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Supreme Court of Victoria - Court of Appeal |
Last Updated: 8 April 2013
COURT OF APPEAL
S APCR 2012 0103
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WHERE HELD:
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DATE OF HEARING:
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DATE OF JUDGMENT:
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MEDIUM NEUTRAL CITATION:
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[2013] VSCA 60
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Unreported, County Court of Victoria, Judge Dean, 5 March 2012 (date
of conviction)
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CRIMINAL LAW – Conviction – Robbery – Acting in concert – Whether jury verdict unreasonable and/or unsupported having regard to the evidence – ‘Strands in a cable’ case – R v Jensen and Ward [1980] VicRp 24; [1980] VR 194, Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 and Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 applied – Appeal dismissed – No point of principle.
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APPEARANCES:
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Counsel
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Solicitors
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For the Appellant
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Mr T Kassimatis
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Pica Criminal Lawyers
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For the Respondent
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Mr P B Kidd SC
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Mr C Hyland, Solicitor for Public Prosecutions
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The nature of the appeal
1 On 5 March 2012 the appellant was found guilty by a jury of one charge of robbery (maximum 15 years’ imprisonment). He was sentenced to three years’ imprisonment with a non-parole period of 18 months. On 18 September 2012, however, Buchanan JA granted him leave to appeal against conviction. The sole ground of appeal is:
The verdict of the jury was unreasonable and/or cannot be supported having regard to the evidence.Particulars
Upon the whole of the evidence adduced by the Crown, it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt in respect of the charge.
2 Robbery is an aggravated form of theft. Section 75(1) of the Crimes Act 1958 provides:
(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear that he or another person will be then and there subjected to force.
3 In R v Foster[1] the Court said in a joint judgment:
The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person’s resistance and so oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft.
Background
4 The appellant and Richard Michail are friends. On the morning of Monday 25 May 2010 they drove together in a black Holden Monaro to the premises of Lorbek Luxury Cars, the managing director of which is Srecko Lorbek. When they arrived at about 10.30am, Mr Lorbek was attending to a customer in the showroom of his business. Michail approached him. Meanwhile, the appellant remained standing next to the Monaro, which was parked near the roller door in the driveway of the business, adjacent to the showroom.[2]
5 The Crown does not allege that the appellant was an active participant in anything that followed, save that at one point he spoke to Mr Lorbek. The appellant, therefore, was prosecuted only as one who had acted in concert with the principal offender, Richard Michail. But the conclusion that the appellant had acted in concert in this way was one which depended upon the jury drawing the inference for which the Crown contended. And no such inference could be drawn unless the jury were satisfied beyond reasonable doubt that it was the only inference reasonably open. The appellant contends that this was a conclusion to which the jury were not entitled to come. The verdict that he was guilty of robbery must therefore be set aside.
6 Thus the battle lines are drawn. And there can be no doubt that it was open to the jury to conclude, as they did with their verdict that Michail was guilty of robbery, that the behaviour of the latter on the morning of 25 May 2010 was brazenly criminal. The premises at which he and the appellant arrived at 10.30am on that morning were indeed a resort for those with a taste for fine motoring, and the money to pay for the privilege. They housed, among other symbols of success, a Lamborghini variously estimated (its true worth is not of particular relevance) to be valued at somewhere between $200,000 and $500,000.
7 The evidence called by the prosecution, whose principal witness was Srecko Lorbek, was that Michail approached Mr Lorbek, who was attending to a customer in the showroom. The appellant remained outside. Michail said, in effect, that he was looking for Mr Lorbek, and wondered whether the person he was addressing was that man. Mr Lorbek confirmed that he was. Having elicited that response, Michail, apparently disregarding the customer, requested Mr Lorbek’s company for a walk. As an inducement to an affirmative reply, Michail put Mr Lorbek in a headlock. He next forcefully dragged his victim towards the rear of the showroom, where an Audi A4 Wagon was parked. This conveniently provided a hard surface against which Michail could, and did, strike Mr Lorbek’s head and arm. One witness, Dimitrious Mandoulis, who is a car detailer whose premises adjoin those of Mr Lorbek, heard the dealer scream: ‘Why did you do that, why did you hit me?’ Michail’s reponse was: ‘Give me the keys to your Lamborghini’. Mr Lorbek, now freed from the headlock, not surprisingly backed away, moving out of the showroom towards the driveway where the appellant was standing. In a loud, threatening voice Michail told him to stop; but Mr Lorbek, followed by Michail, continued towards the nature strip at the front of the premises. As they passed the appellant, who was still leaning against the Monaro, the appellant said to Lorbek: ‘Stop, he just wants to talk to you, go and talk to him’ and ‘He’s not going to harm you, he just wants to talk to you.’
