PEZZANO -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 181 (4 November 2020) - WASCA 2020 case summary — Zoe

WAWASCA

PEZZANO -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 181 (4 November 2020)

[2020] WASCA 181

Court of Appeal (WA)|2020-11-04|Before: Mazza JA

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Source facts

Court

Court of Appeal (WA)

Decision date

2020-11-04

Before

Mazza JA

Source

Original judgment source is linked above.

Judgment (121 paragraphs)

[1]

The appellant was tried by judge and jury on one count of extortion and one count of assault occasioning bodily harm. He was acquitted of extortion and convicted of assault occasioning bodily harm.
The assault alleged by the State was the appellant grabbing the complainant's upper left arm during the course of a heated argument. The bodily harm alleged by the State was a bruise to the complainant's upper left arm. The complainant did not say that either the appellant grabbing his arm or the bruise caused him any pain, and gave evidence that he only noticed the bruise later on when he had a shower.
The appellant was fined $5,000 and a spent conviction order was made in respect of the offence of assault occasioning bodily harm.
The appellant now appeals against his conviction of assault occasioning bodily harm on the sole ground that the jury's verdict of guilty was unsafe and unsupported by the evidence. The appellant relies both on the insufficiency of the evidence led at trial to prove the offence, and the alleged inconsistency between the verdicts for the extortion and assault occasioning bodily harm offences.
In our view, the verdicts were not inconsistent and it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant unlawfully assaulted the complainant. However, as the State now concedes, it was not open on the evidence for the jury to be satisfied, beyond reasonable doubt, that the assault occasioned bodily harm to the complainant. To prove bodily harm, the State had to prove that the bodily injury it alleged (a bruise on the complainant's upper left arm) interfered with his health or comfort. There was no evidence capable of establishing that fact beyond reasonable doubt. Therefore, the appeal must be allowed and the appellant's conviction of assault occasioning bodily harm must be set aside.
A question then arises as to whether this court should convict the appellant of the alternative offence of common assault. The State accepts that the question of whether the bruise interfered with the complainant's health and comfort, so as to constitute bodily harm, was at issue in the trial. The State also accepts that, appreciating that the question was in issue, the prosecutor decided not to rely on common assault as a statutory alternative to the charge of assault occasioning bodily harm. In these circumstances, the State concedes that it is not appropriate, as a matter of discretion, for this court to substitute a judgment of conviction of common assault. For the following reasons, that concession should also be accepted. The appeal should be allowed, the conviction of assault occasioning bodily harm set aside and a judgment of acquittal of assault occasioning bodily harm entered.

[10]

The complainant gave evidence that he was one of two investors in the cafe business. On 4 July 2018, he was working at the cafe with the chef, Mr Ho, a waitress, Michela Orisini, and a barista, Diana Manzocchi.[9]
The complainant was working behind the bar when four men arrived carrying two boxes of fresh vegetables, which were placed on tables in the alfresco area of the cafe. One of the men, Mr Johnson, entered the cafe, asked for the chef and went straight into the kitchen. The other three men, who the complainant had not met before, stayed in the alfresco area. Mr Ho and Mr Johnson walked out to the alfresco area, and the complainant finished what he was doing and also went outside. The complainant was not aware that the men were coming to supply vegetables.[10]
Two of the men (contextually Mr Magomedov and the appellant's cousin) went into the cafe, and the complainant spoke to the appellant in the alfresco area. At this time Mr Ho and Mr Johnson were standing in the alfresco area. The appellant told the complainant that he was from the Pezzano family, and they wanted to supply vegetables to the cafe. The complainant said that he was not interested and was happy with the current supplier. The appellant said that he had the best product and prices, and the complainant repeated that he was not interested and was happy with the cafe's current supplier.[11]
The appellant then became agitated and the conversation heated. When the complainant repeated that he was not interested, the appellant started to point his finger at the complainant's chest and repeat himself. The appellant was very upset and angry. The complainant told the appellant not to touch him, and asked the appellant to leave. The complainant tried to go back into the cafe, but was stopped at the door by Mr Magomedov.[12]
Mr Magomedov had his hand on the complainant's back, and the appellant was holding the sleeve of the complainant's long-sleeved T‑shirt. The appellant said they would go for a walk in a park next to the cafe, and the complainant reluctantly agreed in order to get the men away from the cafe. The complainant did not go to the park, but turned a corner down the side of the cafe which he mistakenly thought was covered by CCTV cameras. They walked about 30 metres along the side of the building, near to a side entrance. As soon as they turned the corner, the appellant put his arm on the complainant's shoulder and started squeezing the tendon between the neck and shoulder quite hard, which was quite painful. Mr Magomedov was walking behind them.[13]
As they were walking down the side of the building, the appellant told the complainant:[14]

