Trevascus v R

Court of Criminal Appeal (NSW)|2020-12-02|Before: McCallum JA, Johnson J, Hulme J, Callum JA

Judgment

McCALLUM JA: I joined in the orders of the Court because I agreed that, in light of the applicant's history of addiction to illicit substances, the bail proposal did not adequately address the risk of committing a serious offence if released. I would not have granted bail to the applicant without a proposal for residential drug rehabilitation.
It is accordingly not necessary to record my opinion as to the prospects of appeal save to say that, while I do not share Johnson J's bleak assessment particularly as to ground (a), I do not disagree with the conclusion that exceptional circumstances have not been shown. I agree with Johnson J and the additional remarks of R A Hulme J as to ground (b).
JOHNSON J: The Applicant, Ryan Trevascus, applied for bail for the purposes of an appeal against conviction and sentence to be heard by the Court of Criminal Appeal on 28 April 2021.
The Applicant's release application was heard by this Court on 2 December 2020. At the conclusion of the hearing, the Court made an order dismissing the release application with reasons for that decision to be published at a later time.

The Trial and Sentence

Following a trial at the Campbelltown District Court before his Honour Judge Colefax SC and a jury, the Applicant was found guilty by the jury on 26 July 2019 of an offence of robbery in company contrary to s.97(1) Crimes Act 1900 and an offence of attempted take and drive a vehicle in circumstances of aggravation (being in company) contrary to ss.154C(2) and 344A(1) Crimes Act 1900.
On 4 March 2020, the Applicant was sentenced to an aggregate term of imprisonment for seven years with a non-parole period of five years and three months commencing on 6 July 2019 and expiring on 5 October 2024 with a balance of term of one year and nine months commencing on 6 October 2024 and expiring on 5 July 2026. The sentencing Judge nominated the following indicative sentences: 1. for the offence of robbery in company - imprisonment for six years; 2. for the offence of attempted take and drive vehicle in circumstances of aggravation (being in company) - imprisonment for six years and six months.

Grounds of Appeal

By Notice of Appeal filed on 9 October 2020, the Applicant challenged his conviction upon a ground which asserts that his Honour erred in the directions given to the jury in that: 1. he failed to properly direct the jury as to the elements of each offence; and 2. he failed to summarise at all the defence case including the submissions made on behalf of the Applicant.
The Applicant acknowledges that he requires leave under Rule 4 Criminal Appeal Rules to rely upon these conviction grounds as no application was made at the trial with respect to these topics.
The Applicant relies upon the following grounds of appeal with respect to sentence: 1. Ground 1 - his Honour breached the principle of totality in wholly accumulating the aggregate sentence upon another sentence. 2. Ground 2 - the sentence imposed was manifestly excessive.

The Release Application

Section 61 Bail Act 2013 provides that a court may hear a bail application for an offence if proceedings for the offence are pending in the court. The Applicant filed a Notice of Appeal with respect to conviction and sentence on 9 October 2020, having earlier filed a Notice of Intention to Appeal on 1 April 2020. That application has been listed for hearing in this Court on 28 April 2021. This Court has jurisdiction to hear the application.
As the Applicant has an appeal against conviction and sentence pending in this Court, the Court is not to grant bail unless it is established that special or exceptional circumstances exist that justify that bail decision: s.22(1) Bail Act 2013. If the Applicant demonstrates special or exceptional circumstances, the Court should apply, as well, the unacceptable risk test under ss.17-19 Bail Act 2013.
In HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141, Hamill J (Bathurst CJ and Bell P agreeing) observed at [24] that s.22 "creates a significant hurdle to an applicant for bail who is pursuing an appeal against a conviction or sentence in proceedings prosecuted on indictment".
The special or exceptional circumstances test in s.22(1) was considered in El-Hilli and Melville v R [2015] NSWCCA 146, where Hamill J (Simpson and Davies JJ agreeing) said at [13]: "Given that the 'special or exceptional' circumstances requirement in s 22 replaces the show cause requirement (where applicable) and the structure of the Bail Act, the same reasoning employed by the Court of Appeal in DPP v Tikomaimaleya supports the following propositions. First, where s 22 is engaged, there are two stages. The applicant must demonstrate that 'special and exceptional circumstances exist justifying the [decision to grant bail]'. Then the Court must apply the 'unacceptable risk test' and do so by application of the exhaustive list of matters set out in s 18. The second proposition is that the same factors and evidence may operate at both stages. Where an applicant establishes special and exceptional circumstances, it is likely that the same material will also succeed in satisfying the unacceptable risk test. However, that cannot be stated as a universal proposition and the bail authority must apply each test in accordance with the terms of the Act. A case may arise where a particular matter qualifies as a 'special or exceptional circumstance' and yet the application of the unacceptable risk test results in the refusal of bail. Such a case is likely to be rare because the 'unacceptable risk' factors are imported in the 'special or exceptional circumstances' requirement by s 22(3)."
Where the strength or merit of an appeal is relied upon in isolation, the Applicant must show more than that the grounds seem arguable and it may be necessary to establish that the appeal is most likely to succeed: Petroulias v R [2010] NSWCCA 95 at [34]; El Khouli v R [2019] NSWCCA 146 at [23]. However, where the merit of the appeal is put forward as part of a combination of factors, the question is whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success: El-Hilli and Melville v R at [29]; El Khouli v R at [27].
Mr McLachlan, counsel for the Applicant, made submissions concerning the special or exceptional circumstances issue primarily upon the basis of the strength of the conviction appeal although relying, as well, upon a combination of factors (T2, 8, 2 December 2020).

