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[2021] VSCA 102
General information, not legal advice.
Court of Appeal (Vic)
2021-04-23
Mr P, Priest JA, Kyrou JA, Forrest JA
Original judgment source is linked above.
DPP v Smith (Unreported, County Court of Victoria, Judge Smith, 19 August 2019) (Conviction).
CRIMINAL LAW - Appeal - Conviction - Applicants convicted of aggravated burglary, intentionally causing serious injury and kidnapping - Whether judge wrongly deprived applicants of a 'defence' - Whether trial judge erred in directing jury on hypotheses consistent with innocence - Whether trial judge erred in directing jury to put aside any aspect of complainant's evidence disbelieved - Whether judge's charge lacked balance - Combination of errors resulted in substantial miscarriage of justice - Appeal allowed - Retrial ordered - ; and considered.
2 The applicants each now seek leave to appeal against conviction on four overlapping grounds as follows:[6]
3 In our opinion, the applicants have established each ground. In combination, the errors embodied in the grounds have occasioned a substantial miscarriage of justice. Leave to appeal should be granted, the appeal allowed, the convictions set aside and a new trial ordered. Our reasons for those conclusions follow.
4 In order to understand the issue raised by the grounds of appeal, it is necessary to summarise the evidence in the trial in moderate detail.
5 Daniel Jasson ('Jasson'), the complainant, is a mechanic by trade. His attempts to set up his own business had been a failure. At relevant times, he was addicted to illicit drugs and was an admitted drug trafficker. He owed an individual, Nathan Scuderi ('Scuderi'), money for marijuana supplied to him, some of which he personally used and some of which he on-sold.
6 Jasson had a poor credit rating, and owed money to two previous commercial landlords. Around 2015, however, he persuaded his mother, Margaret Pridham, to take out a $50,000 loan from the Commonwealth Bank to purchase a 'dyno' - a dynamometer - for $54,000. (A dynamometer - in this case a 'Dyno Dynamics Dynotech 2WD' - is a large piece of automotive machinery which measures the horsepower of a vehicle's engine, and permits the engine to be tuned electronically.)
7 In the course of their dealings, Jasson had told Scuderi that he possessed a dyno (the purchase of which, as we have said, was primarily funded by Ms Pridham). He still owed more than $30,000 for the dyno, and was storing it at a factory operated by his friend, Craig Elliot ('Elliot'). Jasson had been trying to sell the dyno, the asking price being $31,000. Ms Pridham gave evidence that the original seller of the dyno had offered to buy it back for $22,000, but she and her son were seeking a better result. She told the jury that her son was supposed to make all of the payments - but made only the first three or four - so that she ended up making 'quite a few payments'. Ms Pridham said she ceased making payments in mid-2016, still owing $30,000, $36,000 or $37,000, and the bank 'was very heavily on [her] back'. It was around this time that the dyno was moved to Elliot's factory.
8 In circumstances that were not ventilated at trial, the applicant Mathieson took over the drug debt owed to Scuderi, and, prior to 3 January 2017, made several unsuccessful attempts to collect it. Around early November 2016, Mathieson and Jasson met, and they got into an argument. Jasson then arranged to obtain more marijuana so as to pay off the debt. About a fortnight later, they met at Jasson's flat. Jasson paid part of what was owed, leaving a balance of $1,500. Mathieson returned the following day. Jasson, who was present with a customer and a friend, did not pay Mathieson any further money. According to Jasson, there was then a 'scuffle', in the course of which both he and Mathieson were armed with knives. On 30 December 2016, Jasson saw Mathieson at a petrol station. Jasson said he made eye contact with him and asked him if he wanted his money, but Mathieson said 'absolutely nothing'.
9 On the morning of 3 January 2017, Mathieson attended the complainant's flat in Hampton East with the applicants Berry and Smith. According to Jasson's evidence, when he opened the door Berry - the man with 'olive skin', who 'looked Greek or Italian' - and Smith - a 'Caucasian gentleman' - forced their way in and tackled Jasson to the floor. Berry had a 'sort of a filleting knife' and Mathieson had cable ties (charge 1 - aggravated burglary). Smith used a 'Taser' on Jasson but it had no effect. Mathieson then bound Jasson's wrist with cable ties. Jasson was asking the three men what they wanted, and 'essentially' they were saying, 'We're here for the dyno'.
