Lombardo v R [1999] WASCA 127

Court of Appeal (WA)|1999-08-17|Before: Anderson J, White J, Heenan J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LOMBARDO -v- R [1999] WASCA 127

Criminal law and procedure - Directions to jury - Burden of proof - Honest and reasonable but mistaken belief - Adequacy of direction - Evidence that accused not previously convicted of any offence - Whether good character direction should be given

1 ANDERSON J: The appellant pleaded not guilty before the District Court at Perth on 22 April 1999 to an indictment containing two counts of unlawful wounding and one count of unlawful assault. The trial concluded the following day and the jury returned verdicts of guilty on the two charges of unlawful wounding and not guilty on the charge of unlawful assault. After hearing a plea in mitigation, the learned trial Judge sentenced the appellant to a fine of $4,000 in respect of each charge.

2 The appellant now seeks leave to appeal against the convictions on the grounds that:

(1) The trial Judge erred in failing to give a direction to the jury in respect of good character evidence called on behalf of the appellant.

(2) The trial Judge erred in his directions to the jury concerning reasonable doubt.

(3) The trial Judge erred in his direction to the jury on the question of honest but reasonable mistaken belief.

3 The Crown case relating to these offences was as follows. Some time in the evening of 13 January 1998, the complainant, one Nirta, was riding his pushbike in Fern Road in the suburb of Wilson. He was on his way to visit a friend. The appellant was standing on the footpath. Nirta and the appellant were known to each other. No words were exchanged. Nirta did not find his friend at home and rode back along the same route with a view to returning to his home. As he was riding in Fern Road on his return journey, the appellant came from behind a tree and struck Nirta with a wooden tree stake, causing him to fall from his pushbike. The appellant continued to strike Nirta, who suffered three lacerations to his head, including a long, deep laceration to his right forehead. The blow which caused that laceration was the subject of count 1 on the indictment. Nirta also sustained a large cut or laceration to the right forearm, and the blow which caused that laceration is the subject of count 2 on the indictment. Nirta also suffered a fractured left forearm when he raised his left arm to ward off a blow. That was the subject of count 3 on the indictment.

4 The Crown case was that Nirta was found lying in the street by two young men and given some assistance. By this time the appellant had departed. Nirta made his own way home on foot and, on his arrival, his family arranged for him to be taken in an ambulance to hospital.

5 Nirta gave evidence of the incident and his evidence was in accordance with the Crown case as outlined above.

6 The Crown called Craig Pittuck, one of the two young men who had come on the scene. Pittuck gave evidence that he was a passenger in a car being driven in Fern Road when he saw what appeared to be an object on the road ahead. As the car approached, he saw that it was a person who had been lying on the road and was trying to get to his feet. He and the driver of the car offered assistance, but this was refused. The man, obviously Nirta, would not leave his pushbike and the pushbike could not be carried in the car, so Nirta commenced to walk home, pushing the pushbike. Pittuck and his friend followed behind to see him safely home. Pittuck gave evidence that they found a wristwatch at the scene and also saw what Pittuck described as a "branch". The wristwatch belonged to Nirta and they gave it back to him.

7 Nirta's nephew, Domenic Pelle, gave evidence that he lived with Nirta and when Nirta returned to the house on the evening of 13 January he was "covered in blood, holding his left hand .... against his stomach and he was in a real bad condition".

8 A medical report prepared by Dr Tan of Royal Perth Hospital was put in evidence. It was to the effect that, on admission to hospital at about 8.24 pm on 13 January, Nirta was found to have the injuries already described.

9 The Crown called a police officer, Senior Constable Gardin, who said he attended at the scene of the incident with Senior Constable Sparkman. They were able to locate the precise location by finding a quantity of blood on the road and, at the scene, they also found a plastic tree tie and a broken limb from a tree. He said that, later that evening, he went to the appellant's home and spoke to the appellant. He took possession of a blood-stained shirt from the appellant's laundry basket. He was permitted to give evidence that forensic testing revealed that the blood did not match Nirta's blood. A few days later, the appellant was interviewed at the Cannington Police Station. The interview was recorded on videotape and the tape was tendered in evidence. In that interview, the appellant said he had been walking in Fern Road in the evening in question but did not see Nirta. He said that Nirta was well known to him but "I haven't seen this man that night". It was put to him several times in various ways, but he adamantly maintained his denials.

