Constantinou v The King
[2024] VSCA 79
•30 April 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0205 |
| PHILLIP CONSTANTINOU | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | MACAULAY, KAYE, and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 April 2024 |
| DATE OF JUDGMENT: | 30 April 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 79 |
| JUDGMENT APPEALED FROM: | [2022] VSC 513 (Lasry J) |
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CRIMINAL LAW – Appeal – Conviction – Attempted murder – Interventions by trial judge during examination of principal witness – Whether interventions impermissible – Whether trial judge entered the arena – Whether interventions led to substantial miscarriage of justice – Interventions designed to clarify and elucidate important matters for jury – Leave to appeal refused – Ratten v The Queen (1974) 131 CLR 510; R v Mawson [1967] VR 205; R v Esposito (1998) 45 NSWLR 442; Nwagbo v The Queen [2021] VSCA 93, considered.
CRIMINAL LAW – Appeal – Sentence – Attempted murder, prohibited person use of firearm, prohibited person possessing firearm, two charges of possessing drug of dependence, trafficking drug of dependence, trafficking in a commercial quantity, theft of motor vehicle –Where applicant shot victim in face – Victim seriously injured – Previous convictions for serious crimes of violence – Total effective sentence of 18 years with fixed non-parole period of 15 years – Whether non-parole period manifestly excessive – Leave to appeal refused – Kumova v The Queen (2012) 37 VR 538; R v Bolton [1998] 1 VR 692; R v Tran [2006] VSCA 222, considered.
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| Counsel | |||
| Applicant: | Mr S J Tovey | ||
| Respondent: | Mr P L Bourke KC | ||
Solicitors | |||
| Applicant: | Fayman Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MACAULAY JA
KAYE JA
T FORREST JA:
The applicant was convicted by the jury empanelled on his trial on one charge of attempted murder. On his plea, he also pleaded guilty to seven charges on a separate indictment (the ‘plea indictment’), and to six related summary offences.
Following a plea presented on his behalf, the applicant was sentenced to a total effective sentence of 18 years’ imprisonment, with a non-parole period of 15 years, which sentence was comprised as follows:
Charge Offence Maximum Sentence Cumulation Trial Indictment – L10703282A 1 Attempted murder (contrary to the common law, s 321M of the Crimes Act 1958) 25 years 16 years Base Plea Indictment – L10703282B.1 1 Prohibited person possess a firearm (contrary to s 5 of the Firearms Act 1996) 10 years 18 months 2 months 2 Possession of a drug of dependence (contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981) 1 year 1 month 3 Trafficking in a drug of dependence – commercial quantity (contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981) 25 years 4 years 18 months 4 Prohibited person use a firearm (contrary to s 5 of the Firearms Act 1996) 10 years Convicted and discharged - 5 Theft (contrary to s 74 of the Crimes Act 1958) 10 years 1 year 2 months 6 Trafficking in a drug of dependence (contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981) 15 years 18 months 2 months 7 Possession of a drug of dependence (contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981) 1 year 1 month Related summary offences 5 Unlawful possession of cartridge ammunition (contrary to s 124(1) of the Firearms Act 1996) 40 penalty units Convicted and fined $2,000 6 Drive whilst suspended (contrary to s 30(1) of the Road Safety Act 1986) 2 years 1 month 7 Fraudulent use of registration plates (contrary to s 72 of the Road Safety Act 1986)
2 months Convicted and discharged 12 Unlawful possession of cartridge ammunition (contrary to s 124(1) of the Firearms Act 1996) 40 penalty units Convicted and fined $900 13 Possession of poison (contrary to s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981) 10 penalty units Convicted and discharged 20 Deal with property suspected of being proceeds of crime (contrary to s 195 of the Crimes Act 1958) 2 years 3 months Global Total Effective Sentence: 18 years Non-Parole Period: 15 years Section 6AAA Statement: 6 years with a NPP of 4 years Other relevant orders: Disposal and Forfeiture orders
The applicant seeks leave to appeal his conviction on the following ground:
(1)A substantial miscarriage of justice occurred as a result of the interventions of the learned trial judge during the evidence of the witness Kiriana Waenga.
The applicant also seeks leave to appeal his sentence on the following ground:
(1)That the non-parole period imposed is, in all of the circumstances of the case, manifestly excessive.
Circumstances of attempted murder
The incident, which was the subject of the charge of attempted murder, occurred shortly before 5:00 am on Saturday, 7 March 2020. At the trial, the prosecution case was that the applicant, with murderous intent, deliberately shot Kevin Passanise (‘Passanise’) in the head at close range with a .22 calibre firearm, while Passanise was seated in the driver’s seat of his white Audi motor vehicle. At the time of the shooting, the vehicle was parked in the driveway of premises at 83 Shrives Road, Narre Warren South, which was about 150 metres from the address of the applicant’s romantic partner, Ms Kiriana Waenga (‘Ms Waenga’).
