R v Williams [2000] VSCA 232

17. Herron, who was drinking in the bar, commenced talking to Piacentino. Amongst other things, Piacentino told him that he was in Ballarat to see the applicant who was "trying to get him off drugs". The two of them conversed for a number of hours whilst they drank beer. The applicant from time to time joined them in their conversation when her services were not required behind the bar. At some time after 8 p.m., Piacentino and the applicant left to go into the residential section of the hotel where, so they told Herron, they were to ingest some amphetamine. After they returned, they rejoined Herron and the drinking and conversing resumed. According to Herron, he was intoxicated but "in full control", as was Piacentino. The applicant, he said, "appeared fine". The hotel closed at about 11.45 p.m. and the applicant's mother asked them to leave. They went to the Ballarat Leagues Club where they stayed for half an hour, following which they went to the Blarney Inn. Here they continued to drink. The applicant, in her record of interview, said that Herron was "fondling her" in this establishment. They left the Blarney Inn at about 12.45 a.m. on the following morning for the ostensible purpose of getting a hamburger. They travelled west along Mair Street and, at the applicant's suggestion, turned down a "laneway" which the applicant said was "the way I always walk to ... the hamburger van".

20. In the laneway, Herron said he was hit, without warning, from behind. He did not know what had hit him, but it was hard enough to break his jaw and fracture his teeth. He fell to the ground and immediately Piacentino was lunging into him, stabbing him with a knife in the chest. He then backed away, but came at Herron again, stabbing him again and demanding "where's your fucking money?" In fact, according to Herron, the money was in his wallet in the hip pocket of his jeans to where, in the presence of Piacentino and the applicant, he had transferred it at the Eastern Station hotel. Herron said that he lashed out with his feet in defence of himself. He tried to get up and Piacentino slashed him in the arm, repeating "where's your fucking money?" Herron said he continued to lash out with his feet. Although, as he said, the applicant did not involve herself directly in the attack, she was standing nearby and said, "Mark, give him your money." Herron thought at the time she was saying it to protect him from further assault. In her record of interview the applicant asserted that Piacentino had assaulted Herron because the latter had made sexual overtures to her in the former's presence. Herron denied that. The applicant also asserted that, whilst she identified the weapon as a knife of her son, she was unaware that it was in the possession of Piacentino and, thus, did not know that he was going to use it. In essence, it was her claim that she was "the innocent bystander". However, she gave no evidence at the trial. In her record of interview, she agreed that she made no attempt to get Piacentino away from Herron. She said that she "froze".

23. Ultimately, Herron was able to get to his feet and run away. Hence the attempted robbery was unsuccessful. He made his way to another hotel which was still open and he was observed to be "distressed, pale and shaken". The police and ambulance were called. Herron told the ambulance driver that he had been stabbed in an attempt to steal his wallet. He was taken to the Ballarat Base Hospital where he was found to have a punctured lung and a number of stab wounds. He also had the fractured jaw and teeth. The jaw was wired. It was not contested that these injuries were "serious". He was in hospital for a week.

26. In the meantime, at about 2 a.m. on 31 October 1998 the applicant rang a friend of hers, one Tracey Goodall, who lived in Ballarat with her de facto Colin Bartlett. She asked Goodall whether they had any heroin for sale. When told they had, the applicant said they would "come around". At about 2.30 a.m. the applicant and Piacentino arrived at the house. They purchased some heroin which was used at Goodall's premises. Goodall said that the applicant told her that she and Piacentino "had attempted to rob a bloke down a laneway". She told Goodall that they "needed some money" because they "wanted to score because Mick was sick". According to Goodall, the applicant told her that she did not get physically involved in the fight because of her medical condition. She said they needed money to get drugs and they had earlier seen in the hotel that Herron "had a fair amount of cash in his wallet". Goodall said that the applicant had stated that they had not succeeded in getting money "from the bloke"; that they then went back to the Eastern Station hotel and decided to get some money from there. According to Goodall, the applicant said they had thought about going into her mother's room but decided that was too risky; so they had removed the lock to the main bar and had taken money from the till and then replaced the lock. Goodall said that this conversation occurred in Piacentino's presence. Goodall said that Barlow had sold them some caps of heroin and that she had seen "two $50 notes and some smaller notes". She said that the applicant and Piacentino were there for about two-and-a-half hours and left at approximately 5 a.m. At a later time during the morning, the applicant had again rung her saying that when she and Piacentino got back to the Eastern Station hotel, there were "police everywhere" and asked if she could again come around again to Goodall's place. She arrived shortly after and told Goodall that the police had taken Piacentino off for questioning but that she had not been charged.

