Paul Upton v Regina

Appeal against conviction 14 The appellant has raised two grounds on his appeal against conviction. First, he contends that the trial judge erred in failing to direct the jury as to the particular counts upon which they may apply the alleged 'lie' said to give rise to a consciousness of guilt. The lie was his denial in the record of interview that he had seen Carroll produce a drill in the course of the sexual activity. 15 Secondly, the appellant contended that the trial judge had erred in failing to direct the jury as to the doctrine of extended joint criminal enterprise when directing them as to the features of aggravation in respect of counts 2 and 3.

Ground 1: failure to give proper direction in relation to the lie 16 The appellant contends that the trial judge erred in failing to direct the jury as to the particular count or counts upon which they could apply the alleged lie said to give rise to a consciousness of guilt. 17 The lie upon which the Crown relied arose from the appellant's answer in an electronically recorded record of interview on 22 October 2001, in which he denied any incident involving the drill. 18 His Honour referred to the question of lies early in his summing-up to the jury. His Honour correctly directed the jury as to how a lie could indicate a consciousness of guilt. His Honour also distinguished between two lies told by the appellant in his record of interview, the lie relating to the extent of his acquaintanceship with the co-accused, and the lie in relation to the drill. His Honour pointed out that people lie for many reasons and that innocent people lie, including to the police. His Honour directed the jury that it was therefore necessary that lies told to an investigating officer: "…must be demonstrated by the Crown as being told for the sole purpose of deflecting the police investigation if they are to be used to demonstrate a consciousness of guilt.

There are four matters which the Crown must demonstrate to your satisfaction beyond reasonable doubt, before you can regard a lie, and there is only one that the Crown points to in this case, as being told in the consciousness of guilt. Firstly, that assertion must be contrary to the truth. Secondly, it must be deliberate. Thirdly, it must relate to a material issue, one that is important to the case, and fourthly, it must be told solely from the motive of the realisation of guilt and the fear of truth emerging in relation to the offence. Only when there can be no other reason to tell lies, but to stop the truth emerging, because of the realisation of guilt, can you use that lie as demonstrating the consciousness of guilt." 19 The appellant recognises that these directions were correct: see Edwards v The Queen (1993) 178 CLR 193 at 210-211. He contends, however, that the trial judge did not direct how, that is, in respect of what offence, the jury might use the lie alleged as consciousness of guilt. It was submitted that this failure amounted to a misdirection which caused a miscarriage of justice. 20 The Crown submitted that the lie in relation to the drill not only related to the offence charged in count 2, being the very matter of aggravation in relation to that offence, but was also relevant to whether the complainant consented to the acts of sexual intercourse that were charged against the appellant and also to whether the appellant knew that the complainant was not consenting. The Crown submitted, therefore, that the lie was relevant to each of the offences and that no further direction on the part of his Honour was called for. 21 In my opinion, this submission is correct. The appellant does not complain that his Honour failed to give a direction that the lie was relied upon as a consciousness of guilt in relation to all of the offences. Perhaps it would have been better had that been clarified. But in any event, the appellants counsel at trial did not seek a redirection on this point. Thus, leave is required pursuant to the provisions of r 4 of the Criminal Appeal Rules before that matter can be raised. Before the Court will grant leave under r 4, it needs to be satisfied that the appellant has an arguable case that there was an error of law on the part of the trial judge or that the conviction was otherwise a miscarriage of justice: see Papakosmas v The Queen (1999) 196 CLR 297 per McHugh J at 319. 22 For the reasons I have given there was no error of law, nor was there otherwise a miscarriage of justice. Accordingly, I would dismiss this ground of appeal.

