R v Le Broc [2000] VSCA 125

[2000] VSCA 125

Court of Appeal (Vic)|2000-07-28|Before: PHILLIPS, C.J., BATT, J.A. and CUMMINS, A.J.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2000-07-28

Before

PHILLIPS, C.J., BATT, J.A. and CUMMINS, A.J.A.

Source

Original judgment source is linked above.

Judgment (128 paragraphs)

[1]

The applicant, Stanley Richard Le Broc, was convicted in the County Court at Morwell of recklessly causing serious injury to Michael Patrick Bowman. The applicant and a co-accused, Shaun Patrick Egan, each had been charged with intentionally causing serious injury at Morwell on 29 August 1996 to Mr. Bowman (Count 1) and with recklessly causing serious injury at the same place and date to him (Count 2, alternative to Count 1). When presented, Egan pleaded guilty to Count 2, the prosecution then not proceeding with Count 1 in relation to him. He admitted 103 prior convictions from 17 court appearances between 1986 and 1996. He was sentenced on 9 March 1999 to two years' imprisonment of which 10 months' imprisonment was suspended for two years. It was thought that he had already served 436 days' pre-sentence detention, as to which the learned judge made a declaration pursuant to s. 18(4) of the Sentencing Act 1991. Thereupon Egan was released from custody to serve the suspended period. The jury trial of the applicant proceeded on both counts. Egan was called as a witness for the prosecution. Cross-examination of him by counsel for the applicant elicited before the jury that he had been charged with, pleaded guilty to, and had been sentenced for recklessly causing serious injury. The jury acquitted the applicant on Count 1, intentionally causing serious injury, and convicted him on Count 2, recklessly causing serious injury. He admitted 71 prior convictions from 28 court appearances between 1959 and 1993. After hearing a plea, the learned judge on 22 March 1999 sentenced the applicant to 30 months' imprisonment, he to serve 20 months' imprisonment before eligibility for parole. A declaration as to six days' pre-sentence detention was made by her Honour. The same learned judge heard the matters of both Egan and the applicant. The applicant has applied, on a number of grounds substituted by way of amendment, for leave to appeal against his conviction on the count of recklessly causing serious injury, and also for leave to appeal against sentence.

[6]

The prosecution case was that on Thursday 29 August 1996 the three men, being the applicant, Mr. Bowman and Egan, were at the premises and drank a large amount of alcohol, commencing early in the morning. During the afternoon a disagreement occurred between the applicant and Mr. Bowman, the applicant accusing Bowman of stealing his tobacco and lighter. The applicant punched Bowman while he was on the couch in the loungeroom. Egan also became angry with Bowman, as not only had Bowman called him a maggot and a dog, but also Egan believed that the previous evening Bowman had surreptitiously observed Egan and Ms Stivic having sexual intercourse at the premises. Egan seriously assaulted Mr. Bowman, first by punching and then by kicking him and jumping on him. Then the applicant, Egan and Ms Stivic left, purchased alcohol, and returned. The applicant and Egan put Mr. Bowman, who was obviously injured and bleeding heavily, fully clothed in a bath. Later the applicant rang the ambulance. Ambulance officers attended and found Mr. Bowman unconscious and still in the bath. He was removed to the Traralgon Hospital and then to the Alfred Hospital. He was found to have a massive left-sided subdural haematoma, requiring urgent surgical intervention. Police attended the Hourigan Road premises. The applicant and Egan were taken to the Morwell CIB offices. Each was interviewed. The applicant denied any knowledge of how Mr. Bowman was injured. The applicant was not charged. On 6 September 1996 he attended voluntarily at the Morwell CIB offices and in interview gave an account stating that he had initially assaulted Mr. Bowman by punching him to the face a couple of times, which had not caused serious injury to Mr. Bowman: it was Egan who had inflicted the serious injuries to Mr. Bowman. The applicant said that Egan severely punched Mr. Bowman, kicked him, and jumped on his head when he was on the floor. On 13 December 1996 the applicant was charged. Egan also was charged at a later date.

