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[2006] VSCA 3
Court of Appeal (Vic)
2006-02-06
CHARLES, BUCHANAN and VINCENT, JJ.A.
Original judgment source is linked above.
CRIMINAL LAW - Accused acquitted of charge of armed robbery, convicted on counts of false imprisonment and causing injury recklessly - Single incident - Inconsistency of verdicts - Convictions set aside.
1 The applicant pleaded not guilty in the County Court at Melbourne on 8 September 2003 to a presentment alleging one count of armed robbery (count 1), one count of false imprisonment (count 2) and one count of causing injury recklessly (count 3). Amber Barry was also presented on the same counts and pleaded not guilty. The trial commenced on 9 September, and the Crown case was closed on 12 September 2003. Counsel for the applicant made a submission of no case to answer, but the judge ruled that there was a sufficient case to go to the jury. The applicant stood mute, and no evidence was called on his behalf.
2 On 16 September, the jury returned verdicts of guilty in respect of counts 2 and 3 and not guilty on count 1 in respect of both the applicant and his co-offender.
3 On 24 October 2003 the applicant was sentenced to six months' imprisonment on count 2 and 6 months' imprisonment on count 3, one month of the sentence on count 3 being made cumulative upon count 2. At the same time sentences of imprisonment were imposed by the judge on four other offences including two counts of burglary and two counts of theft for which a jury had returned verdicts of guilty on 21 October 2003. An additional two months' sentence by way of cumulation was imposed in relation to these additional offences, the consequence being that the applicant was sentenced to a total effective sentence of nine months' imprisonment.
4 Amber Barry was sentenced to four months' imprisonment on count 2 and two months' imprisonment on count 3, one month of which was made cumulative on the sentence imposed on count 1. She was sentenced to a total effective sentence of six months' imprisonment.
5 The applicant now seeks leave to appeal against conviction in relation to the convictions on the counts of false imprisonment and causing injury recklessly.
The prosecution case
6 The offences were alleged to have occurred on 16 January 2002 in a motor vehicle driven by the applicant in which the victim, Dean Schapel, had been a rear seat passenger. Amber Barry was allegedly a front seat passenger in the vehicle. The principal prosecution witness was Schapel, his evidence being as follows. He had been at the Carnegie flat of his girlfriend, Cassandra Chalmers. He received a call on his mobile telephone from a friend named Lindsay who wanted some heroin. Schapel told Lindsay he could get some heroin from Footscray but needed a car to get there. Lindsay said she would arrange a car, and that she would meet Schapel in the car park of the Safeway premises in Carnegie. Schapel and Ms Chalmers walked to the car park where they met Lindsay, who was standing beside a car. The car was a red two-door coupé, and Lindsay had her baby in the back of the car. Lindsay introduced Schapel to the driver of the car, described as "Frank", but who was alleged to be the applicant. There was a woman (alleged to be Amber Barry) in the front passenger seat. There was not enough room in the car for Ms Chalmers so she went home. Schapel sat in the back of the car behind the front seat passenger, with Lindsay and her baby on her lap beside him, there being no child seat in the car.
7 The car then left the car park and was driven to Dandenong Road towards the city. After a short time the driver turned into a side street and stopped the car. According to Schapel he turned around, holding a knife in his hand, and said to Schapel "It's your bad day. I'm from the Banditos. Give me your wallet." Schapel said he handed his wallet to the driver, and the driver and front seat passenger looked through it. Schapel had only $45 in his wallet and the driver demanded all his money. Schapel said that that was all he had, and the driver told Schapel to take off his jacket, and then his shoes. Schapel said he took off his jacket and shoes, whilst the driver, held the knife pointed towards Schapel's face. At one stage the driver allegedly said to Schapel, "I'll cut your eyes out" or words to that effect. Schapel said he looked around the car to see how he might escape. The driver said to him "Don't think about running". Schapel said he grabbed the blade of the knife with one hand, and with the other hand pulled himself over the front seat passenger and out of the front passenger side window. He managed to get out of the car, rolled onto the ground, then reached back in to grab his jacket which was on the front seat passenger's lap. While he was reaching into the car, the driver punched Schapel several times in the head, causing Schapel to pull his head out of the car. The car, which had been stationary, then took off, drove ten metres down the street, executed a U-turn, and accelerated away. There was a lady pulling out her "wheelie" bins at the end of the street, and Schapel yelled out, "I'm being robbed". Schapel said he then chased the car and threw a brick at the passenger side of the car. The car drove off, and turned into Dandenong Road. The lady assisted Schapel, took him into her house to wash off the blood, and contacted the police who arrived shortly afterwards. Schapel described the knife in the driver's hand as "like a sharpened letter opener" about eight to twelve inches thick and half an inch in width. He said it was double-edged, being sharpened on both sides of the blade and was very sharp and pointy. Schapel identified the registration numbers of the car as QIE 5.. but could not recall the other digits. Schapel said his shoes, a pair of black Globe runners, were stolen from him that day. Schapel said that he received an injury below his right eye caused by Frank pointing the tip of the knife at his face. He said the scratches to his chest were caused by Frank when he jumped over the seat and out of the passenger window.
