Sahartor v R

Basis of appeal against conviction

1. In the early hours of the morning of 8 March 2016 Mr Buddee and his wife were awoken by a man trying to break into their bedroom. Unable to wake her husband quietly, she screamed, which appears to have caused the intruder to run off. Mr Buddee got up, found no one in the front yard and, taking a torch, drove along a neighbouring street. He saw a man (the applicant) crouching behind a brick wall and yelled "Oi". The applicant jumped up and started running. Mr Buddee pursued the applicant on foot. When he caught up with him, the applicant pulled out a knife and pointed it towards Mr Buddee. The applicant then turned and ran. He was apprehended shortly thereafter by police.
2. The offence under s 114(1)(a) is committed if a person "is armed with any weapon … with intent to commit an indictable offence". The intent to commit an indictable offence was particularised by reference to the offence of intimidating a person (Mr Buddee) with intent to cause him to fear physical harm, in contravention of s 13(1), read with s 7(1), of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The offence under s 114(1) carries a maximum penalty of imprisonment for 7 years. There is a different and more serious offence created by s 33B(1) of the Crimes Act, where a person "(a) uses, attempts to use, threatens to use or possesses an offensive weapon … or (b) threatens injury to any person … with intent to commit an indictable offence". The maximum penalty is imprisonment for 12 years.
3. The applicant complained that the judge left to the jury an offence which fell within the terms of s 33B (although not on the basis of mere possession of an offensive weapon) of which they were told they could convict the applicant if his conduct was "unreasonable" and therefore not justified as self-defence. The complaint turned upon a reference in the summing up to the accused "threatening Mr Buddee with a knife." [1] The judge also stated that the prosecutor "has not argued, in the event that you are not able to find the accused guilty of the attempted break in and was simply confronted by Mr Buddee, that his actions would have been unreasonable." [2]
4. The critical issue underlying the challenge was that the applicant had faced two charges. The first charge was that he had attempted to break and enter the house occupied by Mr Buddee and his family, with intent to commit the serious indictable offence of stealing, in circumstances of aggravation, namely knowing there was a person, or were persons, present within the house. The jury acquitted of that charge. The charge had a number of elements, but the case was run on the basis that the applicant was the person who had been attempting to enter the house and had cut the flywire of the screen door in the course of his attempt. The attempt was not in doubt; the question was whether the jury were satisfied the intruder was the applicant.
5. When the judge gave directions to the jury with respect to count 2, he was required to do so on alternative bases, depending upon whether the jury were satisfied beyond reasonable doubt that the applicant was the intruder. Their conclusion in that regard included consideration of his conduct when accosted by Mr Buddee, the prosecution having relied upon flight as evidence of consciousness of guilt. For this reason, the trial judge directed the jury that "it is difficult to see how … the factual determinations can, in fact, be entirely independent." [3] He continued: "It would be difficult to see, for instance, that a verdict of guilty on count 1 would sit comfortably with a verdict of not guilty on count 2." Those propositions were undoubtedly correct. What followed was challenged by the applicant: "That said, the reverse may be the case if you find the accused was not guilty on count 1 but acting in a way that did not amount to his reasonable response as he saw it to the encounter with Mr Buddee in count 2. That, however, has not been argued by either party and it is a matter that you may determine is inappropriate to further consider. It is, however, at law, strictly open to you to vary the verdicts if you see fit and those matters turn upon your assessments of the facts."
6. The applicant's complaint about that direction was twofold. First, it was submitted that the judge "did not then take the jury to the innocent state of affairs raised on the evidence as it attached to liability for guilt on this basis, nor what facts were relevant to their assessment." [4] In other words, having left open the possibility of a guilty verdict on count 2 and an acquittal on count 1, he should have explained how that result might legitimately come about.
7. That complaint is without substance; for reasons which will be explained shortly, the underlying factual findings which might have supported such a conclusion were fully explained in the preceding passages in the summing up and did not require repetition.
8. The second basis for the challenge arose from an element of the earlier directions which were said to have had the capacity to mislead the jury. That matter arose in the following way. The applicant gave account of the events immediately prior to his arrest in a police record of interview. He asserted that Mr Buddee had attacked him with a knife, but had dropped it in the course of a struggle. The applicant said he then picked up the knife, thus accounting for his possession of both a flick knife and a penknife (also referred to as a "multi-tool") when he was arrested.