The Offences

The Applicant was charged with the subject offences together with a co-offender, Frank McGuiness. Mr McGuiness pleaded guilty to the offences and the Applicant proceeded to trial.
The Applicant's trial commenced on 22 July 2019 and concluded with the return of verdicts of guilty on 26 July 2019.
The facts of the offences for which the Applicant was found guilty were summarised in the sentencing remarks of his Honour Judge Colefax SC in R v McGuiness; R v Trevascus [2020] NSWDC 90 at [10]-[30]: "10 The facts for which you are to be sentenced can be summarised as follows. (As I indicated in a judgment on 26 July 2019, I am satisfied of these facts - insofar as Mr Trevascus is concerned - beyond reasonable doubt following that trial). 11 As at 26 June 2018 each of you was on parole - and each of you had only been on parole for a very short time. 12 On the evening of that day, more specifically at about 8.50pm, Mr David Melia, the owner of an Audi motor vehicle, drove that motor vehicle to a service station in the Sydney suburb of Ruse. 13 When he was at that service station, Mr Melia encountered you, Mr McGuiness. You and he struck up a conversation and, in the course of it, amongst other things, you asked if he would drive you to Leumeah station if you gave him some petrol money. Mr Melia agreed and, in due course, you got into his motor vehicle. 14 But you did not go to the Leumeah station. You made a call on your mobile phone, as a result of which the motor vehicle deviated to an area near the Woodbine McDonald's, where you, Mr Trevascus, were waiting. You got into the motor vehicle with Mr McGuiness and Mr Melia. 15 The three of you then drove around various parts of the Campbelltown area. 16 At one point, the vehicle went to Minto Heights, where it stopped outside a home unit block. You, Mr McGuiness, got out of the car, went into the block, and then, after a few minutes, came out. What you were doing in that home unit block is not expressly stated in the facts, but the only rational inference from all of the material is that some form of drug transaction was taking place. I am not satisfied that Mr Melia knew about what was going on, although he may well have had his suspicions. 17 Mr Trevascus, you were involved in this journey (on your own admission) to obtain cannabis and heroin. 18 In any event, at one point the vehicle ended up near the Woodbine McDonald's and it stopped. Mr Melia no longer wished to involve himself in this tour of the outer south western suburbs of Sydney, and he wanted you both out of that car. 19 You, Mr McGuiness, insisted on being driven further - up some hill which was nearby. But Mr Melia refused to do it. You then became aggressive. Without provocation, you launched a physical attack on this man. You threw multiple punches at his face and at his ribs. You were sitting in the front passenger seat. 20 Whilst Mr Melia was being attacked in this fashion, you, Mr Trevascus, were sitting in the rear passenger's seat behind the driver, but you weren't just sitting there. You were an active participant in this attack. 21 Mr Melia gave evidence of your role at p 14 of the transcript of the trial. Mr Melia gave this evidence to the jury: 'Q. What was he [that is you, Mr Trevascus] doing while you were being hit by the Aboriginal man? A. When the Aboriginal guy had me, he was grabbing on my chain from the back seat, choking me up against the seat while the Aboriginal guy was hitting me. Q. So, when the Aboriginal man was hitting you, the person in the back that introduced to you as Ryan was doing something with your chain? A. Yes, he was trying to tear it off my neck.' Later he gave evidence of how you were choking him. At page 15 he said: 'Q. You said the man from the back of the car who had introduced himself as Ryan had his hands up on your left, the way you've just described? A. Yes. Q. And you could feel something? A. Yeah, I could feel his hands going down, and then ‑ like ‑ he was actually ‑ I couldn't move my head forward because he was pulling on it that hard; and then ‑ while the Aboriginal guy was hitting me.' 22 I accept that evidence beyond reasonable doubt. So that at the very beginning of the assault by Mr McGuiness on Mr Melia, you, Mr Trevascus, were playing an important role in restraining him, in a way that he could not move his head, by a choking mechanism. 23 And whilst Mr Melia was restrained in that way, you, Mr McGuiness, continued to punch him and to call him 'a cunt'. 24 As this was going on, you, Mr McGuiness, grabbed the car key from the centre console of the Audi. That car key also contained Mr Melia's house key. He demanded that his keys be given back to him; and at some point the three of you were outside of that motor vehicle and the struggle continued. 25 Whilst it is true that in this external struggle, you, Mr McGuiness, were the more aggressive participant, you, Mr Trevascus, were present. You made no effort to restrain Mr McGuiness; your presence in and of itself would have intimidated the victim; and you had already significantly contributed to the assault by your choking of the victim in the motor vehicle. It is true that for a time, you ran away; but you returned. 26 Eventually, bystanders intervened and the police were called. Mr Melia was taken to the Campbelltown Hospital. 27 As a result of the assault, Mr Melia sustained an acute fracture of the nasal process of the left maxilla - that is, he had a broken nose. He had a left lower orbital swelling and tenderness - that is, he had a black eye. And he had facial swelling and tenderness. There is no evidence before the Court, however, of any long‑term or permanent injuries. 28 The objective seriousness of the offence of robbery in company - for an offence of its kind - it is a midrange offence. In relation to the attempted aggravated take and drive motor vehicle principal offence for you, Mr Trevascus, it is slightly above a midrange offence for an offence of its kind. 29 Each principal offence is additionally aggravated by the fact that each of you was on parole. 30 And for you, Mr Trevascus, the attempted aggravated take and drive motor vehicle offence is additionally aggravated by the use of violence."