29. Evidence was given by the police that they were at the Eastern Station hotel at 5.20 a.m. when the applicant and Piacentino arrived. The applicant was carrying a bag which contained cordial, two syringes and a shoelace. They found a folding knife in Piacentino's possession. It had blood on the blade.

32. At the trial, as I have already noted, the applicant gave no evidence but conducted her case on the basis of the record of interview which she had conducted with the police. In essence, her case was that Piacentino had assaulted Herron because he was angry with him for making advances towards his girlfriend. She was, in essence, caught by surprise at the assault and was merely an "innocent bystander". She had no idea that he had or would use the knife and there was no arrangement between her and the applicant to rob Herron.

35. Upon the evidence which I have described, it was open to the jury to find that the assault upon Herron was the result of a pre-arrangement between Piacentino and the applicant carried out for the purpose of obtaining Herron's money so that they could purchase drugs. The evidence came not only from Herron. Evidence of the applicant's participation also came from the fact that it was she who led them into the lane; from the evidence that she did not intervene whilst the assault was occurring; from the evidence that she told Herron to "give the money" to Piacentino and from the admissions which she made to Goodall. In this Court, it has not been contended that there was no evidence to implicate her as an accomplice to the attempted armed robbery, or to the intentional infliction of serious injury. Counsel for the applicant limited herself to the amended grounds of appeal which were added by leave of the Registrar on the day before the appeal was heard. All of these grounds challenged directions in respect of which experienced trial counsel had taken no exception at the trial. They were allowed over the strong protest of counsel for the respondent. In my view, that protest was justified[1]. These grounds alleged that the learned judge had misdirected the jury in a number of respects. In particular, counsel contended that the trial judge had misdirected the jury by failing to tell them that, before they could conclude that the applicant was "acting in concert" with Piacentino, they had to be satisfied that the agreement was "on foot at the time of the commission of the offences" (ground 4(d)) and by misdirecting them on the concept of "aiding and abetting" (ground 4(e)). There were a number of grounds taken which contended:

(i) misdirections on the burden and standard of proof -

particularly in relation to the claim of "self-defence" by Piacentino; (grounds 4(a) and (c));

(ii) the failure to properly explain the elements of "theft" when defining the offence of "attempted armed robbery"; (ground 4(b));

(iii) the failure to properly direct the jury about the standard of proof on the issues of motive and propensity; (ground 4(g));

(iv) the failure to properly direct the jury in respect of a rational hypothesis consistent with innocence when considering the evidence about the applicant's participation in the offences (ground 4(h)).

43. Counsel for the applicant conceded that she could not make out a miscarriage in relation to these latter grounds when considered in isolation, but when considered cumulatively and in conjunction with grounds 4(d) and 4(e) should lead this Court to the conclusion that the trial had miscarried.

46. The judge's charge in relation to acting in concert was, in my view, more than adequate to meet the circumstances of the case. The issue between the parties was stark. The prosecution case was that these offences were committed as the result of a pre-arrangement between Piacentino and the applicant to rob Herron of such money as he was carrying for the purposes of obtaining it to purchase drugs, and to use such force as was necessary to achieve that object. The applicant's case was that there was no such pre-arrangement and that what had occurred was a frolic of Piacentino in respect of which the applicant had no advanced knowledge. There was, as I have said, ample evidence from which the jury could infer that the arrangement did exist. It was not necessary that such arrangement or understanding was expressed[2]. It was never an issue in this case that the arrangement or understanding which would support the element of concert, if it existed, had ceased to exist at the time the offences occurred. Nor was it an issue that the actions of Piacentino went beyond the scope of such arrangement or understanding as the jury found to exist. It has frequently been said that a trial judge's directions are not to be regarded as a general treatise upon the law. The judge's obligation is to give to the jury so much of the law as "to guide them to a decision on the real issue or issues in the case"[3]. On the issue of concert, the judge's charge did just that. Against a background of the matters in issue between the applicant and the Crown, a direction to the jury that they should be satisfied that such arrangement or understanding as they found to exist was "still on foot" at the time of the attempted robbery, or that the measures taken were within the scope of such arrangement, would have been, I think, more apt to confuse than enlighten.

