R v Bellino & Conte [1992] QCA 97

Section 632 of the Code requires the jury to be given a warning of the danger of acting on the uncorroborated testimony of an accomplice or accomplices and the general practice which appears to have developed is for the court to identify for the jury evidence which is capable of constituting corroboration. The judge should not, of course, trespass on the jury's function, by giving them instructions as to what evidence, if accepted, in fact corroborates that of the accomplice or the accomplices; the section says "unless they find it is corroborated", meaning unless the jury finds it is corroborated. If some evidence which is capable either alone or with other evidence of constituting corroboration is accepted by the jury, then it is for the jury to decide whether it does in fact corroborate.

The question whether a fact, if established, tends to support an allegation or make its truth more probable is essentially a factual one; it is by no means clear that s.632 requires the judge, by a process of weighing and balancing factual considerations, to pick out for the jury those categories of evidence which in his opinion are capable of constituting corroboration: see Walczuk [1965] Q.W.N. 50, which was referred to in Matthews and Ford [1972] VicRp 1; [1972] V.R. 3 at 20 in these terms:

"It has been said by the Court of Criminal Appeal in Queensland that if a jury have been told in appropriate terms of the necessity or advisability of corroboration and an appropriate explanation of corroboration has been given, then, although the more common practice is to point to particular portions of the evidence which may, if accepted as true, amount to corroboration and which the jury may make use of, it is not a failure to give a proper direction to leave them to discover corroboration for themselves: R.v. Walczuk, [1965] Q.W.N. 50".

"It is apparent that to carry the obligation of the trial judge to the point where he must direct the jury as to what is the particular independent evidence on a specific subject-matter which is capable of constituting corroboration would in protracted cases, like the present one, not only place an unreasonable burden on the judge, but one the adequate discharge of which could not but in many cases leave the minds of the jury in a state of confusion and bewilderment ... It is better for the effective administration of criminal law to take the obligation no further than to require ... that after the giving of a proper warning and a proper explanation of corroboration, the jury be given a broad indication of the sort of evidence which may be treated as corroboration and, if thought desirable, an indication of the areas of the evidence in which it may be found, without elaboration, unless it be a special case ...".

In Sorby [1986] VicRp 77; [1986] V.R. 753 at 782 and 783, there is to be found a discussion of the subsequent treatment of what was said in Matthews and Ford about corroboration; Kaye, O'Bryan and Tadgell JJ. there followed Matthews and Ford. It appears to me that what is said in Matthews and Ford about the judge's duty in this sort of case is properly applicable under s.632 of our Code. There is a fine dividing line between a judge's expressing a view that certain evidence does not confirm or support other evidence, which is a question of fact, and his expressing a view that no reasonable person could think it capable of doing so, which is a question of law. The judge is entitled to sum up on both types of question, but his remarks on the former do not bind the jury. In this difficult area, as it seems to me, it may often be better to follow the practice outlined in the second passage from Matthews and Ford, quoted above. In the present case, rational minds may well differ as to which parts of the Crown evidence, other than that of accomplices, supported the accomplices' story, and which did not. It is unnecessary to say whether I would, for myself, have treated as corroborative the three categories of evidence the judge identified, but I am of opinion that they were properly left to be considered by the jury, in order that the jury might determine the question.

It is explained in the reasons of McPherson J.A. that the judge gave the jury a set of written instructions to assist them to determine what verdicts properly followed from particular factual findings. On the appeal, there was no complaint with respect to his Honour's having adopted this practice, nor as to the way in which the directions were framed. However, complaint was made of the way in which the judge treated the verdicts returned on counts 4 and 5. I agree with the conclusion of McPherson J.A. that the verdicts of guilty in relation to counts 4 and 5 were, on their face, complete and valid without a statement as to the basis on which the verdicts were arrived at.

I think it necessary to add, however, that an additional point arises, namely whether when it came to sentence, the judge was right to treat the jury's verdict as he did, as covering "both the alternatives which are in count 4 and count 5". That is, the judge sentenced on the basis that the jury must have found both of the propositions (a) and (b) against each accused. On the face of it, one might have thought the accused to be entitled to be sentenced on the basis of that view of the verdicts on each of counts 4 and 5 which was most favourable to them. However, in strictness, that question arises only with respect to the appeal against sentence which, as McPherson J.A. explains, has not been heard.

I agree with the conclusion of McPherson J.A. that one could not conclude that the prohibition in s.619 was infringed. The second question is whether Bellino was led, by the remarks of the trial judge on this subject, to act to his disadvantage at the trial and is one which has given me more difficulty.

