R v Hickey [2002] NSWCCA 474

Reported Decision : 137 A Crim R 62

New South Wales Court of Criminal Appeal

CITATION : R v Hickey [2002] NSWCCA 474 FILE NUMBER(S) : CCA 060588/02 HEARING DATE(S) : 29/11/02 JUDGMENT DATE : 29 November 2002

PARTIES : Regina v William George Hickey JUDGMENT OF : Spigelman CJ at 63; Sully J at 64; James J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0517 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER :

COUNSEL : DML Woodburne - Crown L Flannery - Appellant SOLICITORS : SE O'Connor - Crown Sydney Regional Aboriginal Corporation Legal Service - Appellant CATCHWORDS : Criminal law - jury question - criminal appeals - Court of Criminal Appeal substitute verdict - Court of Criminal Appeal re-sentencing DECISION : Re-sentenced

IN THE COURT OF CRIMINAL APPEAL 60588/02 Spigelman CJ Sully J James J

Friday 29 November 2002 REGINA v WILLIAM GEORGE HICKEY Judgment 1 SPIGELMAN CJ: I invite James J to deliver the first judgment. 2 JAMES J: William George Hickey has appealed against his conviction, after a trial conducted in March 2000 in the District Court before Ainsley-Wallace DCJ and a jury, on two charges of robbery whilst armed with a dangerous weapon, an offence under s 97(2) of the Crimes Act. The jury returned their verdicts of guilty on 20 March 2000. Earlier that day, while the jury were deliberating, the appellant, who was on bail, had absented himself from the trial. 3 The appellant was at large until he was recaptured in May 2001. In August 2001 Ainsley-Wallace DCJ sentenced the appellant on both of the charges to concurrent terms of imprisonment of five and a half years, with a non-parole period of three and a half years, the sentences to commence from 3 August 2001. 4 On 7 March 2000 the appellant had been indicted with two alleged co-offenders, Dungay and Tuncbilek. Dungay pleaded guilty to charges of robbery simpliciter and the Crown accepted those pleas in full discharge of the indictment. The appellant and Tuncbilek pleaded not guilty to both charges of armed robbery and the trial before Ainsley-Wallace DCJ and a jury was a joint trial of the appellant and Tuncbilek. The jury found Tuncbilek, as well as the appellant, guilty of both charges. 5 The Crown case at the trial was that on 21 May 1999 Dungay, Tuncbilek and the appellant had been parties to a joint criminal enterprise in the execution of which they had robbed Nella Sorbello, the proprietor of a newsagency in Wilga Street, Concord West of a sum of money taken from the till of the newsagency (the first count in the indictment) and Mrs Sorbello's son Gaetano Sorbello of a black bag, colloquially termed a "bum bag", and its contents, (the second count in the indictment). 6 At the trial the Crown called a number of civilian and a number of police witnesses. There was no dispute at the trial that evidence given by the civilian witnesses established the following matters: Earlier in the day, a car owned by a Mrs Davidovic had been stolen. After it was stolen the car had been driven to the vicinity of the newsagency at Concord West. Two men got out of the car, while a third man remained in the driver's seat of the car, with the engine running. The two men who got out of the car entered the newsagency. Inside the newsagency the taller of the two men produced a replica pistol. Mrs Sorbello was robbed of the cash in the till in the newsagency, and Gaetano Sorbello, who had been working just outside the premises of the newsagency but who had entered the premises after his mother had been robbed, was robbed of the bum bag he had been wearing. The two men left the newsagency and rejoined the third man in the stolen vehicle and the stolen vehicle sped off. While he had been working outside the premises of the newsagency, Gaetano Sorbello had observed the two men approaching the newsagency and had asked a neighbouring shopkeeper to call the police. As the car sped away from the newsagency, a young male person, Brent Musgrave, took the registration number of the car. 7 Information about the armed robbery and the car which had been stolen was broadcast on police radio. A number of police officers who were in police vehicles gave evidence at the trial of pursuing, or at least following, the stolen car, which was being driven at high speeds. In Trafalgar Street, Petersham, the stolen vehicle collided with a number of other vehicles and came to a stop. 8 Three men got out of the stolen vehicle and ran. Shortly afterwards the three alleged offenders, Dungay, Tuncbilek and the appellant, were arrested by police in the near vicinity. According to police evidence Tuncbilek and the appellant were arrested, hiding under a demountable building in a railway yard. Police found a replica pistol, cash and a beanie in the stolen vehicle. There was evidence one of the robbers had been wearing a beanie. 9 It was the Crown case at the trial that the three men who had been arrested, Dungay, Tuncbilek and the appellant, were the three men who had been in the stolen car and were the three men who had committed the robberies. According to the Crown case, Dungay had been the driver of the car and Tuncbilek and the appellant had been the two men who entered the newsagency and Tuncbilek was the taller of the two men, who had produced the pistol. 