R v Fuge

HEYDON JA: I agree with Wood CJ at CL. In particular, I agree with his observations at [40]-[45].

The first ground of appeal rested on the proposition that a person who claims to be owed arrears of wages after being dismissed by an employer has a defence to a charge of robbing the employer of cash not exceeding the claimed arrears. By the light of nature that is an astonishing proposition. There are, however, statements in other intermediate courts of appeal which justify it. Those statements call for reconsideration by this Court in a suitable case, there being no High Court decision preventing that course. It is not necessary for the decision of this case to give them reconsideration on this occasion.

WOOD CJ AT CL: The appellant was, on 25 October 2000, found guilty at trial of being an accessory before the fact to an offence committed by RB and John Pohl of assault with intent to rob while armed with an offensive weapon. She now appeals against that conviction.

It was the Crown case that, on Sunday 27 September 1998, a number of young persons including Pohl, RB, as well as Justin McFaddyen, Shane Kinlyside and a person named “Josh” gathered at the appellant’s home in order to watch the Rugby League Grand Final on TV. During the afternoon, some beer and cannabis were consumed. At one point, Kinlyside drove some of the group out to Greenhills to buy some fast food.

A little while later the group went out to the Woodbury estate in Kinlyside’s vehicle for a spot of what they termed “rallying” - an activity apparently involving driving the vehicle at speed around the motor cross track at this location. Upon their return to the appellant’s house, RB raised the topic of carrying out a robbery at the Hungry Jacks restaurant at Maitland. She had previously been an employee of this restaurant but had recently been dismissed for lateness.

The group, comprising the appellant, Pohl, RB, Kinleyside and McFaddyen then decided to go out to look for a car which they could steal in order to commit the robbery. For this purpose, a key to a Toyota was taken with them, in the belief that it might be used to gain entry to and start such a vehicle. It was the Crown case, based on the evidence of Pohl and McFaddyen, that this key was supplied by the appellant.

A possible vehicle was located at East Maitland. Pohl and RB managed to get into the vehicle which was unlocked, but they were unable to start it with the key which they had. They returned to the appellant’s house.

While there, Pohl and RB obtained a bandanna and some black stockings to wear over their faces, and RB changed into some green army pants. They also obtained two knives, one with a brown handle and one with a black handle. It was the Crown case, based upon the evidence of Pohl, that the appellant supplied the bandanna and stockings. It was also its case, based on the evidence of McFaddyen, that the appellant encouraged Pohl and RB to hurry up and leave the house before it was too late to get back to the restaurant. This witness similarly said that the appellant gave a knife to RB, and that she put the stocking over her face at one stage and asked if anyone could see her through it.

The group, including the appellant, set off again and completed a drive past of the restaurant. RB noticed that Sally Cox was on duty as the manager. After driving back to the restaurant Pohl and RB were dropped off. Arrangements were made for them to meet up with the rest of the group near Maitland hospital.

Pohl and RB found the premises to be locked, with Ms Cox and two younger employees inside cleaning up. They waited until these three left the premises. When they did they were stopped at knifepoint. Ms Cox was taken inside by RB and asked to open the safe. She was unable to do so as the combination had recently been changed, and she did not know the new combination. Eventually Pohl and RB left the premises and made their way to Maitland Hospital, where they abandoned the knives and the tops which they were wearing. Pohl lost the bandanna while running from the restaurant.

In the meantime, the Kinlyside group had given up waiting for them to return and drove home. Soon after arriving there they received a telephone call from RB asking that they be picked up. Kinlyside and McFaddyen then drove back for that purpose. It was the Crown case, based upon the evidence of RB and Kinlyside, that, after the failed robbery, it was the appellant to whom they spoke and who asked Kinlyside to collect them.

Each of Pohl, RB, Kinlyside was charged with, and pleaded guilty to, robbery being armed with an offensive weapon. McFaddyen had not been charged, at least by the time at which he gave evidence.

All four persons were called in the Crown case, and although there were a number of differences in detail between them, particularly on the part of RB, who was somewhat vague in her recollection as to how and where the bandanna, the pants and the knives were obtained, the central facts were described in the way in which I have summarised them.

The appellant did not give evidence at her trial. Her mother did, however, give evidence, in the course of which she said that the keys to the Toyota could not have been those belonging to her car, as she had them with her; that while the brown knife was hers, the black knife was not hers; and that she had never seen the appellant with any stockings or with a blue bandanna.

