R v Suckling [1998] VSCA 60

Court of Appeal (Vic)|1998-10-09|Before: PHILLIPS, C.J., BATT and KENNY, JJ.A.

Criminal law - Appeal against conviction - Allegation of duplicity in a count - R. v. Trotter (1982) 7 A. Crim R. 8 applied - Appeal allowed - Conviction on the count and the count itself quashed - Walsh v. Tattersall (1996) 188 CLR 77 at 110 and 112 and associated cases applied.

These offences, which carried maximum penalties of five years and seven and a half years imprisonment respectively, were allegedly committed at Coomoora on 6 October, 1996. The applicant admitted 28 prior convictions (some drug related and some for violent offences) between July, 1990 and June, 1995. After a plea for leniency, the learned judge sentenced the applicant on 27 March to nine months' imprisonment on count 3 and one month's imprisonment on count 5 making for a total effective sentence of nine months' imprisonment. His Honour made a declaration as to pre-trial detention. The applicant was acquitted by the jury of count 1 (aggravated burglary), count 2 (causing serious injury intentionally), count 3 (causing serious injury recklessly) and count 4 (making a threat to kill). All these counts were laid at Coomoora on 6 October, 1996 and counts 1, 2 and 4 involved the same alleged victim as count 3 and the property involved in count 5 was pleaded as belonging to the same alleged victim.

Counts 1, 2, 3 and 5 named an alleged co-offender, one Mollica who later pleaded guilty, in separate proceedings, to counts 1 and 3 and received a sentence of imprisonment, suspended save for one month.

The applicant later lodged notice of application for leave to appeal against conviction, pleading a number of grounds, all relating to count 5, but I find it necessary to address only ground 3 thereof. Ground 1 was abandoned and counsel for the applicant was heard to say that it may be that ground 4 added nothing to ground 3. Grounds 3 and 4 were argued together. They alleged, respectively, that count 5 was bad for duplicity and was "uncertain".

"And the Director of Public Prosecutions further presents that Gregory Charles Suckling and Joseph James Millica at Coomoora in the said State on the 6th day of October, 1996, intentionally and without lawfully excuse destroyed a window, a telephone and an answering machine belonging to Steven Lewis Petrovic."

I now turn to a summary of the relevant evidence. The offences were said to have been committed at the home of one Petrovic, against whom the applicant harboured a grudge. Petrovic was attacked in the early hours of the morning by Mollica in the hallway of his home. It was said that the applicant joined in this, kicking Petrovic while he was on the floor. It was also alleged the applicant produced a knife. In any event, Petrovic sustained several injuries. The applicant was also said to have made a death threat to him.

The applicant and Mollica then left the house (Mollica before the applicant) and it was said that damage to a window, which was of a front bedroom, occurred during their departures. The glass window adjacent to the front door was also broken at some point (see photo 3) but no count related to that damage. Insofar as the evidence of Petrovic was concerned with respect to damage pertinent to count 5, he stated that the window was damaged and that the telephone receiver had been pulled apart. It was pulled out from the wall, he said, was not working and was inoperative.

Petrovic's girlfriend, Jasmina Vojnic, who was present in the house, heard the noises of the struggle and saw some of it. She had prudently retired under the bed. She saw Mollica smashing objects in the kitchen (not the subject of a count) and viewed injury to and bleeding from Petrovic.

The other evidence as to damage of articles may be summarised as follows. Vojnic said "they broke the telephone, the answering machine, with the club I believe..." (119). She added that she heard "the glass in the door". She went on "and then as they walked off...then they smashed the bedroom window" when she was still under the bed. It may be that the jury could have taken her to have assented to a proposition that the window was broken from outside (121).

Under cross-examination, she referred to hearing the police called "before they walked out and smashed the window of the bedroom I was hiding in" (183).

The evidence also showed that in his record of interview with the police, the applicant denied intentionally damaging any property and further stated that if any property was damaged, this might have occurred during the struggle. The applicant stayed mute at his trial and called no other evidence.