Ground 2: failure to direct the jury as to the doctrine of extended common purpose 23 The appellant complained that at no time during the trial did the Crown produce evidence of an agreement between him and Carroll to sexually assault or harm the complainant. He said that there was no evidence to support a view that there had been any planning, that there was no dispute that the appellant and Carroll had engaged the complainant in an act of prostitution and that she had consensually entered the vehicle for the purposes of being driven to the premises where sex was to take place. He further submitted that the jury "in their finding of not guilty on count 1" agreed with the appellant's proposition that he was unaware of any physical restraint in the vehicle or whilst entering the premises. 24 The appellant submitted that those circumstances made it imperative for the trial judge to direct the jury very carefully. In particular, he submitted that the jury should have been given directions based upon the factual example given in R v Lowery and King (No 2) [1972] VR 560. (In R v Tangye (1997) 92 A Crim R 545 Hunt CJ at CL had said that Lowery provided a good example to use when directing a jury on a charge of joint criminal enterprise.) 25 I will return to the trial judge's directions to the jury shortly. Before doing so, there are a number of factual errors in this part of the appellant's submission that ought to be dealt with immediately. In the first place, the jury did not bring in a not guilty verdict in respect of count 1. Rather, the jury was not able to reach a verdict. Secondly, there is no basis for the assertion that there was no dispute that the complainant agreed to enter the vehicle for the purposes of being driven to premises where sex was to take place. The complainant's evidence was that she requested to be driven to her place and that she did not agree to go to the appellant's premises. The fact that the jury was not able to agree upon a verdict in respect of count 1 does not establish that the complainant agreed to be taken to the premises where she was assaulted, or that the appellant was unaware of any physical restraint upon the complainant in the vehicle or whilst entering the premises. 26 The appellant's particular complaint on this ground of appeal is that the trial judge erred in failing to direct the jury as to the doctrine of extended joint criminal enterprise, when directing them as to the features of aggravation in respect of counts 2 and 3. It will be remembered that counts 2 and 3 related to the acts of fellatio which the appellant forced the complainant to perform upon him and that the aggravating circumstance in relation to count 2 was the threat by Carroll to inflict actual bodily harm with the drill, and the aggravating circumstance in relation to count 3 was the infliction of actual bodily harm by Carroll punching the complainant in the face. 27 The appellant contended that the trial judge should have directed the jury that to find him guilty in respect of counts 2 and 3, they needed to be satisfied beyond reasonable doubt that the appellant contemplated the possibility that, in the event that they accepted beyond a reasonable doubt that an agreement existed to sexually assault the complainant, that in this context, Carroll may have produced the drill (count 2) and may have committed an assault (count 3). It was submitted that his Honour erred in failing to give a direction in accordance with the extended definition of the doctrine of joint criminal enterprise cited by Hunt CJ at CL in Tangye. See also McAuliffe v The Queen (1995) 183 CLR 108. 28 The facts in Tangye are themselves useful in understanding what is comprised in a joint criminal enterprise. In that case, the Crown relied upon the fact that a large group of men moved around a smaller group and commenced assaulting the men in the smaller group. Hunt CJ at CL pointed out, at 558, that the fact that they were all present together, doing the acts at the same time, indicated: "that there was an understanding amounting to an agreement between them that they would strike (or assault) the members of that small group". 29 His Honour said that those who had previously been in the larger group had no doubt come to that understanding at the time they ran towards the smaller group and began to fight them. In Tangye, the Crown was not able to establish that the appellant was in the larger group at that time. However, it was established that he had joined the group and commenced punching one of the victims at the same time as another victim was being punched. His Honour said (at 558): "There could have been no doubt in this case that what had been agreed was to engage in a street fight with the smaller group, the only issue being whether the appellant was participating in that joint criminal enterprise". 30 Hunt CJ at CL continued: "Thus, although the appellant did not himself physically inflict grievous bodily harm upon Grant [the second victim referred to above], he was at that time participating in the joint criminal enterprise to strike or assault the members of the smaller group. He was - by his presence, knowing that others were similarly being assaulted by others, and assisting by assaulting one of the men in the group himself - equally guilty of the attack upon Grant even though he did not physically attack him himself". 31 In Tangye, Hunt CJ at CL pointedly distinguished between a straightforward joint criminal enterprise and the extended concept of joint criminal enterprise based upon common purpose. His Honour pointed out at 556-557 that the Crown needs to rely upon the extended concept of joint criminal enterprise based upon common purpose only where the offence charged is not the same as the enterprise agreed. His Honour then indicated the direction that needed to be given where a straightforward joint criminal enterprise was concerned. His Honour said those directions should be along the following lines: "(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime .

(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.

