Charbiel Fram v The Queen
[2014] VSCA 106
•2 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0128
| CHARBIEL FRAM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG and SANTAMARIA JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 29 May 2014 |
| DATE OF JUDGMENT | 2 June 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 106 |
| JUDGMENT APPEALED FROM | DPP v Tanios, Fram, Merheb (Unreported, County Court of Victoria, Judge Dean, 11 June 2013) |
ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Conviction – Election – Applicant convicted of recklessly causing serious injury and affray – Whether verdict unsafe and unsatisfactory – Whether open to jury to reject defence of self-defence – Whether trial judge erred in directions given to jury – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich | Theo Magazis & Associates |
| For the Crown | Mr T Gyorffy QC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
SANTAMARIA JA:
The applicant, Charbiel Fram, together with his co-accused, George Merheb and George Tanios, stood trial in the County Court at Melbourne, jointly charged with one count of intentionally causing serious injury, and one count of affray. All three were acquitted of intentionally causing serious injury, but found guilty of the lesser, and alternative, charge of recklessly causing serious injury. The three accused were also all convicted of the charge of affray.
The applicant was sentenced to two years and six months’ imprisonment on the first count, and nine months’ imprisonment on the second. It was ordered that three months of the sentence imposed on the count of affray be made cumulative upon the sentence imposed on the count of recklessly causing serious injury. That made a total effective sentence of two years and nine months. A total of 15 months of that sentence was, in turn, made cumulative upon a sentence of three years and six months’ imprisonment that had previously been imposed upon the applicant for unrelated, but similar, offences.
The applicant initially sought leave to appeal against both conviction and sentence. In November 2013, Nettle JA refused leave. The applicant has elected, pursuant to s 315 of the Criminal Procedure Act 2009 (Vic), to renew his application for leave to appeal against conviction before this Court. He has not pursued his application for leave to appeal against sentence.
Circumstances surrounding the offending
On 2 April 2011 the applicant attended the Fusion nightclub at Crown Casino, in company with Merheb and Tanios, as well as the applicant’s identical twin brother, and several others. They arrived at about 2.30am. About half an hour or so later, an altercation broke out. It occurred shortly after a largely innocuous incident involving a collision on the dance floor between Merheb and a man named Anthony Lavcanski. Both men had been dancing near the Mirage Bar when they bumped into each other.
The victim, Matthew Hastings, was a friend of Lavcanski. He witnessed what was happening, and became involved in the dispute that erupted between Merheb and Lavcanski.
The evidence led from various witnesses was that Merheb and Lavcanski appeared to argue briefly, and engaged in some pushing and shoving. Merheb turned and extended his arm, without making any contact with anyone. Hastings became involved as well. Tanios stepped between Merheb and Hastings, and Merheb stepped back, and moved away. Merheb and the applicant were then seen to move off, behind two long tables at the side of the dance floor.
According to the applicant, the evidence suggested that Tanios walked away from Hastings. Adam Schubert, a friend of Hastings, put his arm around Hastings who released Schubert’s hold. A group of Hastings’ friends, including Lavcanski, John Sacco, and Evangelos Konstandaras, were in close proximity.
The applicant, who by then was some distance away, moved behind two tables that were located at the side of the dance floor. He entered the area from behind the tables, and hit Schubert to the back of the head. Hastings moved to the side, and Schubert blocked his path. Schubert then attempted to grab Hastings by the arm, but Hastings pushed past him.
Tanios then punched Hastings. Sacco intervened by hitting Tanios in the face. Schubert then separated Hastings and Tanios.
The applicant was then seen to approach both Hastings and Tanios. At that stage, Merheb moved behind Tanios and punched Hastings. Lavcanski struck Tanios in the face.
At this stage, according to the applicant, Hastings endeavoured to get around Schubert in order to confront Tanios. Merheb intervened and struck Hastings. Sacco ran at Merheb and punched him to the face, and Merheb retreated towards the dance floor. Hastings pushed Schubert aside and moved in the direction of Merheb. At that stage, the applicant was standing between Hastings and Merheb.
It was at that point that the evidence established that the applicant punched Hastings to the head. The blow was a forceful one, delivered with the left fist. It was what might fairly be described as a ‘king hit’. The applicant was standing to the side of Hastings, perhaps slightly to the rear, when he delivered the blow. It was that single punch that led to a Le Fort fracture to the mid face region, above the upper teeth and below the eyeballs.
