REGINA v. HOLLIER [2000] NSWCCA 225

1 SPIGELMAN, CJ: I will ask Greg James, J. to deliver the first judgment. 2 GREG JAMES, J: This appeal has been brought from the appellant's conviction on one count of maliciously wounding John Robert Bowry on 9 September 1997 at Charmhaven in the State of New South Wales. He had been charged with a co-accused, Frank Ingenhoff, that he had maliciously wounded the victim on that occasion with intent to do grievous bodily harm and also that he, on that occasion and at that place, did possess a shortened firearm, he not having been authorised to do so by a permit. 3 To those charges both he and the co-accused had pleaded not guilty. The jury verdict of guilty was only on the statutory alternative to the charge of maliciously wounding with intent as expressed in the indictment. The jury acquitted the appellant of the firearm offence. 4 The Crown case may be summarised as follows. The appellant and Ingenhoff went to the home of the victim in order to discuss, so it was said, money asserted to be owed by the victim to the appellant. A verbal altercation occurred between the appellant and the victim. The appellant moved away from or behind Ingenhoff and at about that time Ingenhoff produced the shortened firearm, and shot the victim in the upper right thigh. The appellant left the scene. Ingenhoff and the victim struggled over the gun and Ingenhoff struck the victim with the gun breaking his scapula. In the struggle the gun again discharged. Ingenhoff remained at the scene, was arrested and asserted he had not fired the shot which injured the victim. 5 On the arrest of the applicant he asserted he had not fired the shot but Ingenhoff had. 6 This summary makes clear the potential for, at trial, the two accused to blame each other. In their evidence they did just that, each seeking to avoid liability. 7 It was the Crown case, however, that Ingenhoff had taken the gun with him to the scene and that the appellant accompanied him, at least aware that the gun would be taken for the purpose of either extorting payment of the debt or in some manner threatening the victim, if necessary. 8 There was evidence of an earlier confrontation between the appellant and the victim in which the victim had made threats to the appellant. This evidence was prayed in aid as supporting the proposition that the victim was aware of the necessity to have protection at least should he wish to confront the victim and as contrary to the Ingenhoff account that his function was merely to drive the appellant to the scene. It was the Crown case that the appellant and Ingenhoff went there with the intention to resort to violence, if necessary, in self-defence or otherwise, for the purpose for which they attended the premises. 9 The victim, Mr. Bowry, described the confrontation and identified Ingenhoff as the person who said to him, "Do you want to have a go at me?" and produced a weapon from behind his back and fired it "straight at me". He referred to Ingenhoff coming towards him with the gun raised and the barrel pointed upwards. 10 Except for the reference to the appellant moving aside or behind Ingenhoff shortly prior to Ingenhoff producing the gun, the victim gives no evidence of any explicit act of encouragement at the scene by the appellant of Ingenhoff's use of the gun. It was in that context that his Honour came to direct the jury concerning the ways in which the Crown case, that the appellant was complicitous with Ingenhoff in the wounding and in the possession of the firearm, was presented. 11 The first of the ground of appeal starkly raise the problem presented by the jury's guilty verdict which, whilst explicable as a merciful verdict in the reduction of the charge from one of malicious wounding with intent to malicious wounding simplicitor is not so susceptible of explanation insofar as the acquittal on the charge of possession of the firearm is concerned. 12 The other ground asserted is that the jury should have been discharged in consequence of a remark made in evidence revealing that the appellant was attending a parole officer and, therefore, putting his bad character before the jury. 13 It is convenient to deal with the second of those grounds first. 14 The relevant passage occurred in the cross-examination of the victim by counsel for the appellant and the question, "you certainly did not do anything about reporting his visit to the police" elicited the response, "I came very close to reporting him to his parole officer - oh shit". 15 In the absence of the jury, discussion ensued concerning the effect on the jury of the inadvertent revelation. Counsel appearing on behalf of the appellant informed the trial judge that there was no application (presumably for discharge) at this point in time and sought to consider his position at the completion of the victim's evidence. His Honour said that counsel should consider it "now" and expressed the view that it might not be appropriate to delay the application until the conclusion of the evidence. He was then informed that no application was made and I note no application was made at the conclusion of the evidence. 16 It has been submitted that the trial miscarried, that evidence was put before the jury which necessarily disclosed a prior criminal conviction and, therefore, bad character and that nothing was said or done to eradicate from the trial the impression, so it is submitted, that would have been gained by the jury. 17 It is further submitted that it is necessary for the trial judge, in the exercise of his duty to ensure a fair trial, to have taken appropriate steps to deal with the matter expressly or to discharge the jury and that the trial judge failed in this respect. 18 I am of the view that this ground cannot be upheld. In a criminal trial frequently, and unfortunately, matters which perhaps are much better not referred to do come forward. Sometimes they require the express direction of the trial judge in order to obviate the risk of potential harm. This is, however, a matter entirely within the discretion of the trial judge, familiar as he is with the circumstances, and it is not an invariable rule that where such evidence is inappropriately given the jury must be discharged: see Maric v. The Queen (1978) 52 ALJR 631 at 634. 