Adam Power v The Queen
[2018] VSCA 266
•30 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0228
| ADAM POWER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 30 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 266 |
| JUDGMENT APPEALED FROM: | DPP v Power [2016] VSC 498 (Hollingworth J) |
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CRIMINAL LAW – Conviction – Application for extension of time to file application for leave to appeal against conviction – Aggravated burglary – Manslaughter – Joint criminal enterprise – Enlargement of Crown case against applicant by prosecutor in closing address – Invitation to jury to engage in post-offence incriminating conduct reasoning – Application for discharge of jury refused – Strong direction by trial judge – Whether, applicant having been convicted, substantial miscarriage of justice – Application for leave to appeal filed nearly 12 months out of time – Explanation for delay unsatisfactory – Proposed prospect of success on appeal poor – Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
KYROU JA
ASHLEY JA:
Adam Power, the applicant, was convicted after trial in the Supreme Court on single charges of manslaughter and aggravated burglary, and five charges of common assault. A jury found him guilty of those charges on 7 March 2016. On 29 September 2016, the Judge imposed a total effective sentence of 12 years’ imprisonment. Her Honour fixed a non-parole period of nine years’ imprisonment.
By document filed 31 October 2017, the applicant sought an extension of time to file a notice of application for leave to appeal against conviction. In support of the extension of time application, the applicant relied upon the affidavit of his solicitor, Nick Marcevski, sworn 30 October 2017.
Also on 31 October 2017, the applicant filed an application for leave to appeal against conviction and a written case. The application specified two grounds:
1. A substantial miscarriage of justice occurred as a result of the prosecutor having invited the jury in his closing address to reason that the applicant’s post-offence conduct constituted an implied admission of his guilt of the charged offences.
2. A substantial miscarriage of justice resulted from the learned trial Judge’s refusal to discharge the jury, after the prosecutor invited the jury in his closing address to reason that the applicant’s post-offence conduct constituted an implied admission of his guilt of the charged offences.
The respondent opposed the application for an extension of time, and relied upon the affidavit of Evelyn Shaw sworn 14 December 2017.
To have been filed within time, the notice of application for leave to appeal against conviction must have been filed by 27 October 2016. So that application was filed nearly 12 months out of time.
On 18 December 2017, a Deputy Judicial Registrar refused the extension of time application.
On 5 January 2018, the applicant filed a notice of election to have his extension of time application determined by the Court of Appeal constituted by two or more judges. It is that application which is before us.
For the reasons which follow, we will refuse the application.
Principles
Before addressing the circumstances of the matter, the explanation for the delay and the proposed grounds of appeal, it is desirable to set out, once again, the proper approach to consideration of an extension of time application. In recent times, those principles were put this way by Priest, Hansen and Coghlan JJA in Madafferi v The Queen:[1]
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case, the length of the delay — and the reasons for it — and the prospects of success should the extension be granted, are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise. Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension. The discretion must, as we have said, be exercised according to the individual facts of each case.[2]
[1][2017] VSCA 302.
[2]Ibid [11] (citations omitted).
Circumstances of offending
The principal charges were stated this way on the indictment:
CHARGE 1 The Director of Public Prosecutions charges that ADAM POWER, JAMIE FISHER, BEKIM MUHTARI and MATTHEW DELAMOTHE at Deer Park in Victoria on the 26th day of January 2014 entered as a trespasser a building at 99 Billingham Road with intent to assault therein and at the time had with them or knew that a co-offender had with them offensive weapons namely an axe, a piece of wood, a machete, a chain, a baseball bat, a knife and a baton.
Statement of Offence — Aggravated burglary contrary to s 77 of the Crimes Act 1958.
CHARGE 2 The Director of Public Prosecutions charges that ADAM POWER, JAMIE FISHER, BEKIM MUHTARI and MATTHEW DELAMOTHE at Deer Park in Victoria on the 26th day of January 2014 killed MICHAEL ALI SLEIMAN.
