MIFSUD, Michael Charles v R

CASES CITED : R v King [2004] NSWCCA 20; (2004) 59 NSWLR 515

PARTIES: Michael Charles MIFSUD (Applicant) Regina (Respondent)

COUNSEL: S Flood (Applicant) F Veltro (Respondent)

SOLICITORS: Criminal & Traffic Law (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2008/17917

McCLELLAN CJ at CL SIMPSON J HIDDEN J

22 December 2009 Michael Charles MIFSUD v R Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 SIMPSON J: On 14 April 2009 the appellant was indicted on a charge of robbery in company. He entered a plea of guilty and a jury was empanelled. On 17 April the jury returned a verdict of guilty. On 2 June 2009 the appellant was sentenced to a term of imprisonment of 4 years and 9 months, made up of a non-parole period of 2 years and 9 months, commencing on 5 March 2009 and expiring on 4 December 2011, with a balance of term of 2 years, expiring on 4 December 2013. 3 The appellant now appeals against the conviction and seeks leave to appeal against the sentence. 4 The grounds of appeal against conviction were originally pleaded as: "(1) His Honour misdirected the jury by not leaving open the possible alternative verdict of larceny in answer to the jury question on this point viz. ' To find guilt, is it necessary for the violence to have been for the purpose of robbery, that is, if the violence occurred for some other reason and the taking of the wallet was simply opportunistic, does that constitute robbery in company? '

(2) Misdirection not to speculate and failure to give a circumstantial evidence direction. Failure to put the defence case that the wallet may have been taken by one of the other two offenders acting without the accused (sic) knowledge outside the common purpose to assault. His Honours direction that the jury should not speculate ' that (victim's) wallet might have been in some other place for instance in the living room ' prevented the jury from considering a reasonable scenario that the victim was mistaken in his evidence that the wallet was in his bedroom effectively taking away from the jury's consideration a major part of the appellant's defence (R v McIntyre 111 A Crim. R 211).

(3) Misdirection by His Honour not including in his recent possession direction on instruction that the appellant's recent possession of the wallet may lead to the conclusion that the accused was a guilty receiver and in that event not guilty of the robbery in company or larceny.

(4) The appellant was denied procedural fairness by His Honour's refusal to grant an adjournment to procure the attendance of a witness, Gary Johan, who had provided a statement to the Crown and later gave a conflicting version to the Crown and failed to remain at court to give evidence (T. 16/4/09 p 42 and 57).

(5) Failure of the Crown to allow for an alternative verdict clearly available on the evidence." 5 To these grounds were subsequently added: "(4)(a) Procedural fairness was denied by His Honour's failure to put the defence case in the summing up that the wallet was taken by one of the other two offenders acting outside the common purpose to assault and His Honour's failure to leave larceny as a possible alternative verdict. (Written submissions previously filed. ( R v Taleb [2006] NSWCCA 119, R v Meher [2004] NSWCCA 355).

(6) The trial miscarried because the learned trial judge's summing up omitted major aspects of the Appellant's defence and the summing up was unbalanced. ( Taleb and Meher )." 6 The ground of the application for leave to appeal against sentence was: "(1) His Honour did not take into account that there was a long gap in the offending history of the accused ( Ryan v The Queen (2001) 206 CLR 267; R v Johnson [2004] NSWCCA 76 [29]), nor that the accused was at the 'crossroads' ( Osenkowski (1982) 5 A Crim R 394)."