10 Jasson gave evidence that he managed to free one of his hands and made a run for the door. He got to just outside the front door, but was dragged back inside by the three applicants, who punched him a number of times (mainly to the face and head) causing minor bruises and abrasions (charge 2 - intentionally causing injury). Jasson was scared and told the applicants where the dyno was.
11 According to Jasson's evidence, the applicants then took him from the premises and forced him into the back seat of a white Kia SUV (charge 3 - kidnapping). Smith was the driver; Mathieson sat in the front passenger seat; and Berry sat in the back with Jasson, whose hands had been once more secured with cable ties.
12 A neighbour, Karen Hogan, heard scuffling and shouting, and called '000', providing the emergency service operator with a description of the Kia and its registration number. Significantly, she heard a voice say: 'Just give us the money then, you fucking cunt'.
13 According to Jasson's evidence, they drove to South Road, where Mathieson collected a truck. They then drove in 'convoy' to Elliot's factory in Cranbourne. Smith was driving and Berry, holding a knife, sat next to Jasson, whose hands were still bound. During the journey, Jasson telephoned Elliot. He told him the dyno had been sold and was going to Sydney. Jasson asked Elliot to open his factory so the buyers could collect the dyno around 10.00 am. Elliot agreed. We pause to note that, when cross-examined, Jasson was unable to explain how he was able to telephone Elliot with his hands tied, or how he had obtained Elliot's mobile telephone number (which he did not have memorised).
14 Smith and Mathieson parked the Kia and the truck near Elliot's factory. Jasson's evidence was that Berry, with the knife, remained in the back of the car with him, while Smith and Mathieson drove in the truck to the factory. Berry said he felt sorry for Jasson, and cut off the cable ties. Mathieson and Smith were gone for 20 or 30 minutes. When they returned, Jasson saw the dyno in the back of the truck.
15 The collection of the dyno was made in the open, with no attempt at disguise, despite the obvious presence of CCTV cameras. Mathieson and Smith were greeted by Elliot and his son, who helped load the dyno into the truck (charge 4 - armed robbery).
16 Elliot gave evidence that he had previously employed Jasson, and was looking after a dyno for him at his Cranbourne factory. On 3 January 2017, Jasson telephoned and asked him to open the factory so some guys could come and pick up the dyno. He agreed to do so, but was aware that Ms Pridham had financed the purchase of the dyno, so he telephoned her. She said she knew nothing about it but agreed to the transfer. Two men subsequently arrived, and Elliot helped them to load the dyno onto their truck. They told him they were heading to 'Fast Track' at Tullamarine to go to Sydney. Later, Elliot received an emotional call from Jasson who told Elliot that he had saved his life, as 'they've stolen the dyno' and he was around the corner 'with a gun to [his] head'.
17 Jasson's evidence was that Smith returned to the Kia and they drove to his flat, Mathieson following in the truck. At his flat, Jasson gave Mathieson a laptop computer which operated the dyno.
18 According to his evidence, Jasson telephoned Elliot at 11.49 am, complaining that the dyno had been stolen while he had a gun to his head. He then called his mother, saying, 'why did you let them take it?'. Ms Pridham's evidence was that her son told her that he had been kidnapped and held at gunpoint by three men, and that they had forced him to write a receipt for the dyno and to call Elliot. Her son told her that he did not want police involved, but she nonetheless called them. We pause once more to note that, under cross-examination, Jasson said that he had not signed a receipt, and could not say why he had told his mother that he had. He also agreed that he had not been forced to call Elliot.
19 Uniform police attended Jasson's flat just before 2.00 pm, followed by detectives an hour later. Jasson told uniformed police that two of the alleged offenders had entered with knives, but he made no mention of a Taser or a gun. He later made a statement to detectives, in which he said one offender had a knife; he mentioned that there was a Taser (but did not say it was used on him); and he said nothing of a gun.
20 An intact cable tie was found at Jasson's flat. DNA analysis rendered the result that it was 160 times more likely if Mathieson was a contributor than if he was not. Photographs taken of Jasson showed he had bruises and abrasions to the body, some of which he attributed to the assault by the applicants.
21 We again pause to note that the judge gave an 'unreliable witness' warning about Jasson's evidence, in light of his drug addiction; his history of dishonesty (including a conviction for forgery); and what his mother described as 'irrational' state of mind at the relevant time.