10 The appellant gave evidence in his own defence. He gave an account of the events which was wholly inconsistent with and contradictory of the statement made during the police interview. He said he had left his house to go for a walk and became aware of someone behind him on a pushbike. He looked back and saw that it was Nirta. He kept walking and "the next thing Mr Nirta was along the road, along the kerbside. The next thing he goes and call me bastard, disgraziato, cornuto". The appellant said that the word "cornuto" referred to "the honour of my wife". He said that he challenged Nirta by saying to him, "What did you call me?". He said that Nirta stopped his bike and he "pulled a knife". He said that Nirta had pointed the knife at him and said, "You come any closer I cut you down to pieces". The appellant said that he jumped back and broke off a stake which was next to a small Council tree, but that by the time he had done this Nirta "already took off". The appellant said that, after regaining his composure, he continued his walk but kept possession of the stake, which he described as "a jarrah picket". He then saw Nirta again. He said that Nirta stopped on the road, got off his bike, lent against the bike and called to him, "Come here, 'cornuto' ". He said that Nirta had a stick in his hands on this occasion, "a stick, a piece of wood, whatever you call it". He said that he went to Nirta, but "the minute I got close he take a swing at me. I pull my face back, otherwise he would have hit me there, and he hit me on the bottom lip there". He said that this blow was struck with the piece of wood and it split his bottom lip. He then gave the following evidence:

"All right. What happened then?---Well, I thought he was going to pull a knife and kill me since he hit me and since he showed me the knife in the first place, so I turned the picket and hit him.

And when you say you hit him, can you recall exactly how many times you hit him?---I hit Mr Nirta twice.

Are you able to tell us whereabouts you hit him?---Well, I remember hitting him once he pulled his arm up. The second one I don't know where I hit him, but the third one I never hit him because he fall off the bike backwards.

Are you able to tell us what then took place when he fell off the bike?---I just left and went."

He admitted lying to the police and gave his explanation as being that he was embarrassed at being in a fight with Nirta and "I have never been in this situation before in my entire life". He then gave the following evidence:

"Are you able to tell us what the situation was at the time that you struck Mr Nirta, at the time that you struck him, why in fact did you strike him with the piece of wood that you have told us that you had?---He hit me first and when he hit me I thought he was going to pull a knife and kill me.

And why did you think he was going to pull a knife?---Because he already pull a knife.

As far as that exchange is concerned who in fact struck the first blow?---He did.

And how did he strike the first blow?---Like I said, he took a swing at me with a piece of - stick, wood, what it was, and I pull my face back so he hit on the bottom lip, otherwise he would have hit me right there in the eye and face."

11 None of that evidence was retracted in cross-examination.

12 The evidence of good character came entirely from the appellant himself and it was as follows:

"Are you able to tell us if you have any criminal convictions in any shape or form whatsoever?---Not that I know, Sir."

"I ask you again; have you ever been convicted of any criminal offences?---No, Sir."

13 There was also evidence that the appellant had worked as a plumber for 36 years, was presently in full time employment and had been in the particular job for 16 years.

14 Nirta had been cross-examined as to his character. He admitted that he had been convicted in the District Court in Geraldton of cultivating cannabis with intent to sell or supply and that he had been sentenced to imprisonment for 4 years, with a minimum term of 1 year and 10 months.

15 In his summing up to the jury, the trial Judge gave an instruction to the jury as to the use they could make of the evidence concerning Nirta's criminal record, but he did not give the jury a direction as to the use they could make of the evidence which the appellant had given as to his own good character. At the conclusion of the summing up, Mr Bowden, counsel for the appellant, asked the trial Judge to give a redirection to the effect that the jury could take evidence of the appellant's good character into account in assessing whether or not they believed his evidence under oath and as to whether or not they believed beyond reasonable doubt that he had committed the offences. His Honour declined to give a redirection on the matter.

