Ahmed Taha v The Queen
[2018] VSCA 66
•22 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0107
| AHMED TAHA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and TATE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 March 2018 |
| DATE OF JUDGMENT: | 22 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 66 |
| JUDGMENT APPEALED FROM: | DPP v Taha (Unreported, County Court of Victoria, Judge Chambers, 20 October 2016 (Conviction)) |
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CRIMINAL LAW – Appeal – Conviction – Aggravated burglary and intentionally causing serious injury – Extension of time – Fresh evidence – ‘Burn’ from shotgun mentioned in Victim Impact Statement inconsistent with evidence given at trial – Applicant denied opportunity to cross-examine witness as to credibility – Whether substantial miscarriage of justice occurred – Application for leave to appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S N Andrianakis | Victorian Bar Pro Bono Scheme |
| For the Crown | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
TATE JA:
On 12 October 2016, the applicant, Ahmed Taha, was arraigned in the County Court at Melbourne, on one charge of aggravated burglary (charge 1) and one charge of intentionally causing serious injury (charge 2). He was convicted of both those offences.
On 23 December 2016, the applicant was sentenced to five years’ imprisonment on charge 1, and four years’ imprisonment on charge 2. One year of the sentence on charge 2 was cumulated upon the sentence on charge 1, making a total effective sentence of six years. A non-parole period of four years was fixed.
It is accepted that the applicant had, at all times, indicated a desire to seek leave to appeal against conviction. According to an affidavit that he affirmed on 11 May 2017, his trial had been privately funded, but after it was over, there was no longer any money available to pursue an appeal. He sought Legal Aid for such an appeal, but was told that he was not eligible.
Eventually, with the assistance of other prison inmates, the applicant created and filed a series of documents, pursuant to which he now seeks to have his appeal against conviction heard. All of those documents were dated 11 May 2017.
Pursuant to s 313 of the Criminal Procedure Act 2009, the applicant first seeks an extension of time within which to file a notice of application for leave to appeal against conviction and if that extension is granted, leave to appeal itself.
The applicant’s notice sets out a single proposed ground:
A miscarriage of justice occurred in that fresh evidence contained in a Victim Impact Statement by Mr Barry (complainant) that Brett Barry received a burn on his own arm when the shotgun went off was submitted by the prosecution after the applicant was convicted and was therefore not available at the trial of the applicant and there is a significant possibility or likelihood that the jury acting reasonably would have acquitted the applicant if the fresh evidence had been before it at trial.
The applicant also filed a Written Case in support of his application for leave to appeal. The summary of relevant facts contained within that Written Case, was inadequate. Relevantly, it asserted:
Mr Taha while searching Mr Barry’s … room was shot in the left elbow
The Defence Case was that Mr Barry was responsible for the shot and that Mr Taha had no knowledge of anyone entering the premises with a shotgun.
The Written Case continued:
The statement contained in the Victim Impact Statement of Mr Barry makes it clear that his arm is burnt by the shotgun after the gun is discharged. The defence case was that injuries to Mr Barry’s chest and right arm were graze injuries made by tangential force moving from left to right across Mr Barry’s body after firing the shotgun.
The Written Case then asserted that there had never been any suggestion, at trial, that Mr Barry had suffered a burn to his arm. His evidence was simply that he had been hit repeatedly to the head with the butt of a shotgun, and rendered unconscious.
The Written Case stated that Mr Barry’s account of the physical injuries which he sustained, as set out in his Victim Impact Statement, was inconsistent with the evidence that he gave at trial. The Written Case further said that, had the applicant been aware before Mr Barry gave evidence, of what he would eventually say in his Victim Impact Statement, his credibility would have been seriously damaged, the two accounts being entirely inconsistent.
After the Written Case was filed, and at the request of the Court’s Registry, the Victorian Bar Duty Barrister Scheme agreed to provide legal assistance to the applicant for his appeal. Mr Sam Andrianakis of counsel took on the task of presenting the applicant’s case. He did so with diligence and skill, and the Court acknowledges his assistance in this matter.
In a formal sense, the actual proceeding before this Court is an Election on the part of the applicant to review a refusal by the Registry to extend time. Nonetheless, the Court has heard full argument as to the merits of the proposed application for leave to appeal. It is therefore in a position to deal with all aspects of the case.