22 The applicants' 'defence' at trial was that they had collected the dyno pursuant to its sale by Jasson to Mathieson, partly to satisfy the outstanding drug debt.
23 Jasson denied 'puttage' in cross-examination by counsel for the applicants that he had agreed to deliver the dyno to Mathieson to satisfy a drug debt, and for a further payment of $15,000 once the dyno was sold. Although there was no evidence of the sum agreed upon, counsel submitted that the fact that Jasson had willingly handed over the dyno pursuant to an agreement - and that his denials of so doing were lies - emerged from the following evidence:
• first, Jasson owed Mathieson a debt of $1,500, and had been discussing for weeks how he could satisfy it;
• secondly, Jasson had been trying to sell the dyno for months without success, and was in a dire financial situation;
• thirdly, when they arrived at the flat, the applicants said, 'We're here for the dyno';
• fourthly, Jasson told the applicants the location of the dyno;
• fifthly, Jasson told Elliot that the dyno had been sold, and that the buyers would collect it;
• sixthly, Mathieson and Smith told Elliot the dyno was being taken to Sydney (something that Jasson also told Elliot on the telephone);
• seventhly, Jasson told the applicants about the laptop, despite it being in a separate location to the dyno, and despite it being a convenient (but not necessary) means of operating the dyno; and
• eighthly, Karen Hogan heard someone say, 'Just give us the money then ...' (that is, instead of the dyno).
24 There were also a number of implausibilities and inconsistencies in, and unsatisfactory aspects to, Jasson's evidence. Hence, despite allegedly having been robbed of a valuable piece of machinery, Jasson told his mother not to involve police. Further, he could not explain how he had telephoned Elliot with his hands tied (and claimed in evidence that he could not remember if he had his phone with him). He was, according to his mother, acting irrationally and saying things that were not true at the relevant time, against a background of drug abuse and a history of dishonesty (including a conviction for forgery). Jasson also told his mother that he had signed a receipt for the dyno, but told the jury that he had not. He also gave varying accounts as to the weapons used, and had told Elliot he had a gun to his head.
Ground 1: Direction that there was no evidence of a deal to buy the dyno
25 Counsel for each applicant went to the jury relying heavily on the hypothesis that the applicants were collecting the dyno pursuant to a deal by Jasson to sell it, partly in satisfaction of the drug debt owed to Mathieson. Indeed, that hypothesis constituted the applicants' essential 'defence'. Hence, Jasson was cross-examined extensively on the purported deal, although he steadfastly denied its existence. It was an integral part of the essential defence that Jasson's denials of the deal alleged were lies.
26 In our view, there was evidence in the trial - albeit that it was thin - capable of supporting the 'deal' hypothesis.[8] So much seems to have been conceded in oral argument by the respondent's counsel in this Court, when he submitted that 'there was evidence that could fit a deal if the jury rejected the complainant's account'.
27 Unhappily, in his charge the judge directed the jury that there was no evidence of any deal to sell the dyno. The judge thereby deprived the applicants of their essential defence. For that reason, the applicants' convictions cannot be permitted to stand.
28 To put the impugned directions in context, the judge commenced his charge to the jury by directing on the roles of jury and judge (including the status of any comments he might make on the facts), the presumption of innocence, and the burden and standard of proof (informing the jury he would later explain the elements of the charges that the prosecution needed to prove). Next, the judge reminded the jury of a direction he had given at the commencement of the trial, and said that he had 'stressed ... that it is the answer that is the evidence, not the question'. The judge then gave examples of 'puttage' and said:
Now that puttage is not evidence. It is the response to the puttage that amounts to the evidence in the case. Now there was a good deal of discussion in this trial concerning the circumstances in which these men attended at the unit of Mr Jasson and you will recall that there was much time spent in evidence, in cross-examination of Mr Jasson and also in final addresses to you as to the puttage that had been made to Mr Jasson concerning his relationship, in particular with [Mathieson] and the arrangements that he may or may not have come to earlier.
29 On our count, the judge then set out at least thirteen separate examples of questions asked in cross-examination of Jasson by defence counsel which resulted in negative responses. It is enough to refer to the first few as exemplars:[9]
[T]his is during the cross-examination by [Mathieson's counsel], what he said was, 'Let me suggest that did happen. You explained that you could pay off the debt because you had a dyno for sale and you came to an arrangement where he offered to (this is [Mathieson]) where he offered to facilitate the sale of the dyno, forgive the debt and give you the major portion of what was left over, $15,000'. Now, that is what we would call puttage. That suggestion was made to Mr Jasson and his answer was simply, 'No'.
