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[2007] VSCA 124
Court of Appeal (Vic)
2007-06-12
VINCENT, NETTLE and NEAVE JJA
Original judgment source is linked above.
Criminal Law - Conviction - Affray (one count) - Evidence - Whether verdict was "unsafe and unsatisfactory" - Verdict of guilty - Whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of applicant - Appeal allowed.
1 I will invite Nettle JA to deliver the first judgment in this matter.
NETTLE JA:
2 Following a trial before the County Court at Melbourne, on 31 July 2006 a jury found the appellant guilty of one count of affray (count 1) and not guilty of one count of recklessly engaging in conduct so as to place another person in danger of serious injury (count 2). On 18 August 2006, the judge fined the applicant $1,000 without conviction. The applicant now seeks leave to appeal against conviction on the grounds that the judge erred in rejecting a "no case" submission and that the verdict of guilty of affray is unsafe and unsatisfactory. In oral argument, the only ground of appeal which was pursued was the latter, namely, that the verdict was unsafe and unsatisfactory.
The case below
3 Before the jury, the Crown put its case of affray against the applicant on two bases. It contended that he was directly involved in the affray and, alternatively, that he had aided or abetted those who were involved in it. The evidence which was relied upon was in each case the same. It was summarised extensively by the trial judge in her charge, as follows:
"The evidence of Senior Constable Chapman was given first. He said that [he and Senior Constable Josephs] arrived at the scene at 11.09 on the night and observed people out the front, he estimated it was 70 to 80, and...Senior Constable Josephs, got out of the car and told him, Chapman, to call for back-up. And he, Chapman, was getting out of the passenger seat of the police car, he had a conversation with the accused, who had walked over to him, with blood on face, significant blood on his mouth. The accused was aggressive. He was very aggressive in body language and words. Then, according to Senior Constable Chapman, things go berserk. It was unlike anything he had seen before. Bottles were being thrown, windows being smashed.
Then he saw [Senior Constable Josephs] run down the road, easterly...chasing someone and about 20 people chased Constable Josephs, and he heard a threat to kill Josephs. He runs after Senior Constable Josephs to help him, and he is himself chased by a second wave of youths.
Once he catches up to Senior Constable Josephs, by which stage Josephs had already arrested the youth he had been chasing, and this is all at about 100 metres from the car, on Chapman's estimate, they were both of them, both of the police encircled by about 20 intoxicated aggressive people.
Some had cans and bottles and were threatening to use them against the police in a violent manner. Chapman said that [Senior Constable Josephs] had told him to call in with Code 9, which was the most serious recognition to give over the air. He said the encircling group was utterly aggressive, comments about, 'Try and hit us', egging the police on as if to hit the people in the crowd.
Several in that group were shaping up with raised fists. Others had stubbies, glasses or cans. The accused was in that group, according to Chapman. Chapman said he felt pure fear. He was pushed or hit from behind, but he's not sure by whom. He couldn't see who it was behind.
He later said he subsequently found blood on the back of his shirt but couldn't possibly say from whom it came. He said [Senior Constable Josephs] was punched and let go of his grip on the arrested man, who broke free and ran. He, Chapman, pointed his mag lite torch at people and yelled for them to get back.
He and Josephs then got away from the group and go back towards the police car. Then Josephs started chasing, apparently having again spotted the man who'd escaped, the getaway person, running east again. That person hadn't come back as far as the car, but had been apparently, according to Chapman, in a garden or yard.
Anyway Josephs chased him again and Chapman says he caught him in a headlock. The fellow ran out towards him and he caught the running man in a headlock and then Josephs caught up and grabs his arms and they have him apprehended again. As they do this, which he estimated this part happened about 50 meters east of the party, they were again surrounded by the crowd, or by a crowd.
It was not all 80 of the people he'd seen out the front, it was a core group. He said the accused was standing around. He was still up there. Again the police, according to Chapman, are manhandled and shoved and pushed from the group closing very close in on them, and the grip is broken on the arrested man who runs away again.