[15]

Exhibits tendered through the complainant included a photograph of a bruise on his upper left arm, taken at the police station when he reported the matter on Monday 9 July 2018.[19] The bruise shown on the photograph appears consistent with having been caused by a thumb pressing hard into the appellant's upper arm some days previously.
Exhibits tendered through the complainant also included CCTV footage showing the inside of the cafe and part of the alfresco area of the cafe. The cover of the camera showing part of the alfresco area was said by the complainant to have been dirty,[20] and the vision of the alfresco area appears as if it were shot through a translucent screen.
At 9.46 am, Mr Ho can be seen walking out to the alfresco area with Mr Johnson. The complainant follows them outside shortly after the door is closed, and can be seen talking to the appellant at 9.47 am. The view of the men talking is not clear, and they move out of camera view at about 9.48 am. Mr Ho walks alone back into the cafe at 9.48 am.[21]
At 9.49 - 9.50 am, the complainant is seen walking inside and back to the kitchen of the cafe, and then going back outside with Mr Ho. In his evidence-in-chief, the complainant, after watching the footage, said that he did that because the men said that they had called the day before and someone agreed for them to show up and bring vegetables. Mr Ho and the complainant went outside and said that they did not know anything about this.[22]
Mr Magomedov and the appellant's cousin can be seen entering the cafe at 9.50 am, and appear to be waiting near a service area. The legs of the complainant and two other men can be seen in the alfresco area. At one point the appellant's cousin can be seen greeting a young female. Mr Magomedov and the appellant's cousin walk towards the service area and out of view of the camera at 9.52 am.[23]
At 9.53 am, the appellant can be seen moving his hand in a pointing gesture towards the complainant. The complainant attempts to re-enter the cafe, but is met at the door by Mr Magomedov. There appears to be a discussion. The appellant's cousin can be seen pacing in the cafe area before moving to stand behind Mr Magomedov at the entrance to the cafe. The complainant can be seen walking away from the front door of the cafe with the men, and out of the view of the CCTV camera, at 9.54 am. It is not clear whether or not Mr Magomedov has his hand on the complainant's back as they walk away. The movement of the appellant, complainant and Mr Magomedov is consistent with them walking down the side of the cafe.
The complainant can be seen walking back into the cafe at 9.58 am. During the period between the men walking away from the front door of the cafe and the complainant's return, Mr Johnson and Mr Ho can be seen talking with each other, at times in what appears to be a quite animated fashion, in the alfresco area. Their attention does not appear to be on events at the side of the cafe for any significant period of time. Ms Manzocchi and Ms Orisini can be seen standing near the front doors for a time, but they quickly appear to return to the service areas. Apart from a very brief period when Ms Manzocchi looks through a window in the direction of the area at the side of the building, they do not appear to be focussed on events occurring at the side of the building.
After a discussion between the four members of the appellant's group, the appellant, Mr Magomedov and the appellant's cousin can be seen walking away from the alfresco area at 9.59 am.[24] Mr Johnson walks into the cafe and moves out of sight of the camera towards the kitchen/service area. Mr Johnson walks out of the cafe from the same direction at 10.01 am.
The vision of the complainant's discussion with the appellant in the alfresco area is not at all clear. Generally, the vision is from a camera behind the service area through the front door of the cafe. There is some vision from the camera in the alfresco area but it is obscured by dirt on the lens, the fact that much of the alfresco area is out of the camera's field of vision and, when the men are gathered at the door, by the people crowded together.
The CCTV camera did not cover the side of the cafe where the threats and assault allegedly occurred.[25]

[25]

