Bargashoun v The King

[2023] NSWCCA 17

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bargashoun v R [2023] NSWCCA 17

Hearing dates:

6 February 2023

Decision date:

15 February 2023

Before:

Adamson JA at [1]; N Adams J [72]; Weinstein J [73]

Decision:

(1)   Extend the time for filing the notice of appeal to 23 June 2022.

(2)   Grant leave to appeal.

(3)   Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where jury could not be satisfied of specific intent to murder beyond reasonable doubt — application for extension of time for leave to appeal

CRIME — Appeals — Appeal against conviction — jury directions — alternative count — whether trial judge erred in directing jury Crown not required to prove individual facts beyond reasonable doubt

CRIME — Appeals — Appeal against conviction — jury directions — alternative count — whether trial judge failed to give specific unanimity direction

Legislation Cited:

Crimes Act 1900 (NSW), ss 29, 33A, 98

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728

Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; (2011) 209 A Crim R 424

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

The Queen v Crabbe (1985) 156 CLR 464; [1985] HCA 22

Category:

Principal judgment

Parties:

Richard Bargashoun (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Woods (Applicant)
B Hatfield (Respondent)

Solicitors:
KPT Defence Lawyers (Applicant)
Office of the Director of Public Prosecution (Respondent)

File Number(s):

2012/373923

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 May 2015

Before:

Colefax SC DCJ

File Number(s):

2012/373923

HEADNOTE

[This headnote is not to be read as part of the judgment]

Richard Bargashoun (the applicant) was charged on indictment with three counts: shoot with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW) (count 1); in the alternative, discharge a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act (count 2); and robbery with infliction of grievous bodily harm contrary to s 98 of the Crimes Act (count 3). He pleaded guilty to counts 2 and 3 and was convicted after trial by jury of count 1, by majority of 11, before Colefax SC DCJ (the trial judge) on 25 May 2015.

The applicant was sentenced to a term of 20 years’ imprisonment with a non-parole period of 15 years’ imprisonment, commencing on 1 July 2013.

The applicant, in company with a co-offender, sought to rob the victim of the takings from a hotel. The applicant used a .22 calibre hand gun to shoot the victim twice in the legs. When this was insufficient to get the victim to give up the money, he shot him at close range at least three more times in the torso (upper right chest, abdomen and right hip). There were two factual issues: whether two marks on the victim’s torso were gunshot wounds or surgical incisions and whether he had shot the victim twice more after the victim had given up the money.

The principal issue at trial was whether the applicant intended to murder the victim when he fired the shots (required for proof of count 1) or whether his intention was only to cause grievous bodily harm (as he had admitted by his plea to count 2).

By notice of appeal filed 23 June 2022, the applicant sought an extension of time for leave to appeal against his conviction on three grounds: that the verdict was unreasonable; that the trial judge erred in directing the jury that the Crown was not required to prove any individual facts beyond reasonable doubt; and that the trial judge erred in failing to give a specific unanimity direction. The latter two grounds were first raised on 30 January 2023, a week before the hearing of the appeal.

The Court held (Adamson JA, N Adams J and Weinstein J agreeing), extending time for filing the notice of appeal, granting leave but dismissing the appeal:

1. The verdict was not unreasonable as it was open to the jury to infer that the applicant intended to kill the victim after firing the first two shots (which had been directed to his lower body) because the subsequent shots were fired, at very close range, at the victim’s torso.

2. Because of the number of shots fired, it was not necessary to resolve whether or not the two marks below the victim’s right nipple area were gunshot wounds or surgical incisions or whether the last two shots were fired after the victim had relinquished the money.

3. The trial judge did not err in directing the jury about the standard of proof; nor was a Shepherd direction required.

4. The trial judge was not required to give a unanimity direction since the jury must have been unanimous that the requisite intention had been established by the time the last shot was fired, if not before.

5. Applications of this nature should only be made where there are real prospects of advancing the applicant’s interests.

6. The extension of time and leave to appeal were granted, notwithstanding the lack of merit of the grounds, for the purpose of bringing the matter to finality.

JUDGMENT

1. ADAMSON JA: Richard Bargashoun (the applicant) was charged on indictment with three counts: shoot with intent to murder contrary to s 29 of the Crimes Act 1900 (NSW) (count 1); in the alternative, discharge a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act (count 2); and robbery with infliction of grievous bodily harm contrary to s 98 of the Crimes Act (count 3). He pleaded guilty to counts 2 and 3 and stood trial on count 1 before Colefax SC DCJ (the trial judge) and a jury, which returned, by majority of 11, a verdict of guilty on 25 May 2015.