10 The civilian witnesses who had observed the three men, or some of them, gave descriptions of the persons they had seen. None of the witnesses was able to identify any of the accused, when shown videos of a number of men including the accused. 11 At the trial each of the accused gave evidence. The appellant said in his evidence that he was in the area in which he was arrested because he was planning to visit his grandmother who lived at Dulwich Hill, that he had heard sirens and seen police running and that he was then crash tackled from behind. He disputed police evidence that when he was arrested he had been hiding in the railway yard under the demountable building. He explained the presence of about $100 in cash in a sock he was wearing when he was arrested, as being dole money he was carrying in the sock for security reasons. 12 The co-accused Tuncbilek gave evidence that he had been dropped off in the vicinity by his brother-in-law, so that he could visit a Turkish video hire store. He had heard police sirens, then he had seen a man running towards him, holding a gun. Tuncbilek said that he had run up a driveway and had knelt down behind the demountable building, where he was arrested. 13 Before commencing the summing up, the trial judge discussed with counsel, in the absence of the jury, what directions she should give. There was no dissent by counsel from the view expressed by her Honour that she should give directions about joint criminal enterprise. In the course of one of those discussions, the trial judge said to defence counsel: "It probably follows from the way in which you two have conducted the case that there is no dispute, is there, that the car that crashed in Trafalgar Street was the car in which those who committed the robbery had escaped in?" 14 Counsel for Tuncbilek and the appellant agreed there was no dispute about that matter. 15 Her Honour, in summing up, directed the jury as follows: "Each accused is charged with two counts of robbery while being armed with a dangerous weapon. You will know, from listening to the evidence, that the evidence of Mrs Sorbello and her son is that of the two men in the newsagency only one carried a pistol, and yet each of them is charged with robbery whilst being armed with a dangerous weapon. The Crown, in preferring those charges, has relied on what is known as joint criminal enterprise. The law is that when two or more people carry out a joint criminal enterprise each is responsible for the acts of the other in carrying out that enterprise. In order to rely on this principle the Crown must establish both the existence of the joint criminal enterprise and the participation in it by the accused. A joint criminal enterprise exists where two or more people reach an understanding or an arrangement which amounts to an agreement between them that they will commit a crime. This understanding or arrangement need not be expressed, that means it need not be in words spoken between them, and its existence may be inferred or concluded from all of the surrounding circumstances. The agreement need not be reached before the crime is committed. In other words accused people need not say well let's go and commit a crime, it can be unexpressed in words and the agreement can be reached almost instantaneously with the commission of the crime. It does not have to be before the crime is committed. The circumstances in which two or more people are participating together in the commission of the crime may themselves establish an unspoken understanding or arrangement between them then and there to commit a crime. A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time that the crime is committed and with the knowledge that the crime is to be or is being committed, by intentionally assisting or encouraging another person in the joint criminal enterprise to commit the crime. The presence of that person at the time when the crime is committed, and a readiness to give aid if required, is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. If the agreed crime is committed by one or other of the participants in that joint criminal enterprise all of he participants are equally guilty of the crime regardless of the part played by each of them in the commission of the crime. Just to give you an example which I hope might clarify it a wee bit. In the circumstances of this case you will remember the evidence of Mr Evans and Mr Musgrave of seeing a car parked around the corner in Wilga Street and Mr Musgrave said the engine was running and the driver remained in the car, and that two men walked up Concord Road and went into the newsagent and Mr Musgrave said one of them as he got out of the car was pulling on gloves, and Mrs Sorbello said that these two men robbed her and her son in the newsagent and then they left in the car which was around the corner with its engine running. There was no dispute about that evidence and if you accept it you might think that this reflected some degree of planning between the three men in the car about how the robbery of the newsagency was to take place. If you found that there was an agreement between those three men to rob the newsagent, and as part of that agreement they reasonably contemplated that the replica pistol would be used, then each of them would be guilty of robbery while being armed with a dangerous weapon even though the person who waited in the car, while the others committed the robbery, was merely sitting in the car. That is in essence what is meant by a joint criminal enterprise. Of course you understand that in this case there is no dispute that there was a robbery of Nella and Getano Sorbello by three men. That is the dispute in this case". 