Mr Ho gave evidence, through an interpreter, that he was the head chef at the cafe. He said that, at about 10 - 10.30 am on Wednesday 4 July 2018, Mr Johnson (who Mr Ho described as an Indian man) came to the cafe. Mr Johnson spoke to Mr Ho in the kitchen, and said that he was a wholesale vegetable supplier and had left two samples of vegetables. Mr Ho told Mr Johnson that the cafe already had a supplier and they did not need any samples. Mr Johnson then left.[34]
About 5 minutes later, three men came into the cafe and insisted that they had to keep the samples. The men said that the cafe had to use their supply of vegetables, and the cafe's current supplier was no good. The complainant refused to accept the samples and the appellant (who Mr Ho described as the 'heavily built man') asked the complainant to go out of the restaurant and talk to him. Initially, the complainant said there was no need to talk because they did not need another supplier.[35]
The next part of Mr Ho's evidence was not very clear. He described the complainant and appellant going to the 'entrance of our restaurant' and staying there 'within five minutes'. Mr Ho said that 'Finally, [the complainant] followed [the appellant] through the main entrance of the restaurant to the back door of the restaurant, so outside'.[36] Mr Ho described standing 'outside the restaurant at the main entrance' beside a person who was, contextually, Mr Magomedov. Mr Ho asked Mr Johnson what was happening, and no one responded.[37] Mr Ho indicated, by reference to a photograph (exhibit 1.2), that he was standing in the alfresco area, just outside the glass doors, when he said this to Mr Johnson.[38] Mr Ho said that the appellant was inside the cafe when he was insisting that the complainant take the samples.[39]
Mr Ho gave evidence to the effect that he saw the complainant follow the appellant outside towards the side of the cafe. Mr Ho saw the appellant grab the complainant's shoulder as they walked towards the back door of the restaurant. He saw this while standing in the alfresco area with Mr Johnson, Mr Magomedov and the appellant's cousin.[40]
In cross-examination, Mr Ho confirmed that he could see, from the side of the restaurant, the appellant and the complainant, he was checking to see what was happening and that only the appellant and complainant walked around the side of the restaurant. He said that the only contact he saw between the men was at the glass doors of the entry to the cafe, which was where he saw the appellant grab the complainant's shoulder.[41]

[27]

Ms Manzocchi was working at the cafe as a barista on 4 July 2018. She described Mr Johnson arriving with a crate of vegetables which he put on a table in the alfresco area. He asked for the chef, and spoke to Mr Ho in the kitchen and alfresco area. She saw the complainant go outside as well.[43]
Three other men then arrived and two of them came inside the cafe while the appellant (who Ms Manzocchi recognised from working at a business he supplied) stayed outside with Mr Johnson, the complainant and Mr Ho. The appellant and complainant were talking and, by the body language, it was not a friendly conversation. The complainant was being defensive, and the appellant was moving toward the complainant.[44]
Ms Manzocchi described the complainant trying to come back inside the cafe, and being blocked by Mr Magomedov and the appellant. She heard Mr Magomedov say, 'We need to talk'. The appellant had his hand on the complainant's upper arm, and the appellant and Mr Magomedov walked along the side of the cafe to a point she could not see them.[45]
Ms Manzocchi described the complainant's return and the departure of the men. She said that she called a friend of hers, who was a policeman, and gave some information to the complainant. The complainant was upset and left the cafe. She also described a Pezzano Enterprises delivery truck arriving at the cafe the following Friday with some delivery forms, and being turned away by the other owner of the cafe.[46]
In cross-examination, Ms Manzocchi accepted that, in her police statement of 11 July 2018 and in proofing by the prosecutor, she had referred to arms 'interlocking' rather than the appellant holding the complainant's arm. However, she maintained that the appellant was holding the complainant's arm as they walked down the side of the building.[47] She denied that she only had a 'flash glimpse' of the men as they walked down the side of the cafe, and could not recall saying that to the prosecutor in proofing.[48] She said that both the appellant and Mr Magomedov had contact with the complainant.[49]
The prosecutor formally conceded that, on 3 October 2019, Ms Manzocchi advised the State that:[50]

[30]