2. The applicant applies for an extension of time for leave to appeal against his conviction.

3. On 1 April 2016, the applicant was sentenced for counts 1 and 3, as well as a related charge of dealing with the proceeds of crime, and a separate substantive charge of robbery in company (which involved the applicant and Mr Lewis stealing about $116,000 worth of jewellery). An aggregate sentence of 20 years’ imprisonment was imposed with a non-parole period of 15 years’ imprisonment. The term commenced on 1 July 2013. The applicant will first become eligible for parole on 30 June 2028. There has been no appeal against the aggregate sentence.

4. The applicant filed a notice of intention to appeal on 27 April 2016. Six applications for extension of time were filed on: 27 October 2016, 27 January 2017, 27 April 2017, 3 August 2017, 29 September 2017 and 29 December 2017. Extensions were required because of the difficulty in obtaining exhibits and transcript and the need to allow time for an advice on the merit of an appeal to be obtained. On each occasion, the Registrar extended the period of time for filing a notice of appeal.

5. In his application filed on 29 December 2017, the applicant’s solicitor explained that the grant of Legal Aid had been terminated because advice had been received from Ms Davenport SC to the effect that there was no merit in an appeal. The basis of the further application was that the applicant wished to explore obtaining funds from private sources so that he could challenge his conviction.

6. On 15 January 2018, the Registrar of the Court of Criminal Appeal granted an extension to 30 March 2018. The notation on the file read: “[f]inal extension without good reason as one MERIT advice has already been provided.” No notice of appeal was filed within the extended time.

7. On 1 June 2021, the applicant instructed Jordan Gear, a solicitor, to act on his behalf and advise about prospects of appeal. On 22 October 2021, Mr Gear briefed Thomas Woods of counsel to advise on the prospects of appeal.

8. On 23 June 2022, the applicant filed a notice of appeal and indicated, in the prescribed form, that an extension of time was required. In support of the application, the applicant relied on an affidavit of Mr Gear, who deposed to having briefed Mr Woods and having obtained advice that there were prospects of appeal. The notice of appeal contained a single ground: that the verdict was unreasonable.

9. In the portion of the form entitled, “reasons for filing a notice of appeal out of time”, Mr Gear wrote:

“1.    There’s no explanation for the delay other than the applicant’s taking an extended amount of time to gather funds to pursue the appeal.

2.    Once legal representations was instructed in relation to the appeal with funds in trust (1 June 2021), there were delays and difficulties in obtaining documents relevant to the appeal.

a.    17 June 2021 - File received by previous legal representatives;

b.    20 July 2021 - Access granted by District Court to Court file;

c.    6 August 2021 - Access given by ODPP to trial exhibits, MFl's and other relevant documentation;

d.    August until present - enquiries made as to a number of MFl's not present on the Court file or in the documents held by the ODPP;

e.    2 May 2022 - Further access granted by District Court to Court file.”

10. On 30 January 2023, further submissions were filed on behalf of the applicant, seeking leave to add two further grounds, as follows:

“2.   The trial judge erred in directing the jury that the Crown was not required to prove any individual facts beyond reasonable doubt.

3.   The trial judge erred in failing to give a specific unanimity direction as to the different acts upon which the Crown relied as constituting the actus reus of the offence.”

11. There is no explanation for the delay in respect of grounds 2 and 3. Mr Woods accepted that leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules) was required in respect of grounds 2 and 3.

12. As the question whether an extension of time ought be granted is affected by the merits of the grounds, it is appropriate to address the grounds of appeal before turning to the question of extension. However, it is necessary, in order to address the grounds of appeal, to set out, as briefly as possible, the conduct of the trial and the evidence which is germane to count 1.

Matters not in dispute at the trial

13. Much of the Crown case was not in dispute, having regard to the pleas of guilty to counts 2 and 3.

14. It was common ground that the applicant and his co-offender, Mr Lewis, went to the Berala Hotel in Minto on 12 November 2012 with the intention of robbing Terrence Oliver when he left the hotel, having collected its takings. They brought a .22 calibre shotgun with them with a view to intimidating Mr Oliver, whom they knew, from previous observation, would be armed with a gun. When Mr Oliver emerged from the hotel at about 12.29pm on that day, the applicant and Mr Lewis approached him and demanded the bag which contained the money.

15. When Mr Oliver did not relinquish the bag, Mr Lewis stabbed him with a box cutter knife and the applicant fired shots at him. The first two shots were to his legs, but subsequent shots were fired. It was ultimately common ground that at least five further shots were fired, three of which were to the torso area (one in the upper chest area, one in the abdomen area and one in the right hip area).