8 In cross-examination Schapel admitted numerous prior convictions for dishonesty and traffic offences and one prior conviction for possession of heroin. He agreed that he had pending charges to which he intended to plead guilty, but denied that his assistance to the police in the current matter would be raised in those proceedings to reduce his penalty. He said he had never been convicted of trafficking in drugs. He was asked questions about the purpose of the car trip that day which he refused to answer, invoking the privilege against self-incrimination. During cross-examination Schapel said that he was unaware that the police had outstanding warrants in respect of him when he went to speak to the police. He said he gave the police an accurate account of what had taken place that day but did not tell the police about drugs because he did not think it was necessary. He said he agreed to help Lindsay obtain heroin, because he himself was a recovering drug addict who had used the drug previously. He said that as of 16 January he had not used heroin for one week, and was not intending to purchase heroin for his own use on that day. The car was a two-door coupé with head rests on the front seats. He said the front passenger's window was open about one foot. He grabbed the knife with his right hand and pulled himself over the front seat and through the window. He did not feel anything happen to his right hand, and then he realised he had been cut when he saw it bleeding after he got out of the car.
9 The next witness was Cassandra Chalmers. She gave evidence of going to the Carnegie Safeway premises and meeting Lindsay. She gave a description of the driver who had been introduced as "Frank" and the female front seat passenger. She said that Schapel got into the back seat of the car behind the driver's seat, and that as there was not enough room for her she returned home.
10 Mrs Regina Rich, who lived in Glenferrie Street, North Caulfield was then called. She said that she was unloading her shopping from her car at 5 p.m. on 16 January when she heard a young man (later identified as Schapel) outside the front of her house screaming that he had been robbed. She ran outside and saw him crying, bleeding and very upset. A car drove rapidly down the laneway towards the end of Glenferrie Street, which is a deadend. She thought the car might have been stolen from the young man, so she pulled a couple of wheelie bins into the laneway to slow down the car. The car however forced its way onto Dandenong Road and careered on two wheels around the corner. Her evidence was corroborated by Leighton Rich, her son.
11 Evidence was given by Dr Maurice Odell, a forensic physician at the Victorian Institute of Forensic Medicine, who examined Schapel on 21 January 2002. He described the injuries to Schapel as including a two millimetre linear scab abrasion below the lateral aspect of the right eye and a twelve centimetre scratch on the right side of the chest, as well as other injuries including bruising and wounds to Schapel's right hand. Dr Odell said that the injury to Schapel's eye was likely to have been caused by something sharp or with a point on it. The injuries to the hand were cutting injuries caused by a sharp object. In cross-examination Dr Odell said that the injuries to Schapel's hands were not really consistent with cuts caused by the grabbing of the blade of a knife. He said that the classic injuries usually seen when a person grabs the blade of a knife are cuts either on the inside parts of the fingers or the palm which correspond to the length or shape of the knife. Dr Odell said that generally with a double-bladed knife one would expect to see two sets of injuries. He considered that Schapel's injuries to his hand could have been caused by contact with a knife, but not in the "traditional grabbing a knife sense".
12 Evidence was given by a number of police officers, the thrust of their evidence generally being for the purpose of establishing that the applicant was the driver of the car, and thus the principal offender. Senior Constable David Moffitt intercepted a red Renault Fuego coupé registered number QIE 501 on 10 January 2002 at an address in Armadale. The driver identified himself as Peter John Allen, and stated that he had purchased the car a short time previously. The passenger produced identification verifying that she was Amber Barry. Detective Senior Constable Karen McDonald observed a red coloured vehicle on 17 January 2002 in Richmond, bearing the registration QIE 501, similar to the registration details provided by Schapel. On 18 January 2002, Constable McDonald observed Amber Barry standing next to the same red vehicle they had seen the previous day, but the registration plates had been changed to FQY 732. Sergeant Paul Stevens and six other officers were performing surveillance duties on 17 and 18 January in relation to the applicant and Amber Barry, and observed in the vicinity of 49 Cubitt Street, Richmond a red Renault Fuego registered number QIE 501. On 18 January 2002 the same red car was parked outside 49 Cubitt Street but now bore registration plates FQY 732. Senior Constable Andrew Rutherford, a fingerprints expert, on 25 January 2002 examined a red Renault Fuego registered number CLS 111. Fingerprints on the front bonnet of the vehicle and on the inside and outside of the passenger door window matched those of Amber Barry. Louise Patrice Brown, a forensic scientist at the Victorian Forensic Science Centre, conducted DNA analysis on three swabs taken from bloodstains on the external front door and windscreen of the Renault. Ms Brown concluded that it was at least 98 million times more likely that the DNA typing would match that of Dean Schapel than any other individual in the Victorian population. Detective Senior Constable Andrew Beaton took possession of the 1985 red Renault coupé bearing registration plates FQY 732. The actual registration number of the car as contained in the registration label was CLS 111. He noticed damage to the front passenger window, consistent with a brick strike, and the passenger window had brick residue encrusted on it and scratches containing red coloured dust. Senior Constable Darren Watson examined the red Renault Fuego on 27 January 2002. It then bore number plates FQY 732. Its registration label indicated the vehicle should have had the registration plates CLS 111. The front registration plate FQY 732 was secured over another number plate, bearing the number QIE 501. Senior Constable Watson gave evidence of blood-staining in the vehicle.