Chapman says he saw someone raising a full white can at this stage, and he expected to be king hit and he braced for the hit and therefore didn't exactly see where the man went who had run away and when he looks up again it looks like they were trying to steal from the police car.
The police run towards the police car and chase the man who they saw was in the car and got out ahead of them and they reach him at the next street, which is about 50 metres in the other direction from the car. He says that Josephs takes this man's name. Then he hears banging and turns and sees someone kicking the panels on the police car and a mob yelling.
When he, Chapman, gets back to the car, there are several youths yelling in his face very aggressively. One youth he had sprayed earlier, he says shaped up to him at this stage, asking why he didn't want a fist fight instead of spraying him, so Chapman sprayed him again.
Chapman says his next sight or contact with the accused man was after other police had arrived. You heard one car with Pregnall arrived first and then a number of other cars. After the cavalry, as he called it, had arrived and the situation [was] being calmed down, the accused had stayed around.
Chapman spoke with him again. The accused approached police again. Chapman says he and other police - he used the expression 'we'. It's not for me to interpret what's meant by that when I said he and other police. He used the expression, 'we tried to get him to go in the ambulance, but he said something like 'it costs too fucking much' and wouldn't go. Chapman said the accused man here was still very aggressive and abusive.
He was cross-examined and on cross-examination was taken again over various aspects of that evidence of course. On cross-examination he agreed that on the first approach, that's of the accused, to him, Chapman, the accused was very agitated.
Chapman didn't recall precisely what was said, but he did say that no physical violence was threatened to him or to the other policeman. He agreed that obviously the accused's mouth was injured. There was a teeth injury, but he couldn't see exactly the extent of it.
In his written statement afterwards he'd not noted the words of the conversation, 'It was the most hectic thing I've ever been through.' I'm quoting the transcript here, not the earlier statement.
He agreed that in his earlier statement he'd not noted the words of his conversation with the accused, and his explanation in evidence here was, 'It was the most hectic thing I've ever been through and some of the finer points go'.
He agreed that he turned and left the accused to run after Josephs when he saw Josephs chasing the absconder, but also being chased by others. He went to help his colleague and left the accused behind him. He says he ran past and through some of the crowd that was chasing Josephs, but the accused was not up there amongst those he was going through.
He had recorded in his statement a threat to bash them. It was put to him that he was exaggerating by saying here that he'd heard a threat to kill. He denied exaggerating and said he remembered hearing it and hadn't deliberately left it out of his statement. He couldn't here say who spoke that threat. He couldn't pick the person out of the encircling group at the time who spoke it.
He said that of the people who were threatening him by raised fists and some with raised cans and bottles, they were physical threats as well as verbal threats, but he doesn't place the accused as one of the people raising any items such as that.
He agreed it was possible that other people came to that vicinity who didn't actually say anything to the police or touch or threaten the police in any way. He said he saw Mr Tiburcy had moved up to that group, but doesn't say that Tiburcy touched or threatened him at that stage in any way.
At the point of the second apprehension of Tyler and the second encircling that he described, he said he believes Mr Tiburcy was still there, but had had no conversation with him there, and he saw no direct touching or threatening by Mr Tiburcy there. It's just he believes he was in the vicinity.
He feared a king hit by a man with a raised white full can who wasn't the accused, but he didn't get that hit, and when he looked up things had moved on and he saw someone in the police car, although he couldn't name that person or say what that person was wearing.
He did not see the accused again until after more police had arrived and the main aggressors had moved off. Most, not all, of the main agitators had gone, they had filtered westerly down the road. He said he approached Mr Tiburcy, rather than Mr Tiburcy approaching him, near the police car and tried to get him to go in the ambulance, which by then had arrived, and the response was to the effect of, 'Fuck off, they're not looking at me, they cost too much'. He said the accused point blank refused to get into the ambulance. He was not aware if he had rung his mother to take him to the hospital later.
On re-examination, he could not say who pushed and shoved and left blood on the back of his shirt because that was going on behind him and therefore out of his vision.