The Crown case

16. The Crown case was that, when the applicant fired each shot after the first two (which were fired at Mr Oliver’s legs), he had a dual intention: to rob Mr Oliver of the bag and to kill him. The Crown principally relied on the nature of the weapon – a commercially available hand gun firing .22 bullets – as distinct from a knife or a fist; the number of shots fired (at least three of which were to Mr Oliver’s torso), as well as the close range from which they were fired.

17. The Crown further submitted that the jury ought accept Mr Oliver’s evidence that, after he handed over the bag containing the money, the applicant shot him again twice and that, if the jury accepted that evidence, the intention to kill was proved “overwhelmingly.” I note Mr Woods’ concession that, if the jury had been able to be satisfied that the applicant had shot Mr Oliver after he had relinquished the bag, the conviction would have been reasonable.

18. The Crown submitted that the CCTV footage supported Mr Oliver’s evidence generally and about the timing of the final two shots. It also relied on the circumstance that Mr Oliver had not seen the CCTV footage before giving evidence and therefore could not be said to have reconstructed his evidence by reference to it.

Mr Oliver’s evidence

19. The Crown relied on Mr Oliver’s evidence that he was shot in the legs which caused him to fall to the ground, after which he received multiple gunshot wounds to his chest. Mr Oliver explained that although he felt the first bullet going into him, he “couldn’t feel anything” with respect to the others. He later qualified his response by saying:

“… the bullet hitting the flesh and then entering the body makes a certain sound. Your body then reacts to the certain area where you were hit.”

20. In cross-examination, Mr Oliver accepted that, having been shot, he was “dazed”. However, he maintained that he knew where he was shot “as a result of the body jerking when the bullets penetrated [his] body.”

21. Mr Oliver said that he could see the person who was shooting him (who was accepted to be the applicant) and where he was pointing the firearm. He said:

“When I was shot in the stomach, I could see the firearm being pointed in the area of the stomach and when there was - and the other was to the left‑hand side of my chest, I could see the firearm being pointed there. When I was shot to the right‑hand side, I could actually see the firearm being pointed. However, I didn't look at the firearm to any great extent. I was trying to see the person's eyes to see what his intent was.”

22. It was the Crown case, based on Mr Oliver’s evidence, that the gunshot wounds included the two marks below the right nipple area of Mr Oliver’s chest. It was also the Crown case that, after Mr Oliver had relinquished the bag containing the money, the applicant shot him twice in the chest. Mr Oliver’s evidence as to the sequence of events was as follows:

“Q. You say you fell to the ground?

A. Yes.

Q. And you said this male with the firearm, discharged further rounds?

A. Yes.

Q. What did you feel or see in relation to that?

A. I felt two rounds go into my stomach, one to my chest - upper chest left‑hand side.

Q. Do you recall what you were doing at the time those rounds struck you?

A. I was lying on the ground.

Q. What was the other male doing, if you know, when you were being shot by the man with the firearm?

A. He stood up and started kicking me.

Q. Where did he kick you?

A. He kicked me in the head and the torso.

Q. Where was the bag at that stage?

A. I was still holding it.

Q. Did you continue holding it?

A. No. I thought I was going to die at that stage so I let the bag go.

Q. When you say you let it go, did you see where it went?

A. No.

Q. After you let the bag go, did you see what those other two males did?

A. Yes. They left the area - or left me and I presume went back to the car. However, shortly after that, the person dressed in white returned and stood over me with the firearm and then fired two more rounds into my chest on the right‑hand side near the breast bone.

Q. What did he do after that?

A. Both people then left the area and I presume went back to the car. I then managed to stand up and …”

23. Mr Oliver said that he got up and the red car (which was accepted to be the car in which the applicant and Mr Lewis were travelling) drove towards him and he “had to swerve out of the road to miss it.”

Photographic evidence

24. The Crown tendered photographs of Mr Oliver, which were taken on 6 December 2012 (approximately four weeks after the shooting) which showed a mark above his right nipple, two marks below his right nipple, a mark on his abdomen, a wound on his back (in which was accepted to be an exit wound), some knife wounds on his back and arm and marks on his legs.

Medical evidence

25. The Crown also relied on an Emergency Department admission form which identified five gunshot wounds to the applicant: a gunshot wound to his right chest above the nipple, a gunshot wound to his abdomen, a gunshot wound to his hip and a gunshot wound to each leg.

26. The Crown called Dr Khan, who gave evidence that a chest drain was inserted into the applicant’s chest cavity to drain the fluid which had collected there as a result of the gunshot wound or wounds. Dr Khan accepted (in cross-examination) that it was possible that the two marks below the applicant’s nipple area may be incisions relating to the insertion of the drain. Dr Khan confirmed that metallic fragments had been located in the right upper chest area, the right hip and the abdomen.