13 The applicant made no admissions to the police. Amber Barry, on the other hand, participated in an interview with the police, in which she admitted that she lived at 49 Cubitt Street, Richmond with the applicant. She admitted that the applicant drove the car with her as a passenger in the front seat to the Safeway supermarket at Carnegie on 16 January. She gave a version of what happened when they met Dean Schapel, which admitted that there was an altercation with Schapel in the car. She said that she had given Schapel $100 that day to put together with money he already had so that between them they could buy a substantial amount of heroin from an Asian dealer Schapel knew, and so that all of them could have a "hit". She said that after the car started, Schapel said that he had lost the money that "I don't have it. It's gone. I don't know where it is. I've lost it." (R.O.I. Qns 122, 310-400). She said Schapel offered to strip to demonstrate that he did not have the money and took off his shoes and jacket, and then jumped out the window. She denied that the applicant threatened Schapel and asserted that after he had jumped out of the passenger window, he grabbed his jacket from her lap and ran down the street ranting and raving. Barry's answers in the record of interview were, of course, not admissible in evidence against the applicant.
14 Counsel for the applicant at the outset of the trial applied for a separate trial for his client and repeated this application at the close of the Crown case. Both applications were opposed by the Crown and were refused by the judge. Counsel for the applicant also submitted that there was no case to answer, but the judge ruled that there was a sufficient case to go to the jury.
15 The principal ground argued in this Court by Dr Lyon on behalf of the applicant was that the verdicts of conviction in respect of counts 2 and 3 are inconsistent with the verdict of acquittal in respect of count 1. The argument was made in the following way. The evidentiary basis for the count of false imprisonment was premised entirely upon Schapel's allegation of armed robbery. This, it was said, was the first significant event in the evidentiary chain, and it was the physical setting in which the robbery demand was alleged to have been made. There was no other evidence upon which the jury could find that the complainant had been falsely imprisoned in the absence of the armed robbery. Insofar as the count of recklessly causing injury was concerned, Schapel's evidence was that the knife was produced by the applicant in the course of the armed robbery in the car, the knife tip made contact with his face in the course of the robbery, Schapel grabbed the blade as he was inside the car but attempting to leave it, and his chest was scratched as he went over the back seat to the front passenger window. The medical evidence (of Dr Odell) was that the injury to the face could have been caused by the knife which was exhibited in evidence, no opinion had been given as to the possible provenance of the scratch to Schapel's chest, however, and the injury to the hand might have been caused by a different knife, although Dr Odell gave evidence that he thought the injury was atypical of a knife-grip injury and more likely to have been caused by the first knife. Dr Lyon argued that the complainant provided an account in which the aspects of imprisonment and injury were inextricably interwoven with the allegation of robbery. He submitted that the fact of injury alone could not be used to allow the two remaining counts to stand, given the existence of a reasonable doubt about the central allegation of armed robbery.
16 In response, Mr Gamble for the Crown argued that there was no technical inconsistency in the verdicts since all three counts had different elements, and proof of the legal elements of armed robbery was not a prerequisite for proof of any of the elements of false imprisonment or recklessly causing injury. Nor, he argued, was there any factual inconsistency in the verdicts. He submitted that the jury may simply have believed the victim about the armed robbery but not been satisfied to the criminal standard. Alternatively, it was open to the jury to accept some but not all of the victim's evidence, particularly in light of the fact that he was not initially candid with the police as to the reason he was with the applicant and Barry. The jury also had before them an account from Amber Barry in her interview in which she gave an account raising by inference a claim of right, and a scenario in which the taking of the victim's property, if it occurred, was not done dishonestly or with an intention permanently to deprive him of it. In this way, it was submitted, the jury may not have been satisfied beyond reasonable doubt of an essential element of the offence of armed robbery, yet been satisfied that to detain the victim, produce a knife and injure him, was neither warranted nor lawful.