16 By the first ground of appeal, the appellant pleads that the trial Judge should have given a "good character" direction. Mr Bowden submitted that this was essentially a case of oath on oath, so that it was important not only to give a "bad character" direction in respect to the evidence concerning the complainant's character, but also to give a "good character" direction in respect to the evidence concerning the appellant's character.

17 There is no rule of law that, in every case in which evidence of good character is given, the trial Judge must give a direction as to the manner in which the jury may use it. There is authority for the proposition that the mere statement by an accused person that he has not been convicted of any criminal offences does not go to his character in a real sense - Burke v R, unreported; CCA SCt of WA; Library No 940602; 2 November 1994, per Franklyn J at 6 and 8.

18 At this trial, the evidence went a little further than that. There was the evidence relating to the appellant's employment history, which was only relevant to good character, its purpose being to show that the appellant was hard-working and stable. It must also be remembered that the Crown case required the jury to accept that the appellant had perpetrated a vicious and entirely unprovoked attack upon an elderly cyclist. Evidence that the appellant, himself a man past middle age, had never been convicted of a criminal offence and had a long history of stable employment in a reputable trade did, I think, bear directly on the likelihood that the Crown case was true. I think that, under those circumstances, it was desirable that a direction be given to the effect that the evidence could be put to that use by the jury; that is, that they should bear it in mind as a factor affecting the likelihood of the accused having acted in the manner alleged by the Crown. However, I am not persuaded that the failure to give the direction has resulted in a mistrial. I cannot think that the jury used the evidence in any but the proper way. In this regard, it is worth repeating the words of Scholl J in R v Schmahl [1965] VicRp 95; [1965] VR 745, at 750:

"... it would not be right to lay down a rule that in every case where evidence of good character is given, the judge must give a direction as to the way in which it can be used. It is, of course, a different matter if the judge gives a wrong direction, as for example on the former somewhat more restricted basis stated in R v Bassett [1962] VLR 535 at p.541; [1952] VicLawRp 75; [1952] ALR 1035, or if the prosecutor puts such a restricted view to the jury, when it would become the judge's duty to correct it. But, in general, non-direction with regard to good character evidence is not like non-direction with regard, say, to the evidence of an accomplice, where the jury without proper guidance might well misuse the evidence to the detriment of the accused. Ordinarily, if left without guidance, a jury would, I think, be inclined to use good character evidence in the way in which the High Court has said in Attwood v R [1960] HCA 15; (1960) 102 CLR 353, at p.359; [1960] HCA 15; [1960] ALR 321, that it is to be used. But I would add that if counsel for an accused person asks for such a direction it would be wise for a trial judge to give it, lest it be afterwards suggested that in the circumstances of the particular case some less effective use of the evidence may have been made than the accused was entitled to expect. Personally, I always give the direction where evidence of good character is given."

19 Mr Bowden has not persuaded me that, in this case, such good character evidence as was given may have been put to a less effective use by the jury than the appellant was entitled to expect.

21 By this ground of appeal, the appellant pleads that the trial Judge gave a wrong direction with respect to the burden of proof. The complaint comes down to one sentence in the trial Judge's summing up, in which he said:

"If you are left with a reasonable doubt that there is a reasonable probability that the accused may be telling the truth then, again you must acquit him."

22 That direction was given in the context of a general direction to the jury to the effect that they were required to come to a verdict on the whole of the evidence given at trial, including the evidence of the appellant. His Honour told the jury that if, on all of the evidence, they were satisfied to the required degree of the guilt of the accused, they may convict. He described that as the "first option". He then told them that if they believed that the accused was telling the truth, they must "acquit him". He then said:

"The third option, if you are left with a reasonable doubt that there is a reasonable probability the accused may be telling the truth then, again, you must acquit him. In other words, if you cannot determine where the truth lies the accused is entitled to the benefit of the doubt."