Strength of the Applicant's Grounds of Appeal

It is appropriate to refer concisely to the grounds of appeal for the purpose of undertaking an assessment as to the strength of those grounds in considering the special or exceptional circumstances test in s.22(1) Bail Act 2013. Conviction Ground (a)
Conviction Ground (a) asserts that the trial Judge erred in directions given to the jury in that he failed to properly direct the jury as to the elements of each offence.
The trial commenced on 22 July 2019 with the evidence concluding on 24 July 2019, including evidence from the Applicant in the defence case. The closing addresses and the summing up took place on 25 July 2019.
The trial Judge had prepared a "jury question trail" which was discussed with trial counsel for the Crown and the Applicant prior to closing addresses (T145-147, 25 July 2019) and was settled by his Honour and became MFI8.
The Crown closing address proceeded and was followed immediately by the closing address by trial counsel for the Applicant. His Honour commenced his summing up to the jury immediately after the defence closing address.
His Honour commenced the summing up to the jury with an oral direction concerning the meaning of joint criminal enterprise, which had been emphasised in closing addresses for the Crown and the Applicant as being the real issue in the trial (SU1-4). No issue is taken for the Applicant with respect to those directions.
After giving the jury directions on joint criminal enterprise, his Honour provided in court copies of the "jury question trail" (MFI8) to each member of the jury and invited the jury to retire to the jury room to allow the document to be read by the jurors. His Honour did not read MFI8 to the jury. This approach has given rise to Conviction Ground (a).
His Honour explained his approach to the jury in this way (SU4): "At this point, I am now going to have distributed to you the jury question trail, which has been marked for identification 8 in your absence. Then I will take a short adjournment to let you read it in your jury room. When I started using jury question trails (which is a technique which judges in Australia have learned from our colleagues in New Zealand) I used to get the juries to read them in the jury box; but I could tell that many of them felt uncomfortable with all eyes being on them as they were trying to absorb what was in the document. So I will let you have about ten or so minutes to read it to yourselves in the jury room. Thank you."
When the jury returned to the courtroom, his Honour stated that "If you have any questions about the legal directions I am giving you this afternoon, please do not hesitate to send me a note … If I have not made clear to you what I am trying to say, it is much better that you tell me that and I will try to lift my game" (SU5). Soon after, his Honour said (SU5): "I direct you as to what the law is - and I started to do that in the jury question trail. Although it is in the form of questions, you can see that there are directions in the way it is expressed."
His Honour then concluded his summing up with no complaint being made by trial counsel for the Applicant concerning his Honour's use of MFI8, nor any further direction being sought concerning the contents of MFI8.
The Applicant does not contend that there is any inaccuracy in the directions contained in MFI8 with it being accepted that the contents of the document were accurate.
No question was asked by the jury concerning the contents of MFI8. At the conclusion of the summing up, the jury retired to consider its verdicts at 3.06 pm on 25 July 2019. The jury returned with verdicts of guilty on the following day.
Counsel for the Applicant submitted in this Court that the course adopted by his Honour involved error in that there was a requirement to direct the jury orally concerning the matters contained in MFI8 and that it was not sufficient to leave it to the jurors to read the document themselves in the jury room. In support of this argument, counsel referred to a number of authorities including the decision of this Court in R v Petroff (1980) 2 A Crim R 101 and decisions in other States including R v Bourke [2003] QCA 113, R v Dunn (2006) 94 SASR 177; [2006] SASC 58, R v Muir [2009] SASC 94, R v Burns (2009) 103 SASR 514; [2009] SASC 105, R v Thompson (2008) 21 VR 135; [2008] VSCA 144 and Macaree v State of Western Australia [2011] WASCA 207. Mr McLachlan submitted that his Honour's use of MFI8, in giving directions to the jury, involved error that went to the root of the proceedings so that there was a substantial miscarriage of justice and the proviso should have no application: Lee v R; Tang v R [2015] NSWCCA 157 at [59]-[64].
Counsel for the Applicant acknowledged that s.55B Jury Act 1977 provided for a trial Judge to give a jury directions of law in writing, but he submitted that s.55B did not remove the suggested requirement that oral directions were required to be given to the jury and that it was not sufficient to give written directions to the jury alone in that respect.
The Crown submitted that the course adopted in this trial did not attract any complaint from counsel for the Applicant and that there was no suggestion that MFI8 was inaccurate in any respect. This was a short trial where the use of MFI8 was helpful to the jury with there being no suggestion from the jury or otherwise that the jurors did not understand the contents of the document. The Crown submitted that none of the authorities relied upon by the Applicant involved a provision such as s.55B Jury Act 1977.
The Court is not determining the Applicant's appeal in this judgment. Rather, consideration is being given to the strength of the grounds of appeal for the purpose of applying the special or exceptional circumstances test in s.22(1) Bail Act 2013.