The appellant gave evidence that he was the director of several companies, including Pezzano Enterprises which was a fruit and vegetable wholesale business established by the appellant's father in 1956.[51] The profit generated by the business in July and August 2019 was over $250,000, which represented an annualised profit of $1.6 million.[52] The receivables for the business in July 2018 totalled $942,429.[53] It wrote off bad debts in July 2018 to September 2019 totalling $74,150.08, and did not send 'anyone around to try and collect that money'.[54]
Mr Magomedov was an investor in some of the appellant's other businesses,[55] who arrived in Perth on 3 July 2018 to view one of the businesses in which he had invested. The appellant collected Mr Magomedov, who was staying at the appellant's house, from the airport.[56]
As a result of text messages received from Mr Johnson, the appellant planned to attend an arranged meeting with the chef at the complainant's cafe on 4 July 2018. He had Mr Magomedov and his cousin with him and, after visiting the cafe, they intended to go and view the business in which Mr Magomedov had invested. The appellant thought the meeting was with the chef and did not know that the complainant, who he had never met, was to be at the meeting. On the way to the cafe, the appellant learned that one of Pezzano Enterprises twelve delivery trucks had been involved in an accident, and two drivers were lucky to escape with their lives.[57]
The appellant had a discussion with the complainant, Mr Johnson and Mr Ho in the alfresco area, while Mr Magomedov and the appellant's cousin went into the cafe to get a coffee. The appellant introduced himself to the complainant, who was very blunt, abrupt and rude and responded by saying, 'You haven't got a meeting here today'. The appellant asked Mr Johnson whether a meeting had been made, and Mr Johnson said, 'There was a meeting made today with Chef Nicola who was a chef on duty yesterday at [the cafe]'. The appellant said, 'I don't have a chef by that name who works here'. Mr Ho interrupted by saying, 'Yes, boss, Chef Nicola was on duty yesterday'. The complainant then said that Chef Nicola was in fact not a chef, he was a dishwasher.[58]
At this point the conversation became agitated. The complainant said that Pezzano Enterprises would start by giving cheap prices, and then would push their prices up. The appellant felt that the complainant was slandering his business, and said that was not true. The appellant told the complainant that he could lock in prices for a season or a year. The complainant then said, 'You start off by giving fresh produce, then your produce turns to rubbish'. The appellant told the complainant that this was not true, and they supplied 'the most credible chefs in this town and the best establishments as well'. The appellant made the complainant aware of who they did business with.[59]
The complainant then said, 'I'm not interested', and walked back to the cafe. The appellant approached the complainant and said:[60]

[35]

Mr Johnson gave evidence that he worked as sales accounts manager for Pezzano Enterprises. His job was to bring in business and maintain it. He described calling the cafe on 3 July 2018, and speaking to 'Nic' and arranging to meet and provide samples to the other chef who would be working at the cafe the following day. He contacted the appellant and arranged for him to attend the meeting.[66]
Mr Johnson gave evidence about arriving at the cafe on 4 July 2018, leaving some samples of fruit and vegetables on an outside table and going inside and speaking with Mr Ho, who came with him to the alfresco area. After about 10 minutes, the appellant, the appellant's cousin and another man (who Mr Johnson did not know, but contextually was Mr Magomedov) arrived. The appellant's cousin and Mr Magomedov went into the cafe.[67]
The complainant came out 'a little bit aggressive' and asked what was happening. Mr Johnson introduced himself and the appellant, and said that they had an appointment with Mr Ho. The complainant said that he did not believe they had a meeting, but Mr Ho said that it was organised. They proceeded to show their samples, and the complainant said, 'You guys come with good produce and pricing, and that everything goes crap after that'. The appellant said, 'That's the reason why I'm here, to showcase my produce. And I stand behind it... if you use us for a whole week and if you think at the end of the week that you are not happy, you don't pay me'.[68]
The appellant and complainant went for a walk down the side of the cafe, while Mr Johnson and Mr Ho remained near the front door of the cafe. Mr Ho then went inside and Mr Johnson was by himself in the alfresco area. Mr Johnson could not hear the complainant's and appellant's conversation. He did not see any physical contact between the two men. After the appellant and complainant finished their conversation, he saw the men shake hands. The appellant approached Mr Johnson, and said that he could go and see the complainant and that 'everything is fine'. At this time the appellant's cousin and Mr Magomedov were still in the cafe.[69]
Mr Johnson then followed the complainant into the cafe. The complainant went down some stairs, and Mr Johnson asked the lady at the counter if he could speak to the complainant. She called him and he said, 'No, I'm busy'. Mr Johnson asked to see Mr Ho, and when Mr Ho came out Mr Johnson asked if he would like to keep the samples. Mr Ho told Mr Johnson to take the samples away, and that he had Mr Johnson's contact details. Mr Johnson left his business card, took the samples and left the cafe. The appellant had already departed.[70]
Mr Johnson maintained this account in cross-examination. He said that the complainant's and appellant's conversation down the side of the cafe lasted 10 - 15 minutes, and they were in the corner of Mr Johnson's eye the whole time.[71] Mr Magomedov and the appellant's cousin were in the cafe the whole time.[72] Mr Johnson said that an account for over $1,000 a week would be a large account.[73] Mr Johnson accepted that, at one point, the appellant told the complainant that the complainant was not doing the right thing by his business by not being interested.[74] He definitely did not see the appellant pointing his finger into the complainant's chest.[75]