Statement of Offence — Manslaughter contrary to the Common Law.
Those bald statements had this background and content.
In early 2014, two groups of people had been involved in a number of confrontations in the Deer Park area. Those confrontations did not involve the applicant. One of the groups was connected with the applicant’s younger cousins, members of the Borg family. The other group was connected with brothers Phillip and Daniel Labanie.
In the second confrontation, Ben Borg, one of the cousins, was injured and taken to hospital. That prompted the applicant to become involved, in a prominent way, in organising a group of men to go to a house at Billingham Road in Deer Park, which was associated with the Labanie group.
On the evening of Sunday 26 January 2014, just before 10:00 pm, 13 men wearing dark clothing went to the Billingham Road house. The men were carrying dangerous weapons, including axes, machetes, baseball bats, knives and chains. The applicant was amongst them, carrying an axe. This was not in dispute at trial.
The group approached the house in an intimidating way. Four men in the Labanie group fled inside, leaving the girlfriend of one of them on the porch of the premises.
Some one or more of the group associated with the applicant assaulted the girlfriend. Then some members of the group entered the house and chased the four men.
In opening the Crown case, it was not put that the applicant was one of the men who entered the house. The identity of those who entered was left opaque.
The back door of the house was sealed closed because of building works. Three of the four men in the Labanie group escaped by jumping out of rear windows. But Michael Sleiman did not escape. He was attacked in the back room of the house. Injuries were inflicted upon him by multiple blows with different weapons. He died in consequence of a stab wound to the chest and blunt-force head injuries.
The trial was conducted by the Crown on the basis of joint criminal enterprise.
The applicant’s defence was framed by his very experienced counsel this way in final address:
Can the Crown prove … beyond reasonable doubt that Adam Power was party to an agreement, arrangement or understanding that expressly or tacitly comprehended that during the time the group was at Billingham Road someone might be so assaulted with a weapon as to create an objectively significant risk of significant injury.
Counsel argued that there was another reasonable hypothesis open on the evidence:
the alternative of show of force, damage the house, frighten these young teenagers who have been behaving badly, show the Rebels colours, put fear into everybody. And that’s equally consistent with why they have gone round there, equally consistent with a plan or agreement they may have had.
and:
Adam Power went to Billingham Road, admittedly armed, as a show of presence, … a show of force by the Rebels Motorcycle Club designed to intimidate the young men of Billingham Road and make them stop what they had been doing on the preceding days. Not an understanding that comprehended that anyone would be attacked with weapons and seriously injured but rather there would be a demonstration of strength designed to put an end to that sort of behaviour that had been going on.
On 17 July 2014, the applicant was recorded discussing with a co-accused, Jamie Fisher, the arrest of another co-accused, Matthew Delamothe, and the possible consequences of that development. In that conversation, the applicant stated that he had previously been in possession of clothing and an axe which could have identified him as one of the 13 men who had gone to the Billingham Road address on 26 January 2014, but that he was not concerned about police investigations because he had subsequently disposed of those items.
The conversation, recorded by a covert listening device, was admitted into evidence as an exhibit in the trial. It was accepted by applicant’s trial counsel as capable of being used by the jury as admissions made by the applicant as to his presence at the scene and his possession of the axe. As we have already said, it was not in issue at trial that the applicant had been present at the premises, armed with an axe.
In his closing address, the prosecutor made certain submissions concerning what the applicant had said on 17 July 2014. Later in these reasons, we will set out those submissions, which are central to the proposed appeal against conviction; and refer also to the course of events thereafter at trial.
Reasons for the delay
In his affidavit sworn 30 October 2017, Nick Marcevski, the applicant’s solicitor, deposed that:
·He received instructions to act on 10 March 2017.
·The applicant had instructed his former solicitors to appeal conviction immediately following the guilty verdicts; but that he was advised he had to wait until he had been sentenced.
·After the applicant was sentenced, he instructed his former solicitors to appeal the conviction and that he required Legal Aid funding.