Lay evidence of eye witnesses

27. The Crown also adduced evidence of eye witnesses. However, their evidence was not particularly germane to the principal issue of the applicant’s intention and was, in any event, not as probative as the CCTV footage or Mr Oliver’s evidence. Accordingly, it need not be addressed in these reasons.

The defence case

28. The defence case was that the applicant’s intention was to rob Mr Oliver and that, to persuade Mr Oliver to relinquish the bag which contained the money, he shot him, intending to cause him grievous bodily harm, but not to kill him. The jury, by its verdict, can be taken to have excluded this hypothesis. Mr Woods accepted that it was open to the jury not to accept the applicant’s evidence. Accordingly, it can be put to one side for present purposes.

29. The applicant denied shooting Mr Oliver after he obtained possession of the bag. The jury was entitled not to accept this evidence.

30. In closing submissions, the applicant’s trial counsel submitted that, in circumstances, where the applicant did not shoot Mr Oliver’s head, heart (or, indeed, the left side of his chest) or other vital organs, the jury could not reasonably infer an intention to kill.

Consideration

Ground 1: alleged unreasonable verdict

The parties’ submissions

31. Mr Woods submitted that the jury could not be satisfied that the applicant intended to kill Mr Oliver because the Crown could not prove that the final two shots had been fired after he relinquished the bag. He submitted that Mr Oliver was an unreliable witness because of the gravity of the injuries he sustained and the trauma of the shooting which, understandably, made him “dazed.” Further, he submitted that only two of the shots were actually life-threatening – the shot to the upper right chest and the shot to the abdomen – and that the Crown could not prove that the applicant’s intention, at the time of firing those shots, was an intention to kill, as distinct from recklessness (foresight as to the probability that Mr Oliver would die). Mr Woods accepted that recklessness would not be sufficient to make out the offence in count 1 but conceded that it would have been sufficient to make out the mental element of murder, had Mr Oliver died: The Queen v Crabbe (1985) 156 CLR 464; [1985] HCA 22; Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27.

32. In substance, the Crown case was that it was open to the jury to infer that the applicant intended to kill Mr Oliver after firing the first two shots (which had been directed to his lower body) because the subsequent shots were directed, at very close range, at Mr Oliver’s torso (chest, abdomen and hip) and went into his torso. As referred to above, the Crown case included the submission that, after the applicant and his co-offender took the money from Mr Oliver, the applicant returned to shoot him again in the torso. Although the Crown case was stronger if this latter submission was made out, the Crown case was that the intention to kill was formed and acted on after the first two shots had been fired.

General principles

33. Where an unreasonable verdict ground is raised, this Court must determine whether it was open to the jury to find the applicant guilty or whether a jury must have had a (reasonable) doubt: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728. Thus, this Court must determine whether it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

34. The jury is the body which is entrusted with the primary responsibility of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

35. However, the judges who constitute the Court must review the evidence for themselves to determine whether we have a doubt. In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said at 494:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

Consideration

36. There is a distinction between an intent to do a particular act (discharging a firearm) and an intent to achieve a particular consequence (to kill a person). In the present case, the issue is whether it was open to the jury to infer to the requisite standard (beyond reasonable doubt) that the applicant, when he deliberately shot Mr Oliver, intended to kill him or, merely (as he has admitted by his plea to count 2) to cause him grievous bodily harm. Thus, the present applicant is concerned with intention to bring about a particular consequence (the death of Mr Oliver). Recklessness as to consequences is insufficient to establish intention for the purposes of the offence of shoot with intent to murder.

37. Absent an admission (and there is none in the present case), proof of intention will depend on circumstantial evidence. Thus, the jury was required to determine, as a matter of inference from evidence of the surrounding facts and circumstances, whether the accused intended to bring about the requisite consequence.

38. I do not consider it to be necessary, in order to address ground 1, to resolve the relatively confined factual issues referred to above. In my view, it was reasonably open to the jury to convict the applicant of count 1, whether or not the two marks below Mr Oliver’s right nipple area were gunshot wounds or surgical incisions to drain his chest cavity, and whether or not all, or only some, of the shots were fired when Mr Oliver was still holding the bag containing the money.

39. This inference that the applicant intended to kill Mr Oliver from at least the last (if not the third) shot was open because of the nature of the weapon, a .22 calibre hand gun, the number of shots, the range at which the shots were fired and the parts of Mr Oliver’s body into which the bullets were fired. The applicant was, as the CCTV footage shows, very close to Mr Oliver and was shooting directly at him. The gun was directed at Mr Oliver’s body. It was accepted that his evidence and the medical evidence established that the first two shots were fired at Mr Oliver’s legs. The later shots, whether there were three further shots (one into the upper chest, one in the abdomen and one in the hip) or five further shots (including two further shots below the right nipple area), were all directed at Mr Oliver’s torso and were therefore life-threatening. Mr Oliver’s evidence was largely corroborated by the medical evidence and the CCTV footage. Although he said that he had been shot in the left upper chest and the medical evidence established that he had been shot in the right upper chest, the jury was entitled to regard this as an understandable mistake which did not impugn his credibility to any material extent.

