R v Iliovski; R v Shnider [2002] VSCA 172

Court of Appeal (Vic)|2002-10-31|Before: PHILLIPS and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.

The applicant did not give evidence, but two records of interview and a statement to the police were before the jury. No fewer than seven lies or alleged lies by Shnider were identified by the prosecutor in the course of his opening. Nash gave evidence that, although he was politely asked to leave the room, there was no discussion between the applicant and Iliovski and Nassar about the applicant's leaving. In cross-examination Nash agreed with a suggestion that the applicant left the room "apparently on the same instructions" as those that had been given to Nash. Egan's evidence was different. He said that Nassar pointed to Shnider and Nash and said, "You and you, out!" Kallis's evidence was similar to Egan's. Both Nash and Egan testified that Egan started to get out of his chair with a view to leaving too, but that Iliovski physically prevented him and told him not to leave. Kallis made no attempt to leave the room and would obviously not have been allowed to do so.

Returning to the question posed at the end of [37] above, I consider that the jury were entitled to conclude that Shnider assented to the false imprisonment. He saw what was happening and left the room without protest. His later efforts to call off the men whose services he had procured occurred after that offence had been committed. It was not just a case of foreseeing what they might do in carrying out an agreement to threaten; there was assent to what was evidently intended if not already in progress. Realistically, it was not contended that he was not present in the relevant sense. I would not uphold ground 1.

I would refuse leave to add ground 3. In the first place, even if the ground succeeded, it would not lead to a different order. A new trial must be directed by reason of the applicant's success on ground 2. A failure to direct or an inadequate direction in relation to lies would not lead to a judgment and verdict of acquittal. Secondly, no exception was taken below and I agree with Mr McArdle that there may have been a good forensic reason for that. The judge had not dealt with all the lies or alleged lies on which the prosecutor relied. Counsel may have considered that a direction would highlight them and that it was better to rely on what senior counsel for the applicant had said in his closing address. But this point need not be pursued to a conclusion.[34] The first reason is sufficient.

The judge and counsel should nevertheless give attention to the topic raised by ground 3 at the new trial to ensure that, if a direction is required, it is given. The content of any such direction would depend on the evidence and the way in which the Crown case was put, but I am disposed to think that, on the facts of this case, the jury should at least be directed to consider the possibility that the lies were told as a result of panic.[35]

In R. v. Iliovski I propose orders in accordance with the following minutes:

1. Refuse leave to amend the notice of application for leave to appeal against conviction.

2. Grant the application for leave to appeal against conviction, treat the appeal as instituted and heard instanter and allow the appeal.

3. Quash the conviction sustained by the appellant on count 4 and the sentence passed thereon.

4. Direct a judgment and verdict of acquittal to be entered on count 4.

5. Dismiss the application for leave to appeal against sentence.

That leaves standing Iliovski's conviction on count 3, the sentence of eight months' imprisonment passed thereon and the declaration regarding pre-sentence detention.

In R. v. Shnider I propose orders in accordance with the following minutes:

1. Refuse leave to amend the notice of application for leave to appeal against conviction.

2. Grant the application for leave to appeal against conviction, treat the appeal as instituted and heard instanter and allow the appeal.

3. Quash the convictions sustained by the appellant and the sentences passed thereon.

5. Remand the appellant in custody pending the new trial.[36]

Subject to hearing counsel, I would grant each applicant a certificate under s.14 of the Appeal Costs Act 1998 in relation to his appeal against conviction and, in Shnider's case, include in the certificate any additional costs that he will pay, or will be ordered to pay, as a consequence of the order for a new trial.[37]

I have read the reasons of Callaway, J.A. in draft and I agree in his reasons that the orders proposed in para.[42] be made in the appeal of Iliovski and the orders proposed in para.[43] be made in the appeal of Shnider.

[1] See, for example, Osland v. R. [1998] HCA 75; (1998) 197 C.L.R. 316 at [71] per McHugh, J.

[2] The elements of blackmail appear from s.87 of the Crimes Act 1958. It is unnecessary to set them out.

[5] There were minor differences but Mr Croucher expressly conceded that they were not relied on. The object of the exercise was to challenge the direction ordinarily given in this State.

[11] At 598. Phillips, C.J. and Kenny, J.A. concurred.

[12] R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 at 404; Postiglione v. R. [1997] HCA 26; (1997) 189 C.L.R. 295 at 323.

[14] Cf. R. v. Coombe (unreported, Court of Appeal, 10th February 1998) at 8.

[15] See, for example, R. v. Phan [2001] NSWCCA 29; (2001) 123 A.Crim.R. 30 at [64] per Wood, C.J. at C.L. and R. v. Lao [2002] VSCA 157 at fn. 98 per Eames, J.A.

[16] Reference was then made in the opening to aiding and abetting.

[19] This is only one of several passages in the transcript which show that his Honour understood the Crown case to be concert or aiding and abetting.

[20] Compare R. v. G.A.S. [1998] 3 V.R. 862; see also R. v. Tangye (1997) 92 A.Crim.R. 545 at 556 line 7 and Crimes (Criminal Trials) Act 1999, ss.6-8.

[21] They had been deliberating for more than a day when they asked their question. They convicted the applicant an hour-and-a-half after the question was answered.

[22] It will be apparent from the foregoing that I do not regard the departure as immaterial or such as could be met by the proviso, even if, as Mr McArdle submitted, there was a strong case of concert.

[26] In the end the junior did not attend. That is why I have not referred to him.

[27] The purpose of having Nash present was to deny the alleged cap on fees. Nash agreed with the word "desperate" in relation to the meeting at its original venue and said also that Shnider "prevailed upon him" to go to his office.

29] Kallis said only that, in the course of the assault, Nassar "probably" demanded that he pay the bill. He could not remember. But the inference of such a demand was well and truly open on the facts, especially if the jury accepted Egan's evidence that Kallis kept on saying, "I'll pay. I'll pay."

[30] Nash said that he noticed Shnider with a mobile phone to his ear between parking the car and entering his building in Collins Street, but that is all he could say on that subject.

[31] See R. v. Tangye at 556-557 (proposition 2).

[32] This is one of several illustrations of why it was convenient to deal with ground 2 first. The question whether the verdicts are unsafe and unsatisfactory has to be answered mindful of the way in which the Crown put its case.

[33] I do not stay to consider whether one or more of the convictions might also be supported on the footing that he aided and abetted.

[35] Compare R. v. McCullagh [2002] VSCA 163 at [25]; Broadhurst v. R. [1964] A.C. 441 at 457; R. v. Galli (unreported, Court of Appeal, 18th October 1996) in the judgment of Southwell, A.J.A. at 47-50; R. v. Miletic [1997] 1 V.R. 593 at 606-607 and Zoneff v. R (2000) 200 C.L.R. 234.

[36] That will not, of course, preclude an application for bail if appropriate. As to bail pending a new trial, see Practice Statement C.A. 2 of 1997 [1998] 2 V.R. 405 at [3].

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