...Senior Constable Kayne Josephs' said he was the driver of the car in the call out to this event. Before getting out of the car he wound down his window to hear and gauge the situation to make an operational decision. He said he saw 50 to 100 people in the front yard on the footpath and road, predominantly teenagers and predominantly intoxicated. He noticed some were aggressively fronting up to each other and he told Chapman to radio for a couple of units for back up. He was still in the car when that happened and he was also still in the car when approached by a person who was a neighbour.
He says when he was still in the car, he, Josephs, saw Mr Justin Tiburcy standing at the front of the police car with a significant injury to his mouth and some teeth missing and a heavy amount of blood around his mouth and on his clothing. He saw an unknown female approach Mr Tiburcy and look at his injury and appear to get agitated and appear to call over five or six males, who came over, spoke to Mr Tiburcy, became verbally and physically aggressive and agitated and ran towards the house and attacked it, and also some attacked a white sedan that was in that vicinity. He said one started very aggressively kicking in the door of the house and he, Josephs, at this stage went after those who were attacking the house and the one trying to kick in the door. He says at that stage he was surrounded by some others trying to stop him, that is him, Josephs, and yelling at the man who was kicking the house, to forewarn him, and that person he saw take off and run in an easterly direction down the street.
He, Josephs, chased after that person, pushed through the crowd to do so. He said he caught him at least 50 metres from the house, where that man who was running fell over some hard rubbish on the nature strip. That person was very aggressive and angry and he used capsicum spray on him. He now knows him to be Bronson Tyler.
At that point he heard himself being chased by part of the crowd. His attention until then had been focused on Tyler, who he was chasing. He restrained Tyler by placing an arm behind his back. He saw Senior Constable Chapman was close by and surrounded by a large number of people milling around and milling towards both of them. He said Chapman was yelling to them to back off but they were very close, within a metre to half a metre of him. They were egging Chapman on to fight them, they had fists up and were aggressive in manner and verbally aggressive and verbally indicating they wanted to fight.
He was then confronted by an angry female who abused him verbally and struck his forearm several time with her fist to break his grip on Tyler. He yelled at her to back off but was punched in his face, he does not know by whom, causing his nose to bleed, and at that point he did lose his grip on Tyler. He radioed for urgent assistance and then he saw Chapman was chasing Tyler and he followed, and after Chapman caught Tyler in a headlock he, Josephs, restrained him by holding his hands.
The group followed the police and surrounded them again within one or two seconds. He says he saw the majority was armed with bottles and cans, full bottles, and were gesturing aggressively as though to throw the bottles and cans at him and Chapman and verbalising that they wanted to fight. There was physical contact of being bumped and pushed because they were so close. He says he saw the accused was there. He turned to him, the accused and the accused was very aggressive and angry towards him, Josephs. Josephs said he asked Tiburcy if he needed immediate medical assistance by an ambulance and he verbally abused him - meaning that the accused verbally abused Josephs. He did not see if Tiburcy was part of the encircling group when Tyler was first arrested.
On cross-examination, Senior Constable Josephs said he did not see Justin Tiburcy actively fighting or throwing punches, nor wrestling anyone, nor touching him or Champman, nor verbally threaten him or Chapman, nor challenge either of them for a fight, nor threaten either of them with any object, nor throw any bottles. He first saw Tiburcy before he, Josephs, got out the car. He saw a female approach him and get hysterical and some males approach him and get agitated and aggressive, and they then attacked the house and the white car and his, Joseph's, attention physically turned to follow them and he did not see or hear Chapman have a conversation with Tiburcy.
The next time he saw the accused was at least 50 metres from the house on the reapprehension, the second apprehension, of Tyler, that is as part of the second group surrounding the police or the second time one or more groups surround the police. He denied that Mr Tiburcy approached him at that point and says that he, Josephs, asked Tiburcy if he needed and ambulance and the response was, 'What are you going to do about this?', indicating his injuries. He had put to him that at the committal he agreed to a question that 'At that stage he', meaning Tiburcy, 'approached you and asked what you were going to do about his situation?' Josephs said here he is not too clear what situation is being referred to as he spoke to Mr Tiburcy on two occasions about medical assistance.