40. It was open to the jury to infer that the applicant realised that the two shots fired at Mr Oliver’s legs were insufficient to get him to give up the bag with the money and decided to change his approach. By this time, Mr Oliver was on the ground because of the injuries to his legs. The applicant leaned over him and continued to shoot at Mr Oliver’s torso. It was open to the jury to infer that the only reasonable inference to draw from the applicant’s act of shooting Mr Oliver multiple times, at point-blank range above his lower extremities, was that he intended to kill him in order to get the bag with the money. The jury was entitled to reason that whether or not the applicant shot Mr Oliver after he had relinquished the money bag was beside the point.

41. It may be accepted that, had Mr Oliver given up the money bag after he had been shot in the legs, the applicant may not have formed the intention of killing him. However, the applicant’s change in tactics to shoot him, not in the lower extremities (where the first two shots had been fired) but in the torso, was sufficient, in my view, to render it open to the jury to infer that the only reasonable hypothesis was that the applicant intended to kill Mr Oliver at the time he shot him, after the first two shots.

42. I confirm that, having reviewed all of the evidence at the trial, including the CCTV footage, I am satisfied beyond reasonable doubt that when the applicant fired the third and subsequent shots, he intended to murder Mr Oliver and was therefore guilty of count 1.

43. For these reasons, I am not persuaded that it is appropriate to extend time for leave to appeal in respect of ground 1.

44. Even had there been merit in the ground, there are significant reasons why an extension of time ought be refused.

Ground 2: alleged error in directing the jury that the Crown did not have to prove any individual facts beyond reasonable doubt

45. Ground 2, like ground 3, was raised for the first time in written submissions filed on 30 January 2023, a week before the hearing of the appeal. It is a classic “armchair appeal” ground: see, for example, Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; (2011) 209 A Crim R 424 at [169]-[170] (Johnson J, McClellan CJ at CL and James J agreeing).

46. Ground 2 arises from directions given by the trial judge in the course of the summing up. However, it is necessary to review what occurred in the parties’ closing addresses to put the directions in context.

47. Towards the conclusion of the Crown’s closing submissions, the prosecutor said:

“So, members of the jury, what can you be satisfied with beyond reasonable doubt? You can be satisfied that the accused fired seven shots from a commercially‑available handgun at Terrence Oliver. You can be satisfied, members of the jury, that seven shots struck Mr Oliver. You can be satisfied, at the very least on the evidence of Mr Khan, that three of those bullets struck Mr Oliver in the torso, one to the stomach, one to the upper chest area and one to around the right hip area. You can be satisfied beyond reasonable doubt that a shot, or shots to the abdomen, penetrated his bowel in two places. And, members of the jury, you can be satisfied that those last two fired shots were fired when Mr Oliver was lying on the ground and no longer in possession of the bag of money, and when the accused had returned to him.”

48. When the Crown finished the closing address, the trial judge sent the jury out for the short adjournment. In the absence of the jury, his Honour asked the Crown why he had told the jury that they could be satisfied of certain matters beyond reasonable doubt when it was a circumstantial case. His Honour expressed concern that the jury had been misled. The prosecutor asked for an opportunity to correct the submission, which was granted, with the applicant’s trial counsel’s concurrence.

49. When the jury came back, his Honour invited the prosecutor to say something to the jury. The prosecutor said:

“Members of the jury, can I just return to those matters I raised at the end of my address. There were matters I said you would be satisfied beyond reasonable doubt. What I should have done is put that in terms of the circumstantial case. I think I said you didn't need to be satisfied of all of them; you certainly don't need to be satisfied of any of those facts beyond reasonable doubt. What you need to be satisfied, the Crown doesn't need to prove beyond reasonable doubt, you must be satisfied in a circumstantial case, and you will remember in my opening I told you that in the absence of an admission by the accused that he intended to kill him, you look at all the circumstances; so what you must do is look at all the circumstances, you would be satisfied beyond reasonable doubt. They were just matters I said that you would find had occurred, facts that you find, cut certainly in a circumstantial case it's a combination of all the circumstances; you don't need to be satisfied of single one of those. Thank you.”