·The applicant was informed by trial counsel in December 2016 that he had drafted a memorandum of advice as to the merits of a conviction appeal. An application for funding was submitted to Victoria Legal Aid on 20 December 2016, accompanied by counsel’s memorandum of advice.
·In February 2017, on several occasions, Victoria Legal Aid required details of the applicant’s financial position. Relevant information was provided by 28 February 2017.
·On 24 March 2017, the applicant instructed him to brief counsel to commence drafting necessary appeal documentation. On this occasion, the applicant confirmed that he sought to appeal against both conviction and sentence.
·At the end of March 2017, funding was received from the applicant’s mother. At about the same time, counsel was briefed to draft necessary documentation.
·No documentation was received for a period of months. In mid-July, the applicant informed him that he was going to discuss funding with his mother and then make a decision regarding the briefing of alternate counsel. Not long thereafter, counsel advised him that he would have appeal documentation drafted and ready for filing by the end of July 2017.
·On 20 July 2017, he requested the Judge’s associate to provide a copy of the plea and sentence transcript. The same was provided on 24 July 2017.
·As at 28 July 2017, counsel who had been briefed had not drafted necessary appeal documentation and the applicant instructed him — that is, Mr Marcevski — to brief alternate counsel. Materials were provided to new counsel on 7 August 2017. On that day, new counsel requested additional documentation.
·On 18 August 2017, counsel advised that some of the trial transcript was missing. Counsel also requested copies of all photographs and video footage tendered during the trial. This material was provided by 21 August 2017.
·On 23 August 2017, counsel informed him that he required further material before he could commence drafting the appeal documents. It appears that counsel was seeking a copy of handouts given to the jury by the trial Judge.
·On 25 August 2017, counsel provided him with the finalised appeal documents, but with respect to conviction only. These documents were sent to the applicant on the following day. Two days later, the applicant instructed him that he also wished to appeal against sentence.
·On 4 September 2017, the applicant informed him that he wished to brief senior counsel to provide an opinion regarding sentence. That led on to a discussion about funding. There were various discussions with the applicant.
·On 22 September 2017, funding was received from the applicant’s mother and, three days later, senior counsel was briefed to advise.
·Not until 16 October 2017 did senior counsel advise there was no merit in an appeal against sentence and that he would discuss the matter with the applicant.
·On 19 October 2017, the applicant told him that he would need to consider the matter and would provide instructions in due course.
·On 30 October 2017, he received instructions to file an appeal against conviction only.
Delay — analysis
In our opinion, the explanation offered by the applicant for the delay is incomplete in its detail and, for that reason and more generally, is weak.
First, the general thrust of Mr Marcevski’s affidavit is to lay blame for the delay on the applicant’s former solicitors, the applicant’s trial counsel, and counsel who was initially briefed by Mr Marcevski. None of these persons have gone on affidavit. There is nothing in Mr Marcevski’s affidavit which suggests that any of them were asked to do so. That is not satisfactory.
Second, Mr Marcevski deposes that the applicant instructed his former solicitors to appeal against conviction immediately after the jury returned its verdict in March 2016. Those instructions are said to have been reiterated after sentence was imposed on 29 September 2016. It was on the latter occasion, according to Mr Marcevski’s affidavit, that the applicant stated that he required Legal Aid funding. Then, it is said, it took trial counsel, who would have been well aware of the time limit for filing and serving an application for leave to appeal against either conviction or sentence, until December 2016 to draft a memorandum of advice for submission to Legal Aid. On 20 December 2016 an application for funding was submitted. Mr Marcevski’s affidavit does not reveal how long this was after the receipt of counsel’s memorandum.