19 Although the courts go to great lengths to ensure that such evidence is not placed before a jury except in unusual and peculiar circumstances the fact that it has been does not, of necessity, mean that the jury must be discharged. In this case it was obviously a matter for consideration by both the trial judge and the appellant's counsel as to whether any steps should be taken. Not only was the application for discharge disclaimed by counsel but no request was made for any express direction. The closing words of what the witness said must have drawn to the jury's attention at least that whatever he had previously said was some sort of error. One should not assume the jury would have been adversely affected, particularly where trial counsel does not apparently perceive any problem requiring any corrective. 20 It cannot, in my view, be the case that one should conclude the jury verdict was so tainted by what occurred or that the risk that the verdict would have been so tainted was so high that this count could be said to be made out. 21 This ground should be rejected. 22 Turning to the second ground asserted, that is, that the verdicts showed a practical inconsistency such that they could not rationally stand together in consequence of the way in which the case was conducted and the way in which his Honour summed up, the relevant tests in this regard have been expressed by the High Court recently in Mackenzie v. The Queen (1996) 190 CLR 348. 23 This is not a case of any technical inconsistency between verdicts such as would leave the formal record of proceedings impugned. What is asserted here is that in the practical context of the case the verdicts reflect some such inconsistency so that the verdict of guilty was unsafe and unsatisfactory: see Regina v. Nanette (1981) A. Crim. R. 368. Some such inconsistency may arise, for example, by reason of an impermissible compromise between jurors as to the results on differing charges: see Regina v. Shane Hauke, (CCA, unreported 27 March 1995) and Regina v. Robinson [2000] NSWCCA 59. 24 In each case it is necessary to ask the question, "whether looking at the whole of the evidence given at the trial and the judge's summing-up any reasonable explanation appears as to why the jury might have found the verdict of guilty, notwithstanding verdicts of not guilty on the other counts": Regina v. Watson (CCA, unreported, 17 October 1990). 25 The test to be applied in consequence of the decision in Mackenzie (supra) by the High Court, in my view, requires an appeal court to ascertain whether or not it can see a practical and rational explanation for the different verdicts such as would enable them to stand together. Such practical, rational explanation might include the merciful verdict to which the High Court referred in Mackenzie (supra). 26 In the present case his Honour gave directions as to the nature of the Crown case against the man who did not have the gun. His directions as to possession in the summing-up commence at p.9 and are as follows:- "Now the charge is against each accused that they did possess it. Now one of them certainly had it in his possession. Possession merely means having in their, for the purpose of this trial, physical custody. So whoever did have it in their possession, members of the jury, you might say well they had the possession. As to whether the other person who did not have the physical possession of it was in possession is a matter which I will have to come to a little later on and give you certain specific directions. For example, if both men went there for the purpose of shooting Mr. Bowry, only one of course had the gun, but the other person knew about it, if you were so satisfied of that well therefore he could be said to also be in possession of it because it was being taken there for a specific purpose. So that is the question of possession, but I will have to give you some further directions on that a little later on. So the second part of that charge is he not having been authorised to do so by a permit. Tendered in evidence were two documents. I cannot remember the exhibit number, does not matter much, you have seen them, which says that neither Mr. Hollier or Mr. Ingenhoff had been authorised to be in possession of such a shortened weapon. So that is not, it is not disputed and neither accused claim that they do have such a permit. Each of the accused claims that he did not have possession of the weapon. That the weapon was in possession of the other. Now the Crown has to satisfy you that one of them had the weapon and perhaps it is up to you, you will have to maybe decide that particular question beyond reasonable doubt and to make the other person then liable for that possession you would have to show that he was aware of it and it was taken there for the purpose of committing a criminal act. " 27 His Honour also went on to direct the jury, at p.11:- "Members of the jury obviously only one of the two accused could have fired the shot and as I have already said it is the Crown case it was Mr. Ingenhoff, but what the Crown was putting in relation to each of the accused, perhaps at this stage irrespective of who fired the shot, assuming that one of them did, that the other person was responsible as well. The law is that where two or more persons carry out a joint criminal enterprise, each is responsible for the act or acts of the others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. Now a joint criminal enterprise exists where two or more people reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any particular time before a crime is committed. The circumstances in which two or more persons may participate or are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them, then and there to commit that crime. " (emphasis added) 28 At various other portions of the summing-up his Honour referred to the concepts which would enable complicity to be established. 29 At p.13 he referred to the liability of a party who had been proved to be party to an enterprise and contemplated another crime as a possible incident in the execution of the agreed crime. In this case his Honour referred to an agreed crime to assault. 30 His Honour, in discussing the common purpose concept, went on to direct the jury:- "Members of the jury what the Crown has to prove beyond reasonable doubt is that the person who did not fire the shot was aware that there was a gun present and in these circumstances I think the Crown would have to go even further and have to prove that they were aware that the gun was agreement that a gun would be presented, but the agreement - there is no evidence to this in this case, but the agreement was that the gun would not be loaded and unknown to one of the others that person, one of the persons then did load the gun, it cannot be said that would make the other person liable because he was never any part of the joint enterprise or the arrangement that the gun would be loaded. The Crown has to prove to you beyond reasonable doubt that the person who did not fire the shot was aware that the other had the gun and was aware that it was loaded. " (emphasis added) 31 The direction continues to p.15:- "That is what the Crown has to prove and the Crown sets about proving that aspect by saying well look at all the circumstances." 