8 It is clear, if this evidence is truthful, that the appellant was aware that Mr Lorbek felt threatened. There is no other explanation for the appellant’s observation that Michail only wanted to talk to him. Moreover it is likely that the appellant appreciated that Mr Lorbek was not only threatened with violence, but had actually been subjected to it. If Mr Mandoulis, working in adjoining premises, could hear the scream described by him, the appellant, who was just outside the open front entrance to the showroom, could hardly have missed it.
9 The words addressed by the appellant to Mr Lorbek are consistent with the appellant believing that the latter was in fear, albeit that the fear was misplaced. They are also consistent, however, with a belief in the appellant that if Mr Lorbek did as Michail told him to do, he would come to no physical harm. In either case, the words are explicable only if the appellant had a belief about the purpose of his and Michail’s visit to the showroom. What was unfolding did not take the appellant by surprise.
10 By this time, Michail had seemingly become tired of his attempts to enter into meaningful dialogue with Mr Lorbek. Instead, he re-entered the building and yelled at the staff to give him the keys to the Lamborghini. At least one employee got the message. It would be surprising if the appellant, located near the open front entrance, did not also hear that command. The keys being provided, Michail got into the Lamborghini, which was parked in one of the bays just inside the roller door immediately on the other side of which was both the Monaro and the appellant. Meanwhile, Lorbek had followed Michail in his return to the showroom. When he attempted to remove the keys from the ignition, Michail hit his hand away, saying: ‘Do that again and I’ll rip it off and you’ll lose it.’ When Lorbek asked why Michail was taking his car, the latter replied: ‘If you give me $50,000 cash I will leave the car.’ Lorbek declined the offer. Michail then drove off, followed by the appellant in the Monaro.
11 The police were called and the two men were arrested a short time later that morning near a club to which Michail belonged: the Finks motorcycle club in Port Melbourne.
Whether Jury Verdict Unreasonable and/or Not Supported by the Evidence
12 The Crown sought to sustain the charge of robbery by reference to the force used when (as the Crown alleged) Michail hit Mr Lorbek’s head against the Audi, followed a short time later when, accompanying his actions with threats, Michail struck Mr Lorbek’s hand as he attempted to retrieve the car keys. Then, in support of the proposition that the appellant and Michail had formed the necessary understanding or arrangement to commit robbery, the Crown pointed to a number of factors from which that inference could be drawn:
13 The Crown submits that, when taken together with the appellant’s failure to disassociate himself from the events unfolding before him, the only reasonable explanation for his presence at the showroom was that he was acting in concert with Michail to commit robbery.
14 It is said on behalf of the appellant that his conduct at the victim’s premises ‘was entirely passive’. He did no more than lean against the Monaro and say words that could not give rise to or support any inference that he and Michail had an agreement to commit robbery. Neither of the acts of force occurred in the appellant’s presence. A jury, acting reasonably, could not therefore exclude the possibility that the appellant ‘was present, without having formed any agreement with Michail, and was simply waiting for Michail to complete his dealings with Lorbek.’