In my view, Conviction Ground (a) is not strong. At the outset, the Applicant requires leave under Rule 4 Criminal Appeal Rules to rely upon the ground. In circumstances where no complaint or application was made at trial by counsel then appearing for the Applicant with respect to MFI8, it is difficult to see that there was any unfairness to the Applicant in the use of MFI8. This was a short trial where the use of written directions was appropriate and accepted by the parties without criticism.
Unlike R v Petroff, where objection was taken by defence counsel to the use of written directions (R v Petroff at 112-113), there was no objection or complaint to the procedure adopted by the trial Judge in the present case.
It might be thought that the decision of this Court in R v Petroff (now 40 years old) and decisions from courts in other States of Australia provide limited assistance on this question given the existence of s.55B Jury Act 1977 which provides expressly for the giving of written directions on law to a jury and the recognition of the value of written directions and question trails in contemporary jury trials. Of course, the present ground does not complain about the use of written directions in this case, but rather the manner in which the trial Judge invited the jury to read the document in the jury room without any further oral direction.
It is not at all clear why the trial Judge took the approach he did with MFI8 in this case. There was no saving in time as the jurors needed to read the document in the jury room in any event. The fact that his Honour's prior experience was that taking the jury through written directions in the jury box may have not proved satisfactory (see [27] above) was no reason to take a different course in this trial. Taking the jury thought the document would allow an opportunity for further oral explanation along the way which would ordinarily serve to assist the jury's comprehension of the document. That would occur in the courtroom and in the presence of the Applicant and counsel so that all could see and hear what happened.
The approach taken by his Honour is not to be encouraged. However, the question is whether Conviction Ground (a) is of such strength that it assists the Applicant in demonstrating special or exceptional circumstances for the purpose of s.22(1) Bail Act 2013. I do not consider that it does.
In reaching this view, I have kept in mind the Applicant's submission that what occurred here involved a defect that went to the root of the proceedings. I have kept in mind, as well, the suggestion that a juror or jurors may not have been able to read or comprehend MFI8. There is no indication in the record of this short trial that such a comprehension problem may have arisen. I have kept in mind the desirability (at the least) that the trial proceed in open court in the presence of the accused person. However, I do not consider that there is a reasonably arguable ground that what occurred here involved error or a failure to comply with the law in a manner which would call for intervention by this Court. The fact that the document was accurate in its content and that no complaint was made by the Applicant at trial serves to fortify this view.
I regard Conviction Ground (a) as not being strong. Whichever approach is adopted concerning the s.22 issue (see [15] above), I do not consider that the Applicant has demonstrated that this ground has reasonable prospects of success let alone that it is most likely to succeed. Conviction Ground (b)
Conviction Ground (b) contends that the trial Judge failed to summarise at all the defence case including the submissions made on behalf of the Applicant.
I have read the transcript of the closing addresses and of the summing up itself. It may be said that the trial Judge's summary of submissions was relatively brief, but that reflected the way in which the trial had been run and the real issue in the trial which concerned joint criminal enterprise. His Honour reminded the jury of aspects of the closing addresses of counsel (SU9-10, 11-14).
As mentioned earlier, the closing addresses of the Crown and counsel for the Applicant had taken place on the same day as his Honour's summing up, which was completed, and with the jury commencing its deliberations that afternoon. Accordingly, the jury had the advantage of hearing both closing addresses immediately before the summing up. It was not necessary for his Honour to provide an elaborate summary of the evidence in this trial: s.161 Criminal Procedure Act 1986. Nor was it necessary for his Honour to recite in detail the arguments of counsel which were still fresh in the minds of the jury.
Importantly, no application was made by trial counsel for the Applicant for the trial Judge to say more to the jury concerning submissions made on behalf of the Applicant (SU16).
Once again, the Applicant requires leave under Rule 4 Criminal Appeal Rules to rely upon this ground of appeal.
For the purpose of the present bail judgment, I express the view that this ground of appeal is not strong. I am not satisfied that it has reasonable prospects of success, let alone that it is most likely to succeed. The Sentence Grounds
The sentence grounds of appeal do not materially advance the bail application in this case.
The Applicant received a substantial sentence of imprisonment. There is no issue in this appeal of the sentence being substantially served before his appeal is heard by this Court in April 2021. Even if there was a measure of success on the sentence appeal, there is no reasonable prospect that any substituted sentence would expire before April 2021.
In these circumstances, I am not satisfied that the Applicant has demonstrated special or exceptional circumstances for the purpose of s.22(1) Bail Act 2013.