On 1 March 2018, just short of a week before the hearing of this application, the applicant filed a Supplementary Submission, in support of both an extension of time, and his application for leave to appeal. That Supplementary Submission foreshadowed a minor amendment to the proposed ground of appeal by adding the word ‘substantial’ to the first line, ahead of the word ‘miscarriage’. Nothing turns upon that proposed amendment.
There was no opposition before this Court to the extension of time which was sought. In those circumstances, we will grant that extension. In our view, the delay in filing the notice seeking leave to appeal has been adequately explained. The delay itself was not so inordinate as to warrant shutting out the applicant’s challenge to his conviction.
In the Supplementary Submission, the applicant stated that he accepted the summary of relevant facts provided by the Crown in its Written Case dated 9 August 2017, save certain points that did not relate to the proposed ground of appeal.
The Crown’s summary was relevantly as follows:
…
3.Ahmed TAHA, the Applicant in this matter, resided at … Broadmeadows.
4.Brett BARRY, the victim in this matter, suffers from Motor Neurones Disease and other neurological conditions. He requires the assistance of a part-time carer and is on a disability pension.
5.BARRY’s address was … Broadmeadows.
6.During the evening of Sunday 17th May 2015, BARRY was at his home address in the company of his carer, Greg REINER, and two friends.
7.At approximately 12:30am, REINER assisted BARRY to his bed. RENIER then left the premises a short time later, leaving BARRY and BARRY’s friends home at the address.
8.At approximately 2:30am, BARRY observed TAHA and two other unidentified co-offenders standing near a vehicle parked outside the front of his house…
9.BARRY has a number of internal and external surveillance cameras fitted at his address, with footage from each of these cameras being recorded to a monitor inside BARRY’s bedroom.
10.BARRY walked to his front door and stepped outside.
11.BARRY then observed the three males standing beside a parked vehicle and called out to the group to make himself known. BARRY did so without confronting the men and did so to suggest to the males that their presence in the street had been identified.
12.TAHA and the other unidentified co-offenders then stopped what they were doing and looked towards BARRY. The trio then began speaking a foreign language amongst each other.
13.Fearing the males, BARRY moved back inside the house where he was joined by one of his friends from inside. BARRY then closed the security door, and then shut his wooden door.
14.After informing his friend not to open the door, BARRY then walked down the hallway and went back inside his bedroom.
15.Almost immediately after returning to his bedroom, BARRY heard his friend engaging in an Arabic conversation with the males at the front door.
16.BARRY heard that the tone of the conversation was aggressive.
17.BARRY headed back towards the front of the house, where BARRY observed that the front wooden door was now open.
18.BARRY’s friend kept the security door closed, and began to back away.
19.As he started walking back towards his bedroom, BARRY then observed that TAHA and his two co-offenders had forced their way inside the house through the front door. Charge 1 — Aggravated Burglary.
20.One of TAHA’s co-offenders was armed with a Webley and Scott 12 Gauge Shotgun. TAHA and his two co-offenders then moved through the house, herding BARRY to his bedroom and BARRY’s two friends into another bedroom.
21.TAHA and his two co-offenders then demanded cash and drugs and commenced an assault on BARRY whilst they contained him inside his bedroom.
22.Whilst this assault was occurring, one of TAHA’s co-offenders alternated between attacking BARRY and keeping watch over BARRY’s two friends, ensuring that they did not intervene or attempt to protect BARRY.
23.During the assault, TAHA and his co-offenders used the butt of the shotgun to strike BARRY on the head a number of times. These blows were so severe BARRY’s skull was fractured, and BARRY lost consciousness. Charge 2 — Intentionally Cause Serious Injury.
24.While TAHA and his co-offenders continued to assault BARRY, the shotgun discharged and struck TAHA in the left forearm. The impact of the blast was at very close range; causing serious and significant injuries to TAHA.
25. TAHA and his two co-offenders then ran from the premises.
26. Emergency services were subsequently called and BARRY was later conveyed to the Northern Hospital in a serious condition with head injuries.