There were some very curious aspects to the trial of the applicant. The transcript shows that he was arraigned, pleaded "not guilty" to and was convicted of a count of intentionally destroying property. The copy presentment supplied to this Court is in this form. Both counsel, the judge (and, indeed, the jury), referred to its verbiage in the above terms on several occasions during the trial. Yet the learned judge charged the jury that the count was one of intentionally damaging property (259, 260) and that the Crown must prove damage to it, done by the applicant intentionally and without lawful excuse. His Honour later used the term "destroying" in relation to the count, apparently prompted by the form of a jury question. Whether the evidence supported destruction of the telephone and answering machine may be doubted, but nobody adverted to this matter at the trial and no point touching it has been argued on this application.

Argument on grounds 3 and 4 proceeded for the applicant as follows. It appeared, said counsel, that after amendment at trial, count 5 came to refer to three specific items of property - a window, a telephone and an answering machine. The window can be seen in close focus in photographs 6 and 8, tendered at trial. The telephone is depicted in photo 31 (the damage appearing therein to be that the handset was in two parts) and the answering machine is depicted in photo 24.

As to count 5, the learned judge charged the jury as follows.

"The Crown must prove that the damage was done intentionally by the accused man or by Mr Mollica in the course of aiding and abetting the accused man." (260)

After the charge was concluded, the jurors asked a question:

"...Must count 5 be guilty or not guilty of destroying all items?"

After discussion with counsel the learned judge redirected the jury

"...Mr Foreman and members of the jury, if you find the accused man guilty of intentionally and without lawful excuse destroying any one of those items then you should find him guilty on that count." (293).

It was submitted that the effect of this redirection was that some members of the jury might have found the applicant guilty in respect of both (or either) the telephone and answering machine while some members of the jury might have found the applicant guilty in respect of the window and other members of the jury might have found the applicant guilty in respect of each and all of the items. It followed that it was impossible to know whether there was unanimity on the part of the jury in respect of one or other of the acts causing damage represented by conduct during the struggle and conduct after departure from the house.

It appeared, so the argument went, that the telephone and the answering machine were, on the evidence, in the hall and that the window was in a separate place at the front of the house. So, too, it was said, the evidence indicated that the telephone and answering machine were damaged at one point of time and during the struggle - the window at another time and outside the scope of the struggle.

Accordingly, counsel continued, count 5 involved, as it was put to the jury, two separate offences of destroying property and R. v. Trotter (1982) 7 A. Crim R. 8 should be applied. In that case, a decision of the Court of Criminal Appeal, the evidence showed two separate offences of indecent assault on a boy by the accused man. The victim had given evidence of one such assault by the accused in a bedroom. In

re-examination, he gave evidence of another assault "earlier in the evening" after he had had a bath. The presentment contained but one count of indecent assault on the boy. The time interval between the incidents is not clear from the report. The accused denied that the incidents occurred. In charging the jury the judge made no mention of the circumstance that the presentment charged one indecent assault and the evidence disclosed two incidents thereof. The jury were left without any directions as to how that situation should be dealt with and proceeded to convict on the indecent assault count. This conviction was set aside on the grounds that it was "uncertain" and that there had been a miscarriage of justice. It was held that the prosecutor should have been required to specify which assault was that pleaded in the count and that it was impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts. The Court said that it was "impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts of indecent assault. All members of the jury might have been unanimous on the fact that the applicant had committed an indecent assault on (the complainant) but some members of the jury might have arrived at that conclusion on the basis of the bathroom assault and others on the basis of the bedroom assault" (18).

Counsel for the respondent argued that Trotter had no application because the damage in the instant case "arose from the one incident over a relatively short period of time" which was "a continuing episode". Trotter, it was said, involved two separate incidents. I shall return later to this matter.

Further, it was argued for the respondent, the judge's redirection would have been understood by the jurors as requiring unanimity as to the item or items of property so destroyed. It is sufficient to say that the judge, in my opinion, did not so direct the jury.

Next, it was said, that the count was not duplex because, as I understood counsel, the property itemised on the presentment simply constituted particulars of property intentionally "damaged" by the applicant in either of the ways open on the evidence. I do not think this submission can be upheld. In my opinion, the property itemised in the count was the material allegation, rather than particulars of property intentionally damaged.

At trial, counsel for the Crown had, during argument on a submission that there was no case to answer as to count 5, referred to items being damaged "as part of a continuing act or continuing set of circumstances...". But when faced squarely with assisting the judge to answer the jury's question, the Crown Prosecutor said this, in answer to the judge.