Three points may be made: (1) if Legal Aid funding was required, there is no reason why that fact should not have been disclosed by the applicant long before sentence was imposed, and counsel’s opinion as to the merits of a conviction appeal sought in anticipation of an application for funding; (2) what is said to have been the delay in the provision of counsel’s opinion is unexplained. As we have earlier noted, there is no affidavit from the applicant’s former solicitor which addresses the question as to what, if anything, was done to expedite provision of the opinion, nor an affidavit from counsel; and (3), Mr Marcevski’s affidavit does not state precisely when counsel’s advice was provided, and so it is impossible to say whether there was delay between receipt of the advice and the submission for Legal Aid funding being made.
Third, despite the application for Legal Aid funding dated 20 December 2016[3] stating that it was proposed that there be application for leave to appeal against both conviction and sentence, and despite Mr Marcevski being so instructed at the outset, a request for ‘plea and sentence transcript’ was not sought from the Judge’s associate until 20 July 2017. Mr Marcevski gives no reason for this delay.
[3]Exhibit NM1 to Mr Marcevski’s affidavit.
Fourth, Mr Marcevski attributes delay between March and August 2017 to the dilatory conduct of counsel. But, as we have already noted, there is nothing from the unnamed counsel which addresses this blame-attachment; and that is unsatisfactory.
Fifth, new counsel was briefed on 7 August 2017. Mr Marcevski’s affidavit does not reveal whether counsel was briefed to draw documentation with respect to conviction only, or with respect to conviction and sentence. In any event, the materials provided to counsel were incomplete. Mr Marcevski gives no explanation for this deficiency.
Sixth, new counsel provided Mr Marcevski with ‘finalised appeal documents’, with respect to conviction only, on 25 August 2017. But an application for extension of time and notice of application for leave to appeal against conviction were not filed for more than two months thereafter. Mr Marcevski explains this delay, at least in part, by reference to the applicant’s persistence in seeking senior counsel’s advice as to the prospects of pursuing a sentence appeal. But this provides absolutely no explanation why there should have been such delay in filing the conviction documents.
In all, the whole appellate process proceeded at a pace which, contrary to the legislative prescript, never got out of a jog trot.
Grounds of application
We have set out the grounds upon which the applicant would rely if an extension of time was granted.
It is not now in debate that the prosecutor, in closing address, sought to make use of the covertly recorded conversation for uses which went beyond the basis on which it had been admitted — that is, as capable of use by the jury as an admission by the applicant as to his presence at the scene and his possession of the axe.
The prosecutor submitted, in final address, that (1) the disposal by the applicant of the axe and the clothes which he wore on 26 January 2014 was out of consciousness of guilt, this implying his direct involvement in the fatal attack; and (2) the applicant had shown himself to be so concerned by the fact that one of the co-accused had been arrested, and might ‘drop names’, that he was threatening to kill that co-accused.
Counsel for the applicant applied for the discharge of the jury immediately after the prosecutor had concluded his address. Counsel submitted that the prosecutor had expanded the Crown case in a way that had not been put in the first place, and which was inconsistent with the evidence. He submitted that the error could not be cured by directions. He focused on the first submission which we have noted in the preceding paragraph. He contended that what the prosecutor had submitted both expanded the Crown case so as to allege that the applicant was one of those who attacked the deceased, and that his disposal of the axe and clothes were done out of consciousness of guilt of his participation in the killing. He argued that, had the matter been earlier addressed, it could have been dealt with by cross-examination of other witnesses. That is why notice must be given if consciousness of guilt reasoning is to be invited by the prosecution.
The Judge considered the matter over the luncheon adjournment. Relevant transcript was provided to her Honour and counsel, and both the prosecutor and applicant’s counsel made short submissions after the lunch break. They were directed to the first submission noted at [37] above.
The Judge ruled that the prosecutor had expanded the Crown case in his final address. Her Honour said:
Now, it is true, as [the prosecutor] says, that the Crown left open the question as to who actually went inside. But leaving the question open is quite different from the position which has now been put, which is to invite the jury to find that Mr Power did go into the house; …
The Crown has never said in its submissions, nor sought to lead evidence to the effect that Adam Power went into the back bedroom, such that there would have been blood on him or on the axe.