27. Due to the severity of skull fractures, BARRY was later transferred to the Alfred Hospital.
28. Within one hour of this incident, TAHA presented at the Northern Hospital, being conveyed by his girlfriend and another friend. During surgery, doctors removed a plastic wad (12 gauge) and a large number of pellets from TAHA’s left elbow region.
29. Investigators seized a mobile telephone from TAHA at the time of his admission to the Northern Hospital.
30. Telecommunications analysis of TAHA’s mobile telephone have identified that TAHA made a large number of phone calls and text messages in the hours leading up to the aggravated burglary. This service is listed with the Optus Network in the name of ‘Ahmed TAHA of … Broadmeadows’.
31. Enquiries have identified that TAHA switched off his mobile telephone at approximately 2:27am; just three minutes prior to the commission of the aggravated burglary. The last confirmed physical location of TAHA’s mobile telephone was in Broadmeadows.
32. Against advice from medical staff, TAHA self-discharged from the Northern Hospital in the early hours of 18 June 2015, one month after his initial admission.
33. TAHA was subsequently arrested by investigators at his residential address on Tuesday 23 June 2015.
…
35. TAHA was conveyed to the Broadmeadows Police Station where he was formally interviewed in relation to this matter.
36. During the record of interview, TAHA made admissions to committing the aggravated burglary at …, Broadmeadows, in the company of two co-offenders whom he refused to identify.
37. TAHA stated that he attended the address on this occasion as one of his co- offenders was owed money by BARRY.
38. TAHA stated that one of his co-offenders was in possession of a shotgun at the time of entry to the premises.
39. TAHA admitted that he was present in BARRY’s bedroom at the time of his assault, although stated he played no direct part in the assault. TAHA admitted to searching a number of BARRY’s possessions looking for drugs and money, but that he did not steal anything.
40. TAHA stated that as he stood on BARRY’s bed, he was shot.
41. TAHA did not know how the firearm discharged, and stated that he then bled throughout the house and outside the premises as he and his co-offenders left the scene.
42.TAHA stated he was then driven to hospital by his girlfriend and a male friend.
43. TAHA admitted to owning the mobile telephone seized from him and confirmed the service number identified by investigators as his own at the time of this incident.
…
46. TAHA refused to participate in an identification parade.
47. BARRY positively identified TAHA in a photo board. [1]
[1]Citations omitted.
The paragraphs in the Crown’s summary to which the applicant took exception were as follows:
Paragraph 19 — Mr Barry did not observe Mr Taha and his co-offenders force their way inside the house through the front door. He did not see them come in through the door and did not know how the door was opened for them to get in.
Paragraph 20 — There is no evidence of what brand of shotgun was produced.
Paragraphs 29–31 — No evidence was elicited at trial in relation to Mr Taha’s telephone records.
Paragraphs 36–38 — Mr Taha did not make admissions to committing an aggravated burglary.[2]
[2]Citations omitted.
Evidently, how the applicant and his co-offenders gained entry into the premises was the subject of disagreement between the parties at trial. The applicant submitted that Mr Milad Ali, a friend of Mr Barry, had let him and his co-offenders into the house. This was said to be consistent with the fact that Mr Ali was standing at the door at the relevant time. Moreover, there was no damage to the door or evidence of forced entry.
The Crown’s position as regards the circumstances surrounding the entry to the house was to rely upon the applicant’s record of interview. In that interview, he admitted that he had gone to the victim’s house in the early hours of the morning, and that one of his co-offenders had been armed with a weapon.
The Crown invited the jury to conclude that even if there had been no resistance by Mr Ali to entry into the premises, the evidence taken as a whole admitted of no inference other than that the applicant had entered as a trespasser, and was aware of that fact. Importantly, the Crown did not rely upon Mr Barry’s evidence to establish this element of the offence of aggravated burglary. He was not present in the vicinity of the door to the house at the moment of entry, and therefore could give no description as to precisely how entry had been effected.
After the applicant had been convicted of the charges, a Victim Impact Statement was obtained from Mr Barry. Under Section 3, ‘Physical impact of the crime’, the following passage appears:
Brett suffered cuts and lacerations to his face and head. He also suffered a fractured skull and was hospitalised due to the injuries for five days. In addition to these injuries Brett also received a burn on his arm when the shotgun went off.[3]
[3]Emphasis added.