"The answer is no, they don't have to be guilty of all the items he could be guilty of damaging the window and not guilty of damaging the telephone and answering machine, Your Honour, for example."

"On the basis that they are two distinct and separate acts, the Crown would submit, one clearly being intentional, that is the window and the other one possibly having, as my learned friend..."

Counsel did not finish the sentence but it is clear, in my opinion, that he was conceding that the jury were entitled to treat the damage as involving two separate acts, one being an intentional act involving the window and the other involving damage caused unintentionally and during the struggle, the latter view having been urged (as the judge's charge reveals) by defence counsel. It may be debated whether it is appropriate for the Crown to now argue differently but in any event, in my opinion, the Crown Prosecutor's concession was correct. It acknowledged, in my view, that there was in fact a difference in location between the other items of property and the window and a time lapse, probably not great, between the two incidents.

There are cases in the reports, and R. v. Giretti (1986) 24 A.Crim.R. 112 is one of them, where the facts show a continuous offence which occurs over a substantial period of time and where the pleading of one count is appropriate. That is not this case.

I now turn to my conclusions. Firstly, I would apply Trotter and hold the conviction on count 5 to be uncertain producing a miscarriage of justice. Relevant authority reveals uncertainty (and indeed duplicity) treated as going to the core of the proceedings in question, consequently excluding the proviso and permitting the point to be raised post trial. Walsh v. Tattersall (1996) 188 CLR 77 at 110 and 112; S. v. The Queen [1989] HCA 66; (1989) 168 CLR 266 at 277, 282-283 and 287; R. v. Willers (1995) 81 A.Crim.R. 219 at 226 and 232. This conclusion, I think, disposes of the argument put by counsel for the respondent that trial counsel for the applicant took no exception to the redirection. But in any event, I think the inference is overwhelming that this took place through inadvertence. Although the matter of duplicity had been briefly mentioned by trial counsel in the course of the "no case" submission, the judge did not mention it in his ruling and thereafter it (and the consequent embarrassment to the defence) seems to have been forgotten by all concerned. The conviction on count 5 should be quashed.

Counsel for the applicant raised the matter of whether the count itself should be quashed. In this connection, in addition to Trotter, counsel for the applicant cited Walsh v. Tattersall supra. In that latter case the majority, Gaudron, Gummow and Kirby, JJ. ordered that both a conviction on a count which manifested the defect of latent duplicity and the count itself should be quashed, the latter order being described by Kirby, J. as "the remedy which the law now provides for a case of established duplicity". (See also R. v. Judge Hassett; ex parte DPP (1994) 76 A.Crim.R.19). In the circumstances of the instant case, in my opinion, count 5 should be quashed.

What then, of the future of this matter? It may be that it is open to the authorities to bring further proceedings against the applicant. But such proceedings would be beset by grave problems. Quite apart from those generated by the jury verdicts which will stand, the applicant has also been punished by imprisonment for conduct which the Crown Prosecutor conceded at trial was the setting in which a jury might well find that inadvertent damage to the telephone and the answering machine had occurred. In addition, the applicant completed the sentence imposed on count 5 several months ago. Proceedings limited to a broken window (and I do not discount the feelings of its owner) hardly seem appropriate. In my opinion, further proceedings against the applicant are undesirable.

I now turn to the application for leave to appeal against sentence which as a consequence of the foregoing relates only to the sentence of nine months' imprisonment imposed upon the second alternative count to count 3. The sole ground pleaded is that the sentence is manifestly excessive. Counsel for the applicant submitted that should the conviction upon and count 5 be quashed then the entire exercise of the sentencing discretion in the Court below is vitiated and that this Court should proceed to re-exercise the sentencing discretion. In that setting counsel referred to and repeated matters raised in the Court below viz, that the applicant had been in employment and had worked hard notwithstanding some difficult personal circumstances and that he was in a long term stable relationship with a woman who was pregnant at the time of his sentence.

Having considered the nine month sentence in the light of all the relevant circumstances including the abovementioned matters, it is sufficient to say that I do not think a different sentence should have been passed and that, accordingly, this application should be dismissed.

I concur in the judgment of the Chief Justice.

I also concur in the judgment of the Chief Justice.

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