32 Later, when dealing with the defence case, his Honour directed the jury that, "... it is the Crown case and it always has been the Crown case that Mr. Ingenhoff had possession of the weapon ..." and that Mr. Hollier could only be found guilty of the possession charge if the jury was satisfied beyond reasonable doubt he knew that Mr. Ingenhoff had the weapon. His Honour continued:- "In this case there would be no need for him to know that it was loaded, but at least the Crown has to prove beyond reasonable doubt that Mr. Hollier knew that the accused Ingenhoff had the weapon in his possession. " (emphasis added) 33 It has to be said that the directions, considered as a whole, and particularly with reference to the passages underlined do tend to give the jury a rather confusing picture of the essential requirements for complicity, joint enterprise and common purpose. But when considering the summing-up as a whole and considering it from the point of view of the way in which the Crown had presented its case, it seems clear enough that it was the Crown case (and the trial judge's directions reflected this) that Mr. Ingenhoff had taken with him, for the purpose of confronting the victim, the gun, and that the appellant to be guilty of the charge of possession had, at least, to know prior to arrival on the victim's doorstep that Mr. Ingenhoff had the gun with him. Further, for the appellant to be guilty of either of the malicious wounding offences, ie., the charge in the indictment or the statutory alternative, it was necessary that he be party to the shooting of the victim by Mr. Ingenhoff and in that regard at least be party to a joint design which contemplated, or party to a joint design in which he contemplated the use of the gun. This required him to know of the presence of the gun prior to arriving on the doorstep. This, it was sought to establish the basis that it had been brought to the scene as part of or incidental to the common design to obtain payment of the debt. 34 In those circumstances it has been submitted by the appellant that the verdict of guilty of malicious wounding cannot stand in consequence of the acquittal on the charge of possession. The appellant was only ever charged with possession on the basis of his complicity with Mr. Ingenhoff having the weapon and it is submitted that the jury's verdict of not guilty is logically inconsistent and inconsistent in a way not practically nor rationally explicable by the way in which the case was conducted and on the trial judge's directions. 35 In response it has been submitted on behalf of the Crown that applying the true test of complicity it was theoretically possible that the jury convicted the appellant upon the basis he was culpable either because of complicity or because he was the actual shooter. 36 As to the second of those alternatives, that was never the way the Crown put its case at the trial. If there had been a verdict on that basis, in my opinion, it would not have been supported by the evidence and would have been such as to have attracted intervention by this court. 37 It has also been submitted that in the way in which certain of his Honour's directions would have been received by the jury, although it is conceded that the summing-up in part was confusing, nonetheless, left open to the jury to find a verdict which reflected doubt as to which of the men had the gun, thus leaving the jury unable to decide in favour of the Crown on the possession count but still satisfied sufficiently of complicity by reason of knowledge of the presence of the gun so that at least on the common purpose basis complicity might be made out to the malicious wounding verdict found by the jury. 38 In my view, in the way in which this trial proceeded and on the summing-up of his Honour, that argument is, at the least, artificial. I do not consider it to be a rational explanation of the two verdicts such as would afford a basis for them to stand together as the trial was conducted. 39 I would, therefore, conclude that the first ground of appeal is made out. 40 The question then arises as to what course this court should take. I have not concluded that there is such legal inconsistency between the verdicts as was referred to in Mackenzie (supra) and as would show an inconsistent record in this court. It may be that at a new trial questions of substantial difficulty might arise as to what evidence might be admitted and what direction might be given to the jury to avoid the canvassing of the acquittal and in that regard it may be that attention will have to be given to the principles referred to in the High Court's decisions in Garrett v. The Queen (1978) 139 CLR 437; Storey v. The Queen (1978) 140 CLR 364 and Rogers v. The Queen (1994) 181 CLR 251. 41 However, it does not seem to me that the fact that a new trial might present complex or difficult questions is a matter which should, in the light of a verdict which, to an extent, when considered on its own, is explicable, be such as to stand in the way of an exercise of discretion in favour of the Director. It may be that having regard to these matters and having regard to the complex questions of presentation such a trial might involve, the Director might consider his position but that is purely a matter for him as the order made by this court in respect of a new trial is not mandatory but facultative. 42 In my view, it is not necessary to deal with the appeal against sentence. I would propose that the appeal be upheld, the conviction quashed and a new trial ordered. 43 I note also that there was an application for extension of time. Although no argument has been heard in respect of that application, it appears that it is made in consequence of the applicant having lodged the notice of appeal only a short while outside the time provided and he asserts that arose because of the circumstances in which he was detained in custody. I consider the appeal has merit. I would propose that the extension be granted. 44 SPIGELMAN, CJ: I agree. 45 NEWMAN, J: I also agree. 46 SPIGELMAN, CJ: The orders are as indicated by Greg James, J.

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