What Bellino was told was that the Crown "would not be entitled to address the jury in relation to your guilt at all". When Bellino asked for clarification of his rights during the course of the Crown's address, the judge said that he did not see how the Crown could possibly address "on a co-joint charge without a mention somewhere" - i.e. without the mention of Bellino. The prosecutor replied: "It is absolutely impossible, given that the evidence which is admissible pursuant to Tripodi deals time and again with what Mr. Bellino did. I don't propose to touch on any evidence which is admissible only against Mr. Bellino".

The principle of Tripodi [1961] HCA 22; (1961) 104 C.L.R. 1 is that when the prosecution case is that a number of people acted in preconcert in the commission of a crime, evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, once reasonable evidence of the preconcert has been adduced; see the report at p.7. In accordance with that principle, counsel for the prosecution in the present case addressed on the basis that what Bellino did in furtherance of the common purpose which, according to the Crown case, he and Conte had was relevant to the Crown's case against Conte. Application of the principle would, as it seems to me, have made all or practically all of the evidence of Bellino's actions relevant to the case against Conte. For example, Herbert's evidence that he received payments from Bellino was plainly, if the Tripodi principle was regarded as applicable, relevant to the case against Conte.

It appears then that the Crown addressed on the basis that it was entitled to invite the jury to find that both Bellino and Conte made corrupt payments to Herbert and from that and other circumstances, to find that Conte was guilty of offences under s.121(2) of the Code; the restriction the Crown accepted was that it could not submit that Bellino was similarly guilty. Although addressing in this fashion might have seemed to the jury rather odd, there was not much advantage to Bellino in the inhibition imposed on the Crown by s.619. For if the jury were satisfied that Bellino made corrupt payments to Herbert and took that into account against Conte, they would do so because, according to the Crown case, Conte was acting in concert with Bellino.

It is my view, then, that in the circumstances of the present case, if Bellino decided against giving evidence because he thought that by that means he could prevent the Crown addressing in a way which was relevant to his guilt, he was under a misapprehension. The Crown was not prevented by s.619 from dealing comprehensively with the evidence on which it relied to satisfy the jury of Conte's guilt and that was in substance if not entirely the same evidence as that which formed the case against Bellino. The restriction on the Crown was in the circumstances of this case that it was unable to argue for the taking of the final logical step by the jury, namely that, for the same reasons as justified the conviction of Conte, Bellino should be found to be guilty.

There is no certain means of determining to what extent Bellino was influenced by the assurance the judge gave him about the nature of the Crown's address, in the event that he called no evidence. Bellino appears to me to be an astute man; it is conceivable that he had no keen interest in giving evidence and that he foresaw that the judge's explanation of the effect of his not calling evidence could give rise to difficulty, at least, and at best serious embarrassment for the Crown. It has to be noted that Bellino was not rushed into making a decision, but was given ample opportunity to consider his position and if he saw fit to take advice.

Nevertheless, I have come to the conclusion that the trial miscarried, so far as Bellino was concerned, in that he was induced or encouraged not to adduce evidence by an inadequate explanation of the forensic advantage which was available to him. The position of a judge presiding over the trial of an unrepresented accused, where the case is a long and complex one, is unenviable. It may seem unfair simply to let the unrepresented accused fend for himself, but if the judge gives him any advice, deficiencies in it may vitiate the trial, so far as the advised accused is concerned. Here, acting with the best of motives, the judge gave an explanation to Bellino, on an important point, which was capable of giving a false impression. Bellino says it had that effect and I do not think there is sufficient ground for rejecting Bellino's assertion.

Nor does it appear to me that one can hold that there was, so far as Bellino was concerned, no substantial miscarriage of justice. It has to be admitted that if Bellino had gone into the witness box that may merely have made the jury more inclined to find him guilty. But whatever reservations one may entertain as to the advantages to Bellino of giving evidence and subjecting himself to cross-examination, it is impossible to reject the submission that evidence from Bellino could have helped to raise a doubt about his guilt in the minds of the jury.

Counsel for Conte took no point, on the hearing of the appeal or at the trial, concerning the Crown's right to address in a way which bore on Bellino's guilt. No doubt this was because it was thought the matter had little to do with Conte; on any view the Crown had an unrestricted right of address as against Conte.

After the hearing of the appeal concluded, however, written submissions on behalf of Conte were received arguing that it would be unjust if, on the same evidence, one accused were convicted and the other acquitted, in separate trials. Reference was made to Darby [1982] HCA 32; (1982) 148 C.L.R. 668 at 678:

"... the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person".