23 I agree that the phrase, "if you are left with a reasonable doubt that there is a reasonable probability the accused may be telling the truth", might have confused the jury if his Honour had not gone on to say what he meant by it. Depending on exactly how the learned trial Judge expressed himself in terms of emphasis and intonation, the jury might have been left with the impression that they had to decide whether there was a reasonable probability that the accused may be telling the truth, in order to select the "third option". In my opinion, however, any possibility that the jury may have been left with that impression was precluded by the emphatic direction which his Honour repeatedly gave to the jury that the Crown was obliged to prove the case against the appellant beyond reasonable doubt, and by the sentence which immediately followed the sentence complained of when his Honour told the jury, in effect, that what he meant was that, if they cannot determine where the truth lies, they must acquit. In the context of the summing up as a whole, the jury would be left in no doubt by the direction that, if the appellant's evidence caused them to doubt, the appellant was entitled to an acquittal. That is, I think, all that was required by this aspect of the directions. It was put by Lord Goddard CJ in Regina v Lobell [1957] 1 QB 547, at 551, as follows:

"The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them. If on a consideration of all the evidence the jury are left in doubt whether the killing or wounding may not have been in self defence the proper verdict would be not guilty. A convenient way of directing the jury is to tell them that the burden of establishing guilt is on the prosecution, but that they must also consider the evidence for the defence which may have one of three results: it may convince them of the innocence of the accused, or it may cause them to doubt, in which case the defendant is entitled to an acquittal, or it may and sometimes does strengthen the case for the prosecution."

25 By this ground, the appellant pleads that the trial Judge gave a wrong direction to the jury or failed to adequately direct the jury on the question of honest and reasonable but mistaken belief in relation to the appellant's plea of self defence. The trial Judge did direct on self defence and no complaint is made about that direction. His Honour also gave a sufficient direction to the effect that an honest and reasonable belief on the part of the accused as to the need for self defence is an excuse. He said:

"Now, along with self defence is the question as to whether or not in all of the circumstances the accused acted with an honest but reasonable belief as to the existence of the threat to him."

"If he believes, and that is to say he really believes, that there was a significant threat to him, and he also acts reasonably in that belief, that is to say, an ordinary person in the circumstances would also regard it as a threat of greater severity than in fact it was, then he is excused if he over reacted by using greater force than in fact was reasonably necessary. An honest and reasonable belief that one is about to be struck or attacked might justify a pre-emptive blow."

27 The complaint which the appellant makes is that his Honour did not specially direct the jury that it was for the Crown to negate honest and reasonable mistake. It is true that his Honour did not do so; but, in my opinion, the direction as a whole could not have left the jury in any doubt that if they had a doubt as to whether the accused held an honest belief that he was about to be attacked, they should acquit. His Honour had made it abundantly clear earlier in his direction that, if an accused offers any defence or explanation that might tend to exonerate him, it is for the Crown to negate that defence or explanation. He said this:

"If an accused offers any defence which would tend to exonerate him, as is the case here in relation to self defence or provocation - and I will come to directing you on those issues in a moment. If he offers any defence which would tend to exonerate him, it is the obligation of the Crown to negate those defences or explanations. It is not for the accused to prove that he did act in self defence. It is not for the accused to prove that what he did was a result of the provocation which was offered to him, but rather the onus is on the Crown to negate those defences."

28 Mr Bowden submitted that the express reference to self defence and provocation in this context could have left the jury with the impression that the Crown's duty to negate extended only to self defence and provocation. I do not think the jury could have been left with that impression. Nothing could have been clearer than the direction: "If he offers any defence which will tend to exonerate him, it is the obligation of the Crown to negate those defences". There is nothing in the direction read as a whole that would cause a reasonable jury to not apply that direction to the "defence" of honest and reasonable belief. The fact that his Honour specifically mentioned the pleas of self defence and provocation as matters to be negated by the Crown did not detract from the all inclusive terms of the general direction as to onus regarding matters of defence.

29 I am not persuaded that there was a misdirection in regard to onus of proof. I would not uphold this ground of appeal.

30 It follows that, in my opinion, the appeal ought to be dismissed.

31 WHITE J: I have had the advantage of reading in draft the reasons to be published by Anderson J. I am in agreement with those reasons and have nothing further to add.

32 HEENAN J: I have had the opportunity of reading the reasons of Anderson J in draft form. For those reasons I also would dismiss this appeal.

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