R v Fuge

Judgment (8 paragraphs)

[1]

Solicitors: D J Humphreys S E O'Connor File Number(s): CCA 60815/00 Decision under appeal Court or tribunal: District Court Before: Coolahan DCJ File Number(s): 99/31/0065

[2]

REGINA v RENEE JULIE FUGE The appellant was convicted of being an accessory before the fact to an offence of assault with intent to rob while armed with an offensive weapon. The appellant seeks leave to appeal against conviction on the grounds that (1) the jury should have been directed as to a possible defence of claim of right; (2) his Honour erred in failing to give appropriate directions with regard to motive to lie. Held: (Dismissing the appeal): Ground 1: jury should have been directed as to possible defence of claim of right

Had the principal to the foundational offence held a genuine belief that she was entitled to a certain sum of money, then the taking of that sum, in circumstances which would otherwise involve robbery, would not constitute such an offence. Such a belief does not have to be reasonable or grounded in law or fact, but it must be genuine. The same principle extends to any person who takes property on behalf of another, or in collaboration with another, whom he or she believes has a bona fide claim of right to the money or property in question. Sanders 57 SASR 102; Langham (1984) 36 SASR 48; Nundah (1916) 16 SR (NSW) 482; Bernhard (1938) 2 QB 264; Lopatta (1983) 35 SASR 101; Walden v Hensler (1987) 163 CLR 561;Kastratovic (1985) A Crim R 28; Astor v Hayes (1998) 38 A Crim R 219 applied.