[51]

We are far from satisfied that the verdicts in this case are inconsistent.
The prosecution case on the extortion charge depended on the appellant having said to the complainant words to the effect that, if he did not buy vegetables from Pezzano Enterprises, he would be 'going back to where [he] came from in a coffin', and his business would be destroyed. Those words were spoken out of earshot of all witnesses in the trial other than the complainant. There was no corroboration of that aspect of the complainant's evidence.
By contrast, there was evidence tending to support the complainant's account of the appellant gripping his upper arm and causing a bruise. The jury had before it a photograph of the bruise.
The jury could reasonably have been satisfied, based on the complainant's evidence and the photographic evidence, that the appellant gripped the complainant's upper left arm and caused a bruise. However, in the absence of any supporting evidence as to the critical words spoken to the complainant other than the complainant's evidence, the jury might have had a reasonable doubt as to whether those words were spoken. That would not necessarily have involved the jury forming an adverse view as to the complainant's general credibility. The jury may have allowed for the possibility that the complainant misunderstood or misinterpreted what was said by the appellant in the course of what was, on both the appellant's and complainant's accounts, a very heated argument. The jury may also have allowed for the possibility that the complainant may not be expected to accurately recall the precise words spoken in the course of a heated argument when he gave his police statement 5 days later. A concern about mis-recollection may have been exacerbated by the inconsistency in the complainant's account as to how many times the threat about putting him in a coffin was repeated (twice in his account to police and evidence in chief, which increased to three times under cross-examination).
Further, the jury might have been satisfied that the complainant's account of events and conversations was entirely accurate and still have found the appellant not guilty of the extortion charge. In that event, the jury might have had a reasonable doubt as to whether the appellant had an intention to extort or gain anything from the complainant at the time the threats were made. This point was noted by the trial judge in summarising the appellant's position at trial in her Honour's summing up:[84]

[54]