16 The trial judge gave the jury some written directions which were confined to stating the elements of the offence of robbery. At the conclusion of her directions on the elements of the offence charged, the trial judge said to the jury: "As I said the dispute is whether the accused was a man who robbed Mrs Sorbello and her son, that is the issue." 17 At the end of the summing up the trial judge asked whether there was anything arising from her summing up and was assured by both counsel for the accused that they did not seek any further direction. 18 There are two grounds of appeal against conviction which are: "(i) The delay in responding to the jury's question and the failure to answer it caused a miscarriage of justice, (ii) As the evidence was insufficient to distinguish between the driver and the shorter robber (said by the Crown to be the appellant) the trial miscarried because the judge failed to direct the jury about common purpose and failed to deal with the evidence on the issue". 19 I will deal with these two grounds of appeal in turn. 20 As to the first ground of appeal, it is necessary to set out in some detail some events which happened during the jury's retirement. The jury commenced deliberating soon after ten o'clock on Friday 17 March 2000. Some time on 17 March the jury requested that they be provided with copies of the transcripts of the evidence of a number of the Crown witnesses and I would infer the jury were supplied with the transcripts requested. 21 On the afternoon of Friday 17 March the jury sent a note to the trial judge to the effect that they had not yet reached verdicts and one juror needed to leave at four o'clock and requesting to be permitted to resume deliberating on Monday 20 March. Her Honour permitted the jury to separate. 22 The jury recommenced deliberating on the morning of Monday 20 March. At a time on 20 March which is not recorded in the transcript, the trial judge informed the legal representatives of the parties, in the absence of the jury, that she had received two questions from the jury. These questions were: "Can we have a copy of the judge's directions given on Thursday 16 March 2000. If the facts presented do not support the proposed scenario but we find that the facts support a variation of the scenario is there any point of law preventing a conviction, if the end result of both scenarios is the same?" 23 At the time when the trial judge read these questions in court, the appellant, who was still on bail, was not present. Counsel who had appeared for the appellant at the trial was also not present, the appellant being represented by a solicitor. The trial judge said that she would defer dealing with the questions until the appellant was present. 24 After a short adjournment the Court reconvened, in the absence of the jury. The appellant was now present. The appellant's solicitor informed the Court that the appellant had been late in arriving at court, because he had taken his wife to the Aboriginal Medical Service in Redfern because of complications with her pregnancy. The solicitor also informed the Court that the appellant's counsel would not be arriving at the Court until two o'clock that afternoon. 25 The trial judge proposed, and the legal representatives of the parties agreed, that the jury should be asked to clarify each of the questions they had asked. The jury were brought into the courtroom. As to the request to have a copy of the directions the judge had given on the previous Thursday, her Honour said: "There was a lot that I said to you in the directions, and what I think I will ask you to do is retire to the jury room and just focus on what in particular you want to be redirected about, what area or areas that you particularly want me to direct you again on." 26 As to the other question, the trial judge asked the jury to clarify the question, because, her Honour said, she was not entirely sure what the jury were seeking clarification on. The jury then returned to the jury room. 27 After a short adjournment the Court reconvened again, in the absence of the jury. The appellant was not present. The trial judge wondered whether the appellant might have gone again to the Aboriginal Medical Service. The appellant's solicitor requested that he be given until two o'clock to make inquiries as to the appellant's whereabouts. The solicitor said: "I am not sure if he has done a runner or whether he has gone with his wife again to the Aboriginal Medical Service." 28 The trial judge read aloud a further question she had received from the jury which was: "Can the judge please explain joint criminal enterprise?" Her Honour added, "that's all they want"; and she replied, "yes", when asked by the appellant's solicitor, "that's the question in relation to both initial questions?" Her Honour proposed that she answer the question by giving "the joint criminal enterprise direction" and a direction about the necessity of determining the case on the evidence and adding: "they can only convict the accused if they are satisfied beyond reasonable doubt that the accused were two of the men who robbed the Sorbellos." 