A reasonable hypothesis consistent with innocence
15 In order for the appellant to be guilty of the offence of robbery, it was necessary for the prosecution to prove that he was party to an agreement, understanding or arrangement with Michail, whether formed expressly or tacitly, that Mr Lorbek would be robbed of the Lamborghini.[3]
16 It is settled law that, when deciding whether an understanding or agreement exists between two or more persons to act in concert, the jury may have regard to inferences drawn from all the surrounding circumstances:
For people to be acting in concert in the commission of crime, their assent to the understanding or arrangement between them need not be expressed by them in words; their actions may be sufficient to convey the message between them that their minds are at one as to what they shall do. The understanding or arrangement need not be of long standing; it may be reached only just before the doing of the act or acts constituting the crime. In deciding whether any understanding or arrangement existed, a jury may draw inferences from all the surrounding circumstances established by the evidence, including the conduct of the persons in question before and after the crime. For the purpose of these rules as to acting in concert a person is present at the scene of the crime even if he remains some distance away, provided that he is there for some purpose designed to facilitate or encourage the actual commission of the crime; for example to assist in the escape of the person or persons who perform the act or acts which constitute the crime.[4]
17 However, where a person does not directly participate in the acts needed to commit the crime, mere presence is insufficient. There must be:
... a degree of complicity, ordinarily exhibited by some participation or preparedness to participate in the principal offence. Presence is only required in order to give reality to the accused’s participation or willingness to participate. The examples of an accused ‘keeping nit’ or waiting in the getaway car (even if never used) are just examples where the complicity is obvious, but the place where the accused is stationed is ordinarily of little consequence, so long as it is in the vicinity and has a practical relevance to the carrying out of the offence.[5]
18 The appellant refers to Martin v Osborne[6] in which the High Court considered the practical application of competing hypotheses when examining whether Mr Osborne was driving an unlicensed commercial passenger vehicle between Melbourne and Ballarat. The majority held that he did. In the words of Evatt J, ‘the hypotheses competing with the hypothesis of reward were not only fantastic in themselves but were quite unsupported by the evidence.’[7] Dixon J held that the alternatives postulated by the appellant were unreasonable and ‘sufficiently negatived by the circumstances of the case’, which combined to make it improbable that Mr Osborne was pursuing a plan for a transport club.[8] In holding to be admissible evidence of what occurred on the days preceding the day the subject of the charge, Dixon J said:
If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.[9]
19 In another case relied on by the appellant, Plomp v The Queen,[10] Dixon CJ revisited these remarks in the context of a circumstantial case put by the Crown that Plomp murdered his wife by drowning. The Court there was concerned with whether evidence going to his motives could be used by the jury when considering whether this hypothesis was made out beyond reasonable doubt, or whether motive could only be used once the jury were satisfied that his physical actions were responsible for her death. Dixon CJ rejected the latter argument and said:
In the present case it appears to me that if the jury weighed all the circumstances they might reasonably conclude that it would put an incredible strain on human experience if Plomp's evident desire to get rid of his wife at that particular juncture, presaged as it was by his talk and actions, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her.[11]
20 Menzies J, writing the leading judgment, cited with approval Barton J in Peacock v The King:[12]
Whether the fact, or that body of facts which is called the ‘case’ is capable of bearing a particular inference, is for the Court, and unless it is so capable, the Court's duty is to withhold it from the jury, as a single fact or as a case. But when the case is undoubtedly capable of the inference of guilt, albeit some other inference or theory be possible, it is for the jury, properly directed, and for them alone, to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds.[13]
His Honour later said:
It follows that the question now is not whether this Court thinks that the only rational hypothesis open upon the evidence was that the applicant drowned his wife. It is rather whether this Court thinks that upon the evidence it was open to the jury to be satisfied beyond reasonable doubt that the death of the deceased was not accidental but was the work of the applicant.[14]
21 Although Menzies J did not think that the evidence going to the circumstances of the drowning alone would have been sufficient to warrant a conviction for murder, when taken with evidence about the applicant’s motives and his behaviour both before and after his wife’s death:
... there was sufficient evidence upon which the jury, fulfilling their duty not to convict unless the inference of guilt was the only inference which they considered that they could rationally draw from the circumstances, could have convicted the applicant.[15]
22 His Honour also observed that the giving of the customary direction ‘where circumstantial evidence is relied upon to prove guilt, that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw’ ‘stems from the more general requirement that guilt must be established beyond reasonable doubt.’[16]
23 The case of Shepherd v The Queen,[17] also referred to by the appellant, was principally concerned with whether or not a jury in a circumstantial ‘strands in a cable’ case may only properly draw an inference of guilt on individual items of evidence which have been proved beyond reasonably doubt. However, more relevantly, reiterating the observations of Menzies J in Plomp, Dawson J said:
The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances ... Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt.[18]
24 Counsel for both the appellant and the respondent accepted that this case properly was characterised as one of ‘strands in a cable’.[19] Some strands may be weaker, and some strands stronger, than others. Ultimately what is important is the strength of the cable when all of the strands are drawn together.