(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission." (Emphasis added; footnote omitted) 32 The directions suggested by Hunt CJ at CL were based upon the High Court's decision in McAuliffe. These directions were also endorsed by McHugh J in Osland v The Queen (1998) 197 CLR 316 at 341-343; [1998] HCA 75 at [70]-[73]. In that case, McHugh J referred to the category of a person being a principal in the first degree, being the person who commits the act which forms the whole or part of the actus reus of a crime, and persons who are liable as accessories before the fact, being those who aid the commission of a crime and whose liability is derivative. His Honour then referred to the category of joint criminal enterprise. He said: "72 … where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime … the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others." (Footnotes omitted) 33 His Honour indicated that it was advisable in explaining a joint criminal enterprise to give to the jury an example of facts that involved different circumstances than the enterprise relevant to the matters with which the accused has been charged. His Honour indicated that, in the case of a spontaneous type of joint criminal enterprise, that is, one which in effect arises coincidentally when the accused person joins in the criminal activity spontaneously, an appropriate example is one based upon the decision of the Victorian Supreme Court in Lowery. 34 The direction in Lowery was: "[T]hree men are driving along at night and they see a house in darkness with a lot of newspapers and milk bottles at the gate and one says to the others: 'That looks as if it would do.' The car pulls up, two of the men get out, and one of them stays in the car behind the driving wheel with the engine running. The other two go to the front door and there one of them breaks a glass panel beside the door, puts his hand through and unlatches the door and throws it open. The third man goes inside and collects valuables and comes out while the man who opened the door goes back to the gate to keep watch, and never enters the house at all. Now in law each of those three men can be found guilty of the crime of house-breaking, the elements of which are breaking, entering and stealing, yet obviously the man who sat throughout behind the driving wheel outside ready to drive the other two away when they had got the goods did not break anything, and he did not enter anything, and he did not with his own hands steal anything, and the man who broke the glass never touched the goods. But in law if a jury is satisfied that the three were acting in concert under an understanding that they had reached - communicated between them more by actions than by words - an understanding under which, between them, they were to commit this house-breaking, then in law they are all guilty of the offence and it does not matter which part each played in the commission of the offence. You can imagine that cases can often arise in which, in circumstances such as I have described, the Crown is not able to prove which man did which act. It may not even be able to prove which was the man behind the wheel. Now that is an illustration of the operation of this doctrine of acting in concert." 35 In his summing up, the trial judge said to the jury that he was sure that they would understand from the addresses that the doctrine of joint criminal enterprise was relied upon. He said: "When several persons set out to commit a criminal offence, although they may play separate parts, each is responsible for the actions or utterances of the other, made in furtherance of the common criminal design."

His Honour then gave an example based upon Lowery . His Honour continued: "But as counsel has said to you, mere presence is not enough to bring this doctrine … into play. There must be an agreement . Now, there is no need for formality. Burglars acting in concert rarely go to a solicitor and have a deed of agreement drawn up. It might even be that none speaks to the other. They all three understand that they are out on a job that night. Merely the one saying, 'That place, that is the one', would be sufficient under certain circumstances for all of them to be caught by common purpose. So, although mere presence is not enough and there must be a prior agreement, that agreement need not be formally spoken and certainly not formally written."

His Honour referred to the circumstances upon which the Crown relied, including the conduct within the unit, and the appellant's " inaction in the face of assaults ", so that the common purpose was to have sexual intercourse with the complainant and at the same time to inflict physical injury upon her and to threaten her. 36 In this case, in both counts 2 and 3, the appellant was engaging in a sexual assault upon the complainant. At the same time, his co-offender was physically assaulting and/or threatening her. In my opinion, that was evidence of a joint criminal enterprise as explained by Hunt CJ at CL, set out at [30] above. In short, the appellant and his co-offender "participating together in the commission of a particular crime", which was sufficient to "establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime". It is apparent from the jury's verdict of guilty that they accepted that to be the case. 37 Accordingly, his Honour correctly directed the jury on joint criminal enterprise. His Honour did not err in failing to direct the jury on the meaning of extended joint criminal enterprise as it was not relevant to do so. Indeed, in Tangye, his Honour indicated that it would have been confusing to have directed the jury on the extended definition of the doctrine of joint criminal enterprise based upon common purpose. 38 In addition, trial counsel for the appellant did not seek any further direction by the judge. Accordingly, leave is also required to raise this ground of appeal: see Criminal Appeal Rules, r 4. For the reasons I have given I would refuse leave. 39 Even if leave was granted, either in respect of this ground or the first ground, I do not consider that the appellant had an arguable case on either ground of appeal. There was no wrong decision on any question of law nor any miscarriage of justice such as to warrant allowing the appeal: see s 6 of the Criminal Appeal Act 1912 (NSW).