29 Neither counsel for Tuncbilek nor counsel for the appellant asked that any further direction be given to the jury. The trial judge decided to defer answering the jury's question and had a message sent to the jury that she had been detained unexpectedly and it would be a while before she could get back to them. 30 After a further short adjournment, the appellant's solicitor reported to the Court that he had been unable to ascertain the whereabouts of the appellant and he asked that the matter stand over to two o'clock that afternoon. The trial judge granted the application and had the sheriff's officer inform the jury that she was dealing with another matter. 31 The Court reconvened at two o'clock. The appellant's counsel was now present but the appellant himself was not present. The trial judge said: "I cannot be satisfied at this moment that he has deliberately absented himself." Her Honour proposed standing over the trial to ten o'clock the following morning and said: "What I do not want to do is bring the jury in (that is, into the courtroom) because Mr Hickey's absence will be obvious." 32 The expedient of answering the jury's question in writing, without the jury being brought into the courtroom, was raised but discarded. Her Honour then said that she would stand over the trial to ten o'clock the following morning. She further said: "What I don't want to do is bring the jury in because Mr Hickey's absence will be obvious. And Madam Crown I note for the record your concerns and your application was, I expect, that the trial continue but on consideration of the fact that there was a legitimate, if I can say a legitimate reason for his not being here this morning I couldn't approach the state of satisfaction that I need to be. But I note for the record your concerns and submissions that you made earlier. What I will do is stand it over to 10 o'clock tomorrow morning. I will ask the officer to convey to the jury that because of a procedural matter that was entirely beyond our control the trial can't go on today, I can't give them any further directions, I can't do anything on the trial today for matters out of our control. Apologise for the delay to the jurors and say that I would ask them to come back tomorrow morning at 9.30 to something at 10. I think that's probably the best way of couching the dilemma unless you want to be heard otherwise?' 33 Counsel for the appellant agreed with this course. 34 The trial judge then received a further note from the jury which she summarised by saying to the legal representatives of the parties: "three of the jurors do not want to come back tomorrow." The trial judge added that a sheriff's officer had asked the jurors to put in writing why they did not want to come back the following day. Her Honour added that, as a matter of courtesy, the lawyers should remain at the Court to await the statements from the jurors. 35 The trial judge then received a further note from the jury: "After further discussion we have now reached a verdict." 36 The trial judge, with concurrence of all counsel, held that she was obliged to take the verdicts the jury had reached and the jury returned their verdicts of guilty. 37 On this appeal counsel for the appellant submitted that the delay in answering the jury's revised question and the failure to answer it and the circumstances in which the jury had returned their verdicts had caused a miscarriage of justice. 38 As counsel stated, the verdicts of guilty had been returned when the question, "Can the judge please explain joint criminal enterprise" which had been asked by the jury, remained unanswered by the trial judge. This question asked the trial judge to explain the principles of law which formed the basis of the Crown case against the appellant that he was criminally liable for the offence of robbery whilst armed with a dangerous weapon, as having been a party to a joint criminal enterprise to commit such an aggravated robbery. 39 The jury had asked the question in response to a request from the trial judge that they clarify two earlier questions, one of which suggested that the jury had doubts about "the scenario" which had been advanced by the Crown at the trial. The two initial questions asked by the jury and then the question by way of clarification had remained unanswered for a considerable time. 40 The verdicts of guilty had then been returned, shortly after the jury had been told the trial would be stood over to the following day, three members of the jury had indicated they did not want to come back the following day and the jurors had been asked to give reasons in writing why they did not want to come back the following day. 41 Counsel for the Crown submitted that, if the question had been answered, the trial judge would have repeated the directions on joint criminal enterprise she had already given to the jury in the summing up. It was submitted that the directions on joint criminal enterprise the judge had given the jury were sufficient and had not been subject to any application for a re-direction and the repeating of those directions would have been a sufficient answer to the question. 