Later on, 'And from that point on [said Mathieson's counsel] it was completely amicable until about 3 January pursuant to the arrangement [Mathieson] turns up to get the dyno'. 'No', was the answer. And it went on.
'Only on this occasion you've changed your mind about the deal. You want the 15,000 up front, before you'll part with the dyno, as opposed to waiting for it to be sold'. The answer, 'No'. 'And let me suggest to you that there was a fairly vocal argument, disagreement between you and Steve that morning, before the matter was eventually resolved and you went back to the original deal?' The answer, 'No'. 'The original deal being that effectively you would give the dyno on consignment, he would sell it on the terms that I just mentioned, your debt would be forgiven and you would get the $15,000 and everything was amicable'. The answer was, 'No'.
Now the evidence before you, at least at that point, was that none of that was correct. None of that puttage was correct, said Mr Jasson. ...
30 Having taken the jury through questions involving 'puttage' that had elicited negative answers, the judge then gave the following directions:
Now if you take into account that puttage, questions are not evidence, there is in fact no evidence of this, any deal with [Mathieson] or any of the other accused for that matter, concerning their taking the dyno away, they would sell it, whether it be on commission or not. They would sell it and his drug debt would be cancelled and he would get some sum of money, $15,000 I think was the amount mentioned. There is simply no evidence of that. So that is what I mean by it is the answer that counts as evidence, not the question, not the puttage.
Keep in mind of course that this is not a trial about whether there was such a deal or arrangement in place. This is a trial of the three accused men who are alleged to have committed a number of offences. What this trial is about is has the prosecution proven that they committed those offences?
31 In this Court, counsel for the applicants submitted orally that these directions were 'tantamount to inviting the jury to convict'.[10] We might not have expressed it quite as starkly, but we do consider that the jury would have understood the judge to be directing them that there simply was no evidence of any deal. Those directions were erroneous. Albeit that it was thin, there was some evidence from which the existence of a deal might be inferred. The impugned directions therefore deprived the applicants of their principal defence. That being so, if the directions were left uncorrected, the almost inevitable conclusion would be that justice had miscarried.
32 Shortly after the directions were given, counsel for the applicants properly took exception, but the judge refused to redirect. The next day, based on the mischief flowing from the directions, counsel sought a discharge of the jury, but their application was refused.
33 Counsel for the respondent submitted that the erroneous directions were subsequently corrected. He drew attention to further directions given later in the charge, when the judge returned to the issue of 'puttage'. The judge said:
What I told you yesterday and you will recall I put various quotes from the transcript to you, quotes I think in the main they were questions or suggestions, I called them in the end, 'Puttage', by [Mathieson's counsel] to Mr Jasson and what was being put through a series of questions was that there was a deal or an arrangement between Mr Jasson and Mr Mathieson, and perhaps the others, as to this dyno, as to the transfer of the property, the dyno to them. And I read out the puttage and read out that in each of the instances that I had referred to, the response of Mr Jasson was to deny. He said, 'No', or, 'No, that's not so', or, 'No, that never happened', even, 'No'. and you will remember that on the very first day I talked about the answer being the evidence, not the question. Of course, in each case, in order to understand the answer, you might have to have a look at the question. Like, 'Did you go to school?' The answer is, 'Yes'. Well if the answer is looked at on its own, yes or no tells you nothing. It is only when you look at the question as well, 'Did you go to school?', that the answer, 'Yes', means, 'Yes, I did go to school'.
And those denials, those no's, those answers, have of course to be looked at in the context of the question or the puttage that was made to him at that stage. And I did tell you that on the basis of those questions or puttage and the answers, there was no evidence of the existence of a deal or arrangement, as had been put by a number of counsel to Mr Jasson concerning the dyno. But of course, going back to my very original example to you when you were first empanelled, counsel says to the witness, 'I put it to you, you were not even in Sydney on that day. What do you say as to that?' And he might say, 'Yes, I was. I wasn't [sic.] in Sydney. You're wrong, I wasn't [sic.] in Sydney'.
