inevitably to a conclusion that it was not open to the jury to be satisfied that Beck had been the victim of an armed robbery. Counsel relied on seventeen aspects, which were set out in detail in the written case.

25 With respect to the claim of inconsistency between verdicts, counsel for the applicant pointed out that the judge had directed the jury that:

There is really only one issue in this case. Do you accept the evidence of Shaun Beck concerning the loss of his wallet and the circumstances immediately connected to that loss as credible and reliable beyond reasonable doubt? If you do, then your verdicts should be guilty. If you have a reasonable doubt about this evidence, then your verdict should be not guilty.

26 Counsel submitted that there was no proper evidentiary basis upon which to differentiate between the verdicts on the two charges, so that the conviction on the armed robbery charge, and the acquittal on the assault charge, cannot stand together. There was, so it was argued, no difference in the quality of the evidence on one charge as against the other charge. Two aspects of the evidence, counsel submitted, were relied upon by the prosecution to support Beck's account. First, support for Beck's account on the armed robbery was derived from the applicant's possession of a Swiss Army knife two days after the alleged robbery. Secondly, on the assault charge, support was sought to be derived from the evidence that Beck had some blood on his gums after the incident, this bolstering Beck's claim that he had been punched in the mouth. It was submitted that the jury had clearly been directed that the sole issue was whether they accepted the evidence of Beck concerning the loss of his wallet, and the circumstances immediately connected to that loss, as credible and reliable beyond reasonable doubt. That question, so it was argued, resolved both charges.

27 The respondent's counsel submitted that most of the criticisms of the complainant's truthfulness and reliability can be traced back to Beck's wish to conceal his own drug use and the drug use of his companions. It was a matter for the jury what they made of Beck's reliability on the critical issues. His evidence had been thoroughly tested in cross-examination, and all of the criticisms of his evidence and its lack of credibility were canvassed in detail by the applicant's counsel in his final address. The jury, it was submitted, having observed his evidence being given and tested, were in the best position to assess it.

28 Counsel for the respondent submitted that the different verdicts on charges 1 and 2 are explicable by the different quality of the supporting evidence. On the armed robbery charge, the applicant's possession of the red pocket knife gave Beck's account strong support. He admitted in the police interview that it was his; it was found in his possession two days after the offence; and he admitted that he had it with him on the day of the alleged offence. The jury were entitled to reject his explanation as to how Beck may have seen the knife (that is, that the applicant used it to load the drugs into a crack pipe). By way of contrast, the evidence of the blood in Beck's mouth was not so clearly linked to the allegation that he had been punched in the face, given that the evidence established that Beck's teeth were in poor condition, and that he was not sure whether his teeth were normally loose.

29 In our view, the thrust of the respondent's submissions should be accepted.

30 There can be little doubt that, in a number of respects, Beck was an unsatisfactory witness. Indeed, the jury cannot have thought other than that parts of his evidence were lacking in credibility and reliability. What the jury made of his evidence on critical issues was, however, a matter for them. This Court could only intervene if of the view that the jury, acting reasonably, must have enjoyed a reasonable doubt about the applicant's guilt of armed robbery; or if of the view that the verdict of guilty on the armed robbery charge was, vis-à-vis the acquittal on the assault charge, an affront to logic and reasonableness.

31 Acknowledging the cumulative force of the seventeen aspects relied upon by the applicant's counsel, we are nonetheless of the opinion that it was open to the jury to convict of the armed robbery charge, and that the conviction can stand side by side with the verdict of not guilty on the charge of common assault. The applicant's possession of the red knife is, in our view, of critical importance to the analysis. Acting reasonably, the jury were entitled to conclude that the possession of the knife, within two days of the alleged armed robbery, loaned Beck's account of the armed robbery real support.

32 It seems to be, however, that the blood in Beck's mouth stood in a different position. Given that Beck had poor oral hygiene, and that his teeth might normally have been loose, the jury may well have thought that the evidence of a bloody mouth objectively gave his evidence little support.

33 Although the judge directed the jury that there was only one issue in the case, he also gave a conventional separate consideration direction. It is to be noted that, as part of his directions, the judge instructed the jury as follows:[9]

You will note that I said you must consider each charge in light only of the evidence which applies to it. This is because some of the evidence you have heard in this case is only relevant to one charge or another. If a particular piece of evidence is only relevant to one charge, you may only use it when deciding whether the accused is guilty of that charge. You must not consider it in relation to the other charge and as I said to you before, the evidence in respect of charge 2, the common law assault, relates simply and solely to the allegation made by Shaun Beck that the accused man punched him twice in the mouth with his left hand.

On the strength of the evidence, that would have appeared to have occurred after. If you accept Shaun Beck's evidence, and that's entirely a matter for you, the accused man had already obtained the wallet. So that it is a separate event divorced in time only by a matter of seconds on Mr Beck's version of events. But it is separate and apart from the other charge. So you need to consider the evidence that relates to that separately from the other charge.

34 It was, in our view, rationally open to the jury to reach the verdicts that they did.

35 Finally, one must not discount the jury's capacity to be merciful. As King CJ said in Kirkman:[10]

[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. A jury may be quite reasonable in arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count in the information. ...

36 Leave to appeal against conviction should be refused.

[1] Crimes Act 1958, s 75A.

[3] (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ).

[5] Ibid 492-3; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 556-7 [113].

[6] See also Klamo v The Queen [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40]; Greensill v The Queen (2012) 37 VR 257, 276-7 [82]-[83].

[7] MacKenzie v The Queen (1996) 190 CLR 348, 367 ('MacKenzie').

[10] R v Kirkman (1987) 44 SASR 591, 593. See also MacKenzie, 367-8 (proposition 4). We note the caution expressed by Callaway JA in R v Appleby (1996) 88 A Crim R 456, 457-8.