The Crown case 7 The Crown case was as follows: 8 At about 11.40 pm on 23 June 2008, the appellant and two other (younger) males entered a home unit at Springfield Avenue, Potts Point. The unit was occupied by Messrs Grahame Bennett and Gary Johan. Mr Johan was a relative of the appellant. 9 Mr Bennett was in bed asleep. Upon being woken by Mr Johan, Mr Bennett dressed and joined the group in the living room. He did not welcome the visitors. He told them that they would have to leave soon because he and Mr Johan had to go to work. He thought that the appellant was intoxicated. 10 The appellant became agitated. He pushed Mr Bennett in the chest a couple of times, grabbed him by the testicles, and directed one of the other men to smack Mr Bennett in the head. He referred to the two other men as his "soldiers". Mr Bennett and Mr Johan told the appellant that Mr Bennett had a heart condition and had had a couple of heart attacks already that year. 11 One of the co-offenders punched Mr Bennett in the head, causing him to fall from the chair in which he was sitting. He got up and went into his bedroom. The three men followed him into the bedroom, pushed him, and kicked and punched him. The appellant was holding him down on the bed. He attempted to protect his face and chest. He could not identify which of the men did what. While the appellant leaned over him, he told the others to give Mr Bennett "a good whack". Mr Bennett fell off the bed to the floor and the men, in turns, kicked him. One (not the appellant) said "we should cut his throat". 12 The men found a tin moneybox, which they opened and squashed. It seems that they took most of the money that was in it. One of the men tipped over a computer stand, smashing the computer and a printer, and smashed a fax machine and intercom phone system on the wall. $4000 worth of damage was caused. 13 A wallet belonging to Mr Bennett disappeared. Before the men left, Mr Bennett asked the appellant about the wallet. The appellant said he knew nothing about it and had not seen it. 14 One of the men (not the appellant) started to erase finger prints. All three then left. 15 Police (Constables Gregory Hartge and Nick Kabouiris) attended, having been called by Mr Johan. They observed the crushed tin moneybox and some loose coins on the floor. They also observed a cracked computer screen and a damaged computer chair, and a lot of furniture on the floor. 16 Mr Bennett at that time attributed the robbery to "his son's three friends" and said that he did not want action taken at that time. He told the police officers that the men had taken his wallet. 17 The police officers left the unit, and drove around the area. In William Street they noticed three men matching the description given by Mr Bennett. The police pulled up. One of the men ran off. The police officers questioned the other two men, who included the appellant. The police spoke to the two men separately. The appellant told Constable Hartge that he had been at Kings Cross having drinks at a friend's house. Constable Hartge searched the appellant and found a black wallet in his pocket. It contained cards bearing Mr Bennett's name. Constable Hartge arrested the appellant and took him to the police station. The appellant was found to have $62 in notes and some change on him. This was not the same amount or in the same denominations as Mr Bennett had told police was stolen from him. (Detective Senior Constable Brad Semken, the officer who assumed charge of the investigation, thought that Mr Bennett had said that he had had in his wallet three $50 notes.) 18 The appellant was interviewed, and the interview electronically recorded. The appellant said that he was on his way to Kings Cross when he met the two younger men. He invited them to join him for a drink, bought them a few beers, and then went to his cousin's (Mr Johan's) home where they had a drink. He said he thought that Mr Bennett did not approve of them, and the next minute there was an altercation and "they were having a drama". The appellant jumped up, went to get past the computer, and knocked it to the ground. All three then left. They were later pulled over by police. One of the other men handed him the wallet, saying "here, just hold this, hold this". He said he was drunk and did not think. He said "yeah, give it to me, like, I'll hide it". He put it in his pocket. The man who had handed it to him ran off. 19 He denied stealing anything. He denied assaulting Mr Bennett. He said that the other two men were in the bedroom and he did not know what was going on. He went to investigate. Mr Bennett had already been hit, and was on the ground. 20 Later in the interview he said that he pushed the computer, and it fell down and he thought he smashed it when he left. He said he did this because he was "angry to bring this drama here in the house". He gave varying accounts of how the damage to the computer occurred, but each version accepted his own responsibility in some form or other. 21 The appellant had a cut on his finger on his right hand, with what appeared to be dried blood on it. He said that this may have happened when he punched the computer. He denied it resulted from his assaulting Mr Bennett. 22 The appellant was shown closed circuit television footage from the unit. He agreed that when he left he was covering up with his jacket. Initially, he said that he had no idea why he was doing that, but then said that he might have been frightened and scared that police would come to see what had happened. He said "I'm disgusted in myself for the way I've come across, and I know I never assaulted that man". He denied having been involved in the physical attack upon Mr Bennett. 23 On 14 July 2008 Mr Bennett and Mr Johan attended the Kings Cross Police Station and were shown an array of photographs. Mr Bennett selected a photograph of a man who was not the appellant. Mr Johan identified a photograph of the appellant.