50. In closing address, the applicant’s trial counsel also referred to “beyond reasonable doubt” in the context of particular facts. She said:

“For a number of reasons, I'll just touch on a few key reasons at this stage. The Crown's opening, the manner of Madam Crown's cross‑examination, also what madam Crown said to you in her closing was essentially that the big plank, if I could put it that way, of the Crown case is that the accused left the scene after the altercation with the bag and the shooting, left the scene and came back. I'll come to that in more detail later and I'll also respond to some of Madam Crown's submissions to you. That is a key plank of the case and my submission is that it is not supported by the evidence and you could not be satisfied beyond reasonable doubt that that is what occurred. That is a significant allegation.”

51. In the absence of the jury, the following exchange occurred:

“HIS HONOUR: Ms David, I think you fell into that trap that Madam Crown fell into, because you will remember that I said something to her about an expression possibly loosely used about that they would be satisfied beyond reasonable doubt of a certain number of matters. In the course of your address when referring to the Crown's ‘big plank’, you said that it was that the accused left the scene and came back and shot. You said, ‘It's not supported and they wouldn't be satisfied beyond reasonable doubt,’ again, that is not the test. The strand in the rope does not have to be proved beyond reasonable doubt, the total picture has to be. So as the Crown made that error, so did you, and I will give you the opportunity to correct that with the jury before I sum up.

DAVID: Yes, your Honour. I did mean it as one of those circumstances that you couldn't be satisfied of that circumstance, but‑‑

HIS HONOUR: But the use of the words ‘beyond reasonable doubt’ introduces the wrong test into the jury's mind about these sub-stratum facts which are in dispute.

DAVID: Yes. I was conscious as I said it, and then I didn't clean it up.”

52. Following this exchange, the applicant’s trial counsel, in the presence of the jury, said:

“Thank you. Members of the jury, I just want to clear up something that I said earlier today. As indicated, his Honour gives the rulings in relation to the law and there is something that I said which I certainly didn't intend to mislead you. I went on to another thought. But just to make sure that there is no misunderstanding, I was talking about what I refer to as the key plank of the Crown case being the issue as to Mr Bargashoun returning, or the allegation that he returned and shot Mr Oliver in the chest twice. I said you couldn't be satisfied beyond reasonable doubt about that. Now, I just didn't want to mislead you in any way to suggest that if you don't accept that well then there is no case. That is not what I meant. I meant to continue on to something else, but I obviously got sidetracked into another thought line.

But just to be very clear, his Honour will give you rulings about that. That is just one piece of evidence that the Crown puts to you as part of her circumstantial case. It doesn't have to be proved. Each fact that the Crown puts to you doesn't have to be proved beyond a reasonable doubt. I didn't mean to suggest to you that. I only ask that when I was talking about that evidence to be very plain that my - that I'm saying that the Crown cannot - you couldn't be satisfied about the state of the evidence to accept that as evidence upon which you might rely as a part of a circumstantial case. I didn't mean to isolate it and say well if you don't accept that, well then you can't accept anything else. I just want to be clear on that.”

53. In the summing up, his Honour gave the standard direction regarding circumstantial evidence and referred to the oft-quoted analogy of strands in a cable. His Honour then said:

“So here in this case the Crown does not have to prove beyond reasonable doubt how many shots were fired, where they entered Mr Oliver's body, whether Mr Bargashoun fired all the shots in one incident or whether he fired a second set of shots after walking towards the car and then returning. They, and others, are all facts you have to consider. But you do not have to be satisfied that any one of those facts is proved beyond reasonable doubt. You have to sit back and, when you look at all the evidence, say to yourselves: ‘Having regard to all of these facts which I am satisfied occurred, am I satisfied beyond reasonable doubt of the existence of the intent to kill.’ You do not look at any individual surrounding fact on its own. You look at the total picture as you find it to be proved.

When you consider all of the facts and ask yourself: ‘What do they show?’, you then ask yourself: ‘What can I conclude from those facts?’ Is the conclusion that the Crown asks you to draw not only a reasonable one, but is there any other reasonable conclusion arising from those facts? Because if there is another reasonable conclusion arising from the facts, you could not infer the existence of the intention to kill.

In other words, members of the jury, before you could be satisfied beyond reasonable doubt of the accused's guilt, the Crown must first persuade you that the inference or conclusion it relies upon, that is that Richard Bargashoun intended to kill Terrence Oliver when he fired one or more of the shots, that it is a reasonable one drawn from the facts. And it must then prove to you that it is the only reasonable inference or conclusion that you could draw from those facts.”