It seems clear from the terms of the Victim Impact Statement that it was prepared by someone other than Mr Barry, who nevertheless adopted its contents as true and correct.
The applicant now submits that the significance of the bolded statement, in the passage set out above, lies in the fact that, in his evidence-in-chief, Mr Barry made no mention at all of a shotgun having been discharged. Indeed, under cross-examination, he agreed that he had no recollection of any shotgun having been fired on that morning. Moreover, he said that he had no recollection at all of anything that took place after he was struck to the head. This account is now said to be wholly at odds with what emerged for the first time in the Victim Impact Statement.
Before this Court, the applicant submitted that Mr Barry’s credibility was central to the Crown case. No other witness saw a shotgun, though plainly there had been one present. The applicant had been shot in the elbow by just such a weapon.
It was submitted that, had the defence been aware at trial of Mr Barry’s complaint regarding a burn to his arm resulting from the discharge of the shotgun, his credibility would have been damaged to such a degree as to render much of his evidence worthless. The question was posed rhetorically; if Mr Barry, as he said in his evidence, did not know that a shotgun had been fired, how could he subsequently have said that the discharge of that weapon had caused the burn to his arm?
The applicant went further. He submitted that Mr Barry’s statement regarding the burn to his arm was entirely consistent with the defence case at trial, namely that it was Mr Barry who shot the applicant, and with Mr Barry’s own shotgun. That submission is said to have been supported by other evidence, including the fact that the forestock of the shotgun was later located underneath Mr Barry’s bed covers and was found to contain Mr Barry’s DNA, and no other DNA.
Before this Court, the Crown took issue with the applicant’s case. It noted that the version of events now put forward in support of this application was entirely inconsistent with the applicant’s answers to police in his record of interview. By those answers, the applicant admitted in the clearest of terms, that he had entered the premises in the early hours of the morning, accompanied by two co-offenders, neither of whom he was prepared to name.
The applicant further admitted that one of those co-offenders had been in possession of a shotgun when they entered Mr Barry’s home. He told police that he was unsure as to how he had come to be shot.
The Crown submitted that there was no possibility whatsoever that the jury would have acquitted the applicant of either of these charges, had they been aware of Mr Barry’s statement concerning the supposed burn to his arm, as set out in his Victim Impact Statement.
It was submitted that counsel who appeared for the applicant at trial had put to Mr Barry in cross-examination that it was Mr Barry who had produced the shotgun and fired the shot that injured the applicant. While Mr Barry had denied that suggestion, there would have been nothing arising from the description he gave in the Victim Impact Statement to cast doubt upon the applicant’s guilt of these two charges. The evidence against him was said to be simply overwhelming.
The Crown developed that submission by noting that there was ample evidence before the jury of the injuries that Mr Barry had sustained. He testified that there was a graze across his right arm, above the elbow. Photographs of that injury were tendered. He was not asked any questions at all about an injury to his left arm, above the wrist, though a photograph of that injury was also before the jury.
According to the Crown, all that was new, in the Victim Impact Statement, was Mr Barry’s description of an injury being a ‘burn mark to his arm’ from when the shotgun went off.
As to why Mr Barry had not given that evidence in precisely those terms, the Crown submitted that one explanation would have been the severe blunt trauma that he had suffered to his head. There was no dispute at trial that he had been struck to the head repeatedly, almost certainly with the butt of the shotgun, before it discharged and injured the applicant. Indeed, the medical evidence was that Mr Barry had received a series of severe blows to the head, which had rendered him unconscious. As we have said, he suffered a fractured skull as a consequence of the attack.
The Crown submitted that it was entirely possible that the applicant was shot as a result of an accidental discharge of the weapon which, at that moment, was in the hands of one of his co-offenders. If indeed Mr Barry had suffered a ‘burn mark’, as he later asserted, that could have been brought about by his proximity to the firearm when it discharged.
With respect to Mr Barry‘s DNA evidence having been found on the forestock of the shotgun, the Crown noted that it was not clear what part of Mr Barry’s body had come into contact with the weapon. Given that the gun was found in Mr Barry’s bedroom, the DNA could have come from any number of sources, including the sheets. Moreover, it could have come from Mr Barry having been hit on the head with the forestock.