It is next convenient to consider whether it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant unlawfully assaulted the complainant. In this case, the application of force relied on by the State was the appellant gripping the complainant's arm as they argued at the side of the cafe. There was nothing to suggest that the complainant might have consented to that application of force, or that the application of force was authorised, justified or excused by law. While there was some evidence from Ms Manzocchi that the appellant held the complainant's arm as the complainant was led down the side of the cafe, that was not the application of force relied on by the State at trial to constitute the assault. That is, in the circumstances of this case, the question is whether it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant gripped the complainant's upper left arm as the men argued near the side door of the cafe.
The main evidence of that event was, of course, the evidence of the complainant. His evidence was consistent with the CCTV footage to the limited extent that it recorded the relevant events. The complainant's evidence was supported by the bruise shown on his arm in the photograph taken by police.
Mr Johnson's statement provided only limited support for the appellant, as on his evidence he was by the cafe's front door at the relevant time. While he claimed to be able to see the appellant and complainant out of the corner of his eye, the jury could well have considered (particularly having regard to the CCTV footage) that he was not watching the men the entire time. Also, Mr Johnson did not see the appellant making the pointing motion depicted on the CCTV footage and wrongly claimed that Mr Magomedov and the appellant's cousin were in the cafe when the appellant and complainant walked around the corner. The jury could reasonably consider Mr Johnson to have been an unreliable observer of the events, and consider that he would not have been in a position, or paying sufficient attention, to see the assault if it had occurred.
The appellant's evidence that no physical contact occurred between him and the complainant was inconsistent with the evidence of the complainant, Ms Manzocchi and Mr Ho.
There were difficulties with Mr Ho's evidence, which was inconsistent in various respects with the CCTV footage and the evidence of all other witnesses. However, while the reliability of Mr Ho's general account must have been doubted, he did see the appellant grab the complainant's shoulder in the manner which the complainant had described.
There were also some inconsistencies between the complainant's evidence and the evidence of Ms Manzocchi that she saw the appellant holding the complainant's arm as they walked down the side of the cafe. The complainant described his neck or shoulder, rather than his arm, being held at that time. The weight to be given to Ms Manzocchi's evidence was limited by her prior inconsistent statement about arms 'interlocking'. However, that inconsistency in Ms Manzocchi's statements might be explained by the fact that it appeared that English was not Ms Manzocchi's first language.[85]
Notwithstanding the issues concerning the detail of some aspects of Mr Ho's and Ms Manzocchi's evidence, it remained the case that both observed the appellant making physical contact with the complainant. That aspect of their evidence was inconsistent with the appellant's evidence that no physical contact occurred. The jury may have rejected the appellant's evidence on the basis of its inconsistency with three other witnesses and because they considered that the manner in which the appellant gave his evidence impacted adversely on the jury's assessment of the appellant's credibility.
The appellant submits that the evidence of Mr Ho, Ms Manzocchi and Mr Johnson that they did not see the assault presented a 'solid obstacle' to the jury finding that the appellant assaulted the complainant in the manner alleged. We do not accept that submission. Our review of the photographic evidence of the cafe and its surrounds, and the CCTV footage, leads us to the conclusion that the area where the complainant said the relevant assault occurred would not have been visible from the positions of Mr Ho, Ms Manzocchi and Mr Johnson. The CCTV footage also shows that Mr Ho, Ms Manzocchi and Mr Johnson were not paying attention to the side of the cafe at the time the appellant and complainant were speaking in that location. It was well open for the jury to take the view that, if the appellant had assaulted the complainant in the manner described by the complainant, it would not have been captured on CCTV or observed by Mr Ho, Ms Manzocchi or Mr Johnson.
The appellant submits that Ms Manzocchi's evidence of observing the appellant holding the complainant's arm as they walked to the side of the cafe (before the assault described by the complainant) also harms the prosecution case. It is submitted that, if that evidence were accepted, it would provide a possible alternative explanation of the bruise on the complainant's upper arm, other than the later assault by the appellant which the prosecution identified as the charged act.[86] We do not accept that submission. The possibility that the bruise may have been caused by an earlier uncharged assault may have some significance in considering whether the State had proved that the charged assault occasioned bodily harm. But that possibility does not provide a basis for rejecting the complainant's evidence that the charged assault occurred at all.
In our view, it was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant gripped the complainant's upper left arm in the course of a heated argument between the two men near the door at the side of the cafe. Having regard to the matters noted at [82] above, it was therefore open to the jury to be satisfied, beyond reasonable doubt, that the appellant unlawfully assaulted the complainant in the manner alleged by the prosecution.

[71]