Unacceptable Risk

If the matter had reached the point of application of the unacceptable risk test, there are other difficulties confronting the application.
The Crown has raised bail concerns, the foremost of which is the concern that the Applicant would commit a serious offence if admitted to bail: s.17(2)(b) Bail Act 2013. Having regard to the Applicant's criminal history and the evidence of his addiction to prohibited drugs, this would constitute a significant problem for the application if that point had been reached. The bail conditions proposed by the Applicant at present do not include any condition requiring the Applicant to reside at a drug rehabilitation residential program. Although counsel for the Applicant informed the Court of the possibility of a drug rehabilitation residential program being available to the Applicant, he acknowledged that there was no evidence before the Court on that issue at present.
The Applicant has a poor history of compliance with conditional liberty in the community, including breaches of parole and the commission of further serious offences whilst on parole.
Whether consideration of the unacceptable risk test is considered separately or together with the requirement for special or exceptional circumstances under s.22, the significant risk of commission of serious offences if the Applicant was granted bail constituted an impediment to the grant of bail in this case.

Conclusion

The Applicant has not demonstrated special or exceptional circumstances so as to warrant a grant of bail for the purpose of his appeal.
It was for these reasons that I joined in the order made on 2 December 2020 dismissing the release application.
R A HULME J: The reasons provided by Johnson J largely accord with my own for joining in the dismissal of the application at the conclusion of the hearing.
More precisely, I was of the view that the only prospect of leave being granted pursuant to Rule 4 to raise Conviction Ground (a) was, perhaps, to provide the Court with an opportunity to discourage trial judges using written directions in complete substitution for oral directions; particularly where they concern the essential elements of the offences. As Johnson J has observed, it is not as if the procedure adopted here had any benefit of saving time and I cannot conceive of there being anything else useful that was achieved.
Conviction Ground (b) has the appearance of a classic "armchair" approach to the formulation of grounds of appeal by counsel who was not involved in the trial: Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R (2018) 209 A Crim R 424; [2011] NSWCCA 62 at [170] (Johnson J). It appears to be a completely misconceived attempt to establish a miscarriage of justice that no-one at this very short trial was able to perceive.
For these additional reasons, I agreed that the applicant's proposed grounds of appeal against conviction are "not strong".
I note that the applicant did not place any reliance upon his proposed appeal against sentence.

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: 09 December 2020

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