More fundamentally, however, the Crown submitted that even if, contrary to Mr Barry’s evidence, it was he who had produced the shotgun, and shot the applicant with it, the applicant would still have been guilty of both aggravated burglary and intentionally causing serious injury.
According to the Crown, the offence would have been aggravated burglary irrespective of whether, as the applicant told police, the weapon was brought to the house by one of his co-offenders or whether it was Barry who produced it. The particulars of the aggravated burglary, as charged, were that, at the time of entering the premises, the applicant knew that a person was then present, or was reckless as to whether that was so. The offence was complete at the moment of entry. Whatever happened in Mr Barry’s bedroom thereafter, was of no legal consequence so far as the conviction for this offence was concerned.
As regards the conviction for intentionally causing serious injury, there was no doubt that Barry had been savagely struck to the head a number of times, almost certainly by the butt of the shotgun. Having regard to the fact that the applicant and his co-offenders entered Mr Barry’s home intending to assault him, or at least contemplating doing so, the applicant would have been liable for what was done to the victim irrespective of whether he struck the blows himself, or was merely present aiding and abetting. Indeed, he would almost certainly have been found guilty by reason of the doctrine of joint criminal enterprise, sometimes described as acting in concert, or common purpose.
It was submitted that there were other reasons why the so-called fresh evidence could not have made any difference to the outcome of this trial.
First, it was said that the Crown had called a substantial body of medical evidence as to Mr Barry’s injuries. A number of photographs of those injuries were tendered. Dr Caroline Bolt, who was based at St Vincent’s Hospital (Emergency Section), and also at the Victorian Institute of Forensic Medicine, gave evidence at trial. She described her experience of regularly dealing with victims of assault, and in particular, documenting injuries. She was taken through the photographs, and eventually shown photograph 12, which was the photograph ostensibly showing the burn mark. It was that photograph that the applicant submitted represented the injury to which Mr Barry referred in his Victim Impact Statement.
Dr Bolt said that this was a ‘linear graze abrasion’ and added that it was probably a ‘blunt-forced type injury’, attributing it to scuffing and describing it as tangential. Critically, she did not describe it as a ‘burn mark’, something that she would have been expected to recognise as such given her expertise in the area of injury identification.
How then, it may be asked, did Barry come to describe that particular injury as a ‘burn mark’, and attribute it to the discharge of a shotgun? There are, undoubtedly, unanswered questions here. If, indeed, Barry was rendered unconscious by the blows to his head, as he claimed, and never heard the shotgun discharged, one possibility is that when he came to prepare his Victim Impact Statement, he simply surmised that the injury depicted in photograph 12, which would have healed by that stage, had been a burn mark. In other words, this would have been a reconstruction on his part, perhaps with the assistance of whoever it was that helped him to prepare that part of his Victim Impact Statement.
Irrespective of whether that provides an entirely satisfactory explanation, one thing is clear. The ‘fresh evidence’ upon which the applicant now seeks to rely does not satisfy the test required for the admissibility of evidence of that kind.
For one thing, the evidence in question probably does not constitute fresh evidence. The fact of the injury to the left arm was known at the time of the trial, and could have been the subject of cross-examination by counsel for the applicant had he wished to explore that matter. More fundamentally, it is difficult to see how, even assuming that it had been known at the time that Mr Barry considered the injury to be a burn mark, brought about by the discharge of the shotgun, it would have been an answer to the charges as brought.
As indicated, Mr Barry’s evidence was entirely irrelevant so far as the charge of aggravated burglary was concerned. It was sufficient to note that he had not given permission to any of the three offenders to come into his house at 2.30 am, whether armed or not. Mr Barry did not see the men enter the house, and Mr Ali’s evidence in no way suggested that they had permission to come in.
Mr Barry’s evidence was equally of no consequence when it came to dealing with the injuries that he sustained. This was never a case of self-defence, so far as the applicant was concerned. Accordingly, even if Mr Barry had produced the shotgun, and fired the shot that struck the applicant during the course of the confrontation, the conviction for intentionally causing serious injury would stand. The blows to the head spoke for themselves.
We would extend time within which to file the notice of application for leave to appeal. However, we would dismiss the application for leave to appeal, the proposed ground having no reasonable prospects of success.
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