9. In brief submissions to the jury, the defence case was put in the following terms: [5] "What is also clear that is uncontroversial that you'll find is that the accused used the multi-tool to repel the complainant, that is, Mr Buddee. Mr Buddee was after him; he was relentlessly after him. … … If we look at the second charge, the intimidation, you have to find the facts, but on the facts as they stand, even if you entirely accept Mr Buddee's version, the accused - and, again, this is not controversial - uses the multi-tool and basically says, 'Get away from me or I'll stab you,' because he's being chased. The chase ensues; it continues. … … How on earth, even on Mr Buddee's evidence, could he have been intimidated by the accused? So the accused has raised self-defence. Again, it's up to the Crown, once it's raised, to rebut that presumption. It's raised and it's up to the Crown on the evidence to satisfy you that the accused wasn't acting in self-defence."
10. In summing up, the judge noted that possession of a knife appeared not to be in dispute. He then identified the elements of the offence of intimidation noting that it took place when a person - [6] "… being armed, intends to cause fear of physical or mental harm to another person, that is whether or not the other person who is being subjected to that intention actually does have that fear. In this case Mr Buddee's evidence is that he did have that fear and from time to time retreated. In this case it is not suggested by the accused that he did not intend to frighten Mr Buddee off, however, but the accused says that he acts in circumstances that would amount, at law, to raising an issue of self-defence. Self-defence is a longstanding concept in law. It is a concept of protection for citizens. It excuses a person from criminal liability when they act to defend themselves or another, including by an act that might, in any other circumstances, amount to a crime, whether by a simple assault, intimidation of the person threatening them …. Although this concept is referred to as a defence … [i]t is an issue and, once that issue is raised, it is one for the Crown to eliminate, if it can, by proving beyond reasonable doubt that the accused's actions were to initiate a threat without any colour of self-defence, in this instance, to threaten Mr Buddee by gesturing towards him with a knife and uttering words of an intention to stab him."
11. There followed an explanation of matters the prosecution was required to disprove in such circumstances, which concluded: [7] "The Crown has not argued, in the event that you are not able to find the accused guilty of the attempted break in and was simply confronted by Mr Buddee, that his actions would have been unreasonable. The Crown says that you will not get to that consideration in any event because the accused was, in all respects, both the guilty party in count 1 and the aggressor in count 2 and the only person you would find beyond reasonable doubt who had a knife."
12. The applicant submitted that it was the direction dealing with the initiation of a "threat" which raised a more serious offence than merely the possession of a weapon with intent to intimidate. However, read in context, it is apparent that this passage was directed to the uncontested facts of the case, as put forward by the accused in his police interview, and the reliance placed on that interview by counsel in addressing the jury. The summing up was not, in this respect, erroneous, unclear or confusing. That aspect of the applicant's case must be rejected.
13. The final ground alleged that the verdict was unreasonable. The case in that regard was rather more straightforward. As the jury were directed, self-defence was a factor which the prosecution were required to eliminate in relation to the offence of intimidation. However, if the jury were not satisfied that the applicant was the intruder they should have approached the second count on the basis that the applicant had been accosted wrongly. Then his conduct must have been justified, because, as the judge noted, the prosecution did not allege that his response was unreasonable, so as to negate the availability of self-defence. That being so, it is not clear on what basis it could have been left to the jury to reach a verdict of guilty on the second count if they acquitted on the first.
14. The submissions for the respondent Director did not directly confront this aspect of the applicant's case. The respondent noted that the prosecutor "had not argued, in the event that the jury was not able to find the accused guilty of the attempted break in … that his actions would have been unreasonable". That constituted the problem in leaving to the jury the possibility that the applicant's actions had been unreasonable.
15. The submissions continued: [8] "As his Honour observed, in the light of the facts and the way the trial had been conducted, the factual determinations in relation to counts 1 and 2 could, 'in fact, be entirely independent' …." That was a misstatement of what the judge had said which was, "it is difficult to see how … the factual determinations can, in fact, be entirely independent."