49. Similar comments can, I think, be made in relation to the applicant's challenge to his Honour's direction on aiding and abetting. It was submitted that his Honour had invited the jury to consider that the applicant was guilty on the basis of "mere presence" at the scene. But the submission does less than justice to the learned judge's directions which, when read in full and in context, were very much in line with the oft-cited charge given to the jury by Smith, J. in R v. Lowery & King (No. 2)[4]. It is true that, towards the end of otherwise unimpeachable directions, the learned trial judge used the words "mere presence" but they were used in the context of "presence and behaviour" intended to encourage the principal offender to commit the offences alleged to have been aided and abetted.

52. At the end of the day, I think that counsel for the applicant - in her able submissions to this Court - was content to agree that the judge's directions on the law in respect of complicity were adequate; rather her complaint was that they were not sufficiently related to the issues in the case. It is again true that one of the obligations of the trial judge - part of what Sir Owen Dixon once described as Sir Leo Cussen's "great guiding rule"[5] - is not only to explain the relevant law to the jury in general terms, but to explain to them how it is to be applied to the issues before them[6]. However, I cannot agree that his Honour was in breach of his obligations in that respect in this case. The facts were in short compass and his Honour did not, as it seems to me, fail to put before the jury what the issues were as they related to the applicant; nor did he fail to adequately explain to the jury how the law, as he gave it to them, was to be applied to those issues. In this regard, it should be noted that counsel who represented the accused at the trial took no exception to his Honour's directions with respect to concert or aiding and abetting; nor was any exception taken on the basis that he had inadequately explained how those directions were to be applied to the issues in the case. In the light of the fact that counsel was experienced in the criminal law, his silence as to these matters is a strong indication that, in the atmosphere of the trial, the directions were in fact adequate, and seen to be adequate. As Yeldham, J. pointed out in R v. Tripodina & Anor[7]:

"Although it is true ... That in a criminal trial the judge must be astute to secure for the accused a fair trial according to law, none the less, as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing-up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done."[8]

56. For the reasons expressed, I do not accept that the directions given by the learned judge on concert or aiding and abetting were erroneous.

59. As I have said, none of the other grounds taken in respect of his Honour's directions was strongly pressed; and none of them, in my view, has been sustained. Thus, it was submitted that his Honour's directions concerning "motive and propensity" were inadequate because his Honour did not tell the jury that they could only act upon them if satisfied beyond reasonable doubt of their existence. In my view, his Honour's directions with respect to these matters (TX p.541) were unexceptionable when read in the context of his full directions that the jury could not draw any inference as to the guilt of an offence charged unless they were satisfied beyond reasonable doubt of the facts upon which such inference was based. Again, no exception was taken by trial counsel about these directions. Likewise, it was contended under ground 4(b) that his Honour did not specifically tell the jury, when defining "theft" for the purposes of the attempted armed robbery, that the appropriation had to be a "dishonest" one. That was not a matter in issue and the case was conducted on the basis that, if the jury was satisfied that there was an attempt to rob the victim of his wallet, the crime - if completed - would have involved a dishonest appropriation. There is, accordingly, nothing in this ground.

62. Similarly, there is nothing in the grounds which suggest that his Honour's directions with regard to the burden of proof, particularly with regard to self-defence, were inadequate. It was contended that his Honour's directions inadequately brought home to the jury that it was for the prosecution to negative the existence of self-defence. I cannot agree with that submission. It is idle here to set out in full the text of his Honour's directions. It suffices to say that, when they are read in context, they make it abundantly clear that the onus was on the Crown to negative self-defence. Furthermore, it is difficult to see - having regard to the manner in which the issue was raised - how the jury could possibly have concluded that Piacentino was acting in self-defence. The defence of Piacentino, as I see it, was that he had no intention of robbing the victim - rather he had "king-hit" him and had stabbed him, out of a sense of chivalry and in response to unwarranted overtures which the victim had made towards the applicant. But once again, no complaint was made by trial counsel about these directions.

65. Finally, it was contended, although not with force, that his Honour should have told the jury that, if they were satisfied there was a rational hypothesis consistent with innocence for the use of the applicant's words "Mark, give him (that is Piacentino) the money", then they could not use that statement as evidence of complicity by the applicant. That statement, however, was merely one piece of evidence upon which the Crown relied to prove complicity. Counsel for the applicant contended that it had an innocent meaning; counsel for the Crown, on the other hand, suggested that it did not. The judge put the matter fairly to the jury. It was not an issue which, in my view, required a direction in respect of "innocent hypothesis". There is, accordingly, nothing in this ground.