He agreed that Tiburcy had not threatened him at this time, that is in those conversations. Tiburcy had indicated he was injured and asked what was going to be done about it. Josephs asked if he needed medical assistance and Tiburcy declined. Josephs said it was not until the second conversation that the accused said something to the effect that the ambulance costs too much.
He agreed that at the committal hearing he had answered yes to a question that the accused's motive in approaching and taking up conversation with him appeared to be to ask what action would be taken about what happened to him. He agreed that he had agreed to that there and, as [defence counsel] emphasises, therefore adopted that evidence here.
The third time he saw Mr Tiburcy, his second conversation with Mr Tiburcy, he says was after other police units had arrived and they had gained control of the situation. The main protagonists who had damaged the police car and caused other damage to the house had gone by the. Mr Tiburcy approached a number of police there, including him, Josephs. Mr Tiburcy was not attempting to touch or assault him or other police in any way. He wanted to know what action would be taken about what happened to him. Josephs said he does not recall what Justin Tiburcy was wearing and he checked his notes specifically on that but had no note of it. He did have in his notes that the person who was in the police car, Ashley Aldred, had short blond hair and was wearing a white top that night.
4 It is not disputed, nor could it be, that the evidence established beyond reasonable doubt that there was a violent, unlawful disturbance of the peace, in public, of which a bystander of reasonable firmness and courage might reasonably be expected to be terrified. It is contended, however, that the evidence did not establish beyond reasonable doubt that the applicant was an offender or an aider and abettor.
Unsafe and unsatisfactory
5 When this Court is asked to conclude that a verdict is unsafe or unsatisfactory, we are obliged to ask whether we think that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In doing so, we must, of course, pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and to the fact that the jury has had the benefit of having seen and heard the witnesses. But, if we experience a doubt as to the guilt of the accused, it should ordinarily be treated as a doubt which the jury ought also to have experienced. If, on the other hand, a jury's advantage in seeing and hearing the evidence is capable of resolving the doubt, we may conclude that no miscarriage of justice occurred.[1] It follows, in effect, that the function of this Court is to determine whether the jury, acting reasonably, and appreciating the burden and standard of proof, could have convicted the applicant on the evidence available to support the conviction.
6 In this case, I do experience a doubt as to the guilt of the applicant, which in my view should be treated as a doubt which the jury ought also to have experienced. I consider that the evidence on which the Crown relied did not exclude beyond reasonable doubt the possibility that, although the applicant was present during the time of affray, he was not participating in the affray and not aiding or abetting those who were. In my view, it is at least possible that, whatever he may have done before police arrived at the scene, he was there after they arrived because he had been badly injured and was seeking to have the police do something about it.
7 I have referred already to the judge's summary of the evidence but for present purposes it assists to extract out of it just that evidence which in any way could be thought to associate the applicant with the affray. As I see it, it comes to this:
Senior Constable Josephs' evidence that when he was still in the police car, he, Josephs, saw Mr Justin Tiburcy standing at the front of the police car with a significant injury to his mouth and some teeth missing and a heavy amount of blood around his mouth and on his clothing. He saw an unknown female approach Mr Tiburcy and look at his injuries and appear to get agitated and appear to call over five or six males, who came over, spoke to Mr Tiburcy, became verbally and physically aggressive and agitated and ran towards the house and attacked it, and also some attacked a white sedan that was in that vicinity.
Senior Constable Chapman's evidence that, as he was first getting out of the police car, he had a conversation with the accused, who had walked over to him, with blood on face, significant blood on his mouth. The accused was aggressive. He was very aggressive in body language and words.
Senior Constable Chapman's evidence that, after Senior Constable Josephs had caught and arrested Tyler, they were encircled by about 20 intoxicated aggressive people, some of whom had cans and bottles and were threatening to use them against the police in a violent manner. They were making aggressive comments such as, "hit us", and egging the police on as if to hit the people in the crowd, and several in the group were shaping up with raised fists. Some of the people were threatening him by raised fists and some with raised cans and bottles. The accused was in that group, according to Chapman. But he did not place the accused as one of the people raising any items such as that. He said he saw Mr Tiburcy had moved up to that group, but did not say that Tiburcy touched or threatened him at that stage in any way.