At that stage, I think I might have come at the example the other way around, but it does not matter. At that stage there is no evidence that he was not in Sydney on that day. But there might be other evidence in the case that comes along, other evidence where another witness comes along and says, 'Well, I saw him there too, I saw him in Melbourne on that day', so he was not in Sydney, or look, you could probably think of lots of other evidence which might be called by one or the other of the parties which shows that the witness was not telling the truth when he denied the puttage that was put to him. And you will look at all the evidence in this case.
Now, there is not a huge list of witnesses. This is not one of those cases where there were 30, 40 witnesses called, but you did hear evidence from Ms Hogan and from Mr Elliott. You heard evidence that at one point Mr Jasson told Mr Elliott that in his phone call to him, I think it was the first phone call made when he was in the car, to Mr Elliott saying, 'Can you come down and open up? I've sold the Dyno, and it's to be picked up'. And I think he said also that it was going to Sydney, 'It's been sold, it's going to Sydney'.
That is evidence. It was evidence from Mr Elliott that that is what he had been told by Mr Jasson. And you might come to the conclusion that that is evidence that you should take into account when you are looking at all of the evidence as to whether this was a deal that had been done, a business type of deal, a debt released and the like. You will look at all of the evidence in the case. You are not just obliged to look at the puttage that I referred you to and the answer that I referred you to. Look at all the evidence.
34 The respondent's counsel submitted that the directions extracted immediately above resolved any difficulties flowing from the earlier directions.
36 By these subsequent directions the judge instructed the jury that 'there might be other evidence in the case that comes along', and that they 'could probably think of lots of other evidence which might be called by one or the other of the parties', in circumstances where the applicants did not enter into evidence. So much was capable of suggesting to the jury - in tension with the burden of proof - that the applicants could have called evidence to establish the putative deal, but had not done so. Moreover, having done so, the judge then referred solely to the evidence of Elliot, without referring to any of the other evidence relied upon by the applicants as raising a reasonable hypothesis that a deal existed with respect to the dyno.
37 We consider that these later directions went nowhere near far enough in correcting the earlier directions which had effectively deprived the applicants of their principal defence. Indeed, by potentially reversing the onus of proof, they may have exacerbated the problem.
Ground 2: Failing to direct on need to exclude alternative hypotheses
39 In our view, the applicants have also made out the second ground, which challenges the following directions:
I told you earlier about being satisfied about the elements beyond reasonable doubt, and that is what you have got to be. If on the evidence that you do accept, you are of the view that there is a reasonable explanation or hypothesis which has been put which you consider the Crown has not disproved, then you would have a reasonable doubt about that aspect.
40 Counsel for the applicants took exception to these directions, but the judge declined to redirect.
41 In this Court, counsel for the applicants submitted that these directions were apt to reverse the onus of proof, and wrongly restricted hypotheses consistent with innocence only to those advanced by the defence on an undefined 'aspect'.
42 Whilst contending that the directions had not occasioned a substantial miscarriage of justice, in the course of oral argument the respondent's counsel agreed that the words 'about that aspect' were 'infelicitous' and 'problematic'.
43 We consider that the directions were more than problematic. In our view, they were infected by error. So as to entertain a reasonable doubt about guilt, the jury did not positively have to 'accept' any particular evidence. It would have been sufficient for a reasonable hypothesis consistent with innocence to be raised by the evidence, whether or not that hypothesis was 'put' by the applicants. Moreover, a reasonable doubt as to an element of a charged offence amounts to more than a reasonable doubt on 'that aspect'.
44 Standing alone, we have some doubt that the directions could found a conclusion that there had been a substantial miscarriage of justice. When considered in combination with other erroneous directions, however, we consider that there has been a substantial miscarriage of justice.
Ground 3: Direction to put aside evidence of complainant not believed
45 Jasson's credibility was critical to the jury's acceptance of his evidence, which, in turn, was critical to the jury's acceptance of the prosecution case.
46 When directing on aspects of Jasson's evidence, the judge gave the following directions (among others):
With regard to the parts of his evidence that you do not accept for one reason or another, push them aside, take them out of view and settle on the parts of his evidence, obviously if any, or parts of his evidence that you do accept and on the basis of that, and all of the other evidence that you do accept, then you will make the decision or come to the conclusion as to whether you are satisfied beyond reasonable doubt as to each of the elements of each of the offences that you have got to consider.