The jury should have been directed as to a possible 'defence' of claim of right

The sole basis for this submission rests in the following passage in the evidence in chief of Pohl: "Q. Now when you were in that bedroom was there any conversation and, if so, can you tell us about what? A. Oh I'm not really sure exactly what was said. You know we just talked in general, sort of discussions, and eventually just got around to deciding to hold up Hungry Jack's. Q. Can you remember who it was that mentioned Hungry Jack's? A. Oh it was [RB]. Q. That's [RB] ? A. Yes. Q. Can you remember what she said about Hungry Jack's? A. She said they owed her money and that was the only way she thought she'd get it. Q. When she said that did any of you - I'm sorry, yourself or anybody else, say anything back to her? A. Oh we just took it as a bit of a joke."
Subsequently, in cross examination, Pohl acknowledged that he could only speak for himself as to whether the suggestion had been taken as a joke. It was also inferentially raised in the cross examination of McFaddyen as follows: "Q. Well certainly at some stage [RB] said something about Hungry Jack's and everybody thought it was a joke, that was the case wasn't it? A. Yes."
Otherwise, there was no further mention in the trial, either in the evidence or in the addresses, or in the summing up, of the motive for the planned robbery having possibly been based upon a claim of right on the part of RB. In particular, no question was put to her, when she gave evidence, to suggest that she had maintained or expressed any such belief, or that there was any identification of a specific sum of money to which she was entitled and which would be taken from the restaurant. There was similarly no suggestion whatsoever in the ERISP, of the appellant, of any claim of right being asserted, or of which she had been aware. Such account as she gave to police was one of a denial of any knowledge of a planned robbery, or of any participation on her part in providing assistance to Pohl or RB .
Counsel for the appellant at trial has now sworn an affidavit to the effect that while "aware that a question of a claim of right arose in the Crown case", she had not thought of asking for a direction in relation to it.
In these circumstances the appellant requires leave under r 4 of the Criminal Appeal Rules to argue this ground, as she does in relation to the second ground, in respect of which, again, no direction was sought at trial.
In an appropriate case, the existence of a claim of right is relevant to the commission of the foundational offence. In the present case, had Pohl and RB held a bona fide belief that Hungry Jack's owed her a sum of money, then the taking of that sum of money from the restaurant, in circumstances which otherwise would have involved robbery would not have constituted an offence on their part. The reason for that lies in the absence of the mens rea which is an essential element of the offence: Walden v Hensler (1987) 163 CLR 561 at 569, 603 and 608.
The same principle applies to any crime of which larceny is an element, and it extends to any person who takes the property on behalf of another, or in collaboration with another, whom he believes to have a bona fide claim of right to the money or property in question: Sanders 57 SASR 102 at 105, per King CJ.
A review of the authorities shows that: a) the claim of right must be one that involves a belief as to the right to property or money in the hands of another: Langham (1984) 36 SASR 48; b) the claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not: Nundah (1916) 16 SR (NSW) 482, Bernhard (1938) 2 QB 264; Lopatta (1983) 35 SASR 101 at 107; Walden v Hensler ; and Langham at 52-53. c) while the belief does not have to be reasonable: Nundah at 485-490; Langham at 49; and Kastratovic (1985) 19 A Crim R 28, a colourable pretence is insufficient: Dillon(1878) 1 SCR NS (NSW) 159 and Wade (1869) 11 Cox CC 549. d) the belief must be one of a legal entitlement to the property and not simply a moral entitlement: Bernhard and Harris v Harrison (1963) Crim LR 497; e) the existence of such a claim when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it: Love (1989) 17 NSWLR 608 at 615-616; Salvo (1980) VR 401; Langham at 58; Kastratovic at 66; Barker (1983) 153 CLR 338; Williams (1986) 21 A Crim R 460; and see also Boden (1844) 1 C & K 395. f) the claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, of which Langham and Lopatta provide examples; although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them: Lenard (1992) 58 A Crim R 123. g) the claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches: Astor v Hayes (1988) 38 A Crim R 219 at 222. h) In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence: Gregory LR 1 CCR 77 at 79; See Lun (1932) 32 SR (NSW) 363; Richards (1974) QB 776 and Howe(1987) AC 417, and unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts: Giorgianni (1985) 156 CLR 473; Stokes & Difford (1990) 51 A Crim R 25 and Buckett 79 A Crim R 303. i) It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury: Lopatta at 108, Astor v Hayes (1998) 38 A Crim R 219, Lenard and Williams at 475.
In applying these principles to the present case, it is correct that a direction would have been required had there been an issue sufficiently raised by the evidence, as to whether RB had a bona fide belief as to a claim of right to moneys owing to her by Hungry Jack's.
The obligation of the trial Judge to have given such a direction would have continued even though counsel had overlooked requesting it, or had deliberately refrained from seeking it out of concern that it may disadvantage a case of outright denial of any knowledge of, or complicity in a planned robbery: Pemble (1971) 124 CLR 118 at 130; and Stokes v Difford at 32.
I am not, however, persuaded that the issue was sufficiently raised by the evidence, in circumstances where: a) the possibility of a motive in RB was mentioned only in passing by Pohl, and was dismissed by him as a joke; b) counsel for the appellant put to McFaddyen in positive terms, in cross examination, that everybody thought that what RB had said about Hungry Jack's was a joke; c) RB made no mention of having any belief to a claim of right, or of having mentioned it to anyone else; d) the appellant made no mention of ever hearing any such claim being made, or of any particular reason for robbing Hungry Jack's being discussed; e) no mention was made by any witness of any consideration being given to a particular sum being taken from the safe to discharge any perceived indebtedness to RB; f) there was no attempt by trial counsel to explore the issue, or to request a direction; g) the case was fought on the single issue whether the appellant had participated, to any extent, in providing assistance or encouragement to Pohl and RB; h) both RB and Pohl pleaded guilty to the robbery, the intention to commit which was an essential ingredient of the offence of which they were convicted, and of the offence for which the appellant stood trial. i) the possibility that those who set out to commit the robbery intended to take only a limited sum from the safe, rather than whatever cash they could take, was so remote as not to raise any possibility of the jury having a reasonable doubt on such an issue.
In all of these circumstances, I am not persuaded that there was any risk of a miscarriage of justice going to the root of the proceedings, by reason of the absence of the direction which, it is now submitted, should have been given: Tripodina (1988) 35 A Crim R 183. Rather, the case is one where it appears to me, not only from the affidavit of counsel, but from the entirety of the evidence, that the point now sought to be taken was of no importance, and should not be permitted to be ventilated. I would, accordingly, refuse leave under r4 of the Criminal Appeal Rules 1952 to argue this ground.