25 I return by this route to some fundamental principles about the role of appellate courts when considering whether or not a jury verdict is unsafe and unsatisfactory. Can it be said that ‘it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt’?[20]
26 Whatever inferences might be drawn about the appellant’s understanding of the purpose of the visit to Lorbek Luxury Motors up until the point that Michail started yelling for the keys to the Lamborghini and then seated himself in the driver’s seat and started the car, it can, I think, be said that a jury could reasonably infer that, from that point onwards, it was clear that Michail intended to appropriate the car. The appellant stood by, and in his failure to dissociate himself, implicitly encouraged the commission of that crime. As demonstrated by the circumstances earlier described, however, this was not a case of ‘mere presence’.
27 In the absence of any evidence to the contrary, and there was none in this case, it is an inescapable inference that when two friends travel together to the premises of a purveyor of fine motor vehicles, they both know the reason for the visit. One may while driving with a friend drop into the local chemist, or baker, or convenience store, without enlightening the friend about the reason for the visit. Not so with premises such as those from which Mr Lorbek operated. It is almost as certain as the rising of the sun that one’s travelling companion would want to know, and would be told, the reason for a visit to a luxury car showroom. Such accords, in the words of Dixon J quoted above, with the ‘common course of human affairs.’ And if the purpose of the visit was to inspect a car with a view to purchase, or to close a deal, or even to inspire dreams, it is highly likely that one’s friend would join in proceeding into the showroom, if not into the office. It is much less likely that the friend would linger close to, but outside, the entrance.
28 Likewise, if the visit was intended to result in the enforced payment of an alleged debt, or the removal of a vehicle in lieu, or the straight-out theft of a vehicle, it is almost certain that the friend and companion would be told. In each of these circumstances the assistance of the companion would be anticipated. And this would be so even if that assistance were not a necessary element in the success of the scheme. The friend might in such circumstances do as the appellant allegedly did: deploy himself in a position from which to keep a weather eye and ear on developments. And if the idea was to remove a vehicle against the wishes of the dealer, and to do so in business hours whether or not the dealer (with or without customers) was in the vicinity, the threat or the actuality of violence was, as the friend must have known, almost inevitable. Those who deal in luxury cars do not as a general rule stand idly by while a non-threatening, non-violent stranger simply drives off with a prize vehicle.
29 In the unlikely event that the accompanying friend was not told that the intention was to drive away with a luxury vehicle without permission, the friend would probably be thunderstruck when the ultra-expensive vehicle departed the showroom with obvious signs of dealer distress preceding and accompanying its
exit. In the real world (a world which juries are invited – indeed required – to embrace) decent, law-abiding people who are the innocent companions of someone who unexpectedly commits an act of brazen criminality, react in a very different way to that displayed by the appellant.
30 In my opinion, it was inevitable that the jury would, on the evidence before them, return a verdict of guilty of robbery against the appellant. The appeal must be dismissed.
PRIEST JA:
31 I agree.
COGHLAN JA:
32 I agree.
HARPER JA:
33 The order of the Court is the appeal be dismissed.
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[1] (1995) 78 A Crim R 517, 522 (NSW CCA). See also R v Butcher [1986] VicRp 3; [1986] VR 37, 47, 50.
[2] The evidence was that the black Monaro was parked where the black Mercedes can be seen in photo 10 in Exhibit 1.
[3] Likiardopoulos v The
Queen [2012] HCA 37; (2012) 291 ALR 1, 6 [19]; Smith, Garcia & Andeevski v The
Queen 
[2012] VSCA 5 
, [82]. See also Huynh v The Queen [2013] HCA 6,
[38].
[4] R v Jensen and Ward [1980] VicRp 24; [1980] VR 194, 201 (Young CJ, McInerney and Newton JJ).
[5] R v Camilleri [2001] VSCA 14; (2001) 119 A Crim R 106, 135 [88] (Phillips CJ and Brooking JA), 139 [105] (Ormiston JA).
[6] [1936] HCA 23; (1936) 55 CLR 367.
[7] Ibid 382-3.
[8] Ibid 378.
[9] Ibid 375.
[10] [1963] HCA 44; (1963) 110 CLR 234.
[11] Ibid 243.
[12] [1911] HCA 66; (1911) 13 CLR 619.
[13] Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 246.
[14] Ibid 247.
[15] Ibid 252.
[16] Ibid 252.
[17] [1990] HCA 56; (1990) 170 CLR 573.
[18] Ibid 578 (citations omitted).
[19] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579.
[20] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596 [113] (Hayne J, Gleeson CJ and Heydon J agreeing); R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]–[40] (Maxwell P). See also R v Nguyen [2010] HCA 38; (2010) 242 CLR 491, 499–500 [33].
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