47 Counsel took exception. Hence, counsel for Mathieson submitted that in
this case, there's one issue. Is this fellow credible? If [the jury] find part of what he has to say can't be accepted, then that's something they should not put [aside]. That should be in the forefront of what they consider when they look at the rest of the evidence.
...
This case really doesn't turn on reliability. This case turns squarely on one issue, credit. Is he telling the truth or isn't he? Now, if the jury find that on almost any issue he's lied, then that should be at the forefront of their consideration of the other evidence. They should not put it to one side.
48 The judge indicated that he would redirect, and 'make it clear' that the jury may find that Jasson is 'such an unreliable or untruthful witness that they should not accept any of his evidence'. But the judge added that he 'would have thought it was trite to say that they can conclude that on one issue his evidence was an outright lie, and that may encourage them to disbelieve him on everything'.
I told you that with Mr Jasson, and for that matter with every witness who you heard from, you will consider their evidence, and you will determine whether you accept all of that evidence, none of it, or parts of the evidence, and I think I told you to put aside the evidence that you do not accept, and rely on the evidence that you do accept as truthful and reliable.
And that, of course, is correct, but what you will do in deciding what to accept and what not to accept, you take into account all the evidence about the witness, and here I suppose I am really talking about Mr Jasson rather than Ms Hogan or Mr Elliott, whose character and honesty were not challenged to my recollection - maybe counsel will jump on me for that, but certainly the honesty of Mr Jasson was challenged, and you will know that without me telling you.
And some of his past behaviours were put to him, his dishonesty, the fact that he had been involved in matters relating to violence and that he was a thief. At one stage I think he admitted that he had committed the crime of forgery and the like, and obviously you will take those sorts of matters into account in determining what part or parts, if any, of his evidence do you accept and rely upon.
50 Counsel for the applicants submitted that the direction immediately above did not remedy the vice of the earlier directions.
51 Generally, mere disbelief of a witness's answer does not amount to proof positive of the opposite of what is asserted in the answer. But it may. In some circumstances, if a witness has given a false account, that may found an inference that the truth would be harmful. In Steinberg, Gibbs J set out the position at common law:[11]
The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v Lloyd[12]; Hobbs v Tinting (CT) & Co Ltd[13]. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v Smail[14]; Malzy v Eichholz[15]; Ex parte Bear; Re Jones[16], but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v The King[17]; Tripodi v The Queen[18]. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v Russell[19].
52 As Mathieson's counsel endeavoured to make clear when taking exception, if the jury found that Jasson lied, that is not something that should merely be 'put to one side'. Indeed, as Gibbs J made clear in Steinberg, a finding that Jasson had lied might found an inference that the truth would be harmful to his position.
53 Counsel for the respondent drew this Court's attention to s 44F of the Jury Directions Act 2015, which provides:[20]
44F Prohibited direction in relation to doubts regarding truthfulness or reliability of victim's evidence
In a trial in which more than one offence is charged, the trial judge must not direct the jury that if the jury doubts the truthfulness or reliability of the victim's evidence in relation to a charge, that doubt must be taken into account in assessing the truthfulness or reliability of the victim's evidence generally or in relation to other charges.
54 For present purposes, it is unnecessary to determine the precise reach of s 44F.[21] It is enough to say that it does not dictate the conclusion that the judge was correct to direct the jury to 'push ... aside' or 'take ... out of view' those 'parts of his evidence' that the jury did 'not accept for one reason or another'. Certainly, s 44F does not restrict the ability of a party to submit to the jury that doubts they harbour as to a witness's truthfulness and reliability on a particular aspect (or aspects) should be applied to the witness's evidence generally, or impinge upon the trial judge's obligation to refer to how the parties put their cases.
55 Jasson's truthfulness and credibility were pivotal. Disbelief in his evidence - particularly accompanied by a finding that it was deliberately untrue - had the capacity to influence significantly the way in which the jury viewed his evidence overall. Hence, the judge was wrong to instruct the jury simply to put aside those aspects of his evidence that they disbelieved.
Ground 4: Lack of balance in charge to the jury
57 Counsel for the applicants submitted that the judge's charge was unbalanced.
58 Among other things, the applicants' counsel submitted that, having devoted six of the first nine pages of his charge to the denied 'puttage',[22] and having summarised Jasson's denials in fine detail, it was incumbent on the judge also to summarise the evidence upon which the defence relied pointing to the existence of a deal to sell the dyno.