The trial 24 The trial commenced on Tuesday, 14 April 2009. Mr Bennett gave evidence, as did Constable Hartge, Detective Semken, and Constable Kabouiris. It was also intended that evidence would be given by Mr Johan, who had attended in response to a subpoena. 25 Of particular note is evidence given by Mr Bennett about the location of his wallet. He said that it was either in the pocket of his jacket (that he was wearing) or on the bedside table. In cross-examination he adhered to that, under pressure (which he resisted) to concede that it may have been elsewhere in the unit. 26 After the lunch adjournment on Thursday, 16 April the trial advocate who represented the Crown advised the trial judge that Mr Johan had departed from the Court in an agitated state. He had previously had a conference with Mr Johan in which Mr Johan gave him information inconsistent with a statement he had previously made. He also told the judge that Mr Johan had apparently consumed a considerable amount of alcohol on that day and, even if he were to attend, he would not be in a fit state to give evidence. 27 Counsel for the appellant said that Mr Johan was required for cross-examination and requested that a bench warrant issue. The judge acceded and directed the issue of such a warrant. 28 However, police were unable to execute the bench warrant and, the following morning, Friday, the judge was advised that he could not be located. Counsel for the appellant said: "Somewhat reluctantly, your Honour, it's a situation perhaps where the matter could be adjourned to Monday to leave the police more opportunity to apprehend him. That's all I can suggest."

The judge responded: "No, well, if they can't find him, and I'll hear evidence about it, but I'm assuming that I'm going to be told that efforts have been made to find him and he's simply not about. It would sound to me from what was told to me yesterday that he's simply evading service and if that's situation I can't see that there's any more likelihood of him being found between now and Monday. Anyway, I'll hear what efforts have been made first." 29 Detective Semken then gave evidence in the absence of the jury. He said that he understood that Mr Johan suffered from some form of schizophrenia, and that it appeared that he had, the previous day, suffered a schizophrenic episode during which he had assaulted Mr Bennett. Detective Semken went on to describe the (unsuccessful) efforts that had been made to locate Mr Johan. 30 The trial advocate then closed the Crown case and the judge asked counsel for the appellant what course he proposed to take. Counsel said that he did not intend to call evidence, but did propose to submit that there was no case to answer. He made no submission that the trial ought to be adjourned until the following Monday in order to attempt to secure Mr Johan's attendance. However, the judge gave reasons for declining to delay the trial by adjourning to the following Monday. He thought that any evidence that could be elicited from Mr Johan would be "highly prejudicial" to the appellant. 31 Counsel then proceeded to make the submission he had foreshadowed. During the course of that, the judge asked the Crown if the case was being put as "a common purpose case". The trial advocate replied in the affirmative. But he added that the Crown case was that the appellant was the leader and responsible for the principal violence, as well as the damage to property. 32 His Honour returned to the issue that was clearly concerning him: whether, on the evidence, the case ought to be seen as "a common purpose case". The trial advocate again responded in the affirmative. 33 Counsel for the appellant submitted that it would have been open to the jury to find that the wallet might have been taken by one of the men without the knowledge of the others in which case robbery in company would not have been made out. After a short discussion with his Honour counsel disclaimed any reliance on common purpose. He also asked the court not to give a direction about recent possession. 34 The question of receiving as an alternative verdict was also raised and briefly debated. His Honour stated clearly that he did not intend to give a direction with respect to that alternative. No opposition to that course was raised by counsel for the appellant. 35 His Honour then held that there was a case to answer. Both counsel addressed. His Honour summed up. The jury retired at 1.13 pm. After the lunch adjournment the jury sent a note with a question, in the following terms: "Is it necessary for the violence to have been for the purpose of robbery? That is, if the violence occurred for some other reason and the taking of a wallet was simply opportunistic does that constitute robbery in company?" 36 His Honour discussed the question with counsel. He indicated to counsel what he proposed to say in answer to the question. That began with a further reference to the question of common purpose. He then said: "If they simply decided to assault him, as distinct from deciding to take his goods by force, and as an afterthought the accused took his wallet that would not be robbery in company. If they found him not guilty of robbery in company then they would then consider the alternative, the charge of larceny which would involve the Crown proving beyond reasonable doubt that the accused wrongfully took Mr Bennett's wallet with the intention of permanently depriving him of that wallet without his consent." 37 He then asked both counsel whether they agreed that larceny was available as an alternative verdict. 38 Both counsel focussed upon statutory provisions concerning such an alternative verdict. The trial advocate took a fairly strong stand that, because he could find no reference to it in the relevant legislation, larceny was not available as an alternative verdict. Counsel for the appellant agreed. 39 The judge re-called the jury and after a false start, ultimately directed them as follows: "The Crown must prove that the accused was in company with two men. That the accused and the two men shared a common purpose, that is, to rob Mr Bennett, to unlawfully take his property with the intention of permanently depriving him of that property by the application of force and without his consent, and that the accused and the two men were physically present when the force was applied and the wallet taken, as distinct from deciding to take his goods by force and as an afterthought, the accused took his wallet and that would not be robbery in company." 40 He then asked the jury to retire again, it did so and returned with a verdict of guilty at 4.48 pm.