54. Mr Woods contended that the Crown was required to prove beyond reasonable doubt that the applicant returned to shoot Mr Oliver again, after Mr Oliver had given up the bag of money because this was a matter that was essential to the Crown case on intention. He submitted that, had the jury been satisfied that this had occurred, it was entitled to return a guilty verdict on count 1. However, if the jury was not satisfied of this matter beyond reasonable doubt, he submitted that the verdict was unreasonable (which is related to ground 1). He contended that, because the Crown was required to prove that matter (the post-bag shooting) beyond reasonable doubt, his Honour’s direction amounted to a misdirection. Mr Woods sought to distinguish this submission from a contention that his Honour ought to have given a Shepherd direction (see Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56), directing the jury that they were required to be satisfied of that matter beyond reasonable doubt before they could convict the applicant of count 1.

55. There are two principal difficulties with that submission. First, it was not the way the Crown put its case. As referred to above, the Crown put its case on the basis that in respect of all shots but the first two (which were to Mr Oliver’s legs), the applicant had an intention to kill Mr Oliver, and that, with each subsequent shot, the Crown’s case became stronger. The Crown submitted that its case was “overwhelming” (which I understand to mean even greater than beyond reasonable doubt) if the jury was satisfied that the last two shots had been fired after Mr Oliver had relinquished the bag. Secondly, proof that the last two shots were fired after Mr Lewis got the bag was not an essential ingredient of the offence, which could well have been proved without it.

56. Further, the applicant was represented by experienced trial counsel. There was no suggestion of incompetence. That his counsel did not seek either a Shepherd direction or to correct the direction the trial judge gave, is a powerful indication, in the circumstances of the present case, that there was no error in his Honour’s direction.

57. For these reasons, ground 2 has not been made out.

Ground 3: alleged failure to give unanimity direction

58. Mr Woods contended that the following direction, given in the summing up, was apt to mislead the jury:

“Ultimately your verdict must be a unanimous one. You must all agree with the result. Some people think that that only applies to a verdict of guilty. It does not. Your verdict, whether it is guilty or whether it is not guilty, either way it must be unanimous. That does not mean that all 12 of you must have the same reasons for coming to that joint decision. You could come to it in this case quite easily, I would imagine, one way or another by different analyses but whatever your decision is or whichever it is, it has to be unanimous.”

[Emphasis added to indicate the passage which is relied on for ground 3.]

59. Mr Woods argued that his Honour’s use of the words “quite easily” and “different analyses” was “revealing”. He contended that some jurors might not be satisfied that the applicant had an intention to kill Mr Oliver until he fired the last two shots and that those last two shots were fired after Mr Oliver had relinquished the bag, whereas other jurors might have been satisfied that the applicant had an intention to kill Mr Oliver from the third shot, irrespective of whether the applicant fired shots after Mr Oliver had relinquished the bag. He submitted that the possibility of different jurors coming to different conclusions was so real in the present case that a unanimity direction was required, in accordance with the principles articulated in Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 (Lane).

60. Mr Woods accepted that the applicant’s trial counsel may have had a forensic reason for not seeking a unanimity direction, since it would have been objectively reasonable for trial counsel to consider that such a direction would serve to highlight the repeated shooting and the last two shots.

61. In Lane, the Crown case was that the appellant struck the deceased twice and on each occasion the deceased fell to the ground and struck his head. The Crown submitted to the jury that it could be satisfied beyond reasonable doubt that the appellant was guilty of murder (or manslaughter) on the basis of either, or both, of those assaults. The trial judge directed the jury that it was open to it to find that a deliberate act of the appellant had caused the death of the deceased, if the jury found that either fall was caused by the appellant. No specific unanimity direction was given to direct the jury that it had to be unanimous as to the act which caused the death of the deceased. The High Court allowed the appeal and quashed the conviction on the basis that the verdict was necessarily uncertain as to the act or acts of the appellant on which it was based. The plurality (Kiefel CJ, Bell, Keane and Edelman JJ) said at [42]:

“… The absence of a specific unanimity direction in relation to the actus reus that caused the death of the deceased, coupled with the trial judge’s direction that it was open to the jury to convict on the basis that a deliberate act of the appellant caused the death of the deceased if it found that either fall was caused by the appellant, means that it cannot be assumed that the jury was unanimous that it was the appellant’s actions leading up to the second fall that established his guilt beyond reasonable doubt. As Fagan J said, it is quite possible that some jurors might have been satisfied that a voluntary act of the appellant caused the first fall and did not trouble to consider the circumstances of the second. And the jurors who found the actus reus made out in respect of the second fall may have pooled their conclusions with those who found the actus reus made out in respect of the first fall to reach their verdict. …”

[Footnotes omitted.]