59 Counsel for the applicants also submitted that, when directing on the elements of the offence, for the most part the judge put only the prosecution's assertions, without making any mention at all of the defence position. Thus, as Berry's counsel had put it when taking exception to the charge, the judge had 'systemically taken pivotal points of the defence case and essentially affirmed the prosecution case in [his] directions, saying, "Well, that's the evidence", without adverting either to the defence case on it, or other evidence that, as [other counsel] points out, supports the defence case'.
60 Further, counsel for the applicants submitted that the reasoning underpinning the judge's refusal to redirect so as to put the defence position is demonstrated by the following exchange (which, it was submitted, had the tendency to reverse the onus of proof):
HIS HONOUR: Well, it's the prosecution who's got to prove the element, and I've endeavoured to say how it is that they put the element.
Now, this is always difficult. If there'd been evidence on the part of the defence, no doubt I would have said, 'The defence on the other hand called evidence to say this, that and the other that's contrary to that. It's up to you, members of the jury'. But what should I be saying to the jury when there is no evidence as to what the - there is no positive evidence as to what the defence is.
[MATHIESON'S COUNSEL]: Your Honour could at least say, 'The defence take issue with'
HIS HONOUR: Well, you think that's the issue? You think that really needs to be said here?
[MATHIESON'S COUNSEL]: Well, rather than the jury just hear, 'The prosecution say this, the prosecution say this', as they've heard for the last hour. It would be doing a kindness to the accused to just remind the jury that those prosecution contentions are in issue. They're not accepted.
HIS HONOUR: I really think that's drawing a long bow.
[MATHIESON'S COUNSEL]: And the end result, Your Honour, the real complaint is that the charge is unbalanced, because of the - - -
HIS HONOUR: The evidence is unbalanced, [counsel]. Whether the jury accepts the evidence, it's unbalanced.
[MATHIESON'S COUNSEL]: I disagree, Your Honour, but there's no point us having a debate about that.
HIS HONOUR: No there's not. But obviously if I'm to spend time on the evidence, it's always going to be about prosecution witnesses, because there were no defence witnesses, and insofar as Mr Jasson accepted a number of matters that were put to him by defence counsel, I made that clear. They did, he did. But on a number of them, he denied them, and I considered that it was appropriate, and still consider it's appropriate in those situations to remind the jury that it's the answer that counts, not the question. And this is a vivid example in this trial. Lots of puttage, but lots of puttage denied.
61 This Court's jurisdiction is enlivened if, as a result of an error or an irregularity in, or in relation to, the trial, or, for any other reason, there has been a substantial miscarriage of justice.[23]
62 It is an essential requirement of a judge's charge - one that has survived the promulgation of the Jury Directions Act 2015[24] - that he or she must fairly put an accused's case.[25] Callaway JA summarised the position in Defrutos:[26]
One of the obligations of a trial judge, in the course of his or her charge, is to put the defence case to the jury. See, for example, R v Wilkes and Briant [1965] VicRp 64; [1965] VR 475; R v Schmahl [1965] VicRp 95; [1965] VR 745; R v Tomazos (unreported, NSW Court of Criminal Appeal, 6 August 1971); R v Veverka [1978] 1 NSWLR 478; R v Checconi, De Paoli and Riley (1988) 34 A Crim R 160 and R v Tiplea (unreported, Court of Criminal Appeal, 12 April 1995) at 14-17.
In the first of those cases Smith J referred at 479 to the precautions necessary to avoid an erroneous conviction. His Honour continued:
Important among the necessary safeguards is the established rule that it is the judge's duty to put the defence fairly to the jury. That rule cannot, save in quite special circumstances, be departed from, without serious risk of a miscarriage of justice.
Three months later, in Schmahl's case, Winneke CJ said at 748-9:
Failure adequately to put the defence is, of course, a well-recognized ground of appeal. See the case of R v Wilson (1913), 9 Cr App Rep 124. In a case like this where the evidence was lengthy, and by no means easy to unravel, and where it related to a conversation which had taken place so long before, the interests of justice required that the defence of the applicant should be clearly and fully presented to the jury. Failure to make such a presentation where it relates to an important part of the defence makes it dangerous, in my view, to allow the verdict to stand.