16. The respondent then submitted: [9] "Critically, however, and correctly, his Honour observed it might be possible to find the appellant not guilty of count 1 and 'acting in a way that did not amount to his reasonable response as he saw it to the encounter with Mr Buddee in count 2' …." That statement immediately preceded the qualification that such a case had not been argued by either party, a passage the Director's submissions ignored.
17. The Director further submitted that, despite the complaint that the possible verdicts were not the subject of the defence address or any evidential attack during the course of the trial, nevertheless "counsel for the applicant did seek to adduce evidence that was relevant to the question of reasonableness of his response - in particular, whether or not that response was objectively unreasonable or excessive." That may be so, but it did not address the complaint that the prosecutor had not presented a case based on the unreasonableness of the response.
18. Given the way the prosecution was run, if the jury acquitted on count 1 there was no reasonable basis on which it could convict on count 2. That it did so was, in the circumstances of the case, unreasonable. The verdict must be set aside.
19. The appropriate orders are: 1. Grant the applicant leave to appeal against his conviction of being armed with a weapon with intent to commit an indictable offence, in contravention of s 114(1)(a) of the Crimes Act on 6 April 2017. 2. Allow the appeal and quash the conviction and sentence imposed on 7 April 2017. 3. Enter an acquittal to count 2 on the indictment dated 3 April 2017.
20. R A HULME J: I have had the benefit of reading the judgment of Basten JA. I respectfully agree with his Honour's conclusion that the jury's verdict of guilty on the charge of intimidation should be quashed on the basis of unreasonableness. The following are the reasons for my agreement.
21. In the middle of the night a man became aware that someone had tried to break into the house in which he lived with his wife and two children. He jumped out of bed, put on a pair of shorts, got into his car and drove around the nearby streets with a torch looking for the burglar. He saw a man (the applicant) crouching behind a small brick wall in the front yard of a house. He called out "Oi" but the applicant jumped up and ran off. He got out of his car and pursued the applicant on foot. When he caught up to him, the applicant pointed a knife at him and said, "Let me go or I'll stab you".
22. The jury were not satisfied beyond reasonable doubt that the applicant was the burglar. Accordingly, the applicant was no longer simply presumed innocent but he was in fact innocent in respect of that charge in Count 1.
23. In respect of the charge in Count 2 of being armed with intent to intimidate the applicant raised self-defence: Crimes Act 1900 (NSW), ss 418-423. The defence case was that the applicant had not tried to break into any house and he believed he had to do what he did in order to defend himself against the householder who perceived as an aggressor.
24. The Crown only contested the first limb in s 418(1) of the Crimes Act; the issue as to whether the applicant believed that it was necessary to do what he did in order to defend himself. The Crown argued that the jury would be satisfied beyond reasonable doubt that the applicant did not believe it was necessary to defend himself because what he was doing was intimidating the householder in order to avoid getting caught for the earlier attempted break-in.
25. In this way the Crown put the applicant's guilt for the attempted break-in as the central element of its case in respect of both charges. The Crown did not contend that the jury should reject the claim of self-defence in relation to Count 2 even if that central element was not established.
26. Absent any case advanced by the Crown to the contrary, the jury should have had a doubt about whether the Crown had proved that the applicant, confronted in the circumstances in which he was, did not have believe that it was necessary to do what he did.
27. For the same reason, the absence of the Crown presenting a case to the contrary, the jury should also have considered that it was possible that the applicant's response of threatening the householder with a knife (and then running away) was a reasonable response in the circumstances, they being that he was being confronted by a man who wanted to apprehend him when, on the jury's finding, he had done nothing wrong.
28. I agree with the orders proposed by Basten JA.
29. HAMILL J: For the reasons given by of Basten JA I agree that ground 4 (unreasonable verdict) must be upheld. I also agree substantially with the reasons of R A Hulme J for reaching the same conclusion.
30. I also agree with Basten JA that ground 1 cannot be sustained.
31. As to grounds 2 and 3, I have come to the conclusion that those grounds, each of which are based on a similar contention, are established. That is, I accept that a miscarriage of justice was occasioned by the trial judge leaving the case on count 2 with the jury on a factual basis different to that contended for by the prosecution. Because of the unanimous conclusion of the Court that the verdict was unreasonable, it is unnecessary to provide lengthy reasons for this conclusion.