It was the applicant’s punch to Hastings’ face that gave rise to the charge of intentionally causing serious injury, and culminated in his conviction for recklessly causing serious injury.
The unchallenged medical evidence was that the injury was more serious than one would commonly see arising from instances of interpersonal violence. It was said to be more typical of the blunt trauma usually sustained in a motor car collision where the person injured had not been wearing a seat belt. Another description of the severity of the injury was that it was consistent with the blunt trauma delivered by being struck with a baseball bat.
Hastings appeared to stumble, but continued moving in the general direction of Merheb. He fell to the ground, and was then set upon by Merheb who punched him repeatedly to the head. Sacco was seen to be hitting Merheb. The applicant pushed Sacco away, and exchanged blows with him.
The applicant gave evidence at the trial. He said that, as he moved closer to the scene, he could see Tanios ‘getting attacked’. He claimed that Tanios was surrounded, and that punches were being thrown at him. He said that Hastings was one of the men involved in the fight. He specifically identified Hastings because he was particularly tall and had a shaven head. He claimed that, initially at least, he saw Sacco hitting Tanios and that he intervened to protect Tanios from further attack.
According to the applicant, moments later, he saw Hastings ‘charging towards us to attack us’. He claimed that he decided, there and then, that he had to act in self-defence, but perhaps more particularly, in defence of Merheb. He agreed that it was he who had punched Hastings to the head. However, he claimed that the punch he had thrown had landed on Hastings’ chin, rather than in the region of his nose. That was because he could feel ‘hard bone’.
In essence, the defence raised to both charges was that the applicant had only acted as he had, in self-defence, or defence of another.
CCTV footage, which was shown to the jury, did indeed show Hastings moving across the dance floor in the instant before the applicant punched him to the face. He may well have been moving towards Merheb, who was in close proximity to the applicant. Perhaps not surprisingly, having regard to the gravity of his injuries, Hastings had little recollection of any of the details of what took place.
The CCTV footage goes on to show that after the applicant had delivered the punch to the head, Hastings staggered momentarily towards Merheb, before falling to the ground. The footage vividly shows Merheb then repeatedly punching Hastings. It also shows the applicant, at that moment, engaged in a fist fight with Sacco.
The proposed grounds of appeal
Ground 1 - unreasonable verdict
The applicant submits that it was not open to the jury to reject the defence of self-defence, or defence of another.
Nettle JA, in his reasons for refusing leave to appeal against conviction, said that he had viewed the CCTV footage on a number of occasions. Having done so, his Honour concluded that this ground was not reasonably open. He said:
[W]hen one views the whole of the video, and thus the hit on the complainant in context, I cannot see there is any room for doubt that the applicant king hit the complainant, gratuitously and without warning, as the complainant passed by him on his way across the dance floor towards another group of people on the other side of the room.
Although the present application involves a hearing de novo, counsel who appeared on behalf of the applicant focussed upon that passage which, he submitted, demonstrated error on the part of Nettle JA. He submitted that the evidence showed that Hastings was moving towards Merheb when struck by the applicant, and not, as his Honour described it, towards ‘another group of people on the other side of the room’.
Counsel also attacked his Honour’s reference to ‘context’. He submitted that Nettle JA had erred when he described the events leading up to the delivery of the critical punch by saying:
At approximately 3.00 am Merheb was dancing on the dance floor of the club when he bumped into one of the complainant’s friends, Anthony Lavcanski. They argued briefly, during which the applicant approached them and became involved in the argument.
Put simply, the submission was that when Nettle JA referred to ‘context’ he had wrongly identified the applicant as having been previously involved in the initial dispute when, in truth, it was the applicant’s identical twin brother who had earlier intervened.
At the conclusion of the hearing of this application the parties, having been unable to agree at that stage as to what the CCTV footage depicted, were given leave to file further written submissions regarding this issue. The Crown ultimately conceded that Nettle JA had indeed fallen into error in that regard and that the applicant’s role in the events in question was, to that extent, less extensive than his Honour had assumed.
Obviously, it does not follow that the jury’s verdict can be impugned as unsafe or unsatisfactory. The applicant’s involvement may have been less extensive than Nettle JA assumed, but his actions spoke for themselves.