The sole issue in the trial, upon which the evidence, the addresses and the summing up concentrated, was whether the appellant had actively assisted or encouraged RB and Pohl in the commission of the offence. Although, at an early stage of the summing up, there was a reference to active and passive assistance upon her part, passive assistance was later withdrawn. It was also made clear that mere knowledge by her of the plan of the others to commit the offence, and mere presence in the motor vehicle, without more, would not be sufficient to constitute her an aider and abettor.

Three wo grounds of appeal have been raised (two of which are related):

The sole basis for this submission rests in the following passage in the evidence in chief of Pohl:

Subsequently, in cross examination, Pohl acknowledged that he could only speak for himself as to whether the suggestion had been taken as a joke. It was also inferentially raised in the cross examination of McFaddyen as follows:

Otherwise, there was no further mention in the trial, either in the evidence or in the addresses, or in the summing up, of the motive for the planned robbery having possibly been based upon a claim of right on the part of RB. In particular, no question was put to her, when she gave evidence, to suggest that she had maintained or expressed any such belief, or that there was any identification of a specific sum of money to which she was entitled and which would be taken from the restaurant. There was similarly no suggestion whatsoever in the ERISP, of the appellant, of any claim of right being asserted, or of which she had been aware. Such account as she gave to police was one of a denial of any knowledge of a planned robbery, or of any participation on her part in providing assistance to Pohl or RB .

Counsel for the appellant at trial has now sworn an affidavit to the effect that while “aware that a question of a claim of right arose in the Crown case”, she had not thought of asking for a direction in relation to it.

In these circumstances the appellant requires leave under r 4 of the Criminal Appeal Rules to argue this ground, as she does in relation to the second ground, in respect of which, again, no direction was sought at trial.

In an appropriate case, the existence of a claim of right is relevant to the commission of the foundational offence. In the present case, had Pohl and RB held a bona fide belief that Hungry Jack’s owed her a sum of money, then the taking of that sum of money from the restaurant, in circumstances which otherwise would have involved robbery would not have constituted an offence on their part. The reason for that lies in the absence of the mens rea which is an essential element of the offence: Walden v Hensler (1987) 163 CLR 561 at 569, 603 and 608.

The same principle applies to any crime of which larceny is an element, and it extends to any person who takes the property on behalf of another, or in collaboration with another, whom he believes to have a bona fide claim of right to the money or property in question: Sanders 57 SASR 102 at 105, per King CJ.

A review of the authorities shows that:

In applying these principles to the present case, it is correct that a direction would have been required had there been an issue sufficiently raised by the evidence, as to whether RB had a bona fide belief as to a claim of right to moneys owing to her by Hungry Jack’s.

The obligation of the trial Judge to have given such a direction would have continued even though counsel had overlooked requesting it, or had deliberately refrained from seeking it out of concern that it may disadvantage a case of outright denial of any knowledge of, or complicity in a planned robbery: Pemble (1971) 124 CLR 118 at 130; and Stokes v Difford at 32.

I am not, however, persuaded that the issue was sufficiently raised by the evidence, in circumstances where:

In all of these circumstances, I am not persuaded that there was any risk of a miscarriage of justice going to the root of the proceedings, by reason of the absence of the direction which, it is now submitted, should have been given: Tripodina (1988) 35 A Crim R 183. Rather, the case is one where it appears to me, not only from the affidavit of counsel, but from the entirety of the evidence, that the point now sought to be taken was of no importance, and should not be permitted to be ventilated. I would, accordingly, refuse leave under r4 of the Criminal Appeal Rules 1952 to argue this ground.

The submissions advanced in this respect combine two grounds of appeal in relation to that portion of the summing up which dealt with the evidence of Pohl, where his Honour said:

It was accepted that the defence had put to Pohl in cross examination, and later to the jury, that he had possessed a motive to lie, so as to receive favourable treatment when he was sentenced. It was also accepted that there was an evidentiary basis for counsel to challenge the veracity of Pohl as an accomplice.

It was submitted that, consistently with the decision of this court in Jovanovic (1997) 42 NSWLR 520, and the decision of the High Court in Palmer (1998) 72 ALJR 254, the jury should, additionally, have been instructed that the defence had no onus to prove that Pohl had a motive to lie, and further that, if they rejected the suggested motive, then they should not infer from such circumstance that the witness had been telling the truth.

The kind of direction considered in Jovanovic and Palmer has particular significance in cases of sexual assault, where the motive to lie is related to the complaint. In the present case, the comment was confined to one witness. There were other witnesses who, subject to some differences in detail, had given a similar version in which the appellant had been described as an active participant in the events leading up to the planned robbery of the restaurant. No direct question had been put to them, to suggest any current motive to lie to the jury, and it would appear that no point to that effect was made by defence counsel in his address.