42 It was submitted by the Crown that if the jury, in response to the question, had been directed again in accordance with the original directions on joint criminal enterprise, then, even if the jury had some doubts about the scenario advanced by the Crown, for example, even if the jury thought it was reasonably possible that the appellant had been the driver and not the shorter of the two men who had entered the newsagency, the jury would nevertheless still have inevitably convicted the appellant. 43 It was submitted that the directions given by the judge on joint criminal enterprise were not critical to the determination by the jury of the question which the trial judge had directed the jury, and which counsel for the appellant had agreed, was the real issue for the jury, that is, whether the two accused were two of the three men who had participated in the robbery. 44 Counsel for the Crown made the obvious point that the delay in answering the question and the ultimate failure to answer the question were due to the appellant's own act, as an accused person who had been granted bail, of absconding from his trial and her Honour's desire, in the interests of the appellant, to ensure it was not revealed to the jury that the appellant had absconded. 45 Having summarised the submissions of counsel, I will proceed to determine the first ground of appeal. 46 The question which had been asked by the jury should have been answered by the trial judge, before the jury returned any verdict. In the present case the trial judge was confronted with a difficult situation, brought about by the appellant's own fault in absconding from the trial while on bail. The trial judge delayed answering the question out of a desire, in the interests of the appellant, not to bring to the jury's notice that the appellant had absented himself from the trial. 47 Although any question asked by a jury should be answered before the jury returns a verdict, it does not necessarily follow that a verdict given by a jury while a question asked by it remains unanswered, involves a miscarriage of justice (R v TAB (2002) NSWCCA 274). 48 However, in the present case I consider that the combination of events relied on by counsel for the appellant, that is, the delay in answering the questions, the failure to answer the question asked by way of clarification of the earlier questions and the return of a verdict only minutes after members of the jury had been asked to state in writing why they did not want to come back the following day and resume their deliberations then, produces the consequence that the verdicts of guilty involve a miscarriage of justice. 49 The question asked by the jury asked the trial judge to explain joint criminal enterprise, that is, to explain to the jury principles of law. The question had been asked, because the jury had been asked by the trial judge to clarify two earlier questions, one of which had asked for a copy of directions the judge had given in her summing up and the other of which would suggest that the jury had doubts about the view of the facts advanced by the Crown. 50 It would appear from the latter of the two earlier questions asked by the jury that the jury thought it was reasonably possible that the appellant, even if he was one of the three men, had not been one of the two men who had entered the newsagency but had been the driver. There was some evidence tending to show that the appellant had been one of the two men who had entered the newsagency. On the other hand, there was also some evidence which could be regarded as showing that it was reasonably possible that the appellant had been the driver. For example, evidence was given that the shorter of the two men who had entered the newsagency had been wearing a track suit, whereas the appellant, when he was arrested, was wearing shorts. There was also evidence given by the police officer who had arrested the man Dungay, that Dungay, while being chased, had thrown certain items under a stationary car and the nature of those items could tend to suggest that Dungay had been one of the persons who had entered the newsagency, rather than merely the driver. 51 It would seem to me there is a real possibility that the jury thought it was reasonably possible that the appellant had been the driver. In those circumstances, it seems to me that the directions given by the trial judge about joint criminal enterprise on charges of robbery whilst armed with a dangerous weapon, even if initially sufficient, should have been expanded in any answer given by the trial judge to the question asked by the jury requiring that joint criminal enterprise be explained. In any event, what her Honour said in her summing up about the criminal liability of the driver should not have been expressed as being "an example". 52 On the afternoon of 20 March, the two initial questions asked by the jury not having been answered and the question by way of clarification having remained unanswered for a period which cannot be determined but which could well have been a couple of hours, the jury were then informed that the trial would be stood over to the following day. Three members of the jury indicated that they did not want to come back the following day and the jurors were asked to state in writing why they did not want to come back the following day. Within what must have been only a few minutes the jury returned their verdicts of guilty. 