Her Honour then said:
In my opinion, to now invite the jury to find that Mr Power was involved in the attack inside the house is to enlarge the Crown case beyond the way it has thus far been run. To do so at this stage of the trial is unfair to Mr Power. The question is whether it is so unfair as to require a discharge of the jury, or whether it is a matter that can be cured by judicial direction.
[Defence counsel] says he may have run the case differently if the Crown had opened on the basis now being put. I accept that may be the case, in the sense that he has never had to answer a case that Mr Power was in the back room or specifically in the house, as opposed to merely being a participant in the joint criminal enterprise.
That said, [defence counsel] has not pointed to any specific prejudice. Nor has he pointed to any evidence he might have sought to lead to deal with the point. In looking at the evidence that has been led, it is not clear to me what particular prejudice might have been suffered, or evidence to be led. [Defence counsel] mentioned that he might have wanted to cross-examine the pathologist, Dr Woodford, who was not in fact cross-examined by any of the defence. But on reviewing Dr Woodford’s evidence over lunch, it accords with my recollection — he said nothing at all about an axe being used in the attack.
As to consciousness of guilt reasoning, the Judge said this:
I am also concerned that the learned prosecutor’s emphasis on the disposal of the axe and clothing, and tying it in with the way he did with a reference to blood, does invite the jury to engage in incriminating conduct reasoning. That cannot be done without notice or leave; neither has been sought or given.
That said, I am not persuaded that there is a high degree of necessity for discharge. I believe that the matter can fairly be fixed by direction.
The Judge thereafter discussed an appropriate direction with counsel. She specifically did so on the footing that, by participating, applicant’s counsel was preserving his right to argue, in the event that his client was convicted, that the jury ought to have been discharged.
Before applicant’s counsel addressed, the Judge gave this direction to the jury:
there’s a matter I do need to give you some directions about and it arises from what [the prosecutor] said this morning when he was referring to part of the recorded conversation between Mr Fisher and Mr Power.
…
You might remember that [the prosecutor] then made some submissions in relation to what he said those passages, you might find those passages revealed. And in particular, and I am really summarising here, he invited you to draw some conclusion from that that Mr Power must have been inside the house and must is [sic] been involved in the attack inside the house otherwise why would he get rid of the clothing or the axe.
Now, that was what I might describe as a rhetorical flourish from the barrister. He was developing his argument and he went further than in fact he should have done so. Because the Crown case has it has always been opened is that these men are responsible on the basis of joint criminal enterprise and it had never been part of the Crown case that any one of the accused in particular went inside or did anything in particular.
Indeed, the reason that the Crown opened their case at the start of the trial is really to set the parameters of what the case is about and all the defence have to respond to is the Crown case as opened. And the case that [defence counsel] and his client came to meet has never been a case to do with an allegation that the axe or the clothing were disposed of because they might have had blood on them. He might have run a very different case if that was how it had been opened. That was not the case he had to meet.
Indeed, as you will remember, there is in fact no evidence of any axe wound to the deceased. …
So as I say it, it was overstepping of the development of the argument by [the prosecutor]. I want to make clear what you can and can’t do with what is in the recorded conversation about the weapons and the clothes et cetera. When I charge you on Monday and I explain to you the law I am going to tell you in some detail the law in relation to admissions and I will tell you more about this then. But broadly speaking you can use what is said in this recording as an admission that Mr Power was somehow involved in the events that night. So it can used [sic] in that general sense as some sort of admission of involvement. But you can’t use it as an admission that he went into the back room or that he was covered with blood or that he disposed of things because he knew or feared that they had blood on them. That’s just not a permissible line of thinking for you to engage in.
I say that to you as a direction, you have to put those considerations out of your mind because they are just then not relevant, they are not relevant to the cases run and they just shouldn’t have been said.