68. In accordance with these reasons, it is my opinion that the application for leave to appeal against conviction must be dismissed. In doing so, I am conscious of the fact that ground 4(f) of the grounds of appeal (namely that the judge "failed to direct the jury with a direction consistent with White v. Ridley[9])" has not been specifically dealt with. This is because no specific submission was made by counsel with respect to that ground. However, if it is intended to suggest that the jury should have been directed that if, during the course of the attempted robbery, the jury found that by the use of the words "Mark, give him the money" the applicant was evidencing a "locus poenitentiae " and an end to her complicity, it seems to me to be incorrect to say that his Honour did not deal with the matter in the course of his directions. His Honour told the jury, in accordance with Lowery v. King (supra) that, even if they came to the view that the applicant was, by her conduct, seeking to limit the extent of the attack upon the victim, it was still open to them to find that they would not excuse her from the complicity alleged by the prosecution. I agree with those directions. However, the matter was left to the jury on the basis that it was entirely for them. These directions seem to me to be entirely correct and, once again, I note that no exception was taken to them. In any event, as I have said, no specific submissions have been made to this Court in support of that ground.

74. Counsel submitted that insufficient weight was given by the trial judge in imposing sentence in respect of matters personal to the applicant. Furthermore, it was put that insufficient weight was given by his Honour to his finding that the jury's verdict on count 2 was probably on the basis of aiding or abetting and not upon the basis of a common understanding that the victim would be stabbed. Insufficient weight, it was contended, was given to the "much lesser role" played in the offences by the applicant, upon her prospects of rehabilitation, upon her dependency on drugs and her lack of antecedents suggesting that she had a propensity for violence. She has many prior convictions but none for offences of violence.

77. All of these matters were adverted to by the trial judge in imposing the sentence which he did. That sentence was, having regard to the seriousness of the crimes of which the applicant had been found guilty, a very lenient one. Indeed, the non-parole period fixed at 18 months demonstrated, I think, that his Honour was of the view that the applicant's prospects of rehabilitation were good.

80. There is often, as it seems to me, a lack of proper appreciation of the difference between the role played by the sentencing judge and the role which this Court plays in reviewing the sentence imposed by the judge. We do not enjoy the luxury of resentencing the prisoner afresh and imposing a sentence which we think is the appropriate one. We can only interfere with the sentencing discretion exercised by the trial judge if we think it has been vitiated by specific error, or if we think it is wholly disproportionate to the crimes committed. No such error has been demonstrated in this case. That is not to say that we are impassive or unmindful of the applicant's circumstances. We are aware that she clearly has been afflicted by a drug addiction and that she has made strenuous, if not completely successful, efforts to overcome it. We are aware that she has children to look after. We are aware that she has the support of her parents. All of those things we are mindful of and, at least for my own part, I would hope that when she is released

from prison, which undoubtedly she soon will be, she will take advantage of the support which she has and make something of her life and the lives of her children.

84. However, as I say, there is no basis upon which I can interfere with the sentences imposed by his Honour, nor can I say that the sentences which he imposed are manifestly excessive.

87. Accordingly, I have come to the conclusion - for the reasons expressed - that the applications for leave to appeal against both conviction and sentence must be refused.

99. The formal order of the Court will be that the applications for leave to appeal against conviction and sentence are refused.

[1] cf. R. v. Wright [1999] VSCA 145; [1999] 3 V.R. 355 at 356 per Phillips, C.J. and Charles, J.A.; at 359-60 per Callaway, J.A.

[2] cf R. v. Tangye (1997) 92 A.Crim.R. 545 at 556-7; and Osland v. R. [1998] HCA 75; (1998) 73 A.L.J.R. 173 at 188-9, per McHugh, J.

[3] cf. Alford v. McGee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466.

[4] [1972] VicRp 63; [1972] V.R. 560 at 561-2.

[5] cf. Holford v. Melbourne Tramway & Omnibus Co. Ltd. [1909] VicLawRp 89; [1909] V.L.R. 497 at 526-7.

[6] cf. Bellizio v. Meares [1971] VicRp 78; [1971] V.R. 641 at 644; R. v. Franks [1998] VSCA 100; [1999] 1 V.R. 518 at 524.

[7] (1988) 35 A.Crim.R. 183 at 191.

[8] See also R. v. Calides (1983) S.A.S.R. 355 at 359 per Wells, J.; R. v. Wright [1999] VSCA 145; [1999] 3 V.R. 355 at 360-1.

[9] [1978] HCA 38; (1978) 140 C.L.R. 342.