Even such a submission was in fact advanced, then it would seem that it was not taken up by the Crown or by his Honour. Although it was suggested that there was a risk of the jury applying the prohibited motive line of reasoning to those witnesses, I am unable to see any basis for that when his Honour confined his observation to a reminder of the submission put by the Crown and confined it to Pohl.

In those cases where an inadequate or inappropriate direction in relation to a motive to lie has given an appellate Court cause to intervene, it can be seen that the prohibited question has been left in a way giving the matter prominence as a “central theme or issue” see F (1995) 83 A Crim R 502 at 15-16; Rodriguez (1997) 93 A Crim R 535 at 541, 544, and 549; or endorsing its legitimacy or otherwise describing it as an “appropriate” or a “reasonable” or a “proper” question to ponder; see E (1996) 39 NSWLR 450 at 454 and 467; Rodriguez at 542 andJovanovic at 538.

This was not such a case, and I can see no error in the somewhat brief observation made by his Honour, particularly where a strong warning had been given in relation to accomplice evidence. The suggested deficiency, in the present case, was concerned more with the absence of the additional directions of which mention was made by Hunt CJ at CL in Uhrig NSW CCA October 1996:

While there are cases where it is appropriate for the additional caution to be given, it is not inevitably the case that its omission will give rise to a miscarriage of justice. In Smith 2000 NSW CCA 468, I had occasion to observe, in relation to this passage in his Honour’s judgment:

In the present case, his Honour gave a very clear direction concerning the absence of any onus of proof on the part of the appellant , in the following terms:

As in Smith, I am unpersuaded that it was necessary for his Honour to have gone on to give the further directions which it is now suggested should have been given. Each case must be considered in its own setting, and some regard needs to be given to the impression of trial counsel as to what was required. That she saw no need for any further direction, in relation to a matter which had not been highlighted, or given any weight by his Honour beyond summarising the competing submissions of counsel, is in my view of some importance.

In the circumstances outlined, I do not believe that the jury were left in a position where there was any real possibility of their considering that there had been any reversal of the onus of proof in relation to the existence of a motive in Pohl to lie, or that they were invited to do any more than to consider the argument which the Crown had put in response to the defence submission that he was lying because he had an interest to do so. Put in the limited way noted earlier, there was not, to my mind, an implicit invitation to embark upon the prohibited line of reasoning identified in Jovanovic and Palmer. I would accordingly refuse leave under r 4 to argue these further grounds.

Before parting from this appeal, I wish to add that it appears to have been a classic example of an ‘armchair appeal’, in which counsel not involved in the trial has gone through the record in minute detail looking for error, without reference to the manner in which the trial was conducted. That has particular application in relation to Ground 1, which depended upon a throw away line from one witness, which was entirely unexpected, which was not taken up again, and which represented something which the witness had not himself taken seriously, or regarded the others to have taken seriously.

It is timely for this Court to repeat the observations of Hunt CJ at CL in Abusafiah (1991) 24 NSWLR 531, and of Gleeson CJ in Sanderson NSWCCA 18 July 1994, in relation to the positive obligation which rests upon trial counsel to assist the Court in the conduct of a trial, and in relation to the need to give meaning to rule 4, whose validity was confirmed in EspositoNSWCCA 23 July 1990.

In Abusafiah, Hunt CJ at CL said (at 536):

The caution given by Gleeson CJ in Sanderson was to the following effect:

More recently, Dunford J in Mahoney (2000) 114 A Crim R 130, with whom Stein JA and Sperling J agreed, had occasion to cite these passages with approval, while in DH (2000) NSW CCA 360, Stein JA with whom Smart and Ireland AJJ agreed observed (at para 115):

The approach which his Honour indicated should be taken to rule 4, accords with that adopted by McHugh J in Papakosmas (1999) 196 CLR 297 where his Honour said at 319:

It is by reference to these principles that I have considered whether the present case was appropriate for leave to be granted to the appellant to argue the grounds which were sought to be raised.

It is because I am unpersuaded that there was any risk of miscarriage of justice arising that I would refuse leave to argue any of them. I would accordingly propose that the appeal be dismissed.

SULLY J: I agree with the orders proposed by Wood CJ at CL and with his Honour’s reasons for those orders.

I have had the benefit of seeing in advance the judgment of Heydon JA. I wish to express my complete agreement with what his Honour says in the second paragraph of his judgment. I would add only this: that in my opinion the absurdity to which his Honour draws attention is such that, rather than abide the event of a consideration of the matter by the High Court of Australia, it ought to be recommended that consideration be given in the appropriate quarters to prompt and specific legislative correction.