Motive to lie

The submissions advanced in this respect combine two grounds of appeal in relation to that portion of the summing up which dealt with the evidence of Pohl, where his Honour said: "…. The Crown says that when you assess the evidence of Mr Pohl you would ask yourself why would he put the accused in at this stage so to speak, he has already been dealt with, he gave evidence about that and that you would be satisfied in effect that he was now telling the truth about what he saw in relation to the accused's actions regarding the knives and the stocking and the bandanna and so forth, and the key." This passage, in the summing up, had followed directly upon a comprehensive and strong direction in relation to the evidence of the four witnesses who had been called in the Crown case and who, it was accepted, were on their own account, accomplices. Moreover, almost immediately after having dealt with this aspect of the Crown's address, his Honour, in the course of summing up the defence case, again reminded the jury of the caution which needs to be exercised in relation to accomplices, this being the last matter of an evidentiary kind with which he dealt in the summing up.
It was accepted that the defence had put to Pohl in cross examination, and later to the jury, that he had possessed a motive to lie, so as to receive favourable treatment when he was sentenced. It was also accepted that there was an evidentiary basis for counsel to challenge the veracity of Pohl as an accomplice.
It was submitted that, consistently with the decision of this court in Jovanovic (1997) 42 NSWLR 520, and the decision of the High Court in Palmer (1998) 72 ALJR 254, the jury should, additionally, have been instructed that the defence had no onus to prove that Pohl had a motive to lie, and further that, if they rejected the suggested motive, then they should not infer from such circumstance that the witness had been telling the truth.
The kind of direction considered in Jovanovic and Palmer has particular significance in cases of sexual assault, where the motive to lie is related to the complaint. In the present case, the comment was confined to one witness. There were other witnesses who, subject to some differences in detail, had given a similar version in which the appellant had been described as an active participant in the events leading up to the planned robbery of the restaurant. No direct question had been put to them, to suggest any current motive to lie to the jury, and it would appear that no point to that effect was made by defence counsel in his address.
Even such a submission was in fact advanced, then it would seem that it was not taken up by the Crown or by his Honour. Although it was suggested that there was a risk of the jury applying the prohibited motive line of reasoning to those witnesses, I am unable to see any basis for that when his Honour confined his observation to a reminder of the submission put by the Crown and confined it to Pohl.
In those cases where an inadequate or inappropriate direction in relation to a motive to lie has given an appellate Court cause to intervene, it can be seen that the prohibited question has been left in a way giving the matter prominence as a "central theme or issue" see F (1995) 83 A Crim R 502 at 15-16; Rodriguez (1997) 93 A Crim R 535 at 541, 544, and 549; or endorsing its legitimacy or otherwise describing it as an "appropriate" or a "reasonable" or a "proper" question to ponder; see E (1996) 39 NSWLR 450 at 454 and 467; Rodriguez at 542 andJovanovic at 538.
This was not such a case, and I can see no error in the somewhat brief observation made by his Honour, particularly where a strong warning had been given in relation to accomplice evidence. The suggested deficiency, in the present case, was concerned more with the absence of the additional directions of which mention was made by Hunt CJ at CL in Uhrig NSW CCA October 1996: "16. A motive to lie where it does exist is a very relevant factor in judging a witness's credit. It will almost inevitably have substantial probative value in relation to the issue of credit, and so will pass the test posed by S 103 of the Evidence act 1995 for admissibility. If the alleged motive is denied by the witness, other evidence may be led to rebut that denial in accordance with S 106. 17. What this Court said in R v F and R v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth."
While there are cases where it is appropriate for the additional caution to be given, it is not inevitably the case that its omission will give rise to a miscarriage of justice. In Smith 2000 NSW CCA 468, I had occasion to observe, in relation to this passage in his Honour's judgment: "105. The correctness of the passage in Uhrig cited above, as a statement of the law, was also recognised in Jovanovic per Priestley JA at 522. His Honour went on to explain that the reference, in that passage, to it being 'appropriate' for the trial judge to give the direction as to what should follow in the event of the jury rejecting the motive appeared to him to have been a reference to it being something that should necessarily be done. 106. Although some support for this view exists in the judgment of Kirby J in Palmer 275, I would prefer to read the expression in a less rigid way, leaving it to the trial Judge to frame a direction suitable to the way in which, and the firmness with which, the possibility of motive has been opened up on the evidence, and in the closing addresses. In some cases, particularly where the motive is offered by the accused himself or herself, then the additional direction would normally be appropriate, lest the jury think it proper to penalise the accused for offering a reason which they find to be spurious or hollow, or designed unfairly to denigrate the complainant. 107. Where the evidence of a possible motive comes from another witness, or where the matter arises in some half-hearted way, in passing, as I believe it did in this case, then the need for the additional direction will not be so compelling. In such a case it may well be sufficient if the jury has been properly and fairly instructed that the appellant does not have to prove his or her innocence, it being for the Crown to establish guilt beyond reasonable doubt, and that they ought not to speculate about matters that are not established upon the evidence."