In his closing address, applicant’s counsel referred more than once to the listening device conversation. He emphasised that:
(1)the evidence was admissible in proof that his client had attended the premises with an axe on 26 January 2014;
(2)the prosecutor had ‘gone off the reservation’ in suggesting, contrary to the objective evidence, that the deceased had suffered a head wound by use of an axe; and that the applicant had rid himself of the axe and clothes which he had worn on 26 January 2014 because there was blood on them; and
(3)the Judge had described the prosecutor’s submission as a rhetorical flourish that was never part of the Crown case — rightly so, because there was no evidence to support it.
In her charge, the Judge gave this direction:
What I am going to do is give you some legal directions about what you can and can’t do with that evidence. You can rely on that[4] as an admission that Mr Power was at 99 Billingham Road that night and was involved in some way in the events. But you cannot rely on it as an admission of anything more than that. In particular, you may not rely on it as an admission that he disposed of the clothes and the axe because he was concerned they had blood on them. There is simply no evidence to support such a conclusion or from which you could draw a reasonable inference about it. There may be all sorts of reasons why he got rid of the clothes and the axe. If you engaged in the line of thinking that [the prosecutor] invited you to engage in, you would simply be speculating. And as I have said to you before, and I will say again, you must not speculate.
[4]The recorded conversation. Our footnote.
Her Honour also said this:
Now, the prosecution doesn’t suggest that any of the three accused was personally involved in the physical attack on Michael Sleiman.
The jury considered its verdict with evident care. In the end, it returned differential verdicts in the case of the applicant and his two co-accused. Only the applicant was found guilty of all charges. It is clear that the issue of withdrawal from an agreement was of importance in the case of the two co-accused with respect to the charges of manslaughter and aggravated burglary. So much is apparent from questions which the jury asked in the course of its deliberations, questions which applicant’s counsel recognised did not involve his client.
Submissions for the applicant
In support of the applications for extension of time and for leave to appeal, it was submitted for the applicant that an important, arguably dominant, theme of the prosecutor’s address was reliance upon post-offence conduct to inculpate the applicant. This reliance had been done without notice, contrary to s 19 of the Jury Directions Act 2015, and was in breach of s 20 of that Act. It constituted a miscarriage of justice.
Further, according to the argument, the prosecutor underlined the significance of what was said to be the applicant’s incriminating post-offence conduct by pointing to the threat to kill the co-accused, Delamothe.
Having recited the submissions advanced for the applicant below, it was submitted for the applicant in this Court that the Judge’s ruling that the problem could be addressed by directions was wrong. The introduction of consciousness of guilt reasoning at a late stage in the trial could not be cured by directions and was not cured by the directions given. That was because:
(1)the prosecutor had placed the particular arguments at the forefront. It was unreasonable to expect that lay jurors would entirely put out of their minds arguments that lay at the heart of the prosecution case;
(2)the difficulty of disregarding the arguments was heightened by their superficial attraction;
(3)if the jury did give any credence to the arguments, that carried particular unfairness because the arguments necessarily went uncontradicted in the closing address of applicant’s counsel. Moreover, the forensic choice that the applicant would not give evidence was made in the setting where there was no need to address post-offence conduct reasoning;
(4)the direction that was given covered only part of the prosecutor’s argument. It prohibited the jury’s reliance only on the disposal of the axe and clothing as implied admissions; and
(5)the direction given may have been taken by the jury as reinforcing its ability to use evidence of the threat to kill Delamothe as an implied admission.
It was further submitted that it was of no real moment that no exception was taken to the direction which was given. Applicant’s counsel had explicitly submitted that no direction would suffice to cure the prosecutor’s wrongful conduct.
Thus, it was argued, the Judge’s failure to discharge the jury had given rise to a substantial miscarriage of justice — it being recognised that where there is a conviction after refusal to discharge, the issue on appeal is whether there was an irregularity which has affected the verdict.
Submissions for the respondent
It was submitted for the respondent, in opposition to the applications for extension of time and for leave to appeal against conviction, that the comments by the prosecutor had been corrected immediately by the Judge’s direction, had been commented upon by defence counsel in closing address, and that the Judge had reinforced the earlier direction in her charge. The jury must be assumed to act on a judge’s directions. There had been no high degree of necessity to discharge the jury.