The construction issue concerns the meaning to be attributed to the phrase 'could have been found guilty of some other offence' in s 30(5)(c). Does it, as the appellant submits, require that the other offence was left to the jury as an alternative? Or is it enough that the other offence is a statutory alternative and that the evidence was capable of proving guilt of the other offence? For the reasons that follow, we prefer the latter construction.
The ordinary meaning of the language of the critical phrase is readily capable of bearing each of the competing constructions. A number of contextual and other considerations support the broad construction that we prefer.
In the course of oral submissions,[93] there was some discussion as to the mandatory nature of the powers conferred by s 30(5) of the Criminal Appeals Act. The appellant's supplementary written submissions suggest, although do not advocate for, a construction which requires the powers in s 30(5)(c) - (e) to be exercised if the preconditions to the exercise of those powers are satisfied.[94]
We can see no basis in the statutory text for construing s 30(5) as giving the court a choice between the exercise of powers in (a) and (b) where none of the preconditions to the powers in (c) - (e) are satisfied, but no discretion in a case where the preconditions to one of the powers contained in (c) - (e) are met.
The language of the provision does not support the contention that the power conferred by s 30(5)(c) must be exercised whenever the conditions for the existence of the power are satisfied. Each paragraph of s 30(5) is separated by the word 'or'. The ordinary and natural meaning of the statutory text is that, where this court allows an appeal, it must set aside the conviction and must do one of the things described in par (a) - (e) of s 30(5). However, which option the court will take is left to the discretion of the court, subject to the option being available in the circumstances of the particular case. Where more than one option is available, the court will determine which is appropriate having regard to the interests of justice in all the circumstances of the case.
Once the statutory precondition to the existence of the power in s 30(5)(c) is met, the exercise of the power will be governed by the court's assessment of what the interests of justice require in all the circumstances of the case. That is the approach regularly taken by this court in deciding whether to exercise the powers (for which there are no relevant statutory preconditions) to order a new trial or to enter a judgment of acquittal when it sets aside a conviction.[95] There is no proper basis for construing s 30(5) as requiring some different approach to be taken in circumstances when the power in s 30(5)(c) is available to exercise.
This context counts against a narrow construction of the phrase 'could have been found guilty of some other offence' appearing in s 30(5)(c)(i) of the Criminal Appeals Act. It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.[96] Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.[97]
The scope of the power in s 30(5)(a) to order a trial or new trial also counts against the appellant's construction outlined in [107] above. The section does not confine the court to ordering a new trial for offence A, and this court may in an appropriate case order a new trial for a lesser alternative offence. While decided in a slightly different statutory context, the High Court's decision in Sio illustrates that, while the alternative counts left to the jury may be a relevant consideration in deciding whether to order a retrial, that is not a controlling co[98]ideration.98 If the court has power to order a new trial for an alternative offence that was not left to the jury at the original trial, there is no apparent policy reason why it should be denied power to substitute a conviction for the offence when satisfied that the jury must have been satisfied of facts that prove the offence at the first trial.
Section 30(5) is also enacted in a context where a trial judge is not bound to leave every available alternative verdict for a jury that may be supported by the evidence. In cases other than homicide, whether a judge leaves an alternative verdict is a matter for the discretion of the trial judge, depending on the particular circumstances of the case.[99] In James v The Queen,[100] the High Court rejected a submission that a trial judge was under a duty to leave every viable alternative verdict to the jury in every case. However, in our view, the way in which a trial judge exercises this discretion does not control the existence of this court's power under s 30(5)(c) to substitute a conviction of 'offence B' for the conviction of 'offence A'.
The appellant's construction of s 30(5)(c)(i) would be apt to work an injustice in cases such as McKeagg v The Queen,[101] and Valerio v The State of Western Australia [No 2].[102] In those cases, this court substituted a conviction for an available alternative of attempting to manufacture a prohibited drug, when the evidence did not support a verdict that the drug had been manufactured. In McKeagg, the trial judge had not (due to a mis-construction of the term 'manufacture') left attempting to manufacture a prohibited drug as an alternative verdict.[103] Although it is not clear from the report of Valerio, attempted manufacture had not been left as an alternative offence in that case either. These cases illustrate the point that a decision not to leave an available alternative offence supported by the evidence may proceed from the court's and/or the parties' misapprehension as to what is required to establish the charged offence. It would be productive of injustice if this court were powerless to substitute a conviction in these circumstances.
The appellant's approach is also inconsistent with the course recently taken by this court in De-Abreu. There the accused was charged with offences including assault occasioning bodily harm, but this court found that it was not open to the jury to be satisfied that the bodily harm alleged by the State was occasioned by the assault. The court substituted a conviction of common assault.[104] Common assault was not left as an alternative offence at trial. The accused appealed on grounds that included the failure to leave alternative counts and that the verdict was unreasonable. As to the leaving of alternatives, the court observed:[105]