62. I consider the present case to be distinguishable from Lane. The Crown case was not confined to a particular shot, but rather to the whole course of events. It is possible, in the present case, that one juror may have been satisfied that, from the third shot, the applicant intended to kill Mr Oliver, but that another may have been satisfied that he had that intention only from the fourth shot, and yet another from the fifth shot, and another from the last shot. However, this did not require a unanimity direction since the first juror referred to above must have been satisfied that the applicant had the intention to kill Mr Oliver when he fired each of the shots from the third shot, including the last shot. Thus, there must have been unanimity in respect of the last shot, irrespective of when particular jurors were satisfied that the intention to kill was first formed. Further, it did not matter whether the jurors were unanimous that, when the last two shots were fired, Mr Oliver did not still have the bag, since this was merely a factual matter and not an element of the offence. What needed to be proved beyond reasonable doubt was that the appellant had an intention to kill Mr Oliver when he shot him. In these circumstances, I infer that the applicant’s trial counsel did not seek such a direction because she appreciated that it would not have been appropriate that it be given.

63. For these reasons, ground 3 has not been made out.

Further matters

64. In addition to the lack of merit of any of the grounds, there are further reasons why an extension of time ought not be granted. As set out above, the applicant had the benefit of publicly funded (Legal Aid) advice that his appeal did not have merit. His opportunity to file a notice of appeal was extended on more than one occasion. He allowed the final extension, 30 March 2018, to lapse without filing a notice of appeal. His appeal has been brought on almost seven years after he was convicted and sentenced. There is no adequate explanation for the delay.

65. Although Mr Woods submitted in writing that a new trial was not sought in respect of count 1 (since if it was made out, the plea to the alternative count, count 2, would apply), the same could not be said for counts 2 and 3, where the only practical relief would be an order for a new trial. To extend time with a view to determining whether a re-trial ought take place over eight years after the original trial would not necessarily be in the interests of justice: see the considerations referred to in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [29] (French CJ, Hayne, Bell and Kiefel JJ). In particular, Mr Oliver, the victim and principal eye witness, would have to revisit events which were admittedly life-threatening. To require him to give evidence again would be difficult and would, almost inevitably, invoke the trauma which he has already suffered.

66. Further, the maximum penalty for the count 1 offence (shoot with intent to murder) and the alternative count 2 offence (shoot with intent to cause grievous bodily harm) is the same: 25 years’ imprisonment. There is a slight difference in the standard non-parole period, which is 10 years’ imprisonment for count 1 and 9 years’ imprisonment for count 2. Thus, even if the applicant had been wholly successful in obtaining an extension of time, leave to appeal and an order that the appeal be allowed on the ground that the verdict for count 1 was unreasonable and the conviction for count 1 quashed, he would still have had to be sentenced for count 2. This would have required him to be re-sentenced for the four offences (including count 2) for which he was sentenced in 2016. Whatever marginal benefit there would be to him in this process cannot be predicted, but it is likely to be modest at best. It is difficult to discern the utility in the present application.

67. It can be expected that the appeal process will take a significant toll on an applicant. It is undesirable, to say the least, to engender misplaced, or exaggerated, hope in a prisoner. The appeal process may also be distressing to the victim (who faces the prospect of having to give evidence again if a new trial is ordered). Applications such as the present should only be brought where there is a prospect that the interests of the applicant will be appreciably advanced if the application is granted.

68. I note for completeness that the trial judge, when sentencing the applicant, was not satisfied that the last two shots were fired after Mr Oliver had relinquished the bag. As set out above, I have not found it necessary to resolve that question for the purposes of determining the reasonableness of the verdict. In these circumstances, it unnecessary to address the circumstances in which this Court may take into account findings made by a sentencing judge in addressing grounds of appeal against conviction.

Conclusion

69. As set out above, there has been inordinate delay. None of the grounds has been made out. Grounds 2 and 3 were pressed notwithstanding that no point was taken at trial, thereby attracting the leave requirement in r 4.15 of the Rules. Nonetheless, this Court has heard full argument on each of the three grounds. Although none was made out, each turned on a fundamental principle of the criminal law. The first concerned the circumstances in which an inference of intention can be drawn (which is largely a factual matter); the second concerned the identification of those matters which must be proved beyond reasonable doubt; and the third concerned the circumstances in which a specific unanimity direction is required.

70. Notwithstanding the several matters which militate against an extension of time and a grant of leave, I consider it to be appropriate in the present case to extend time, grant leave and dismiss the appeal. This will bring the matter to finality.

Proposed orders

71. I propose the following orders:

1. Extend the time for filing the notice of appeal to 23 June 2022.

2. Grant leave to appeal.

3. Dismiss the appeal.

72. N ADAMS J: I agree with Adamson JA.

73. WEINSTEIN J: I agree with Adamson JA.

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Decision last updated: 15 February 2023