Application grounds — analysis
In our opinion, the proposed grounds lack any force.
In a practical sense, the two proposed grounds merge into one. It being accepted that there was an irregularity in the trial, by the comments of the prosecutor in his closing address, and the jury having convicted the applicant, the application for leave to appeal should be dealt with by considering whether it is reasonably arguable that the irregularity was productive of a substantial miscarriage of justice.[5] As framed by Gibbs ACJ in Maric and as replicated by this Court in R v Halliday[6] and Ahmed v The Queen,[7] the test for determining whether the particular irregularity had led to a substantial miscarriage of justice was whether the appeal court could be satisfied that the irregularity had not affected the verdict and that the jury would certainly have come to the same conclusion had the irregularity not occurred.
[5]Maric v The Queen (1978) 20 ALR 513, 518–521 (Gibbs ACJ, with whom Mason and Jacobs JJ agreed) (‘Maric’).
[6](2009) 23 VR 419, 436 [66], 437 [71].
[7][2012] VSCA 76 [44] (Hollingworth AJA, with whom Maxwell P and Buchanan JA agreed).
Maric was decided in the context of legislation which distinguished between a miscarriage of justice and, via a provision akin to the proviso to s 568(1) of the Crimes Act 1958, a substantial miscarriage of justice. It was decided prior to Weiss v The Queen,[8] which resolved conflict in the authorities as to the way in which the common form proviso operated.[9]
[8](2005) 224 CLR 300 (‘Weiss’).
[9]Even so, the High Court has revisited the operation of common form provisos a number of times since Weiss was decided, most recently in Kalbasi v Western Australia (2018) 352 ALR 1 (‘Kalbasi’). The judgment of Nettle J refers to those matters: at [114]–[119]. Illustrating the difficulty of applying the principles in a particular case, the Court in Kalbasi split 4:3.
By s 276(1)(b) of the Criminal Procedure Act 2009, which replaced s 568 of the Crimes Act, the appellant must satisfy the Court that, ‘as the result of an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice’. There is no doubt that the legislature subjectively intended, in the case of circumstances addressed by sub-s (1)(b) or (1)(c), to cast a burden upon an appellant of establishing, in any of the circumstances there mentioned, that the same had been productive of a substantial miscarriage of justice. Read superficially, those subsections said just that. But it is not the way in which, as a practical matter, the majority judgment of the High Court in Baini v The Queen[10] addressed the question of an irregularity falling within sub-s (1)(b) in a case where the Crown contended that conviction was inevitable.
[10](2012) 246 CLR 469. Compare at 477 [18] with at 481 [31]. The principles exposed in the majority judgment were considered and applied by this Court in Andelman v The Queen (2013) 38 VR 659, 667–8 [85]–[86], 679 [94] (as to onus), 681 [101]–[102] (as to inevitability) and, on remitter, in Baini v The Queen [2013] VSCA 157 [8]–[9]. The necessary approach has subsequently been applied in a number of cases including Crocker v The Queen (2013) 39 VR 668, 674–6 [19]–[23]; Benson v The Queen (2014) 46 VR 563, 574–5 [49]–[51] (Neave JA, who dissented in the result but not in point of principle); Fletcher v The Queen (2015) 45 VR 634, see especially at 654–5 [96]–[97] (Dixon AJA); Meyer v The Queen [2018] VSCA 140 [279] (Priest and Kaye JJA).
The logic of Maric is that an irregularity such as that presently complained of should now be considered in the framework of s 276(1)(b) of the Criminal ProcedureAct established by Baini, both as to inevitability and onus. We will approach the matter in that way. To do so is favourable from the standpoint of the applicant.