[11]

Ms Stivic stated that at the time of the initial assault upon Mr. Bowman, she and the applicant's son Ricky were present in the lounge room with the applicant, Mr. Bowman and Egan. Ms Stivic could not say when Ricky left, only that it was after the assault had begun. The applicant had been standing near the window, when he just walked over to Mr. Bowman, who was sitting on the couch, and belted him in the head a few times. There had been an argument about tobacco. Egan then joined in, and began to punch Mr. Bowman where he was on the couch. Egan was upset with him because he had spied on Egan and Stivic the previous night, and because he called Egan a cunt, a dog, and a maggot. The punching continued for 10 to 15 minutes. The applicant punched Mr. Bowman with his fist five to 10 times before Egan joined him. The applicant stopped after a while, and then Egan started getting into Mr. Bowman. The applicant later renewed his attack. In the course of the assault the applicant and Egan would not let Mr. Bowman get away. They picked Mr. Bowman up and put him on the floor. There they just kept rapidly punching into him with a few kicks. The applicant punched Mr. Bowman, and Egan kicked him. At one point the applicant left the room, and then Stivic saw Egan kick Mr. Bowman many times, hard, to the crown of his head, and "stomp" three times on his head. It was while he was being kicked that the gash in Mr. Bowman's head appeared. The applicant did not assist Egan while he was kicking Mr. Bowman. After that Mr. Bowman was not moving. After a while they stopped, and then stood around for a while, before picking him up, and putting him in the corner of the lounge room with a rug placed over him. He could not talk and there was blood pouring out of his head. Then the applicant, Egan and Stivic left the house. At that time Egan returned inside the house and was alone in there for four minutes. The group visited the home of Elsie Le Broc, the wife of the applicant, and then licensed premises before returning to Hourigan Road. There they found the applicant still lying on the floor, but in a different location within the lounge room. There was blood in the lounge room and vomit all over the floor. The two men picked him up and tried to stand him in the shower. He was too intoxicated to stand, so the applicant and Egan started belting into him again in the bathroom. Egan hit Mr. Bowman to the left side of his head with his left hand. The applicant was holding his legs, but then moved over and punched him three or four times. They then lifted him into the bath and ran hot water over him. The applicant then came out with a knife and said that he wanted to kill him. He then gave the knife to Egan. After that Egan instructed Stivic to clean up the blood in the hallway between the front door and the passageway, and she left the two men in the bathroom with Mr. Bowman. Egan later rejoined her in the lounge room, while the applicant disappeared. He came back after 15 minutes and told Ms Stivic that he had rung an ambulance. The ambulance arrived five minutes later. At some point Ms Stivic noted what she thought was blood staining on Egan's desert boots and jeans. In cross-examination Ms Stivic stated that she was still in a relationship with Egan when she made her statements, though not when she gave evidence at committal. Her second statement to police changed her account of the facts by adding to it. Just before she left the house Egan said he would kill her if she dobbed him in to the police. She took this as a serious threat, having seen Egan hurt people before. She also considered that Egan could get to her through his friends even when he was in custody. She had not told the full truth about Egan's role because of her fear of him.

[31]