Extension of time 40 That leaves one other matter for consideration, namely, whether the appellant should be given an extension of time within which to appeal. 41 The appellant was found guilty on 13 November 2002 and was sentenced on 26 November 2002. On 26 March 2004, he filed a notice of intention to appeal, which, after being given an extension of time, expired on 31 December 2004. The appellant's notice of appeal dated 10 January 2006 and his notice of application for extension of time dated 28 March 2006, were filed in this Court on 5 April 2006. 42 The Crown submits that time ought not to be extended, there being no evidence to support the application for extension of time. This was raised with the appellant during the course of the hearing. The appellant indicated that he had not appealed within time because he was not aware that he could do so and only subsequently ascertained that he could, as a result of information he obtained whilst in custody. 43 That may explain the appellant's initial failure to appeal within time. However, according to the Crown, an extension of time has previously been granted and that in itself was not complied with. This second application therefore is a further one year and ten days out of time from the time previously extended, and in all the application is just over three years out of time. The time taken for the appellant to bring his matter before the Court is such that usually I would consider it to be sufficient of itself to refuse the application. However, as the Court has heard the argument on the appeal I would extend the time until 5 April 2006 but dismiss the appeal.

Application for leave to appeal against sentence 44 The trial judge sentenced the appellant to imprisonment for seven years commencing on 13 November 2002 and expiring on 12 November 2009, and set a non-parole period of four years to commence on 13 November 2002 and to expire on 12 November 2006 in respect of each offence. His Honour ordered that the sentences be served concurrently. His Honour indicated that he would have sentenced the prisoner to ten years' imprisonment, but reduced that sentence by three years for his co-operation in that he had agreed to give evidence against the co-accused Carroll. 45 His Honour stated that he broke the "statutory nexus of 75 per cent of the non-parole period" because of the appellant's previous good character, his age, the fact that this was his first time in custody and because he was giving evidence on behalf of the Crown and was likely to serve the greater part of the sentence under protection. 46 His Honour had regard to the matters that he was required to consider under s 21A of the Crimes (Sentencing Procedure) Act. He considered the case was one of the worst of its type, but recorded, as the Crown conceded, that the appellant played a lesser part. His Honour referred to the lack of contrition, the need for deterrence, both personal and general, and the need for adequate punishment. His Honour, however, considered that there were good prospects of rehabilitation. 47 His Honour also observed that the legislature had seen fit to increase the penalty for offences under s 61JA to life imprisonment, and noted the observations of Gleeson CJ in Regina v Tomi Petteri Hartikainen (NSWCCA, unreported, 8 June 1993), that: "Those amendments manifested an intention on the part of parliament substantially to increase the penalties attached to certain sexual offence. This action of parliament must be taken by the courts to have reflected community standards. It is incumbent upon the courts to give effect to the concerns manifested by parliament". 48 The appellant does not point to any particular error in the sentencing process. Rather, he claims that the sentence is manifestly excessive, which, if established, is itself indicative of error. 49 Pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) the Court may only quash a sentence if some other sentence is warranted in law. In R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534, Spigelman CJ stressed at [79] that unless the Court forms a positive opinion that some other sentence is warranted, then: "… the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied".

Sully J also drew attention to this requirement at [100], noting that: "[e]rror once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and resentence … [the Court must first] be persuaded … that some other sentence is 'warranted in law'". 50 In my opinion, the sentences were within an appropriate discretionary range and I can only record my agreement with his Honour's observation that this case was one of the worst type. If anything, the sentences in respect of the s 61JA offences might be considered to be lenient. The Crown submitted that by ordering that the sentences be served concurrently, his Honour in effect contravened the principle in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45], and that his Honour failed to properly take into account the total criminality of the offences. There is no Crown appeal, and as I understand it, these submissions are made to emphasise that rather than being excessive, the sentences are lenient. I have already expressed my view that that is so. 51 In my opinion, nothing has been shown to indicate in this case that lesser sentences were warranted in law and should have been imposed. 52 The appellant needed both an extension of time to bring the application for leave to appeal and leave to appeal. For the reasons I have expressed I would extend the time in which to bring the application for leave to appeal. I would grant leave to appeal against sentence but dismiss the appeal. 53 I propose the following orders:

1. Extend the time within which to file a notice of appeal and an application for leave to appeal to 5 April 2006;

4. Appeal against sentences dismissed. 54 Hulme J: I agree with Beazley JA. 55 Hislop J: I agree with Beazley JA. **********

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