Irrespective of any conduct on the part of Hastings towards Tanios, or Merheb, there was no justification whatever for the applicant to come up from Hastings’ side and ‘king hit’ him with a punch to the face delivered with such extraordinary force. There was evidence, in the trial, that the applicant was a Fourth Dan Black Belt in Taekwondo, and therefore a martial arts master. He would have been perfectly well aware of what the probable consequences would have been of delivering a punch of such a vicious nature to the head or face of the victim. There was no suggestion, to that point, that Hastings himself had delivered a single blow to anyone. There had merely been some pushing and shoving on his part, and a few relatively minor blows struck by those accompanying him. On any view, the applicant’s actions could not reasonably have been regarded as either necessary, or proportionate.
During the course of the oral hearing before this Court, both parties made submissions as to whether the CCTV footage showed Hastings with his arm raised, prior to being attacked by the applicant, or whether that occurred at the point of contact or immediately afterwards. We have repeatedly viewed the footage ourselves, and it is impossible to form a clear view on that matter. However, it is unnecessary for us to do so. That is because, even if the applicant’s contention were correct, and Hastings did raise his arm a millisecond or so before the blow landed,[1] the applicant’s conduct could in no way be justified. His ‘response’, if that be the appropriate term, went so far beyond what was either necessary, or proportionate as to disentitle him to rely on any form of justification.
[1]The applicant’s written submission on this point, in its final form, did not challenge the Crown’s contention that at 3:02.44.383 of the relevant CCTV exhibit the sequence was: ‘Applicant has struck Hastings. Hastings’ arm comes up’. That suggests that the applicant may have resiled from his oral submission that Hastings raised his arm, perhaps with a clenched fist, before he was struck. However, as we have said, it makes no difference.
It follows that it was perfectly open to the jury to find that the applicant acted unlawfully, and with full knowledge of the probability that the blow that he delivered would cause serious injury. It is not reasonably open to find that the jury ‘must’ have had a doubt as to either of these matters.[2] Proposed ground 1 must therefore be rejected.
[2]Libke v The Queen (2007) 230 CLR 559, 593 [113] (Hayne J).
Ground 2 – jury directions
This ground centres upon a single sentence in the trial judge’s otherwise impeccable charge. Having earlier distinguished between directions of law, which were binding, and comments, which were not, his Honour said:
So it is a matter for you, ladies and gentlemen, as I say it is a comment from me that you might consider those circumstances, that is what Mr Fram has said about the height difference and the speed that Mr Hastings was travelling at across that dance floor, yet Mr Fram apparently being able to aim a blow to a very precise place on Mr Hastings’ face and then telling you that that is where he did in fact land that blow in this dark, busy nightclub.
He said after that that he only struck Mr Hastings once, and after that he went behind him, that is Mr Hastings went behind him, and he then moved to the back left of the dance floor, and he was alone there, and he said that he was attacked by one of Mr Hastings’ other friends. He said he did not remember seeing Mr Hastings after he had struck him and he did not remember stepping over him. So he told you that he struck Mr Hastings to defend either himself or Mr Merheb, yet after he struck him, it seems that he moved away and has no further recollection at all apparently of what Mr Hastings was doing, even though Mr Fram was moving in the direction of Mr Merheb.[3]
[3]Emphasis added.
Counsel, who appeared at trial, took exception to the last sentence, following the word ‘yet’. He submitted that the jury might treat his Honour’s remark as a direction, rather than a comment, and might further view it as a disparagement of the sole defence that was raised. In his submission, the jury might regard the word ‘yet’ as indicating that his Honour was casting doubt upon self-defence because the evidence was that the applicant had ‘moved away’ from Hastings, rather than remaining close by, as he would have done, had he acted in defence of Merheb, to further protect him.
Nettle JA considered this ground to be devoid of merit. He did so, in part, on the basis that the exception that was initially taken had been effectively abandoned by counsel when he said, subsequently, ‘well I’d just be repeating myself, your Honour’.
Even if his Honour was wrong to view that statement as a tacit concession that there was no merit in the point taken, we would reject this proposed ground.
First, it is fair to say that the exception was only faintly pressed. Secondly, it is highly likely that the jury would have understood the last sentence in the passage set out above as a comment which, in accordance with his Honour’s earlier directions, they were free to disregard. Thirdly, the judge’s charge made it abundantly clear that the jury’s task was to decide the facts, and that they were unconstrained in doing so. They were told to have regard to the evidence given by the witnesses, and particularly, the CCTV footage. There was no risk, in our view, that the jury could have been under any illusion that the single sentence in the charge to which exception was taken should lead them to abdicate that responsibility.
Conclusion
For these reasons we would refuse leave to appeal.
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