In the present case, his Honour gave a very clear direction concerning the absence of any onus of proof on the part of the appellant , in the following terms: "The onus of proof in this case, as I said to you the other day, rests upon the Crown and it never shifts. As I said right up until the time when you deliver your verdict the onus remains upon the Crown and the standard of proof is proof beyond reasonable doubt. The accused does not have to prove anythingand she does not have to disprove anything ." This was a direction which was not confined to the onus of proof in relation to the essential elements of the offence charged. It was a general direction given in succinct and clear terms which could have left the jury in no doubt as to where the onus of proof lay.
As in Smith, I am unpersuaded that it was necessary for his Honour to have gone on to give the further directions which it is now suggested should have been given. Each case must be considered in its own setting, and some regard needs to be given to the impression of trial counsel as to what was required. That she saw no need for any further direction, in relation to a matter which had not been highlighted, or given any weight by his Honour beyond summarising the competing submissions of counsel, is in my view of some importance.
In the circumstances outlined, I do not believe that the jury were left in a position where there was any real possibility of their considering that there had been any reversal of the onus of proof in relation to the existence of a motive in Pohl to lie, or that they were invited to do any more than to consider the argument which the Crown had put in response to the defence submission that he was lying because he had an interest to do so. Put in the limited way noted earlier, there was not, to my mind, an implicit invitation to embark upon the prohibited line of reasoning identified in Jovanovic and Palmer. I would accordingly refuse leave under r 4 to argue these further grounds.
Before parting from this appeal, I wish to add that it appears to have been a classic example of an 'armchair appeal', in which counsel not involved in the trial has gone through the record in minute detail looking for error, without reference to the manner in which the trial was conducted. That has particular application in relation to Ground 1, which depended upon a throw away line from one witness, which was entirely unexpected, which was not taken up again, and which represented something which the witness had not himself taken seriously, or regarded the others to have taken seriously.
It is timely for this Court to repeat the observations of Hunt CJ at CL in Abusafiah (1991) 24 NSWLR 531, and of Gleeson CJ in Sanderson NSWCCA 18 July 1994, in relation to the positive obligation which rests upon trial counsel to assist the Court in the conduct of a trial, and in relation to the need to give meaning to rule 4, whose validity was confirmed in EspositoNSWCCA 23 July 1990.
In Abusafiah, Hunt CJ at CL said (at 536): "The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error ( R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice."
The caution given by Gleeson CJ in Sanderson was to the following effect: "This case provides a striking and clear illustration of the reason for the presence in the Criminal Appeal Rules of rule 4. If trial counsel had apprehended that there was any significant risk that the jury might have misunderstood the true nature of their function in relation to this matter of corroboration, then the point was available to be taken by trial counsel. If the point had been taken, and if there really had been a problem, it was a problem that was capable of simple correction. It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred." See also Tripodina (1988) 35 A Crim R 183, PAH NSWCCA - 18 December 1989, and Cook NSWCCA -24 August 1998.
More recently, Dunford J in Mahoney (2000) 114 A Crim R 130, with whom Stein JA and Sperling J agreed, had occasion to cite these passages with approval, while in DH (2000) NSW CCA 360, Stein JA with whom Smart and Ireland AJJ agreed observed (at para 115): "Again, rule 4 applies because no point was taken at trial. In Jeffrey Mahoney JA made some pertinent observations about the role of rule 4 where an appellant relies on misdirections or non-directions to which no objection was taken at trial. They bear repeating. His Honour said: [It] is proper to emphasise the importance of the principle embodied in R4. In my opinion, this principle plays an important part in the criminal trial process. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind. … Errors will occur and R4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. Not infrequently this Court is asked to act under R4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the court on appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under R4. In the end, the court must exercise the power given to it by R4 according to the merits of the individual case. However, in my opinion, in exercising that power, the court should keep steadily in mind the function which R4 performs in the criminal trial process. [p4]."
The approach which his Honour indicated should be taken to rule 4, accords with that adopted by McHugh J in Papakosmas (1999) 196 CLR 297 where his Honour said at 319: "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant."
It is by reference to these principles that I have considered whether the present case was appropriate for leave to be granted to the appellant to argue the grounds which were sought to be raised.
It is because I am unpersuaded that there was any risk of miscarriage of justice arising that I would refuse leave to argue any of them. I would accordingly propose that the appeal be dismissed.
SULLY J: I agree with the orders proposed by Wood CJ at CL and with his Honour's reasons for those orders.
I have had the benefit of seeing in advance the judgment of Heydon JA. I wish to express my complete agreement with what his Honour says in the second paragraph of his judgment. I would add only this: that in my opinion the absurdity to which his Honour draws attention is such that, rather than abide the event of a consideration of the matter by the High Court of Australia, it ought to be recommended that consideration be given in the appropriate quarters to prompt and specific legislative correction.

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Judgment (8 paragraphs)

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