In the learned trial judge's charge, directions were given to the jury concerning the mental element of the offences (Counts 1 and 2). These were careful directions and no complaint is made as to them except as to the mental element for aiding and abetting the alternative offence. She gave the jury no direction on intoxication. Neither before nor after the charge was any such direction sought by the then counsel for the applicant. It cannot be that the question of intoxication was overlooked, by counsel or judge, given the context of the case. Rather it is apparent that counsel concluded that it was inappropriate to join issue on that question in the circumstances. Perhaps that was because of the vagueness and uncertainty of the evidence. Perhaps it was for forensic reasons, for every experienced counsel knows the danger of joining issue on intoxication: it can provide a ready explanation for aggressive or callous conduct founding the crime charged. Perhaps both reasons applied. However that may be, the applicant, now with different counsel, comes before us and complains that the trial judge erred in failing to direct the jury on the use of evidence of intoxication. This Janus-like course is wholly undesirable. We do not, of course, criticise counsel who appeared before us for the applicant, and whose submissions were most helpful and thorough. But we again deplore the sequential joinder of issues which, if they are to be joined, should be joined at trial. An egregious aspect of this matter, as with a number of applications coming before us, is the late raising of the ground of appeal. The applicant was convicted on 18 March 1999 and sentenced on 22 March 1999. Notice of application for leave to appeal against conviction was filed on 1 April 1999. In that notice there was no reference to the now complained of lack of direction as to intoxication. Then, by leave of the Registrar, on 2 February 2000 amended grounds of application for leave to appeal against conviction were filed, for the first time complaining of failure to direct on intoxication. That complaint was raised less than two weeks before the hearing of the application and more than 10 months after conviction. We have previously stated that the late raising of grounds of appeal as to matters chosen not to be litigated at trial will not be accepted by the Court save in exceptional cases. Counsel should be aware of the Court's view: see what was said by the Court in R v. Challoner[4]; R. v. Wright[5] and R. v. Haseloff[6].

[37]

In the principal part of her charge on this topic the judge told the jury that the Crown asked them to infer the guilt of the applicant from certain passages in his (first) interview with the police, where the Crown said that the accused told lies and that his reason for lying was his consciousness of guilt of a crime of which he was charged. Her Honour then recounted the evidence said to constitute the lies. She began by reading to the jury Acting Sergeant Jean's evidence that the applicant told him at the scene that he arrived at the premises at 4 p.m. on the day in question to find Mr. Bowman unconscious in the bath tub. She then read the parts of the record of interview relied on, the substance of which was that the applicant had nothing to do with any injury and did not know anything about the injury caused to Mr. Bowman and that the first time he found him was in the bath. It is accepted that her Honour precisely identified the lies. She then directed the jury that they might infer consciousness of his own guilt of the particular crime on the part of the applicant by the telling of lies if, but only if, they were satisfied beyond reasonable doubt of three matters, which she stated twice, with some amplification the second time. They were that the statements attributed to the applicant were indeed made by him; that the statements were lies, that they were not only untrue but that he knew at the time he made them that they were untrue; and that the only reasonable explanation that the applicant did tell those lies "was his consciousness of guilt of this crime, not of some other wrongdoing or because of some other reason to lie about the matter". Her Honour stated that the first two matters were not in issue, though the jury still had to be satisfied of them beyond reasonable doubt. There was, as her Honour said, no doubt about the second matter because in his second record of interview the applicant had admitted that the statements were lies and that he knew that they were lies. Her Honour pointed out that the third matter was in issue. She then directed the jury that, if they were satisfied beyond reasonable doubt that the applicant did tell lies in that way and did so because of a consciousness of guilt of the crime charged, they could use that consciousness of guilt as evidence of actual guilt. She went on:

[66]

It was submitted for the applicant in counsel's written outline of argument that, whilst foresight of probability was the correct test of mens rea for a principal offender[28], it was not the appropriate test for aiding and abetting such an offence. Rather, the applicable test was that it must be established that the accused knew or believed that what he was assisting or encouraging was something which went to make up the facts which constituted the offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It was not sufficient, it was submitted, if his knowledge or belief extended only to the possibility or even probability that the acts which he was assisting or encouraging were such, whether he realised it or not, as to constitute the factual ingredients of the crime. For that Giorgianni[29] was cited. It was submitted that, in particular, the jury should have been directed to the effect that, for the purposes of aiding and abetting, the Crown must prove beyond reasonable doubt not only that the applicant intentionally assisted or encouraged Egan to cause serious injury but that he knew or believed that, by his actions, serious injury would be caused. Any ambiguity or tension in those written submissions was removed when they were summed up orally in the submission that, to be guilty as an aider and abettor, the applicant must have known or believed that Egan in doing what he did would (not, would probably) cause serious injury. For the respondent, on the other hand, it was submitted that if the applicant was aware of the physical acts being, or about to be, performed by Egan and if the applicant aided and abetted Egan to perform those acts then his state of knowledge need only be that required for a principal offence of recklessness, that is, foresight that serious injury would probably (not, would) be caused. Accordingly, the respondent submitted, there was no misdirection.