Those judgments have been regarded in this State as classic expositions of the importance of putting the defence case to the jury. That the defence is a simple one does not ordinarily exonerate the judge from his or her duty to do so. See Tiplea's case at 17.
In Tomazos's case, which was strikingly similar to the present application in a respect to which I shall turn next, Isaacs J said:
The appellant has not had what in law he is entitled to have, and that is a trial according to law. A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused's defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof.
It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, 'Well, you have heard all that has been said on behalf of the accused by his counsel; it is unnecessary for me to say anything more'. The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused.
The last sentence in that passage does not mean that the judge gives the authority of his or her office to the defence, as in the case of a direction, but rather that the judge himself or herself must focus the jury's minds on the real issues in the case. Compare R v Anderson [1996] VICSC 17; [1996] 2 VR 663 at 666-7.
63 We are satisfied that, read as a whole, the charge failed adequately to put to the jury the case for the applicants in a fair and balanced manner (if at all). Given that the judge failed properly to leave the applicants' essential 'defence' - as slender as it may have been - to the jury for their consideration, it is impossible to conclude that there has been other than a substantial miscarriage of justice.
65 We are of the view that, when viewed in combination, the errors demonstrated under cover of the applicants' grounds establish that there has been a substantial miscarriage of justice.
66 The applicants' principal 'defence' was removed from the jury's consideration, and the jury were misled as to the manner in which they could approach the central prosecution witness's evidence.
67 It is impossible to conclude that, absent these errors, the applicants' conviction on each charge was inevitable.[27]
[5] On 19 November 2019, the judge sentenced all applicants to 30 months' imprisonment on each of the charges of aggravated burglary and kidnapping, and to six months' imprisonment on the charge of intentionally causing injury. Orders for cumulation resulted in each case in a total effective sentence of four years' imprisonment, upon which the judge fixed a non-parole period of two years.
[6] Each applicant also sought an extension of time within which to file notice of application for leave to appeal pursuant to s 313 of the Criminal Procedure Act 2009. In the course of oral argument, the respondent's counsel conceded that those applications should be granted. We will thus grant extensions of time.
[9] Emphasis added to this and following passages.
[10] Counsel for Smith adopted the written and oral submissions made by counsel for Mathieson and Berry.
[11] Steinberg v Commissioner of Taxation (Cth) [1975] HCA 63; (1975) 134 CLR 640, 694 ('Steinberg') (citations as in original).
[12] [1911] HCA 34; (1911) 13 CLR 230, at p 241.
[13] [1929] 2 KB 1, at p 21.
[14] [1905] HCA 25; (1906) 2 CLR 684, at p 698.
[15] [1916] 2 KB 308, at p 321.
[16] [1945] NSWStRp 50; (1945) 46 SR (NSW) 126, at p I28.
[17] [1924] ArgusLawRp 24; (1924) 34 CLR 154, at p 158.
[19] [1961] WAR 103, at p 109.
[21] Section 44F appears to be a legislative response to R v Markuleski (2001) 52 NSWLR 82 ('Markuleski'), albeit that Markuleski was not followed in this State. See R v PMT [2003] VSCA 200; (2003) 8 VR 50; R v Goss [2007] VSCA 116.
[23] Criminal Procedure Act 2009, s 276(1)(b) and (c). See also R v Tikos (No 2) [1963] VicRp 45; [1963] VR 306, 307 (Herring CJ, O'Bryan and Adam JJ).
[25] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 637 [41] (Gaudron A-CJ, Gummow, Kirby and Hayne JJ); Castle v The Queen [2016] HCA 46; (2017) 259 CLR 449, 470 [59] (Kiefel, Bell, Keane and Nettle JJ).
[26] R v Defrutos [1998] 2 VR 589, 597-8.
[27] Baini v R [2012] HCA 59; (2012) 246 CLR 469, 479 [26], 482 [35], (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Andelman v R [2013] VSCA 25; (2013) 38 VR 659, 677 [85] (Maxwell P, Weinberg and Priest JJA).
Mathieson
The Queen [2021] VSCA 102
(2003) 8 VR 50
(2000) 199 CLR 620
(2017) 259 CLR 449
(2012) 246 CLR 469
(2013) 38 VR 659
(1975) 134 CLR 640
(1911) 13 CLR 230
(1906) 2 CLR 684
(1924) 34 CLR 154
(1961) 104 CLR 1
(2001) 52 NSWLR 82