Senior Constable Chapman's evidence that, after he and Senior Constable Josephs got away from that group, and Senior Constable Josephs had caught Tyler again and had him in a headlock, they were surrounded by a core group of the crowd who manhandled and shoved and pushed in on them until the grip on Tyler was broken and he ran away again. Senior Constable Chapman said that at that point the accused was standing around. He was still up there. He said he believes Mr Tiburcy was still there, but had had no conversation with him there, and he saw no direct touching or threatening by Mr Tiburcy there. It is just he believes he was in the vicinity.
Senior Constable Josephs' evidence that the group followed the police and surrounded them again within one or two seconds. He says he saw the majority was armed with bottles and cans, full bottles, and were gesturing aggressively as though to throw the bottles and cans at him and Chapman and verbalising that they wanted to fight. There was physical contact of being bumped and pushed because they were so close. He says he saw the accused was there. He agreed that at the committal hearing he had answered yes to a question that the accused's motive in approaching and taking up conversation with him and appeared to be to asking what action would be taken about what had happened to him. He adopted that evidence at trial He turned to him, the accused, and the accused was very aggressive and angry towards him, Josephs. Josephs said he asked Tiburcy if he needed immediate medical assistance by an ambulance and Tiburcy verbally abused him. The response was, "What are you going to do about this?", indicating his injuries. He agreed that Tiburcy had not threatened him in those conversations. He did not see if Tiburcy was part of the encircling group when Tyler was first arrested. He did not see Tiburcy actively fighting or throwing punches, nor wrestling anyone, nor touching him or Champman, nor verbally threaten him or Chapman, nor challenge either of them for a fight, nor threaten either of them with any object, nor throw any bottles.
8 As is apparent from that compilation of the evidence, there was no direct evidence of participation by Tiburcy in the affray, and apart from the applicant's presence among or near to the groups of people who twice surrounded the policemen, no direct evidence of aiding and abetting.
9 Moreover, as to the evidence of Tiburcy's presence on the occasions when the policemen were surrounded, the highest that it goes concerning the first occasion is the evidence of Senior Constable Chapman that he saw Mr Tiburcy had moved up to that group, but does not say that Tiburcy touched or threatened him at that stage in any way. That occurred, as Senior Constable Chapman put it, before things went "berserk", and so, as it appears to me, before the affray began.
10 The substance of the evidence concerning the second occasion was Senior Constable Joseph's evidence that the applicant approached him and took up a conversation with him and appeared to ask what action would be taken about what had happened to him. Senior Constable Josephs turned to the accused, who was very angry and aggressive towards him. Senior Constable Josephs said he asked Tiburcy if he needed medical assistance by an ambulance and Tiburcy verbally abused him. He agreed that Tiburcy had not threatened him at that time.
11 In my view, that evidence does not exclude the reasonable possibility that the applicant was present because he had been injured and was seeking to have the police do something about it. Certainly it establishes that the accused was aggressive, rude and abusive, and, combined with his own admissions as to the amount of alcohol he had consumed that evening, probably also intoxicated. But, however impolite he may have been, it is plain that he did not put the police in fear by asking what they intended to do about the fact that he had been injured, or by emphatically refusing their invitation to go in the ambulance to receive medical attention.
12 There is, then, the evidence of the third sighting and conversation with the applicant but, as both policemen testified, that occurred after police units had arrived and they had gained control of the situation. The main protagonists who had damaged the police car and caused other damage to the house had gone by then. According to Senior Constable Josephs, Mr Tiburcy approached a number of police there, including Mr Josephs. Senior Constable Josephs said that Tiburcy was not attempting to touch or assault him or other police in any way. He wanted to know what action would be taken about what had happened to him. According to Senior Constable Chapman, he approached Mr Tiburcy rather than Mr Tiburcy approaching him near the police car and tried to get him to go in the ambulance. It was at that point that he responded that the police should "Fuck off, they're not looking at me, they cost too much". Arguably, the fact of the applicant's continued presence at the scene at that stage could be viewed as evidence from which to infer that his presence at an earlier stage was as a participant or principal in the second degree. But I regard that as a most unlikely inference, given that it was he who approached the police and asked what they would do about the injuries he had suffered.