32. Grounds 2 and 3 of the (amended) grounds of appeal [10] are interrelated and were articulated as follows: "2. A miscarriage of justice has been occasioned by the trial judge advancing, for the first time in the summing up, a basis for liability which was not relied upon by the prosecution. 3. A miscarriage of justice has been occasioned by the trial judge advancing a basis for liability which was not relied upon by the prosecution and without taking the jury to those aspects of the defence case which were capable of bearing upon the appellant's innocence in respect of this alternative pathway to guilt."
33. The prosecution case on count 2 was that the person who attempted to enter the premises was the same person that the witness Mr Buddee approached in the street, and that this person was the applicant. The applicant's case on count 1 was that he was not the person who attempted to break into the premises (although he told police that he may have entered some premises nearby to get a drink of water). As to count 2, he said he acted reasonably in self-defence. There was a dispute as to who produced the knife in the course of the confrontation in the street.
34. At no stage during the course of the trial, or in the Crown Prosecutor's closing address, was it suggested that the jury might entertain a reasonable doubt as to the identity of the would-be burglar but, nevertheless, conclude (beyond reasonable doubt) that the appellant could not successfully rely on self-defence in respect of count 2. Accordingly, the applicant had no opportunity to put arguments to the jury as to why it would not reason in that way and to emphasise the extent to which the prosecution case was predicated on a finding that it was the applicant who attempted to break into Mr Buddee's home.
35. In those circumstances, in the absence of much greater clarity and emphasis on the unfairness involved, I accept the applicant's submission that it was a misdirection to direct the jury: "It would be difficult to see, for instance, that a verdict of guilty on count 1 would sit comfortably with a verdict of not guilty on count 2. That said, the reverse may be the case if you find the accused was not guilty on count 1 but acting in a way that did not amount to his reasonable response as he saw it to the encounter with Mr Buddee in count 2. That, however, has not been argued by either party and it is a matter that you may determine is inappropriate to further consider. It is, however, at law strictly open to you to vary the verdicts if you see fit and those matters turn upon you assessment of the facts." (Emphasis added.)
36. This was not a case where the trial judge used "the summing up as a vehicle for strengthening the Prosecution case" or where the remarks were "inconsistent with judicial impartiality". [11] However, the remarks denied the parties "the opportunity either to disavow, or to meet the argument". [12] Placing an accused person in the position that they are unable to meet an argument concerning the basis of criminal liability, because it is raised for the first time in the summing up, can amount to "a most significant area of prejudice". [13]
37. The direction was not legally incorrect and there was no objection taken by counsel for the applicant at trial. It may be, as Basten JA has said, that the trial Judge was required to put count 2 on these alternative bases (depending on the jury's verdict on count 1) because those alternatives arose in a strict legal sense and the charges were to be considered separately. However, in circumstances where the Crown did not advance this basis of liability, it may have been preferable not to introduce the matter at all.
38. However, even accepting that it was appropriate to leave the matter on this alternative basis, it was necessary to provide instructions and warnings beyond reminding the jury that neither party had advanced that basis of liability and that the jury "may determine [that it was] inappropriate to further consider" it. The circumstances required a strong warning. As the applicant submitted in this Court, the judge should have explained why it was inappropriate. Having introduced the matter, it was necessary for the judge to explain that it would be extremely unfair to proceed on that basis because the applicant had no opportunity to meet that case. The judge should have gone so far as to advise the jury that it would be dangerous to convict on this alternative basis of liability in circumstances where the applicant was approached in the street by a man who was agitated and upset.