[72]

We now state our conclusions on this ground as argued. The matter is by no means easy. The statement in Giorgianni could be applied to the very different principal offence here and, when read strictly, used to support the applicant's argument. But that is not what has been done by intermediate appellate courts in the only two decisions given since Giorgianni which seem relevant. In Vollmer, in relation to the very offence in question here, recklessly causing serious injury, Southwell and McDonald, JJ., recording that the applicant (who had been found guilty of aiding and abetting the offence) "was not himself applying pressure to the neck of the deceased" spoke[45], with the agreement of Ormiston, J., of the jury's satisfaction that the applicant "realised that that pressure would probably cause serious injury", in such a way as to make it clear that they considered that such realisation fully stated the mental element requisite for liability as an aider and abettor of that offence. There would have been no point in referring to the jury's satisfaction that the applicant "realised" that the pressure "would probably cause" serious injury if the jury had to be satisfied, not of that, but that he knew that the pressure would cause serious injury. That their Honours in making those statements were well aware of Giorgianni appears clearly from an earlier portion[46] of their reasons, where, although they did not refer to the passage from the joint judgment set out above, their Honours, amongst other things, set out the succinct statement to the same effect by Gibbs, C.J.[47] The passages in the reasons of Southwell, and McDonald, JJ. to which we have referred appear to be essential to their Honours' reasoning. In his reply counsel for the applicant frankly said that the first two passages from Vollmer which we have mentioned supported the argument of the respondent. But he contended that the Court of Criminal Appeal did not apply the crux of Giorgianni and that their Honours were wrong. Given the different nature of the principal offence aided and abetted in Vollmer[48] as compared to Giorgianni, we are not prepared to say that. We were not expressly invited to hold that the statements in Vollmer were per incuriam and in any event would not, as presently constituted, entertain such a request. Vollmer stands as a decision given after a consideration of Giorgianni which supports precisely the challenged part of her Honour's charge.

[76]

In the course of his reply and in his further written submissions delivered in response to the Court's invitation counsel for the applicant suggested that, in the light of Giorgianni, it may be a requirement that an aider and abettor know or believe the state of the principal's mind, that is (here), that Egan foresaw that serious injury would probably result. But that, counsel said, "would be difficult", and in the written submissions he stated that it may be that this additional requirement - "if it be such" - is confined to cases such as Edwards[53], where the principal offence requires proof of "an ulterior or additional purpose or intention over and above the basic actus reus and mens rea." Such cases can, it is true, be distinguished as dealing with offences requiring some super-added mental element, but there is a question whether that is a distinction without a relevant difference. Be that as it may, it cannot be denied that Stokes & Difford[54] does support the view that the aider and abettor "must be aware also of the existence of any state of mind on the part of the principal offender which must be established by the Crown to show that the crime was committed by him". Thus in that case it was held that the Crown must establish that the accessory knew or was aware not only of what has been mentioned above but also that the principal offender's intended act would be done by him "maliciously". But there may be a question whether that is a correct reading of the expressions "facts which constitute the commission of the relevant criminal offence" and "acts" in the passage set out earlier from the joint judgment in Giorgianni. Such a reading certainly makes for complexity. Nor does Vollmer suggest that the mental element for an aider and abettor includes knowledge of the principal offender's mental state. It is, however, unnecessary to express a concluded view on this question, for two reasons. First, it was not the point on which the application on ground 5 was mounted and counsel never directly made the submission that the charge was defective on this score. Secondly, and in any event, no exception to the charge was taken on this basis and, in our view, this is a clear case for the application of the proviso to s.568(1) of the Crimes Act. On the facts of this case as they must have been found by the jury it was inevitable that the jury, assuming it got to considering the third way in which the Crown put its case (that is, aiding and abetting), would inevitably have found that the applicant knew that Egan at the very least foresaw that serious injury would result from his conduct.