The point there discussed was considered again by Dawson J. in King v. The Queen [1986] HCA 59; (1986) 161 C.L.R. 423 at 434:

"... where there is no material distinction in the evidence admissible against each accused to establish an element to be proved against both, different verdicts may be inconsistent. Inconsistency appears only if the acquittal of one and the conviction of the other is to be accounted for by the making of different findings as to the common element".

Here, the charges were not of conspiracy, but counsel for Conte would have us apply these principles, because the case was one in which Bellino and Conte were alleged to have acted in concert. Assuming in favour of Conte that the principle stated in Darby would operate, were he convicted and Bellino acquitted, that principle cannot assist him, for Bellino should not, in my view, be given an acquittal. I can see that the application of that principle may give rise to some contentious issues where co-conspirators or persons acting in concert are granted separate trials - as, according to Bellino's submissions, should have occurred here. That is not to say that such persons should never be given separate trials lest the risk of inconsistent results be enhanced or that, in this case, Conte must have a new trial simply because Bellino is to be granted one.

In my opinion, the fact that, as I am prepared to accept, Bellino gave up his right to call evidence under a misapprehension induced by the trial judge's statements does not entitle Conte to a new trial, as what occurred caused no injustice to him.

I would set aside the convictions recorded against Bellino and order a new trial of counts 1, 3, 4 and 5, with respect to Bellino only. I would dismiss Conte's appeal against conviction.

MINUTE OF ORDER:The appeal against Mr. Bellino's conviction is allowed, the convictions recorded against him are set aside and a new trial ordered in respect of counts 1, 3, 4 and 5 of the indictment.

The appeal against Mr. Conte's conviction is dismissed.

CRIMINAL LAW - OFFICIAL CORRUPTION - Appellants convicted of official corruption for bribing former police officer - whether s.121(2) Criminal Code applicable as no payments to public servants involved - whether section applies to corrupt payments to any person - Criminal Code, ss.121, 632, 619 - Commissions of Inquiry Act 1950-1989, s.14(2)

CRIMINAL LAW - CORROBORATION - Appellants convicted on evidence of accomplice - whether any evidence capable of corroborating evidence of accomplice - whether jury adequately warned of danger of convicting on uncorroborated evidence of accomplice - whether evidence required corroboration in all aspects.

EVIDENCE - CORROBORATION - Appellants convicted on evidence of accomplice - whether any evidence capable of corroborating evidence of accomplice - whether jury adequately warned of danger of convicting on uncorroborated evidence of accomplice - whether evidence required corroboration in all aspects.

CRIMINAL LAW - VERDICTS - UNSAFE - Appellants convicted on evidence of accomplice indemnified against prosecution - whether jury adequately warned of danger of relying upon evidence and of dishonest character of witness - whether nature of quality of evidence required interference by appellate court.

CRIMINAL LAW - PROCEDURE - FAIR TRIAL - Appellants alleged unfair trial on basis of media publicity preceding and surrounding trial - whether matter raised at time of trial - whether stay or change of venue sought - whether jury adequately warned to disregard publicity - prejudicial effect of publicity considered.

CRIMINAL LAW - CONDUCT OF DEFENCE - Appellant elected not to give evidence on judge's indication that prosecution would not address in relation to his guilt - prosecution address referred to appellant in context of co-accused's guilt - whether appellant misled into electing not to give evidence.

Counsel: W.T. McMillan, wih him M. Darmody, for the Appellant Conte

Solicitors: Legal Aid Office for the Appellant Conte

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Reasons delivered by McPherson and Pincus JJ.A. and Byrne J. on 14th May 1992. Pincus J.A. and Byrne J. concurring as to the order. McPherson J.A. dissenting.

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APPEAL AGAINST MR. BELLINO'S CONVICTION ALLOWED. CONVICTIONS AGAINST MR. BELLINO SET ASIDE. NEW TRIAL ORDERED IN RESPECT OF COUNTS 1, 3, 4 AND 5.

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Except in one respect, I agree with the reasons of McPherson J.A. My difference concerns the prosecutor's closing address. McPherson J.A.'s reasons set out s. 619 of the Criminal Code and the relevant portions of the transcript of proceedings at the trial. I agree that Bellino has not established that the prosecutor's closing speech contravened s. 619. In my opinion, however, the prosecutor's address gave rise to a miscarriage of justice because it involved a substantial departure from the expectation reasonably engendered by the judge's assurance that the "prosecutor would not be entitled to address the jury in relation to your guilt at all" if Bellino elected not to adduce evidence.