39. Robinson v R [14] involved a prison murder in which the Crown conducted the case on the basis that the appellant and another specific inmate (a Mr Brazel) entered the victim's cell and killed him. There were witnesses (other inmates) who said this is what had happened and a video tape depicting either one man or two men entering the cell. In the course of the summing up, the trial judge put to the jury that they could convict the accused if satisfied that the accused entered the cell "either on his own or with another". [15] The appellant's complaint was that this invited or allowed the jury to convict on a different factual basis to that upon which the case had been conducted because the Crown case had always been that two men entered the cell, being the accused and Mr Brazel. Johnson J noted that "the Crown maintained consistently a single factual scenario" [16] throughout the trial even though it was possible, as a matter of law, to convict on the different factual basis introduced in the summing up. Adopting the words of the earlier decision in Tran v The Queen, [17] Johnson J observed that the prosecutor had "nailed the Crown's colours to one version of events". [18] His Honour held: [19] "For such a scenario to be advanced, for the first time, by the trial judge in the summing up had a real and substantial tendency to cause unfairness to the Appellant. The jury had not heard the Crown advance these various (and inconsistent scenarios) in its opening or closing addresses. Trial Counsel for the Appellant did not have the opportunity to address the jury upon the basis that the Crown was advancing different and fundamentally inconsistent scenarios in support of its case. The scenarios emerged for the first time through the trial judge in summing up with the added weight and authority attaching to this intervention by a judicial officer."
40. R v Solomon [20] was a murder case where the trial judge left reckless indifference to the jury when that form of intention had not been raised in the course of the trial. A majority of the Court (Street CJ and Moffitt P, Begg J dissenting) held that the trial miscarried even though, as a matter of law and on the facts of that case, it would been open to reach a verdict of guilty to murder on the basis of reckless indifference to human life. Moffitt P observed that the way the matter was raised deprived the accused of the opportunity to address the matter in his address to the jury and that the matter should have been raised before addresses. [21] Even then, it was arguable that the defence had lost the opportunity to cross-examine relevant witnesses on the issue.
41. In King v The Queen [22] the appellant was tried with a co-accused who was alleged to have killed the appellant's wife at the appellant's instigation. As a matter of law, it was open to the jury to reach different verdicts in relation to the two men. However, the prosecution case against the appellant was conducted on the basis that he had procured the co-accused (and not some other person) to commit the murder. The trial miscarried because the judge (at the prosecutor's insistence) directed the jury that it could convict the appellant if it was satisfied that the appellant arranged for somebody to kill his wife. The prosecution had not previously contended for this alternative factual case. The jury acquitted the co-accused but convicted the appellant. The question before the High Court, and upon which it divided 4 to 3, was whether there should be a re-trial; that the trial miscarried was not in contest. As Dawson J put it: [23] "[T]he direction given by the trial judge at the behest of the Crown involved such a change in the course of the trial at such a late stage that inevitably the conviction could not be allowed to stand."
42. There are many cases to similar effect. Johnson J collected a number of them in his Honour's comprehensive judgment in Robinson v R.
43. I have reached the same conclusion in the circumstances of the applicant's case. While the matter was not agitated at trial, I would grant leave under rule 4 to argue these grounds of appeal and would uphold grounds 2 and 3.
44. I agree with the orders proposed by the presiding judge.

Endnotes

1. Summing up, 6 April 2017, p 20.
2. Summing up, p 22.
3. Ibid.
4. Applicant's written submissions, par 20.
5. Tcpt, 05/04/17, pp 119(25)-120(35).
6. Summing up, pp 19-20.
7. Summing up, p 22.
8. Crown further submissions, 17 August 2018, par 20.
9. Crown further submissions, par 21.
10. Dated 10 August 2018.
11. R v Mehar [2004] NSWCCA 355 at [88].
12. R v Mehar [2004] NSWCCA 355 at [88].
13. Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 at [146] citing R v RTB [2002] NSWCCA 104 at [55]-[61]; Mehar at [113]-[116], [130] and Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272 at [49].
14. Robinson v R [2006] NSWCCA 192; 162 A Crim R 88.
15. Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 at [103-104].
16. Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 at [152]-[153].
17. (2000) 105 FCR 182.
18. Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 at [142] citing Tran v The Queen (2000) 105 FCR 182 at [206].
19. Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 at [155].
20. [1980] 1 NSWLR 321.
21. R v Solomon [1980] 1 NSWLR 321 at 335-336.
22. (1986) 161 CLR 423; [1986] HCA 59.
23. King v The Queen (1986) 161 CLR 423; [1986] HCA 59 at [423]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2018