17 Mr Gamble argued that the jury received clear and repeated instructions as to the need to consider each count separately in light of the admissible evidence pertaining to it and as to the heavy onus the prosecution carried in proving guilt beyond reasonable doubt. No objection was taken to these directions. He put it that even if the jury had been satisfied to the requisite standard of proof that the applicant and Barry had committed the armed robbery as alleged, it was nonetheless open to them in the circumstances of this case to return verdicts of guilty only on the lesser counts. Had they done so, they would not have been acting either unreasonably or illogically, but mercifully in the way referred to in cases such as R. v. Kirkman[1]. As King, C.J. there said[2] -
"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. A jury may be quite reasonable in arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count in the information."
18 The law as to inconsistency in verdicts was relevantly discussed at some length in a judgment of Gaudron, Gummow and Kirby, JJ. in MacKenzie v. The Queen[3]. Their Honours said -
"Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin, J. in R. v. Stone is often cited as expressing the test:
'He must satisfy the Court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries.
...
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'." (Citations omitted.)
19 At an early point in the charge, the judge explained to the jury the elements of the offence of armed robbery. Turning then to the facts, his Honour said that the prosecution relied upon the evidence of Schapel, and told the jury that "if you accept this account by Mr Schapel that each of the elements of armed robbery would be made out". The judge then continued by discussing the offence of false imprisonment and emphasised that Schapel's evidence was that when the car stopped in Glenferrie Street his property was demanded and force was used and he was threatened by use of the weapon. The third count, recklessly causing injury, was then explained to the jury, and the evidence of Schapel was referred to in this context.
20 The judge then discussed Schapel's evidence, mentioning first that at the time of the offending he had a number of prior convictions for offences of dishonesty. His Honour then said -
"In order to be satisfied you must largely accept the version of events given by Mr Schapel. The only evidence in this matter of what happened inside the car when it stopped in Glenferrie Street that the prosecution relies on is the evidence of Mr Schapel. For this reason you would realise that it is critical in your deliberations to carefully scrutinise the evidence of Mr Schapel.
Defence counsel have pointed to a number of matters in his evidence which they say are reasons for you not accepting his account. What you make of those submissions is entirely a matter for you. What conclusions you reach after scrutinising the evidence of Mr Schapel about the guilt or innocence of the accused is entirely a matter for your determination."
Shortly afterwards the judge reiterated that "Mr Schapel is the only prosecution witness who gives direct evidence of what happened inside the motor vehicle when it was stopped in Glenferrie Street. He says he was attacked and robbed and injured with a weapon."
21 In these circumstances the argument of inconsistency has, I think, been made good. The prosecution's case in relation to all three counts relied entirely on Schapel's evidence. If the jury did not accept the prosecution's case that an armed robbery had occurred, the question becomes how did the offences of false imprisonment and recklessly causing injury occur. The prosecution did not go to the jury with any alternative scenario. The evidentiary basis for the false imprisonment was, as Dr Lyon argued, the evidence of Schapel that he had been detained in the car, which was the first step in the chain of events giving rise to the count of armed robbery. If the jury rejected the charge of armed robbery, there was no other evidence, it seems to me, upon which they could have found the applicant guilty of false imprisonment. Similarly, as to the count of recklessly causing injury, Schapel's account was inextricably interwoven with the allegation of robbery.
22 The trial judge in his charge, correctly, with respect, directed the jury in these terms. The jury, therefore, either accepted Schapel's evidence or they did not. If they did not, it is impossible to see how they could have arrived at a verdict of guilty
beyond reasonable doubt on counts 2 and 3, both of which were necessarily involved in the count of armed robbery. Notwithstanding Mr Gamble's forceful argument, it becomes, I think, a matter of pure speculation as to how the jury can have arrived at a verdict of guilty on these two counts, while remaining unsatisfied as to the applicant's guilt on the count of armed robbery.
23 The verdict of not guilty on the count of armed robbery produces the result, in my view, that there is no acceptable explanation as to how the jury can have arrived at a verdict of guilty on counts 2 and 3, and "intervention is necessarily required to prevent a possible injustice"[4].
24 It follows, in my view, that the convictions on counts 2 and 3 must be set aside. It is unnecessary to deal with the other grounds of the application for leave to appeal against conviction. I would allow the appeal and direct that acquittals be entered on counts 2 and 3.
25 I would grant the application for leave to appeal against the convictions on counts 2 and 3, allow the appeal and direct that acquittals be entered for the reasons stated by Charles, J.A.
26 I agree in the disposition of this matter as proposed by Charles, J.A. and I do so for the reasons advanced by him in his judgment.
R
Allen [2006] VSCA 3