The applicant’s attack was upon the irregularity constituted by the prosecutor’s invitation to the jury to reason that the applicant had rid himself of the axe and the clothes which he had worn on 26 January 2014 because, if retained, they would have implicated him in the killing of the deceased. The applicant’s threat to kill Delamothe was also deployed in the applicant’s argument as constituting an implied admission of guilt. The significance of the late-raised argument was said to have been compounded by hamstringing the defence in considering whether the applicant should give evidence. Moreover, the jury was implicitly authorised to treat the applicant’s threat to kill Delamothe as an implied admission of guilt of (all) the offences charged, because the Judge said nothing about that matter in her directions.
With respect to the arguments mounted for the applicant, we consider that the following circumstances are relevant:
(1)Not only did the Judge direct the jury that it could not use evidence of the disposal of the axe and clothes as post-offence incriminating conduct referable to the charge of manslaughter, her Honour also told the jury, as was the fact, that it was not the Crown case that the applicant entered the premises, and that the pathologist’s evidence did not reveal any injury to the head as might have been caused by an axe. The fact that an axe had not been used to inflict the head injuries suffered by the deceased meant that the prosecutor’s assertion that disposal of the axe and clothes bespoke consciousness of guilt of the crime of manslaughter necessarily had no substance.
(2)The Judge, imbued with an understanding of the course of the trial, could not discern that the applicant was prejudiced by an inability to meet the late-raised argument. None was suggested by the applicant’s submissions in this Court, other than that the applicant was deprived of the forensic choice of deciding whether to give evidence. But that submission was not advanced by the applicant’s very experienced trial counsel.
(3)The submission that the jury might have understood the applicant’s apparent threat to kill Delamothe, because the Judge did not mention it in her directions, as being evidence of post-offence incriminating conduct lacks force. Counsel for the applicant did not even raise that matter as a reason why the jury should be discharged. In any event, all that the applicant said in the recorded conversation was that Delamothe might drop names. At that stage, the question was simply whether the applicant could be identified as one of those who went to the premises on 26 January 2014.
(4)The irregularity was correctly regarded by the Judge as one susceptible of remedy by directions. The directions which her Honour gave focused upon the complaint made by applicant’s trial counsel, and effectively showed that there was no substance to what the prosecutor had said in that connection. There was simply no reason why the jury would not act upon the Judge’s direction. That was the more so when the suggested implied admission of guilt was demonstrably at odds with the evidence led by the Crown as to the head injuries sustained by the deceased.
The situation is one in which it can be affirmatively concluded, despite the irregularity having occurred, that conviction was inevitable. The irregularity, for reasons which we have explained, led nowhere. What was left was a powerful circumstantial case against the applicant. It required the verdict of guilty at which the jury arrived. In our opinion, the contrary is not reasonably arguable. The applicant was shown to be a leading light in organising the attack on the premises. He had a reason for organising the attack; a cousin had recently been injured by those in the other group. It is next the fact that a considerable number of men, the applicant included, who were armed with a variety of weapons which were capable of inflicting damage to both persons and property, arrived at the premises on the evening of 26 January 2014. Property damage was done, and injury was inflicted, not only upon the deceased. The question for the jury was whether, to paraphrase the address of applicant’s counsel in closing address, the only reasonable inference to draw, in the circumstances, was whether the applicant and the other men had attended at the premises being party to an agreement, arrangement or understanding that expressly or tacitly comprehended that someone at the premises might be assaulted with a weapon so as to create an objectively significant risk of serious injury. The jury concluded in the applicant’s case that such an inference was the only reasonable inference. Its verdicts of not guilty to manslaughter and aggravated burglary in the case of Delamothe were readily attributable to discrete issues which he raised at trial, including withdrawal from the relevant agreement. Likewise, the jury’s inability to reach a verdict on the charge of manslaughter in Fisher’s case was readily explicable.
Conclusion
The explanation for the applicant’s delay being unsatisfactory and the merits of the proposed appeal being poor, the application for an extension of time for leave to appeal against conviction is, as we foreshadowed at [8] above, refused.
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