Post trial 41 On 21 May the trial advocate wrote to the solicitor for the appellant. I will set out the terms of the letter: "During the trial of Mr Mifsud the Judge proposed, in answer to the jury question, mentioning that if the jury were not satisfied of the (sic) Mr Mifsud's guilt of robbery in company they may consider an alternative verdict of larceny. From my recall both Mr Molloy for the defence and I indicated that this was not an alternative on the indictment and nor was it a statutory alternative. I did not bring to the Judge's attention the common law on alternative verdicts. Some cases on alternative verdicts include: [there follows a list of authorities].

I write to bring this to your attention and to request that you bring it to the attention of [counsel for the appellant] because I do not have a mailing address for him."

Ground 1 Ground 5 42 It is common ground that the judge was given inadequate guidance, and, indeed, was positively (although unintentionally) misled, as to the availability of larceny as an alternative verdict. The trial advocate (for the Crown) maintained that no such alternative was available. Counsel for the appellant, although less definite, did not adopt any different position. 43 It is now conceded by the Crown that the position was not as clear as was suggested. His Honour's attention ought to have been drawn to the decision in this Court in R v King [2004] NSWCCA 20; (2004) 59 NSWLR 515. 44 Smart AJ undertook an extensive analysis of the principles and authorities concerned with alternative verdicts in criminal trials. It is unnecessary to re-state those principles or make further reference to any authority other than King. It is not now in dispute that, providing that the evidence so permitted, an available alternative verdict ought to have been left. The question is whether the evidence so permitted. 45 At [111] of King, Smart AJ said: "In deciding whether to leave the lesser offence the state of the evidence is critical as Gillard [[2003] HCA 2003] HCA 64; (2003) 219 CLR 1] emphasises. The lesser offence is not left to the jury if the evidence in support of it is flimsy or the prospect of a conviction on the lesser offence rather than the major offence is fanciful." 46 At [110] he had said: "… (c) The principle stated in Gillard is not limited to instances of murder and manslaughter, but applies where a serious offence is charged and there is a lesser alternative offence, the conviction for which would be a viable outcome on the evidence, that is, the evidence is such that a conviction for the lesser alternative offence would represent a rational result … Where this is the position it is in the interests of justice for the alternative count to be left. However, there are limits to the principle earlier stated in this sub-paragraph, including: (i) where there is no dispute that the full offence charged was committed and the issue is whether the Crown has proved that the defendant committed it … (ii) where the principal offence is grave and the alternative alleged is comparatively trifling and remote from the real point of the case …" (internal references omitted; italics added) 47 Grove J agreed and held that, in that case, there had been an available basis in the evidence for conviction of the lesser offence which therefore ought to have been left. 48 The question that arises may be framed in any of the following ways: o whether an alternative verdict of larceny would, on the evidence in this case, represent a viable outcome; o whether a conviction for larceny would produce a "rational result"; o (the principal offence being undoubtedly grave) whether the alternative of larceny is "comparatively trifling and remote". 49 After consideration of the evidence I have come to the conclusion that it would have been open to the jury to conclude that the taking of the wallet (if satisfied that it was the appellant who took it) was distinct from whatever had happened earlier in the unit. The question asked by the jury demonstrates clearly that they were thinking along those lines. 50 The prospect of a verdict of larceny, if that alternative had been left, was not "fanciful". Such a verdict would have represented a "viable outcome", and would have been "rational"; and, while the principal offence, of robbery in company, was undoubtedly grave, the alternative of larceny was not "comparatively trifling or remote". 51 Accordingly, I see no option other than to set aside the verdict of guilty and order a re-trial. 52 In those circumstances, it is unnecessary to deal with the other grounds of appeal. 53 The orders I propose are:

(iii) A new trial be held. 54 HIDDEN J: I agree with Simpson J. **********

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