13 Aside from the evidence of what happened after police arrived, the Crown also adduced a volume of evidence of what had occurred before they arrived, in order, it was said, to establish the context and background and so, as I understand it, provide a basis from which to infer that the applicant's state of mind after the police arrival was of the same nature as before the police arrival and, as such, sufficient to constitute an intention to participate in the affray, or to aid and abet those who did. That evidence included that the applicant had thrown a bottle and that he had thrown a punch during a fight. It is apparent, however, that the jury rejected the evidence that the applicant had thrown the bottle, and so found the applicant not guilty on the count of reckless conduct endangering serious injury, and there is reason to doubt the evidence that the applicant had thrown a punch. That evidence was given by only one witness, a Ms Clark, and her description of the man she saw throw a bottle was inconsistent in significant respects with other evidence of the appearance of the applicant on the night. But even if that evidence established beyond doubt that before the police arrived the applicant threw a punch and a bottle,
and in my view it does not, I do not consider that such inference as might be drawn from that would be sufficient to eradicate the reasonable doubt as to the applicant's involvement in the affray which results from the relative paucity of evidence on that subject given by the two policemen.
14 I wish to add only that, although the jury came to a conclusion which in my view was not supported by the evidence, it does not appear to me that that was in any way the fault of the trial judge. To the contrary, if I may say so with respect, her Honour's directions on the elements of the offence were clear and accurate and her summary of the evidence by reference to the issues was admirable.
15 Nevertheless, for the reasons which I have given, I would allow the appeal, and set aside the verdict of the jury on the ground that it cannot be supported by the evidence.
VINCENT JA:
16 I agree that this application for leave to appeal against conviction should be allowed and the conviction set aside as unsafe and unsatisfactory in the circumstances. I have reached this conclusion after consideration of the whole of the evidence and bearing clearly in mind that the jury is not only entrusted with the primary responsibility of determining the question of guilt but has the opportunity of hearing the witnesses.
17 In this case, however, there has been, for practical purposes, no dispute concerning the factual foundation upon which the verdict rested, and the questions which have fallen for consideration relate to the inferences that arise on those facts. In my opinion, in view of the absence of any evidence that would justify a finding that the applicant was directly involved in the affray, and bearing in mind the paucity of evidence that could support inferentially the conclusion that he encouraged or in any way supported those involved in it, the jury should have had a reasonable doubt concerning his guilt of that offence.
NEAVE JA:
18 For the reasons given by Nettle JA, I would also allow the appeal.
VINCENT JA:
19 The order of the Court is:
1. The application for leave to appeal against conviction is allowed.
2. The appeal is treated as having been instituted and heard instanter and is allowed.
3. The conviction and sentence imposed in the court below are quashed and a verdict of acquittal is entered.
20 A certificate under the Appeal Costs Act 1998 is granted to the appellant.
[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-4.
R
Tiburcy [2007] VSCA 124
(1994) 181 CLR 487
Senior Constable Champman's evidence that he saw the accused again after more police had arrived and the main aggressors had moved off. Most, not all, of the main agitators had gone, they had filtered westerly down the road. He said he approached Mr Tiburcy, rather than Mr Tiburcy approaching him, near the police car and tried to get him to go in the ambulance, which by then had arrived, and the response was to the effect of, "Fuck off, they're not looking at me, they cost too much". He said the accused point blank refused to get into the ambulance.
Senior Constable Josephs' evidence that the third time he saw Mr Tiburcy, his second conversation with Mr Tiburcy, he says, was after police units had arrived and they had gained control of the situation. The man protagonists who had damaged the police car and caused other damage to the house had gone by the. Mr Tiburcy approached a number of police there, including him, Josephs. Mr Tiburcy was not attempting to touch or assault him or other police in any way. He wanted to know what action would be taken about what happened to him.