53 In my opinion the first ground of appeal should be allowed. I would also allow the second ground of appeal on the basis that, even if the directions originally given by the trial judge in her summing up were sufficient, they were no longer sufficient in the light of the questions asked by the jury 54 It was conceded by counsel for the appellant, both in written submissions and orally before the Court, that, if either ground of appeal was upheld, this Court, instead of allowing the appeal against conviction, should, pursuant to s 7(2) of the Criminal Appeal Act, substitute, for the verdicts of guilty of armed robbery found by the jury, verdicts of guilty of robbery simpliciter, that is verdicts of guilty of offences under s 94 of the Crimes Act. 55 In my opinion, the conditions for the operation of s 7(2) of the Criminal Appeal Act are satisfied, including that the jury must have been satisfied of facts which proved the appellant guilty of two offences of robbery, and this Court should, instead of allowing the appeal, substitute for the verdicts found by the jury two verdicts of guilty of robbery. 56 Section 7(2) of the Criminal Appeal Act goes on to provide that the Court of Criminal Appeal, having entered a substituted verdict, should pass such sentence in substitution for the sentence passed at the trial as may be warranted in law, not being a sentence of greater severity. Accordingly, this Court should proceed to sentence the appellant for the two offences of robbery. 57 I have already referred to the objective facts of the robberies. It is, of course, necessary to keep in mind that the appellant is being sentenced by this Court for two offences of robbery and not two offences of robbery whilst armed with a dangerous weapon. 58 Ainslie-Wallace DCJ in her remarks on sentence referred to the subjective circumstances of the appellant. She noted that he had been born on 16 March 1973 and that the appellant has an extensive criminal history, which commenced when he was a child. 59 In May 1997 the appellant was convicted of armed robbery and he was serving the additional term of the sentence imposed for that armed robbery, when he committed the present offences. That he committed the present offences while serving the additional term of another sentence is, of course, a serious matter of aggravation. 60 In her remarks on sentence Ainslie-Wallace DCJ referred to a pre-sentence report which stated that the appellant had had a disrupted childhood and that his parents had separated when he was very young, due to his father's violence and alcoholism. 61 At the same time as Ainslie-Wallace DCJ sentenced the appellant she also sentenced the co-offender Tuncbilek. In her Honour's remarks on sentence she attempted to make some comparison between the cases of the appellant and Tuncbilek. However, there were significant differences between the cases of the appellant and Tuncbilek, which made any comparison between them difficult. Tuncbilek was sentenced by her Honour for the two offences of aggravated robbery, on the basis that he was the offender who had actually threatened the two victims with the pistol. In sentencing Tuncbilek for these two armed robberies her Honour took into account other armed robberies committed by Tuncbilek in which the appellant had not participated. A subjective circumstance peculiar to Tuncbilek was that her Honour found that he had an intellectual disability. Any comparison by this Court of the cases of Tuncbilek and the appellant is made even more difficult for the reason that this Court is now sentencing the appellant simply for two offences of robbery. 62 Her Honour had earlier sentenced Dungay. Dungay was sentenced by her Honour for two offences of robbery, on the basis that he had been the driver of the car. Although the offences for which this Court is now sentencing the appellant are the same as the offences for which Ainslie-Wallace DCJ sentenced Dungay, there are significant differences between the cases of the appellant and Dungay such as to make any comparison between them difficult. Dungay had pleaded guilty and there were differences between his subjective circumstances and those of the appellant. 63 Taking into account the objective facts of the offences of robbery for which the appellant is to be sentenced and taking into account his subjective circumstances and having regard to the sentences passed on the co-offenders, I would propose that for each of the two offences of robbery the appellant be sentenced to terms of imprisonment of three years, commencing today 29 November 2002, that the sentences be served concurrently with each other and that the Court make a parole order to take effect at the expiration of two years so that the appellant would be released on 28 November 2004. Like Ainslie-Wallace DCJ I would be prepared to find special circumstances in the appellant's need for a significant period of support after he is released from prison. 64 SPIGELMAN CJ: I agree with his Honour's reasons and the orders proposed. I will pronounce the orders of the Court in a moment. 65 SULLY J: I too agree. 66 SPIGELMAN CJ: The orders of the Court are: