Abdallah v R

[2016] NSWCCA 34

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Abdallah v R [2016] NSWCCA 34
Hearing dates:	25 November 2015
Decision date:	09 March 2016
Before:	Meagher JA; R A Hulme J; Bellew J
Decision:	1.   Appeal against conviction dismissed.  2.   Leave to appeal against sentence granted but the appeal dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – murder – where ballistics experts conferred and agreed as to parts of evidence – where Crown sought to adduce evidence from expert beyond that agreement – whether Supreme Court Rules 1970 (NSW), Pt 75, Div 1, r 3K applied, notwithstanding no direction made pursuant to r 3K(1) – whether trial judge erred in permitting Crown to adduce evidence inconsistent with agreement CRIMINAL LAW – conviction appeal – murder – where issue of self-defence raised – where error conceded in Crown Prosecutor’s closing address by reference to ‘reasonable grounds’ for belief as to necessity of actions – where no objection by appellant’s counsel at trial – whether use of description ‘genuine belief’ exacerbated error by suggesting requirement of reasonable grounds for belief – whether error caused trial to miscarry – whether error remedied by trial judge’s directions CRIMINAL LAW – conviction appeal – murder – where issue of self-defence raised – whether Crown case in closing as to events of shooting materially different to that in opening and conduct of case – whether open to jury to reject self-defence if reasonably possible that shooting occurred in sequence described by appellant – whether open to jury to be satisfied beyond reasonable doubt as to appellant’s guilt if appellant’s evidence of belief as to necessity of actions rejected – whether verdict unreasonable or unsafe CRIMINAL LAW – sentence appeal – murder – whether sentencing judge erred in finding intention to kill on basis not put to the jury by Crown – whether sentencing judge erred in finding seriousness of offence aggravated by premeditation or planning – whether sentencing judge failed to take provocation into account – whether sentence manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW), ss 18, 23, 29, 418, 419, 421 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Criminal Appeal Rules (NSW), r 4 District Court Act 1973 (NSW), s 171D District Court Rules 1973 (NSW) Evidence Act 1995 (NSW), ss 55, 137, 191 Supreme Court Rules 1970 (NSW), Pt 75, Div 1, rr 3J, 3K Uniform Civil Procedure Rules 2005 (NSW), rr 31.21, 31.22
Cases Cited:	Haoui v The Queen [2008] NSWCCA 209; 188 A Crim R 331 Jubraeel v R [2015] NSWCCA 131 Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544 Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 R v Acton [2001] QCA 155 R v Milne (No 1) [2010] NSWSC 932; 260 FLR 166 R v Conlon (1993) 69 A Crim R 92 R v Katarzynski [2002] NSWSC 613 R v Oblach [2005] NSWCCA 440; 65 NSWLR 75 Robinson v The Queen [2006] NSWCCA 192; 162 A Crim R 88 Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645 Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460
Category:	Principal judgment
Parties:	Tarek Abdallah (Appellant) Regina (Crown)
Representation:	Counsel: G Bashir SC (Appellant) M Cinque SC (Crown)   Solicitors: A Abbas (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2012/8057
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Before: Campbell J File Number(s): 2012/8057

Judgment

1. THE COURT: On 4 January 2012 a physical altercation occurred between the appellant and three other men in the Sydney suburb of Sans Souci. At some point during that altercation, the appellant retrieved a .32 calibre self-loading pistol from under the driver’s seat of his vehicle and fired six shots at one of the men, Neal Todorovski, killing him. Three of those shots were fired at or close to point blank range into Mr Todorovski’s head or neck, and two other shots were fired into his back. In the course of chasing another of the men, the appellant fired one further shot. There was an issue at trial as to the timing of the six shots (specifically whether there were two incidents of the appellant shooting at Mr Todorovski, which were separated by the chase) and as to the sequence in which the shots were fired into Mr Todorovski. The appellant did not otherwise deny the fact of the shooting. He claimed that he discharged the shots in self-defence and, in the case of the second man, that he did not intend to shoot him. There was also an issue of provocation in relation to the shooting of Mr Todorovski (who we will refer to as the deceased).

2. Following a trial before Campbell J and a jury of twelve, the appellant was convicted, on 17 March 2014, of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). He was acquitted on the count of shooting the other man with intent to murder, contrary to s 29 of that Act. On 20 June 2014 the appellant was sentenced to imprisonment for 26 years and 8 months, with a non-parole period of 20 years. That non-parole period expires on 11 January 2032.

3. The appellant appeals against his conviction. He also seeks leave to appeal against his sentence. To assist an understanding of the grounds upon which he relies, we propose to set out an outline of the factual background (as described in the appellant’s case), the issues as they arose in the trial and the significant evidence which addressed those issues. It will then be necessary to return to some of those factual issues in more detail, in the course of addressing the conviction appeal.

Factual background

4. The appellant and the deceased first met at a gym in Rockdale. By January 2012 they had known each other for a couple of years. The deceased was known by the appellant to be a high ranking member of the Lone Wolves Motorcycle Club. The appellant described the deceased as someone who would use violence against people with whom he had perceived grievances (tcpt 07/03/14, pp 960, 962).

5. Around December 2011, the appellant heard rumours that he owed money to the deceased. Knowing those rumours to be untrue, he unsuccessfully attempted to contact the deceased by phone. At that time, his girlfriend and the deceased’s girlfriend knew each other socially. The appellant decided to contact the deceased’s girlfriend, Aissha, to confirm the deceased’s telephone number. In the course of attempting to do so, he mistakenly sent a text message to the deceased which said: “send me Aissha’s number now”.

6. The deceased took offence. On 12 December 2011, at the deceased’s request, the appellant went to his apartment building on Selmon Street in Sans Souci. The appellant’s evidence was that when he arrived the deceased immediately acted in an aggressive manner, threatened to kill him and punched him in the face (tcpt 07/03/14, pp 964-965). The appellant retaliated. He kicked the deceased in the head causing the fracture of facial bones.

7. The appellant feared that the deceased would seek to “get some payback, get some revenge on” him (tcpt 07/03/14, p 966). On 13 December, a car similar to that owned by the appellant, was shot at in the local area. The appellant believed these events showed that “if [the deceased] saw [him] in the area that [he] would be shot” (tcpt 07/03/14, p 969). At this time, and despite having never owned or used a gun before, the appellant obtained a handgun from a friend, who showed him how to use it. He put the gun under the driver’s seat of his car (tcpt 07/03/14, pp 969-970).

8. The appellant continued to hear reports that the deceased was “after him”. He spent the evening of 3 January 2012 at his girlfriend’s house. She told him that she had been shown a gun by the deceased, who described it as being “for your boyfriend, Tarek” (tcpt 07/03/14, p 971).

9. On 4 January 2012, the appellant decided to talk to the deceased “face-to-face and fix it before it got any further” (tcpt 07/03/14, p 972). He tried to ring the deceased and instead had a conversation with Aissha who told him that the deceased was “pissed off” and had consumed drugs the night before (tcpt 07/03/14, pp 972-973). Nevertheless an arrangement was made for the appellant and deceased to meet at the deceased’s apartment on Selmon Street.

10. That street runs in an east-west direction. The appellant double-parked his car outside the apartment building which was on the northern side of Selmon Street, between Rocky Point Road and Campbell Street, and waited for the deceased to come downstairs. The deceased and two other men, Matthew Lewis and John Leger, came out of the building and walked towards the appellant as he was standing at the front of his vehicle to the right of the off-side headlight and in front of the partly opened driver’s side door (tcpt 07/03/14, pp 1031-1032). The appellant observed that the deceased was holding a gun in his hand which was beside his leg. He later saw the deceased place that gun in his right pocket. Mr Lewis was carrying a knife and Mr Leger also had something in his hand (tcpt 07/03/14, pp 974-975).

11. The three men surrounded the appellant. Mr Leger struck the appellant to the right side of his head (tcpt 07/03/14, p 1034). The appellant gave the following evidence as to what then happened (tcpt 07/03/14, p 976):

A.   I fell to the ground and covered myself, covered my head and I started to get kicked and punched. I felt myself getting pulled. And then I heard two, I don’t know if, who it was, they were saying, “shoot him, shoot him”. Then the kicking stopped. I looked up at [the deceased]. He said to me, “You’re fucking dead”, and I saw him reach into his pocket. I didn’t see him actually put his hand into his pocket. It looked like he was going [for] his pocket.

Q.   What did you do?

A.   I tried to get back up. I semi crawled to the driver’s side door, pulled it open and I got the gun out of the driver’s seat.

…

Q.   Then what did you do?

A.   I got the gun out and I come around the front door. And I was at the front, near the front headlight, and I extended my arm out and I started to shoot [the deceased].

Q.   Where did you start to shoot him, what part of his body?

A.   His head.

Q.   How close had the gun been?

A.   It was very close.

12. The appellant did not remember how many times he shot the deceased. He said he did not stop shooting until the deceased stumbled back and fell down. The other two men fled. The appellant then chased Mr Leger to the side of and behind the apartment building. He fired a shot in the direction of Mr Leger and said that he did so only to scare him off. The deceased was shot six times in total. (As we have noted above, there was a significant dispute as to the timing and sequence of those shots.)

13. The appellant left the scene of the shooting in his car. Because the deceased was lying in front of the car, the appellant initially had to reverse and then drive around his body. He arranged for the man who had supplied the gun to him to dispose of the car, which had the gun and his mobile phone in its glove box. The appellant flew to Perth on that same day. He was later arrested in Western Australia on 12 January 2012.

Summary of the issues at trial

14. The Crown case was that the appellant had shot the deceased six times, including three shots fired at close range to the head and neck, and that those circumstances weighed against the appellant’s claim of self-defence. One question in the appeal is whether the Crown in opening and conducting its case adopted a particular position as to the timing and sequence of the six shots and, if so, whether the Crown sought and was allowed to depart from that earlier position in a way which gave rise to a miscarriage of justice.

15. In the Crown Case Statement, it was said that the appellant had shot the deceased in the back and then shot him in the head as he lay on the roadway, before commencing to chase Mr Leger. In its opening address, the Crown described the appellant as firing “a succession of shots” and formulated the “important” question for the jury’s consideration “during the course of these proceedings” as being the appellant’s “state of mind when he let fly this volley of shots from his weapon” (tcpt 19/02/14, p 44). The evidence that it was anticipated the jury would hear was described as including “… that the three men ran, they ran for their life. He fired and shot Mr Todorovski in the back and Mr Todorovski fell. He was a dead man. Having fired at him, striking him, falling him, he walked ten paces shot three shells in his skull, killing him” (tcpt 19/02/14, p 49).

16. In his opening address, senior counsel for the appellant identified “the” issue for the jury in relation to the murder charge as that of “self-defence”, and specifically whether the Crown could discharge its onus by disproving that the appellant had fired “a volley of shots” because he thought he was going to die (tcpt 19/02/14, pp 57-59). He described the appellant’s case in relation to the timing and sequence of the shootings:

Mr Abdallah did not shoot this man when he was on the ground. He did not shoot him when he was on the ground. He fired six shots in straight succession at him, in very close range when he grabbed the gun and turned it around to attack, defend himself against the attacker, from Mr Todoroski and these other men. And then Leger takes off, Leger and Lewis take off.

17. In concluding, he again emphasised: (tcpt 19/02/14, p 61)

It seems that the Crown and the defence are very close together in some respects, leaving [aside] what side of the car that the gun was taken from, by Mr Abdallah. My learned friend said a number of times there was a volley of shots. We agree, there was a volley of shots. One set of shots straight after each other when he was scared for his life. There was no shooting on the ground.

18. The appellant accepted during cross-examination that he had brought the gun with him for his protection in contemplation that he might need it (tcpt 07/03/14, pp 1016-1017). However, in its closing address the Crown disavowed any suggestion that the appellant had brought the gun to his meeting with the deceased with an intention, from the outset, that he would use it; and this was clearly explained to the jury by a correction made during the trial judge’s summing up (tcpt 13/03/14, pp 68, 95).

Evidence as to the timing and sequence of shots

19. Neither Mr Leger nor Mr Lewis gave evidence at the trial. Each refused to do so and was charged and later convicted for contempt of court. Evidence as to the timing and sequence of the shots was given by various eye witnesses, who were proximate to the events as they unfolded.

20. Mr Boutsikakis was sitting in a car in Selmon Street beyond its intersection with Campbell Street. That car was parked parallel to the kerb but on the wrong side of the road and facing in a westerly direction towards the appellant’s vehicle. His evidence was that the appellant shot the deceased (who he described as a male wearing a baseball cap) once or twice “instantly” after “pulling out the gun” (which the witness described as being pointed “straight out” as the appellant extended his arm); and that he then disappeared in pursuit of Mr Leger and, upon his return, shot the deceased again as he lay on the ground (tcpt 28/02/14, pp 485-487, 511-513).

21. The difficulty for the acceptance of this version of events was that it differed from the account Mr Boutsikakis had given to the police at the scene, to an officer at the station, in a video-recorded walk-through interview at the scene a month after the incident and during the committal proceedings in November 2012 (tcpt 28/02/14, pp 490, 492). That different account was that the appellant had fired the initial shots at the deceased and then taken a couple of steps over to him as he lay on the ground and immediately fired another couple of shots (tcpt 28/02/14, p 532). In cross-examination Mr Boutsikakis maintained that he was “quite clear” that there had been two separate incidents of the appellant shooting the deceased and that there was “no confusion” as to that part of his recollection (tcpt 28/02/14, p 513).

22. Mr Mataipule was standing beside the bonnet of an over-heated car at the western end of Selmon Street, near Rocky Point Road, when he heard gunshots. He turned to look in the direction of the noise and saw the appellant shoot the deceased in the head and the deceased fall to the ground (tcpt 03/03/14, pp 610-611). Mr Mataipule gave evidence that the appellant then yelled “Who’s next” and chased one of the other men (tcpt 03/03/14, p 604). Contrary to the statement he gave to the police on 4 January 2012, Mr Mataipule maintained at trial (consistently with his evidence given at the committal hearing) that after that chase the appellant returned to his car without firing any further shots at the deceased (tcpt 03/03/14, pp 625, 639-640).

23. Mr Leutogi was in the company of Mr Mataipule. He recalled hearing five bangs in connection with the initial shots, although he agreed it could have been six (tcpt 03/03/14, pp 660, 665). He also heard the appellant yelling words to the effect of “get the fuck back” (tcpt 03/03/14, p 650). Mr Leutogi gave evidence that, after chasing Mr Leger, the appellant returned to his vehicle, looked at something on the ground and left the scene without firing any further shots (tcpt 03/03/14, p 666).

24. Mr Sua, also standing with Mr Mataipule, heard five shots and the appellant yell something like “do yous want some more” (tcpt 04/03/14, p 699). He also observed the appellant return to the vehicle without firing further shots (tcpt 04/03/14, p 700).

25. Ms Alexander had parked her vehicle in Selmon Street facing in an easterly direction towards Campbell Street. The appellant’s vehicle was double-parked about four or five car spaces in front of hers. She was attempting to get her young daughter out of the car when she heard an initial bang and a succession of six to eight shots (tcpt 04/03/14, p 716). She did not see the deceased being shot and did not see a gun. She agreed that her most reliable recollection of the events was contained in her original statement, which did not mention any later gunshots (tcpt 04/03/14, pp 725-726).

26. Mrs Kiel, who lived across the road from where the shooting occurred, heard a series of shots in quick succession and went to her front door to investigate. She saw the appellant at the side of the apartment building opposite. She did not hear any further gunshots after that (tcpt 04/03/14, pp 744, 748, 750).

27. Mr Baker, a former Australian Federal Police officer, lived in the apartment building in Selmon Street on the western side of the building in which the deceased lived. He gave evidence that he heard five consecutive gunshots, a short pause (which in cross-examination he estimated to be less than 15 seconds) and then a sixth shot (tcpt 05/03/14, pp 794-795). He saw the appellant look at something on the ground at the front of his vehicle before driving away (tcpt 05/03/14, p 797).

Evidence as to the trajectory of the shots fired

28. Two expert witnesses gave evidence in the Crown’s case in relation to the shooting of the deceased. The first was Dr Lucas Van der Walt, a scientific officer with the Forensic Ballistic Investigation Section of the New South Wales Police Force. He and another ballistics expert, Mr John Barber, who was qualified by the defence but did not give evidence, discussed and agreed on aspects of the ballistics analysis in relation to the deceased’s wounds. The second was Dr Matthew Orde, the forensic pathologist who performed the post-mortem on the deceased. He gave evidence as to the deceased’s injuries.

29. The ballistics and forensic evidence could not establish the sequence of the shots in relation to the deceased’s wounds or whether the deceased was upright or in a lying position when those shots were fired (tcpt 26/02/14, p 376). Dr Orde’s evidence was that the injuries to the head and neck, and those caused by the bullet that passed through the deceased’s liver and heart (wound 6 as described at [36] below) were sustained while the deceased was alive (tcpt 27/02/14, p 451-452). He accepted that possible explanations as to the order of shots were that the deceased was shot in the back first and then in the head, having fallen with the right side of his face to the ground (tcpt 27/02/14, pp 457-458); or that he was shot in the head first and then in the back as he was turning right, away from the gun, and stumbling or collapsing to the ground (tcpt 27/02/14, pp 471-472). Dr Orde remarked of the latter sequence that “a head wound [would have] rendered him falling to the ground fairly rapidly if he were erect when the injury was sustained”.

28. The bullet entry or exit wounds to the deceased’s body were numbered to aid a comprehension of the expert evidence. It is convenient to outline here the details of each wound. A computer-generated, three dimensional representation of the deceased’s body, which showed the direction of travel of the bullets, became Ex M at the trial. Copies of three images from that representation are attached to these reasons. The numbers on those images correspond with the wound numbers used below.

29. Wound 1 was described as a bullet entry wound to the back of the deceased’s neck travelling from left to right (tcpt 26/02/14, p 355). The bullet that caused this wound was fired at “close proximity”, meaning from a distance of 10 to 30 centimetres (about 4 to 12 inches) (tcpt 27/02/14, pp 449-450). Wound 4 was associated with the exit of this bullet.

30. Wound 2 was a bullet entry wound to the left side of the deceased’s head, above and behind the ear. The trajectory of the bullet was from left to right and back to front. This shot was said also to have been fired from a close range, meaning a distance of approximately 30 centimetres (tcpt 26/02/14, pp 374-375). Dr Orde noted the wound showed features suggestive of both close range and “also of perhaps there being a substance or material between the muzzle and the skin. Quite possibly a hat or something similar” (tcpt 27/02/14, p 438).

31. Wound 3 was a second entry wound to the left side of the deceased’s head located, in this instance, in front of the ear. The relevant shot was fired when the gun was in contact or close contact with the deceased’s skin, meaning within a distance of one centimetre (tcpt 27/02/14, p 437). The bullet path was from left to right and back to front (tcpt 26/02/14, pp 357-358).

32. It was not possible to determine with certainty which of Wounds 2 and 3 corresponded with the exit wound labelled Wound 8 (tcpt 26/02/14, pp 356, 359). Dr Orde expressed an opinion that Wound 8 was most likely associated with Wound 3 (tcpt 27/02/14, pp 440-441). The bullet which did not exit via Wound 8 was recovered from the deceased during autopsy.

33. Wound 5 described an entry wound to the right of the deceased’s central back area. The trajectory of this bullet was from back to front and right to left (tcpt 27/02/14, pp 451, 456). The corresponding exit wound was Wound 7.

34. Wound 6 was also located to the right side of the deceased’s mid-back. The bullet causing this wound travelled right to left and back to front, passing through the deceased’s heart and liver without exiting the body. In the opinion of Dr Orde, the injuries caused by this shot were sufficiently serious to kill the deceased within minutes (tcpt 27/02/14, p 452).

35. Wounds 9, 10, 11 and 12 were wounds to the deceased’s left hand. Dr Orde acknowledged a possibility that these wounds were ‘defensive’, in the sense that the hand might have been raised at the time in an attempt to shield or defend the body (tcpt 27/02/14, p 465). The wounds to the deceased’s back and hand (Wounds 5, 6 and 9-12) did not show any ‘characteristics of close contact’ and were likely fired from a distance of more than 60 centimetres (tcpt 26/02/14, pp 375-376).

36. Although it was accepted that the evidence could not establish the position of the deceased’s body at the time of the shooting, the defence sought to rely on the absence of evidence of any gouge marks or other similar signs of damage on the road surface as discounting the possibility that the deceased was shot from above while lying on the ground. Ms Konza, the Civilian Crime Scene Officer, gave evidence that, during her careful examination of the road surface, she found “no obvious impact marks” to suggest that a bullet had struck the road having been fired from above (tcpt 20/02/14, p 129).

37. Dr Van der Walt gave evidence that if the deceased was shot by the appellant from above while he was lying on the ground, he would expect one of the bullets that exited the body to have caused a gouge mark on the road surface. Dr Orde agreed that the existence of such a mark was important in testing the hypothesis that the deceased’s injuries were inflicted while he was on the ground (tcpt 27/02/14, p 472). However, Dr Van der Walt also accepted that the shooting could have occurred that way without a mark being left and explained that there were various reasons as to why such a mark may not be caused, or may not be discovered on subsequent inspection (tcpt 26/02/14, pp 376-379). Those reasons included that the road surface in this case (which he inspected) was “fairly rough and damaged” and that a .32 calibre bullet would leave a “very small impact mark” because of its low velocity.

Grounds of Conviction Appeal

40. The appellant relies on four grounds in his conviction appeal. Ground 1 is that the trial miscarried because the Crown Prosecutor was allowed to impugn, and adduce evidence contrary to, the agreement reached between the ballistics experts, Dr Van der Walt and Mr Barber.

41. Ground 2 asserts that the trial miscarried because the Crown Prosecutor’s closing address misstated the law on self-defence and involved a departure from the Crown’s case as opened and conducted.

42. Ground 3 is that:

The trial miscarried on account of directions on self-defence given by the trial judge:

(a)   when attempting to correct the prosecutor's closing address;

(b)   in failing to direct the jury to disregard parts of the Crown address that were erroneous or that argued a position that was not part of the Crown case;

(c)   in failing to direct the jury on the issue of 'pre-emptive strike' or self-defence in response to a threat of harm.

43. Finally, the appellant argues by ground 4 that the jury’s verdict in finding him guilty of murder was unreasonable and not supported by the evidence.

Conviction appeal - Ground 1: The trial miscarried because the trial judge erred in permitting the prosecutor to impugn the joint agreement of the ballistics experts

44. As explained in [28] above, the ballistics experts were Dr Van der Walt and Mr Barber. The agreement reached between them as to parts of the evidence summarised above, and the circumstances in which the Crown sought to adduce evidence beyond that agreement, are sufficiently summarised in the following extract from the judgment delivered by the trial judge addressing the admissibility of that further evidence: R v Abdallah (No 3) [2014] NSWSC 267:

4   I should say something about how the agreement between Mr Van Der Walt and Mr Barber came about. It was the expectation of the learned Crown Prosecutor that Mr Van Der Walt's evidence would be led on Monday of this week. He forestalled his hand in that regard because Mr Dalton proposed that the ballistics experts confer in an attempt to produce a document like MFI 12 setting out those matters upon which they agreed and those matters upon which they disagree, in the latter event stating short reasons for their disagreement. That procedure is familiar in the civil jurisdiction exercised by this Court.

5   MFI 12 does not quite achieve that purpose but it has been made clear from comments made by the Crown to me this afternoon that it does record the matters which fall within that first category, that is to say matters upon which the experts are able to agree. To the extent to which it deals with the question of the range from which certain wounds were inflicted upon the deceased by gunshot it is agreed between the experts that where they have expressed a range rather than a precise distance that range is as precise as persons professing their expertise can be with the available information. As Mr Dalton points out, one reason why no greater certainty can be brought to bear is the firearm which shot the bullets is not, and never has been, available to the prosecution, or either of the experts.

6   Under the Uniform Civil Procedure Rules 2005 (NSW) evidence contradicting an agreement arrived at by experts conferring for that purpose may not be contradicted without leave of the Court. I interpolate that I understand from what has been put to me in argument that the Crown seeks in a sense to contradict the terms of the agreement because it will argue in due course that taking the ballistics evidence together with the lay and other evidence in the case the jury ought to be satisfied that, for example, wound 1 in MFI 12, a wound to the victim's head, was inflicted with either hard or close contact and that inferences should be drawn from such a finding in relation to the intention of the person who fired the shot.

7   However, this is not a civil case, it is a criminal case in which the rules of evidence are provided by the Evidence Act 1995 and I am bound to apply its provisions in determining all questions of the admissibility of evidence. There is no provision in the Criminal Procedure Act 1986 (NSW), as it applies to this case that would have permitted me to give a direction, or make an order that the parties were bound by the agreement arrived at by the experts. I think it is fair to say that the Crown indicated before me today, this morning, and when this objection was made later, that this is not an agreement that they regard themselves, or the learned Crown Prosecutor regards himself, bound by.

8 Section 191 of the Evidence Act 1995 permits parties to a proceeding, including a criminal proceeding, to agree facts, and, where there is an agreement, evidence may not be adduced to contradict or qualify an agreed fact unless I grant leave. But that provision is subject to an important precondition provided by s 191(3) requiring that the agreed fact must be ‘stated in an agreement in writing signed by the parties or by’ - I omit some words –‘[the] legal counsel or prosecutor representing them, and adduced in evidence in the proceedings’.

9 MFI 12 records an agreement between the experts, it does not record an agreement between the parties to which s 191 applies, and accordingly the Crown do not require leave to adduce the evidence objected to.

10   This then means that the question of the admissibility of this evidence must be decided pursuant to the provisions of the Evidence Act.

11   Before I turn to that question I should observe that it is most unfortunate that I was under a misapprehension about what was proposed when the experts were asked to confer. Had I appreciated at the time that any agreement arrived at between the experts would be something between them alone and not something by which the parties would consider themselves bound, I probably would not have granted an adjournment to enable the conclave of experts, as it is informally called in civil proceedings, to take place. Rather, I would have thought it better for the evidence to be elicited in the usual way. Moreover, even if I had thought it worthwhile in those circumstances to permit that process to take place, I would not have thought it appropriate to mention anything about the process to the jury, as I have done on more than one occasion. In any event, all the jury have been told is that the experts have reached an agreement about certain matters and that, of course, is accurate.

45. His Honour then turned to consider particular provisions of the Evidence Act 1995 (NSW): s 55 (relevance) and s 137 (exclusion of evidence where the probative value is outweighed by a danger of unfair prejudice). He concluded that the evidence was admissible.

The appellant’s submissions

46. Senior counsel for the appellant submits that the “Crown should not have been permitted to elicit further evidence on the agreed points from the witness or to impugn the joint agreement”. This submission relies on Pt 75, Div 1, r 3K of the Supreme Court Rules 1970 (NSW). Part 75 is concerned with certain criminal proceedings, including that presently under consideration. Rule 3K is in the following terms:

3K   Conference between experts

(1)   The Court may do any or all of the following, with the consent of the parties:

(a)   direct expert witnesses to confer (whether before or during a trial or other proceedings),

(b)   specify the matters on which they are to confer,

(c)   direct that they provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement,

(d)   direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively,

(e)   give any additional directions as may be considered necessary.

(2)   An expert who is the subject of an order made under subrule (1) may apply to the Court for further directions.

(3)   The content of the conference between the expert witnesses is not to be referred to at the hearing or trial unless the parties affected agree.

(4)   The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the Court.

(5)   Where, pursuant to this rule, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed.

47. It is said that the powers of criminal trial judges in the Supreme Court “in circumstances where there has been agreement between experts, both as a matter of fairness, efficiency and criminal procedure should be clarified by this Court”, particularly because the judgment of “the trial judge has been widely published and should not be relied on as precedent for the governing criteria where there is an application to resile from agreements between experts in a Supreme Court criminal trial”.

The Crown submissions

48. The Crown contends that r 3K had no application. It was not mentioned at trial and, most significantly, there was no direction made pursuant to sub-rule (1). It was submitted that in those circumstances his Honour correctly decided the admissibility of the further evidence sought to be led from Dr Van der Walt by reference to s 191 of the Evidence Act.

Determination

49. The position was correctly stated by the Crown. Rule 3K in Pt 75 of the Supreme Court Rules was not engaged. The trial judge did not give a direction that the experts confer, or specify any part of that process pursuant to r 3K(1), and so, r 3K(5) did not apply. Accordingly, there was no impediment to the Crown adducing any evidence inconsistent with that which had been agreed.

50. The trial judge was correct to determine that leave was not required under s 191 of the Evidence Act to adduce the evidence sought to be led from Dr Van der Walt. That section is concerned with facts agreed between parties; the matter under consideration concerned opinions agreed upon by expert witnesses. The Crown Prosecutor did not regard himself as being a party to any agreement as to those conclusions and counsel for the appellant did not suggest that he was.

Observations about expert evidence in criminal proceedings

51. It is appropriate to say a little more about r 3K. It, along with r 3J (which provides for the application of the expert witness code of conduct in Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Sch 7), was inserted into Pt 75 by the Supreme Court Rules (Amendment No 363) 2002: see New South Wales Government Gazette, No 135, 30 August 2002, at 7667ff. An explanatory note reveals the purpose for the introduction of these provisions:

Explanatory note

The object of these Rules is to extend to criminal trials, with some modification, the Rules relating to conferences between expert witnesses that presently apply in civil trials. In particular these Rules:

(a)   require an expert witness to read and be bound by the expert witness code of conduct found in Schedule K of the Rules, and

(b)   require a party that engages an expert witness to serve any supplementary report by the expert on any other party, if that party has been served an earlier report by the expert and the expert has changed his or her opinion on a material matter contained in that report, and

(c)   permit the Court, with the consent of the parties, to:

(i)   direct expert witnesses to confer before or during the trial, and

(ii)   specify the matters on which they are to confer, and

(iii)   require them to provide the Court with a joint report specifying matters agreed, matters not agreed and the reasons for non agreement, and

(iv)   make directions as to whether the legal representatives of the parties are to be permitted at a conference between expert witnesses, and

(v)   give any additional directions as may be considered necessary, and

(d)   prohibit a party from adducing expert evidence inconsistent with a matter that has been agreed on pursuant to these new Rules unless that party is granted leave by the Court.

52. The reference to the rules relating to conferences between expert witnesses that apply in civil trials is to the rules found in Pt 31, Div 2 of the UCPR.

53. Aside from rr 3J and 3K having potential application in relation to expert evidence in criminal proceedings in the Supreme Court, there is also the specific adoption by Pt 75, Div 1, r 3(1)(f) of rr 31.21 and 31.22 of the UCPR in such proceedings. Rule 31.22 makes provision for an expert to disclose the details of fees. Rule 31.21 provides:

31.21   Expert evidence in chief to be given by way of experts’ reports

Unless the court otherwise orders, an expert witness’s evidence in chief must be given by the tender of one or more expert’s reports.

54. The applicability of some of the civil procedure rules relating to expert evidence in Supreme Court criminal proceedings has no counterpart in the District Court Rules 1973 (NSW). Johnson J, relevantly with the agreement of Beazley JA (as her Honour then was) and McCallum J, observed in Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 at [153] that “Section 171D District Court Act 1973 provides that, subject to that Act and the District Court Rules, the procedure and practice of the District Court when exercising criminal jurisdiction shall, so far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction”. However, his Honour later (at [155]) observed that it was difficult to see how this provision could extend to applying the Supreme Court Rules in the District Court.

55. Johnson J had further occasion to discuss expert evidence in the context of some of these rules, particularly UCPR, r 31.21, in R v Milne (No 1) [2010] NSWSC 932; 260 FLR 166 at [218]-[225].

56. The point of all of this is to observe that these provisions, whilst obviously intended to promote the efficient conduct of criminal proceedings, have not, in the collective memory of the members of this Court, been applied in trials in the Supreme Court. Furthermore there would seem to be good reason why the same or equivalent provisions should apply in the busiest criminal trial court in the country, the District Court of New South Wales. This last comment is made on the basis that it is at least doubtful that those provisions currently apply by the operation of s 171D.

Conviction appeal - Grounds 2 and 3: The trial miscarried on account of the Crown Prosecutor’s closing address and/or directions which were or should have been given by the trial judge

57. It is convenient to deal with Grounds 2 and 3 together. They are principally concerned with two complaints, namely that in its closing address the Crown misstated the law on self-defence and sought to, and was allowed to, make a case which involved a material change from that adopted by the Crown in opening and in the conduct of the trial. Ground 2 is addressed to the Crown’s conduct in those respects and Grounds 3(a) and (b) to the adequacy of the trial judge’s response. Ground 3(c) separately contends that the trial miscarried because the trial judge did not direct the jury on the issue of ‘pre-emptive strike’ or self-defence in response to a threat of harm.

Whether the trial miscarried because the law on self defence was incorrectly put to the jury and that error was not sufficiently remedied (Grounds 2 and 3(a))?

58. Under the common law when self-defence was raised in a murder trial, the Crown had to prove beyond reasonable doubt that the accused did not believe on reasonable grounds that it was necessary in self-defence to do what he did when his act caused the death of the deceased: Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645.

59. In New South Wales the common law position was amended in February 2002. Section 418 of the Crimes Act (inserted by the Crimes Amendment (Self-defence) Act 2001 (NSW)) relevantly provided:

418   Self-defence – when available

(1)   A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2)   A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

a)   to defend himself or herself or another person;

…

and the conduct is a reasonable response in the circumstances as he or she perceives them.

60. Where self-defence is raised as an issue, the prosecutor has the onus of proving beyond reasonable doubt that the accused did not carry out the relevant conduct in self-defence: Crimes Act, s 419.

61. Once that defence was raised (as it was here by the appellant’s evidence), to eliminate self-defence as an issue the Crown was required to prove beyond reasonable doubt that the appellant did not believe his conduct in shooting the deceased was necessary in order to defend himself (a question to be determined subjectively) or that there was no reasonable likelihood that his conduct was a reasonable response to the circumstances as he perceived them (a question requiring an objective assessment of the proportionality of that response to the situation which the appellant subjectively believed he faced): R v Katarzynski [2002] NSWSC 613 at [22]-[23] (per Howie J), cited with approval in R v Oblach [2005] NSWCCA 440; 65 NSWLR 75 at [50]-[54] (per Spigelman CJ). If the Crown had not satisfied the jury as to the first matter but did satisfy them as to the second, they were directed to find the appellant guilty of manslaughter by excessive self-defence: Crimes Act, s 421.

62. The appellant submits that the trial miscarried because the Crown Prosecutor proceeded on the basis of the common law test as to self-defence. He repeatedly described what had to be addressed as including whether there were reasonable grounds for the appellant’s belief as to necessity and, in the way he did so, suggested that the onus of proving the existence of such grounds was upon the appellant. The Crown accepts that these errors were made. However, it submits that they were not so pervasive as to cause the trial to miscarry and that the trial judge’s subsequent directions specifically addressed and remedied them.

63. The appellant pointed to several statements in the Crown’s closing that contained these errors. They included the following: (tcpt 11/03/14, pp 1194-1195, 1199)

And even if he had that belief he had, was it based on reasonable grounds…

So did he have a belief, did he believe he had to do what he did? And even if he had that belief, was it really based on reasonable grounds …

…

[W]ere those beliefs really on reasonable grounds? …

[D]id he believe it on reasonable grounds?

…

In the second limb, that is, the reasonableness of that belief, you might ask yourselves these sorts of questions: Even if everything he thought about Mr Todorovski was what fuelled him to do what he did, did [sic] his justification for holding the belief or the things that led him to believe such things reasonable? That is, were they the product of reason or paranoia or some other foundation that just isn’t plain and reasonable …

64. It was further submitted that the Crown’s repeated references to the appellant’s belief as being ‘genuine’ or ‘genuinely’ held, also and separately conveyed, not only that the belief had to be held in fact, but that it had to be based on reasonable grounds. This was said to exacerbate and entrench in the minds of the jury, the Crown’s misstatement of the law of self-defence, causing the trial to miscarry. In our view, that is not correct. Subject to one or two exceptions, on each occasion that there was a reference to the belief being ‘genuine’, the context made clear that it did no more than emphasise that it had to be a real belief, rather than one that was confected or contrived. Three examples illustrating this follow: (tcpt 11/03/14, pp 1193, 1194, 1198)

Where this issue must go is you’ve got to consider the thinking and intentions of the accused, what his state of mind was, when you answer this ultimate question I’ve already indicated to you you will consider. And that is whether the claim to self-defence is genuine, and not confected or manufactured.

…

This issue of trust is relevant here, because when you’re talking about whether someone’s motives are genuine, and you’re hearing witnesses on the topic, you’ve got to decide, “Who do I trust? Whether that person is telling the truth. Is that person reliable? Are they credible?” So your assessment of people is brought into play here, not just the accused’s state of mind, but also the evidence of witnesses. You’ve got to judge their credibility as well.

…

So this question of belief, was it genuine, you might ask yourselves, “Well maybe he didn’t really believe he had to shoot. Maybe he was going to do it anyway”. And the evidence of the threat, “I am going to get a gun and shoot you” – maybe he was going to do it anyway. Or at least, contemplating the possibility of inflicting violence.

Because, in other words, another inference you might draw is well, “You don’t carry around a loaded firearm in this situation unless you’ve thought about the possibility of using it.” So these are things that go to his belief, this genuine quality. “Did he really believe he had to do that?”

65. In the passages below the Crown Prosecutor is said to have gone further and suggested that the quality of ‘genuineness’ included or required that there be reasonable grounds for the belief: (tcpt 11/03/14, pp 1194, 1195, 1199)

Now, there is some assistance to be given by looking to analogous situations but, plainly, you’ve got two issues, that both go to the question of the genuineness of this claim. Did he really believe he needed to do what he did in order to defend himself? And even if he had that belief he had, was it based on reasonable grounds, or was it just, well something else …

…

[Y]ou would be required to look at the evidence, draw the inferences and determine whether he actually believed that he had to do what he did, and even if he had believed it, were those beliefs really on reasonable grounds?

So those questions are within the context of what the law seeks to do in this area, the obligations of the citizen, and the standards of what is regarded as reasonable in the circumstances, and that is uniquely within the province of the jury, and they’re very much fundamentally based, in this trial, on the question of the genuineness of the belief.

…

So it’s quite a big gradient from a misunderstanding on the mobile phone to killing man because you feared him so much that you took a gun with you to a meeting he didn’t even need to go to he [feared] him that much.

So how genuine does that sound? You will bring that to these two limbs: Genuineness of belief, reasonableness that is the foundation. The Crown submits to you the fact that this belief that he says to you he had that he had to kill Mr Todorovski he didn’t genuinely hold, and you might, I would submit to you, see that in the evidence of the assault, the fight in the weeks preceding the killing.

66. These passages are somewhat confused and also proceed on the incorrect basis that the relevant belief must be held on reasonable grounds. Each also suggests in some degree, but certainly not clearly, that, as was observed by McPherson JA in R v Acton [2001] QCA 155 at [16] (in a passage cited by Spigelman CJ in Oblach at [43]), the fact that there may have been objectively reasonable bases for the asserted belief is separately relevant to an assessment of whether the asserted belief was actually held. However in our view, the use of the descriptor ‘genuine’ in those passages conveyed nothing more than that the belief had to be truly or actually held. For that reason the repeated use of that description did not further exacerbate the Crown Prosecutor’s error. It remains to consider whether the erroneous statements of law, which the Crown conceded did occur, were remedied by the trial judge’s directions.

67. At no time during the Crown’s closing address did senior counsel for the appellant object to the Crown Prosecutor’s explanation of the issues arising under s 418 or to his repeated use of the term ‘genuine’ to describe his client’s belief. Such an unexplained failure to object often suggests that ‘in the atmosphere of the trial, counsel saw no injustice as to what was being done’: Jubraeel v R [2015] NSWCCA 131 at [24]-[25] and the authorities there discussed. However, in this case it is likely that counsel considered that the matter could and would be clarified by the trial judge’s summing up.

68. At the time of the Crown’s closing address, counsel had a draft of the written directions which the trial judge proposed to give, including those on self-defence. Those directions correctly described the questions for the jury in relation to that issue. In his closing address senior counsel for the appellant, not unexpectedly having regard to what had occurred in the Crown’s address, foreshadowed those directions: (tcpt 12/03/14, pp 1301, 1303)

… [H]is Honour I anticipate will give you directions that the Crown would have to prove beyond a reasonable doubt that there was no reasonable possibility that the accused believed that shooting the victim was necessary in order to defend himself, or words to that effect. Of course whichever way his Honour actually gives you that direction will be the direction you’ll apply

…

The second matter that I understand his Honour will also direct you in respect of this question is, has the Crown proved beyond a reasonable doubt that there is no reasonable possibility that what the accused did was a reasonable response in the circumstances as he perceived them.

69. Early in the course of his summing up, the trial judge provided the jury with those written directions, which stated that it was for the Crown to prove “beyond reasonable doubt that the accused did not kill Mr Todorovski in self-defence” and that:

12   Whether self-defence operates as a complete defence depends on your answer to each of the following questions. If your answer to both is no you will find the accused not guilty of murder (and also of manslaughter). The questions are:

(a)   Are you actually satisfied beyond reasonable doubt that the accused did not genuinely believe that shooting Mr Todorovski was necessary in order to defend himself; and

(b)   Are you actually satisfied beyond reasonable doubt that what the accused did was not a reasonable response to the circumstances as he perceived them.

70. In his summing up the trial judge emphasised that: (tcpt 13/03/14, p 24)

… the Crown carries the onus of negativing, is the word I will use, self-defence beyond reasonable doubt. If the Crown does not discharge its onus, the accused is entitled to be acquitted of the charge of murder.

71. Having read paragraph 12 of the written directions, the trial judge continued: (tcpt 13/03/14, p 26)

Let me go back. It’s a bit clumsy because of the double negative there. But that is to reflect the important point that it is for the prosecution to prove the negative proposition beyond reasonable doubt. It can’t be avoided, I’m sorry, ladies and gentlemen, you have to deal with it.

72. The trial judge then explained that, whilst not detracting from what he had said about the onus and standard of proof:

… [S]ometimes judges formulate a proposition in terms of is there a reasonable possibility that the accused genuinely believed that shooting Mr Todorovski was necessary in order to defend himself …. Sometimes judges will say is there a reasonable possibility that what the accused did was a reasonable response to the circumstances as he perceived them

73. The trial judge returned to the first of these questions, pointing out that it must be decided “from a wholly subjective standpoint” taking into account “all the circumstances established by the evidence, but as the accused perceived them to be at the relevant time”.

74. His Honour then addressed the jury on the error made by the Crown Prosecutor in the course of his closing address: (tcpt 13/03/14, p 28)

In the course of addresses Mr Crown, with great respect to him, said you had to be satisfied there were reasonable grounds for a genuine belief that what the accused did was necessary to defend himself. That formulation of reasonable grounds is a slip of the tongue, it is not quite correct. The formulation is as I have given it to you. You are not talking about whether he had reasonable grounds for his belief, you are asking whether what he did was a reasonable response to the circumstances as he perceived them. So you will appreciate that that second issue about whether the accused’s conduct was a reasonable response in the circumstances as he perceived them, is different from the first consideration, because it does call for an objective assessment of the proportionality of the accused’s response to the situation he subjectively believed he faced.

75. The appellant suggests that the trial judge’s characterisation of the Crown’s error as a “slip of the tongue” diminished the significance of that error and that this was reflected in his description of the Crown’s closing address as being “not quite correct”. Whether that is so is beside the point because the trial judge emphasised that the jury’s duty was to accept and apply the principles of law as stated by him (tcpt 13/03/14, pp 2-3, 4) and to seek further directions if they had “any doubt about those principles” (tcpt 13/03/14, p 80). Those principles were correctly stated by the trial judge, including in the written directions which were most likely to guide the jury in its consideration. The reasons for that were explained by Simpson J in Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544 at [242]:

Written directions are, in my opinion, a most useful, important and, in some cases, crucial development in the conduct of criminal trials. … [It] must also be remembered that a jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions.

76. Although the trial judge also used the adverb ‘genuinely’ in his statement of the first question for the jury on the issue of self-defence, the context made plain that it was used to emphasise that the belief had to be actually held. The appellant’s submission that the use of that word imported the Crown’s earlier error of suggesting that any belief had to be held on reasonable grounds, is rejected.

77. The appellant also asserts that the trial judge’s “re-direction in relation to the second limb reversed the onus of proof”. That is not so, as the discussion above shows. Although later in the summing up the trial judge characterised the second question as being “was the response in your judgment reasonable in the circumstances as he perceived them to be”, it was made clear by the trial judge’s earlier references to the onus of proof and the use of the double negative, that the Crown was required to satisfy the jury beyond reasonable doubt that what the appellant did was not a reasonable response. Furthermore, when posing that question by reference to the evidence, the trial judge formulated the second question as being “are you satisfied beyond reasonable doubt that getting the gun and shooting was not a reasonable response” (tcpt 13/03/14, p 29).

78. The appellant has not identified any miscarriage of justice arising from the conceded errors made in the course of the Crown’s closing address. Those errors were corrected by the trial judge’s subsequent directions. As no request for further directions was made by the appellant’s counsel at the conclusion of the summing up, r 4 of the Criminal Appeal Rules (NSW) applies. Leave to raise Ground 2, to the extent that it relies on those errors, and Ground 3(a) should be refused.

Whether the trial miscarried because the Crown’s case as put to the jury involved a departure from its case as opened (Grounds 2 and 3(b))?

79. The appellant submits that the trial miscarried because in his closing address the Crown Prosecutor departed from the Crown case put in opening. It is said that the Crown case as opened, and as stated in the Crown Case Statement (see [15] above), was that the appellant had shot the deceased in the back, stepped closer to him as he was lying on the roadway, and then fired three rounds into his head, all at contact or near contact range.

80. It is then pointed out that Mr Boutsikakis’ evidence significantly departed from that case by maintaining that there had been two separate incidents of shooting, between which the appellant had chased and shot at Mr Leger. On this account the three shots to the head were said to be fired after that chase. The evidence of the remaining eye witnesses (see [22] to [27] above) was not consistent with there having been such separate incidents of shooting. That evidence was that no shots were fired after the appellant, having chased Mr Leger, returned to his car. (Although he resiled from it subsequently (tcpt 03/03/14, p 640), it is noted that Mr Mataipule had earlier given a statement, similar to that of Mr Boutsikakis, suggesting that there were further gunshots after the appellant returned from chasing Mr Leger (tcpt 03/03/14, p 631)).

81. At trial each eye witness described a series or succession of shots occurring before the chase commenced. Although some of the evidence was less than clear as to the number or sequence of shots, the various descriptions given accommodated the possibility, asserted by the Crown in opening, of a brief or momentary pause within the initial episode of shooting. For example, Ms Alexander described a "succession of bangs following the first" gunshot, which was "a bit more… stand alone" (tcpt 04/03/14, pp 716, 720). Mr Mataipule denied that the shots were fired in quick succession, maintaining that he heard "several other gunshots" following the initial shot which attracted his attention (tcpt 03/03/14, pp 616, 636). Mr Baker's adamant description was that there were five “consecutive” shots, a "very short pause" of less than fifteen seconds and then a sixth shot (tcpt 05/03/14, p 794). Two witnesses agreed that the shots were fired “in quick succession”. Exactly what that involved, and whether it meant the shots were equally spaced, was not explored (tcpt 03/03/14, pp 665; 04/03/14, p 698).

82. In relation to whether the shots to the head were fired as the deceased lay on the ground, the expert and other crime scene evidence did not establish the position of his body at the time of the shooting. Although the roadway was examined, no sign of any gouge marks or other damage was found consistent with the deceased having been shot in the head as he lay on the road surface (see [38]-[39] above).

83. The appellant suggests that to accommodate these evidentiary difficulties, the Crown Prosecutor “changed” the case as opened by submitting in closing that the jury could convict on the murder count whether there were two separate incidents of shooting (as Mr Boutsikakis maintained) or six shots fired consecutively and, in the latter case, irrespective of whether the head shots were fired after the deceased had been shot in the back, as the Crown opened, or before, as was the sequence of events given by the appellant in his evidence.

79. The appellant submits that the trial judge should have drawn attention to these asserted changes in the Crown’s case and, it would seem, directed the jury to disregard them. The effect of such a direction would have been to prevent the jury from finding the appellant guilty of murder if they had a reasonable doubt as to whether the head shots were fired first but were satisfied beyond reasonable doubt that he had not acted in self-defence. It followed that if they were not satisfied beyond reasonable doubt that the head shots were fired second, whether separately or as the Crown opened its case, the jury was then required to acquit the appellant of murder and manslaughter.

80. Concerns associated with any change in the prosecution’s case in a criminal trial arise from considerations of fairness and procedural disadvantage. Unfairness may arise because of tactical and forensic assessments made by the defence as the case proceeds and with reference to the issues understood to arise on the Crown case. Those assessments may affect decisions as to the cross-examination of witnesses, objections to evidence, the adducing of evidence and the making of closing submissions. A change in the case to be met could lead to prejudice or unfairness because those earlier decisions may not be able to be revisited or accommodated as the trial proceeds. For these reasons, ordinarily once the Crown has laid out the way in which it puts its case, it is required to adhere to that formulation: per Johnson J in Robinson v The Queen [2006] NSWCCA 192; 162 A Crim R 88 at [138]-[141].

81. There was no such change in the Crown’s case at trial. From the outset it was made clear that the issue in relation to the murder count was self-defence. The appellant had shot and killed the deceased. There could have been no doubt that he intended to cause at least serious injury. Six shots had been fired, two at close range into his head. In its opening the Crown described the “important” question for the jury as being the appellant’s “state of mind when he let fly this volley of shots” (tcpt 19/02/14, p 44). The defence agreed, describing that question as being whether the Crown could discharge its onus by disproving that the appellant fired the “volley of shots” because he thought he was going to die (tcpt 19/02/14, pp 57, 58).

82. The Crown and defence accepted in their openings, and the conduct of the trial shows, that the sequence in which the shots may have been fired was a significant factor in the jury’s consideration of the issue of self-defence. The Crown case as opened was that the close shots to the head were fired after the deceased had fallen to the ground, making it most unlikely that the appellant could have believed that those shots were necessary in self-defence (tcpt 19/02/14, p 49). The defence case was that there was “no shooting on the ground” (tcpt 19/02/14, p 61).

83. However, at no stage in either party’s opening was it suggested or accepted that the Crown could only succeed by satisfying the jury beyond reasonable doubt that the deceased was shot in the head as he lay on the ground. In the way the cases were opened (see [16], [17] and [86] above) the issue of self-defence arose in relation to the firing of the “volley of shots”, irrespective of whether there was any “shooting on the ground”. That position did not change in the course of the trial. The appellant said that when he fired the shots his only intention was to stop the deceased from killing him (tcpt 07/03/14, pp 976-977, 1018-1019). Although the Crown suggested in cross-examination that the shots to the head were fired after Mr Leger was chased (tcpt 07/03/14, pp 1057, 1058), it was also put more generally that the appellant had intended to kill the deceased from the time he retrieved the gun, or at least from the time of the first shot, and that intention explained why he “pulled the trigger so many times” (tcpt 07/03/14, pp 1058-1059).

84. In its closing address, the Crown invited the jury to conclude that the later shots were fired while the deceased was on the ground (tcpt 11/03/14, pp 1211-1212). However, and more significantly, the Crown relied on a number of matters as justifying the jury being satisfied beyond reasonable doubt that the appellant had not acted in self-defence, irrespective of the timing or order of the shots. Those matters included that the deceased was shot six times (tcpt 11/03/14, pp 1195, 1199, 1231); that he was shot in the back or while he was turning away from the appellant (tcpt 11/03/14, pp 1195, 1212); that he was shot at point blank and close range in the head (tcpt 11/03/14, p 1203); and that the deceased was armed but had not drawn his gun at the time he was shot (tcpt 11/03/14, p 1205).

85. The Crown sought to link the implausibility of the appellant’s evidence as to how the shooting occurred to the rejection of his evidence as to his subjective belief in the necessity of his actions: (tcpt 11/03/14, p 1232)

[The t-shirt worn by the appellant during the initial altercation] was subject to some force that caused it to tear in the opposite direction. So that may, you may think, be inconsistent with the account he gave of having been on the ground, curled up and then crawling his way to the car door to successfully obtain the gun. Evidently, men armed with a knife, with a gun, just stood there and waited until they were shot at. Does that sound like a genuine account to you of how he came to get the gun which they can’t have known he had… [L]et me say these things to you: This is not a case where this man was genuinely of the view or belief that he had to do what he did.

91. Particular emphasis was placed on the fact that the appellant had shot the deceased in the head at close range. The jury was told: (tcpt 11/03/14, p 1203)

There’s evidence as to the order of events part in this trial and it relates to two areas: One is the order of events, because Mr Boutsikakis, he gives an account which involves the accused shooting Mr Todorovski in the head after the chase with Mr Leger. Then there are accounts which have the chase after a series of shots and he’s shot thereafter. It’s not for the Crown to prove which of those scenarios are the one because, on either scenario, he shot him, Mr Todorovski, without self-defence, and chased Mr Leger without self-defence. So it doesn’t matter when he shot Mr Todorovski in the head because it’s not information to you but you know he shot him in the head. He shot him in the head. And the evidence is more than that in that there’s a range he shot in the head.

92. It is true that the defence closing focussed on “whether or not the Crown could prove … beyond reasonable doubt that [the appellant], after shooting [the deceased], in obvious, I submit, self-defence, went and shot him a second separate time” while he was on the ground (tcpt 11/03/14, p 1239; 12/03/14, pp 1281-2, 1285, 1303). It is also true that the Crown Prosecutor did not, other than by putting the arguments referred to above, specifically address how self-defence was negatived on the appellant’s version of the sequence of shots. However, from the outset it remained open to the jury to find that the Crown had negatived that defence, even if the shooting occurred as the appellant described. The Crown did not confine its case in the way the appellant’s argument now suggests. As such, it did not, by its closing argument, introduce issues that were not made apparent at the commencement of the trial.

93. Consistently with that being the position, the trial judge identified the ways in which the Crown case was put: (tcpt 13/03/14, pp 52-53, 67-68)

The Crown also says, we have got a strong case, and that evidence is enough, and we don’t care whether you think all six shots were fired at once, or whether three were fired at one time, and the accused came back for some more. It doesn’t matter to us, is the argument put to you. But the Crown says, if you accept Mr Boutsikakis, and why wouldn’t you, the fact that there may have been a second episode of shooting, after Todorovski was already down and immobilised, only makes a strong Crown case stronger. What could be more apparent than a man who fired three shots at one man, chased another and shot at him, then came back and shot the first man, than the shooter intended to kill, and he intended to kill not in self-defence. That’s the Crown case.

…

But the question is, of course, the question is can you on the whole of the evidence and all of the circumstances that you find established by the evidence dismiss what was put in that regard [as to the timing and sequence of the shots] as at least a reasonable hypothesis consistent with the innocence of the accused on the ground of complete self-defence. Now that is how the case is put and these things are for you to decide.

On the Crown case … Even if you put aside Mr Boutsikakis and the second episode of shooting, [the gun] was fired at very close, point-blank range in fact, that from that you would work on the basis that, generally speaking, people intend the natural consequences of their actions. There is no presumption of law in that regard but that is an inference that is open to you if you think it is correct in the circumstances and you should simply accept that, as I have said, the accused intended to use the gun and discharged it six times because he meant to make sure of it. That is the Crown case.

94. The absence of any complaint from senior counsel for the appellant concerning these aspects of the Crown’s closing and the summing up is wholly consistent with his implicit acknowledgment that it was open to the jury to reject his claim of self-defence in circumstances where they considered it reasonably possible that the shooting occurred in the sequence he described, but disbelieved his evidence as to his belief in the necessity of those actions.

95. There was no departure by the Crown from its case as opened. Leave to raise these grounds also should be refused.

Whether the trial miscarried because the trial judge did not direct the jury on the question of ‘pre-emptive strike’ (Ground 3(c))?

96. The appellant submits that the trial judge should have given the jury “a direction in accordance with Conlon [(1993) 69 A Crim R 92] at 98”. The specific direction which it is said should have been given is not described and, more significantly, no such direction was sought from the trial judge.

97. Conlon was a decision of Hunt CJ at CL, sitting in a judge-alone murder trial. The accused had been attacked late at night by two men in the remote farmhouse where he was growing cannabis. Hunt CJ at CL found at 96 that there was “a very real possibility that [his] perception of the position in which he found himself was reduced by a degree of intoxication on his part from alcohol and marijuana”. The accused managed to get away from the men and retrieved a loaded semi-automatic rifle. He started shooting at the men and continued to do so even when outside the farmhouse. He came across one of the men crouching at the front of the house. Not appreciating that he had already wounded the man with at least two shots, he shot him in the head at close range.

98. The Crown case included that there were no reasonable grounds for the accused’s belief that it was necessary in self-defence to fire that bullet. In relation to that question, Hunt CJ at CL said at 98:

However, it is well established that a person defending himself from a threatened attack and who has to react instantly to imminent danger cannot be expected to weigh precisely the exact measure of self-defensive action which is required: Palmer [1971] AC 814 at 831-832; Zecevic v DPP (at 662-663; 174-175). The accused was not obliged to wait until the attack upon him was repeated. If he honestly believed that the attack would be repeated, he was entitled to take steps to forestall that threatened attack before it was begun: Morgan v Colman (1981) 27 SASR 334 at 336-337; (1981) 4 A Crim R 324 at 326. This was a situation in which a pre-emptive strike was justified: Beckford [1988] AC 130 at 144. [Emphasis added]

99. We have emphasised in the above extract what we assume to be the substance of the direction that it is said the trial judge should have given. The occasion which is said to have given rise to the need for that direction was a question from the jury (marked as MFI 63) in the following terms: (tcpt 14/03/14, p 101)

In regards to, ‘Necessary in order to defend himself’, does this just apply to defend himself against an immediate threat or can it apply to both immediate and future threat?’

100. It is apparent that this question related to the first limb of the trial judge’s written direction on self-defence (written direction para 12(a)). So understanding it, the trial judge considered it likely that the question, with its reference to a “future threat”, was directed to the second count rather than the first (tcpt 14/03/14, p 103). The Crown Prosecutor and the appellant’s counsel agreed, no doubt because, to that point, the trial had proceeded on the basis that the question of the appellant acting pre-emptively in self-defence only arose in relation to the count of attempted murder. In that context, the Crown Prosecutor had told the jury early in his closing address: (tcpt 11/03/14, p 1191)

Now, you’re entitled to act in self-defence, as the word conveys, but you’re also entitled to act pre-emptively. If you believe you are going to be attacked you don’t have to stand passively by, and this pre-emptive point of self-defence of the accused is relying upon count 2, because he says that he was acting pre-emptively in chasing Mr Leger, as you recall.

101. The appellant submits that a direction on pre-emptive strike was required in relation to the murder count because the Crown’s case was (or was said to have become) that the appellant had shot the deceased after having broken free of the fight in circumstances where the appellant knew a loaded gun remained in the deceased’s pocket. The submission suggests that, on the Crown case, the appellant could only have been responding to a threatened rather than immediate attack using that gun.

102. The appellant’s evidence (as set out in [11] above) was that as the kicking stopped the deceased said to him, “[y]ou’re fucking dead” and looked to be reaching into his pocket for the gun the appellant had earlier seen. Thus the danger to which the appellant was responding was not merely threatened. It was immediate and, on his case, about to happen. There was no need in such circumstances for the trial judge to give a specific direction as to pre-emptive strike to assist the jury’s deliberations in relation to self-defence. It was not the appellant’s case and, as the Crown submits, any suggestion that the danger to which the appellant was responding was only threatened would have understated that case.

103. With the agreement of both counsel, the direction given by the trial judge in answer to the jury’s question (tcpt 14/03/14, pp 106-108) was in general terms, and not specifically directed to either of the counts. It emphasised that the question whether the jury was satisfied beyond reasonable doubt that the accused did not believe that the shooting was necessary to defend himself was one of fact; and that the existence of a threat, how real it was and what it required were matters to be considered when addressing that question. The trial judge also pointed out that such threat may be “immediate or it may be, may I put it this way, less immediate”. Senior counsel for the appellant did not, at the conclusion of that direction, suggest that anything further should be said by way of qualification or addition.

104. The appellant has not established that there was any error in the trial judge’s not having given a specific direction concerning ‘pre-emptive strike’ with respect to the murder count, or in relation to the response which was given to the jury’s question. Leave under r 4 should be refused in relation to this ground.

Conviction appeal - Ground 4: The verdict was unreasonable or unsafe

105. By ground 4, the appellant submits that the jury’s verdict was unreasonable. The question that submission raises for this Court is not whether it was possible for the jury to reach a different conclusion on the evidence as to whether the appellant was guilty of murder. It is whether it was open to the jury to be satisfied of his guilt beyond reasonable doubt or, focussing on the circumstance in which it was not open to the jury to be so satisfied, “whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J relevantly agreeing), citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493.

106. Accepting that the appellant voluntarily shot the deceased (including three times at close range into his head or neck), it was plainly open to the jury to be satisfied beyond reasonable doubt that the appellant committed the deliberate act which caused death and in doing so, had an intention to kill the deceased. In order to find the appellant guilty of murder, in circumstances where self-defence was an issue, the jury had to be satisfied beyond reasonable doubt that the appellant did not in fact believe that shooting the deceased was necessary in order to defend himself. By this ground, the appellant submits that, in the face of his evidence, including as to the timing and sequence of the shots, the jury must have entertained a doubt as to his not having that belief, which was a matter for the Crown to prove.

107. The appellant’s evidence (see [11] above) was that when the initial altercation occurred he was standing in front of his vehicle to the right of the driver’s side, so that the driver’s door, which was slightly open, was behind him. Following the attack on him, the appellant was left on the ground in that position. He then saw the deceased put his hand towards his right pocket, that being the pocket in which he had earlier seen the deceased place his gun. The appellant then “semi-crawled” from his position on the ground towards the vehicle and around the driver’s side door. He opened that door further, retrieved his gun from under the driver’s seat and, holding that gun in his left hand (he was left-handed), stood up and walked around the open door towards the deceased, who was still standing in front of the vehicle where he had been whilst the appellant was being attacked on the ground.

108. As he approached the deceased, the appellant raised and straightened his left arm in front of him so that the muzzle of the weapon was very close to or touching the left side of the deceased’s head. In cross examination (see [11] above for his evidence in chief), the appellant described what then happened: (tcpt 07/03/14, pp 1048, 1051)

A.   I didn’t aim for his head. I got up, as soon as I stood I reached my arm out and that’s where the gun was. And I straight away started to fire until he dropped to the ground.

…

A.   I just started to fire the gun. As soon as I got up and pointed my hand towards him, I started to fire it and then the next thing he stumbled back and fell to the ground.

Q.   You must have been looking because - -

A.   At the start yes, I did, and it was at his head.

109. The appellant maintained that, in the moments preceding his firing of the first shot and as he raised the gun, the deceased was standing in front of him and neither of the other men was running away, or had turned his back to him. His case accepted that the first shot was fired in very close proximity to the deceased’s head and that thereafter, as the deceased turned his head and body to his right and away from the direction in which the appellant was facing, the appellant continued to fire the weapon resulting in the sequence of wounds being wounds 3, 2, 1 and then 6 and 5 (as described in [31]-[36] above) with a further wound to the deceased’s left hand.

109. In our view, there are significant respects in which the appellant’s evidence as to what occurred, and particularly as to what he believed when he fired the shots, is implausible. In evaluating that evidence the jury also had the distinct advantage of seeing and hearing the appellant give his account: M v The Queen at 493-494.

110. First, from the appellant’s perspective, if he had believed that the deceased was reaching for a gun with the intention of shooting him, it is most unlikely that, having retrieved his own gun, he would have emerged from behind the car door, stood up, advanced towards the deceased, but not commenced firing until the gun in his outstretched left hand made contact with the left side of the deceased’s head. Had the appellant truly believed that it was necessary to shoot the deceased to avoid himself being shot, the most likely scenario is that he would have fired the gun as soon as he was in a position to do so. He was not likely to have exposed himself unnecessarily to the risk of being shot or to the risk of being attacked again by coming too close to any of the three men.

111. Secondly, from the deceased’s perspective, if he had intended to shoot the appellant (and had made a move which indicated such an intention), he had ample time to remove the gun from his pocket (which was loaded with its safety catch disengaged), aim and fire it before the appellant had advanced until his gun made contact with his head.

112. Thirdly, and again from the deceased’s perspective, it is not likely that he would have remained stationary and facing towards the car as the appellant secured the gun from under the seat, re-emerged from around the door with the gun in hand and straightened his arm as he approached the deceased so that the gun made contact with the left side of his head. Even allowing for the fact that the deceased initially may not have seen the gun, on the appellant’s version of events he took no evasive action whatsoever before the gun was placed against the side of his head and fired.

113. Although there was evidence from Dr Orde (who was not a toxicologist) that the deceased would have been “somewhat intoxicated” due to the substances found in his system (tcpt 27/02/14, pp 434-435), the jury would have been justified in rejecting that as providing a reasonable explanation for the fact that the deceased did not react or move. The appellant’s evidence did not suggest that the deceased was confused or disorientated in such a way that he might not have been aware of what was going on around him (tcpt 07/03/14, pp 973-976). More significantly, the appellant’s evidence was that the other two men also were close-by, were in a position to see what he was doing and did not turn their backs or commence to run away before he fired the first shot (tcpt 07/03/14, pp 1038, 1048).

114. Fourthly, the fact that the appellant fired six shots at the deceased including two at or close to point blank range into his head, was a clear indication of an intention to kill in circumstances where the deceased was not holding a gun and had not moved either to attack the appellant or to take evasive action. None of that is consistent with the deceased giving or continuing to give the impression that he was about to shoot or otherwise harm the appellant, as he alleged.

115. These difficulties must have been apparent to the jury in their consideration of whether they were satisfied that the appellant’s version of events could not reasonably be true. They were explored in cross-examination: (tcpt 07/03/14, pp 1037-1038)

Q.   You made your way to a position allowing you to obtain a gun from inside the car?

A.   Yes.

Q.   With the men there close?

A.   Yes.

Q.   Did they do anything whilst you were performing a crawl, negotiating your way to the car to reach and get the gun?

A.    I don’t know.

Q.   Well, were they in a position to see you do that?

A.    Yes.

…

Q.    They stand there and just do nothing?

A.    I don’t know what they did.

Q.    They’re not striking you?

A.    No.

…

Q.    … [Y]ou were at their feet and you managed to make your way to a position where you were able to reach into a car to get a gun and they did nothing, is that right?

A.    Yeah, that’s right.

…

Q.    You would need to have moved alongside the car, under [the] car door or around the car door, back in a position so you could then reach forward into the well of the driver’s side apartment, reach under the seat --

A.    Yes.

Q.    – to obtain, feel for the gun, withdraw it, lift it, stand and start firing?

A.    Yes.

117. The timing and sequence in which the shooting occurred was not determinative of the question whether the jury should necessarily have had a reasonable doubt as to the appellant’s not having fired the shots in self-defence.

118. Mr Boutsikakis’ evidence, if accepted, would have excluded any such doubt, because it involved the appellant returning and shooting the deceased in the head. However that evidence was contradicted by the evidence of the other eye witnesses. It also included that the later shots to the head were fired from a distance of about a metre (tcpt 28/02/14, p 560), which was contrary to the forensic evidence. We conclude that the jury must at least have entertained a reasonable doubt as to the shots being fired other than in a single volley.

119. Accepting that a succession of shots was fired, the expert evidence was equivocal as to whether the head shots were fired first, as the appellant maintained. The ballistics evidence explaining the absence of any damage or gouge marks on the road surface allowed for the possibility that the shots to the head were fired as the deceased lay on the roadway (see [39] above). However that evidence was also wholly consistent with the shooting having occurred as the appellant described. So too was Dr Orde’s evidence in relation to the possible explanations as to how the bullet wounds occurred (see [29] above).

120. The critical question for the jury was whether they were persuaded that the appellant did not in fact believe that shooting the deceased was necessary in self-defence. Putting aside Mr Boutsikakis’ evidence, there were two remaining possible scenarios. In each a single volley of shots was fired and the deceased was shot in the head at close range.

121. In answering that question, the jury did not have to be satisfied beyond reasonable doubt as to which of those two scenarios represented the fact. It was sufficient that they address whether it was not reasonably possible that the appellant believed it was necessary to shoot the deceased in the circumstances as he described them.

122. In our view, it was well open to the jury to regard the appellant’s account as one which could not reasonably have reflected what actually happened and for that reason, to have rejected his evidence that he believed shooting the deceased was necessary to stop the deceased from killing him. Having regard to the implausibility of that evidence, this is not a case in which the jury necessarily must have concluded that it was reasonably possible that his belief was as he asserted.

123. It is also necessary to consider briefly the question of provocation, which only operates as a partial defence reducing murder to manslaughter: Crimes Act, s 23(1) (as enacted before its repeal by the Crimes Amendment (Provocation) Act 2014 (NSW)). On the Crown case the appellant was punched and kicked by three men. In our view it was plainly open to the jury to be satisfied beyond reasonable doubt that the appellant did not shoot the deceased as a result of any loss of self-control on his part induced by the deceased’s participation in the attack on him. His action in shooting the deceased was calculated and deliberate. He had placed a loaded gun under the seat of his car, prepared to use it if necessary. He returned to the car with the intention of retrieving the gun and using it, and he did so.

124. For these reasons, this ground should be rejected.

Grounds of appeal against sentence

125. Campbell J delivered his judgment as to sentence on 20 June 2014: [2014] NSWSC 829. The appellant (who we will refer to as the applicant in relation to his sentencing appeal) was sentenced to imprisonment for 26 years and 8 months with a non-parole period of 20 years with effect from 12 January 2012.

126. The proposed appeal against sentence is based upon the following grounds:

1   The sentencing judge erred in finding that the applicant intended to kill the deceased on a basis not left to the jury at trial.

2   The sentencing judge erred in holding that there was planning and premeditation involved in the offending.

3   There was latent error whereby the sentencing judge erred in failing to take into account provocation as a mitigating factor in the determination of sentence, despite saying that he was taking this mitigating factor into account.

4   In all of the circumstances, the sentence imposed was manifestly excessive.

Sentencing appeal - Ground 1: Finding an intention to kill on a basis not left to the jury

127. The learned judge concluded that the applicant shot the deceased first at point blank range in the head and then continued to fire as the deceased stumbled and fell: [77]. He was satisfied that the applicant had an intention to kill from the first shot: [78]. As was explained at [18] above, the Crown disavowed any contention that the applicant had brought the gun to his meeting with the deceased intending from the outset to use it.

128. It was submitted on behalf of the applicant that his Honour was correct to reject, as he did at [73], Mr Boutsikakis’ version of events, which involved what was described as a coup de grâce shooting into the head of the deceased after the applicant had chased Mr Leger. It was said that his Honour “should have sentenced the applicant on the basis of shooting the deceased spontaneously with an intention of inflicting grievous bodily harm”.

129. In written and oral submissions by senior counsel for the applicant on sentence, the contention that his Honour should find that there was a spontaneous shooting with an intention to inflict grievous bodily harm, was not made. Rather, it was accepted that the judge should sentence on the basis of the intention to kill evident in Mr Boutsikakis’ version of events; that is, that the judge should find the initial shots were fired in self-defence, but that the later shots were fired after the applicant returned from chasing Mr Leger; were directed at close range to the deceased’s head while he was lying on the ground; and were accompanied by an intention to kill.

130. To have shot the deceased a number of times in the head at point blank range when he was lying prone on the roadway would have been a most callous and heinous manner of killing. The applicant’s moral culpability for doing so would have been very high indeed. Yet that is the factual basis the applicant’s counsel at sentence advocated the judge should adopted when undertaking the sentencing task.

131. His Honour was not prepared to approach the task in that fashion. He sentenced upon a less heinous and callous factual basis, namely that the applicant fired at the deceased’s head and torso in a single volley of shots. That involved accepting the applicant’s evidence as to the timing and sequence of the shots, and being satisfied beyond reasonable doubt that the first three shots fired at or close to point blank range were fired by the applicant, intending to kill the deceased.

132. The applicant now seeks to argue that the judge should not have found an intention to kill at all; only an intention to inflict grievous bodily harm. It was a matter for the applicant at sentence to persuade his Honour of this basis on the balance of probabilities. By arguing otherwise, it was implicitly conceded that such persuasion was not open.

133. An appeal to this Court, which is a court of error, is not the occasion to rehear a plea in mitigation on different bases formulated by counsel who make no attempt to explain why the approach taken by a predecessor in the court below was erroneous or misguided: see, for example, Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460 at [79] per Johnson J. In any event, the applicant has failed to establish that it was not open to the sentencing judge to find an intention to kill when the gun was discharged six times in the direction of the head and torso of the deceased at close range, some at or close to point blank range.

134. There is no merit in this ground.

Sentencing appeal - Ground 2: Error in holding there was planning and premeditation

135. The applicant’s written submissions in relation to this ground commence with reference to the statutory aggravating factor to be taken into account when an offence was “part of a planned or organised criminal activity”: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n). The sentencing judge made no reference to this factor so the point of referring to it was not clear.

136. Reference was also made to the Crown Prosecutor having disavowed that there was planning or premeditation by the applicant to commit murder (see [18] above). That must be accepted; but it is not what the judge found. What the judge said was:

42   … [T]aking the gun portrays a level of planning or premeditation.

78   ... [I] find that: the offender went to Selmon Street to confront Todorovski; that he did so with a degree of premeditation implicit in bringing a gun he was prepared to use if necessary …

109   … [T]he degree of moral culpability in this offending was high. The offender shot his victim with a deadly weapon intending to kill him. There was an element of planning and premeditation involved in the offending. He obtained the gun and took it with him having in mind that he was prepared to use it if things turned violent as they may well, and in fact did.

137. It was submitted that “the possibility of having to use the weapon was already encompassed by the increased gravity from the actual use of the weapon”. That ignores the fact that the applicant had the forethought to have a weapon at hand. It is one thing to use a weapon in the commission of a crime. There is an added dimension when the offender takes steps to ensure a weapon is available for use if necessary; particularly something as obviously concealable and lethal as a handgun.

138. The judge did not in terms refer to this as an “aggravating factor” but it is implicit that he regarded it as something that enhanced the seriousness of the offence. There was no error in doing so.

139. There is no merit in this ground.

Sentencing appeal - Ground 3: Error in failing to take provocation into account

140. The applicant referred to the judge having expressly stated on three occasions that he was taking provocation into account in mitigation of sentence. His Honour qualified this by saying that the relevant provocation fell "well short of the legal requirements of the partial defence" and that he would take it into account by way of mitigation "to a degree": [13], [89], [113]. The provocation of which the judge was satisfied was that, in retrieving the gun and firing at the deceased, the applicant was retaliating for having just been assaulted.

141. The applicant’s argument was that the sentence imposed failed to reflect this provocation, such that it may be inferred that it was not taken into account despite what the judge said. We are not prepared to do other than accept the judge at his word. Whether the sentence appropriately reflected the finding as to provocation is a matter relevant to the next ground. This ground must be rejected.

Sentencing appeal - Ground 4: The sentence is manifestly excessive

142. The applicant submitted that a sentence involving a non-parole period of 20 years (it is unclear why the focus was upon the non-parole period) “demonstrably failed to take into account the finding that the applicant was operating under provocation falling short of provocation for manslaughter”. A further submission was that “the findings of the sentencing judge, including the very short period of time over which the events unfolded, the discount for facilitating the course of justice [which the judge described at [125] as being "something in the order of 12 months"] and the subjective case of the applicant, including provocation, evidence latent error in the sentence”.

143. A schedule of cases involving sentencing for murder was annexed to the applicant’s written submissions and said to support a finding of manifest excess. No submission was made as to how that was so and it is not self-evident.

144. This was a serious example of murder. There was undoubtedly an intention to kill by an offender who brought a loaded pistol to a confrontation, albeit not, at that time, with an intention to use it to kill but rather to have it readily at hand in case it was required. And, as the sentencing judge found, there was "a high level of actual public danger" given the shooting occurred in broad daylight in a residential suburban street at holiday time with many people in the vicinity: [110]. The judge was also correct to have regard to the prevalence of gun crime and the community concern about "the threat [guns] pose to public safety and the maintenance of peace in our society": [111]

145. There was no challenge to the judge's finding that the applicant's moral culpability was "high". And it was appropriate for his Honour to have regard to the maximum penalty of life imprisonment and the standard non-parole period of 20 years as "important guideposts for fixing the appropriate penalty": [100].

146. Such provocation as there might have been was of a kind that the applicant might have expected. Given his recent dealings with the deceased, and what he was given to understand about the deceased’s attitude towards him, the applicant could hardly have thought that the pair were going to have a “fireside chat”. If provocation was a mitigating factor at all, which we doubt, it should only have had a very minimal impact upon the sentence imposed.

147. The schedule of cases annexed to the applicant’s submissions do not support a conclusion that the sentence was manifestly excessive. They involve offending in a wide variety of circumstances and some by persons who, unlike the applicant, had personal circumstances such as youth, mental illness or a troubled background requiring significant mitigation of penalty. In the applicant's case, it was found that "he has not established a strong case for leniency": [115].

148. We are not persuaded that the claim of manifest excess in the sentence has been established. Rather, we are of the view that his Honour's careful approach to a difficult sentencing exercise resulted in an assessment of penalty that was well within the range of sentencing discretion for such a serious crime.

Conclusion

149. Each of the grounds on which the conviction is challenged is rejected. Grounds 1, 2, and 3 involve questions of law and ground 4 involves a question of mixed law and fact. Leave to appeal should be granted in relation to ground 4. Leave under r 4 of the Criminal Appeal Rules to rely on grounds 2 and 3 is refused. The appeal against conviction on grounds 1 and 4 is dismissed.

150. There is no merit in any of the proposed grounds of appeal against sentence. However, having regard to the length of the sentence, it is appropriate to grant leave. The appeal against sentence is dismissed.

Orders

151. We make the following orders:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted but the appeal dismissed.

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Decision last updated: 09 March 2016