When Bellino withdrew the documents he had tendered and chose not to call evidence, he anticipated a special advantage: that the prosecutor's address would be confined to attempts to persuade the jury of Conte's guilt. Bellino had testified at the committal and, as he told us without objection, proposed to give evidence at his trial. He relinquished that right - one which his having testified at the committal shows he valued - because the judge said that, if he did not adduce evidence, the prosecutor "would not ... address ... in relation to your guilt at all". In short, it seems the assurance probably was influential in the decision.

When he chose not to testify, Bellino, we should accept, did not anticipate that the prosecutor would address on Conte's guilt in words likely to have much the same impact upon the jurors' perceptions of Bellino's guilt as if the prosecutor had invited the jurors to convict Bellino as well. And the assurance did not alert him to such a risk.

Neither the judge nor the prosecutor adverted at the time Bellino made his election to the difficulties involved in the prosecutor's addressing in a trial where the charges were preferred against both accused jointly and based on substantially the same facts. Bellino, however, should not be disadvantaged if the assurance was not appropriate. If the prosecutor considered it was not practicable for him to direct his closing remarks to Conte's guilt without incidentally inducing the jury to convict Bellino, no hint of it was given when the judge broached the topic with Bellino. Restrictions inherent in the assurance were not discussed. In the result, the judge's words were not hedged about with such qualifications as that the prosecutor could importune the jury about Bellino's complicity to the extent the evidence related to both men.

Bellino's decision meant giving up the chance of raising a reasonable doubt as to his guilt through evidence. In view of what he relinquished to gain the advantage the assurance appeared to him to afford, Bellino's expressions of disappointment during the trial at the content of the prosecutor's address are not surprising. Unfortunately, the judge refused a request to record the address made after Bellino voiced his concern that it did not accord with the assurance. However, the exchanges between Bellino and the judge and the prosecutor's defence of his references to Bellino are recorded. The passages are set out in the reasons of McPherson J.A. and I will not repeat them. To my mind they disclose that the assurance created an expectation which the address proved illusory. No doubt the prosecutor did not actually invite the jury to convict. The speech, however, appears to me not to have conformed with the assurance not to address "in relation to" Bellino's "guilt at all" in the sense in which Bellino claims, reasonably enough, to have understood those words when he chose not to testify.

The prosecutor supported his frequent references to conduct showing that Bellino had committed the offences by suggesting that this was "unavoidable": so much of the evidence was admissible against Conte and Bellino. But, said the prosecutor, he did not "propose to touch on any evidence which is admissible only against Bellino." There is no material showing that the prosecutor did refer to evidence which affected Bellino exclusively; and presumably the address did not exceed the bounds of his entitlement under s. 619. However, these considerations are not decisive. Bellino apparently decided not to give evidence because he thought that the judge's assurance, acquiesced in by the prosecutor, meant much more than that the prosecutor would not refer to evidence admissible only against Conte or expressly call for Bellino's conviction.

It cannot be said that Bellino would certainly have been convicted had he testified. By withholding evidence, he has therefore lost a fair chance of acquittal. It is true that, after raising his concerns during the prosecutor's address, Bellino did not ask to interrupt the address by testifying; nor did he seek the discharge of the jury. However, neither course was canvassed with him and, as he was unrepresented, these omissions should not be held against him. I would allow Bellino's appeal and order a new trial for him.

After the argument concluded, Conte's counsel provided us with supplementary written submissions. He had not foreshadowed an intention to do this; nor had he sought leave to amend the notice of appeal to raise the new contention. It is this: that if Bellino receives a new trial because of the content of the prosecutor's address, Conte should have a new trial also. Otherwise, it is said, "an injustice will thereby be caused" to Conte. The argument is that it would be unjust for Conte's conviction to stand were Bellino subsequently acquitted. Although Conte has, through the committal, insight into the testimony Bellino would probably have given, it was not argued that evidence Bellino might have given but for the assurance could have assisted Conte's defence.

The analysis of the charges by McPherson J.A. shows that there is no necessary inconsistency between an acquittal of Bellino and a conviction of Conte. It would have been open to the jury at the trial, heeding a direction to consider the cases against the two accused separately, to have acquitted one and convicted the other. No injustice is done to Conte if Bellino is acquitted at a new trial: cf. The Queen v. Darby [1982] HCA 32; (1982) 148 C.L.R. 668.

Conte's appeal should be dismissed. I would allow Bellino's appeal, quash the convictions against him, and order that he have a new trial.