At that time, the applicant had been in a relationship with Ms Waenga, who lived at premises at 75 Shrives Road, Narre Warren South. Ms Waenga’s friend, Charly Pringle, also lived at the address. At the relevant time, Michael Cross, who was in a relationship with Ms Pringle, and Emily Joya, a friend of Ms Waenga, regularly attended the premises.
In the months that preceded the incident, the relationship between the applicant and Ms Waenga had experienced some difficulties, as the applicant had suspected that Ms Waenga had been unfaithful to him. In particular, he was concerned that she was seeing a man named Ricky Newton (‘Newton’), who, like Passanise, also drove a white Audi motor vehicle.
In the trial, the prosecution relied on a series of intercepted telephone conversations between the applicant and Michael Cross that had occurred on 24 February 2020. In those conversations, Mr Cross told the applicant that Newton was present at the Shrives Road address with Ms Waenga. As a result, the applicant became angry, and told Mr Cross that he intended to go to the address and shoot Newton. At one point, the applicant said, ‘I’m thinking I’m going to hide next door, call her, make him shit himself and when he comes out, I’m just going to pop him’. In the circumstances, no such confrontation ultimately occurred.
Kevin Passanise and Ms Waenga had been friends for a number of years. In the early hours of 7 March 2020, Ms Waenga began exchanging messages with Passanise about meeting up together on that day. They discussed Passanise attending her address for that purpose. Passanise asked whether people would ‘be okay with that’, to which Ms Waenga responded, ‘My ex pops in randomly to see if I am with guys’. As a result, Passanise decided that he would pick Ms Waenga up in his vehicle and that they would go for a drive. Accordingly, at about 3:00 am, he attended at the premises, Ms Waenga entered his vehicle, and they drove away.
At about 4:15 am, the applicant started calling Ms Waenga and sending her messages, wanting to know where she was. Ms Waenga told him that she was out with a male friend, and that she would return home to speak with him.
As a result, the Audi vehicle, driven by Passanise, drove back to Ms Waenga’s property. At her suggestion, they parked about 150 metres from the house, in the driveway of the premises at 83 Shrives Road.
Shortly after the Audi vehicle arrived there, the applicant approached the vehicle. He was in a highly agitated state, and was holding a gun in his hand. The position of the vehicle, the applicant’s approach, and some of the verbal exchanges that followed were captured by CCTV cameras, one of which was operating at the premises at 81 Shrives Road, and the second one which was operating from premises in Harold Keys Drive. A compilation of the video and audio recordings of those cameras was prepared and tendered in evidence at the trial.
The CCTV footage captured Passanise and Ms Waenga returning to the area and, shortly after that, the applicant approaching the vehicle with the gun in his hand. The CCTV footage then captured the following exchange:
WAENGA: It’s my mate from New South Wales, yeah.
APPLICANT: I don’t give a fuck who it is.
WAENGA: Phil, stop.
APPLICANT: Inaudible.
WAENGA: Stop.
APPLICANT: Turn the light on.
WAENGA: No, it’s not Ricky.
APPLICANT: Turn the light on.
WAENGA: It’s not Ricky.
APPLICANT: Turn the light on.
WAENGA: It’s not him.
APPLICANT: Fuck him.
WAENGA: No. Phil. Phil, don’t, don’t, don’t, don’t. Phil, don’t. Phil, stop.
At that point, the applicant was standing next to the closed driver’s door of the Audi. He drew the .22 calibre firearm level with Passanise’s head. A single shot was fired directly through the middle of the window, and towards Passanise’s head, which hit him in the middle of his brow line. The bullet lodged in the back of his head. As we have mentioned, at the trial, the prosecution case was that the applicant deliberately discharged the firearm, with the intention of killing Passanise. The case of the applicant was that the firearm accidentally discharged when the applicant tapped it on the window.
Immediately after the discharge of the firearm, the applicant moved away from the vehicle. At that point, Ms Waenga was already out of the vehicle. The following exchange was recorded between the two of them:
WAENGA: Phil, are you fucking kidding me, cunt, Phil?
APPLICANT: Fucking dog.
WAENGA:Phil, what the fuck are you doing? What the fuck are you doing? What the fuck are you doing?
APPLICANT: Who is this dog here?
WAENGA: You fucking kidding me, cunt.
APPLICANT: This bloke.
WAENGA: Are you fucking kidding me, cunt.
APPLICANT: He’s all right though.
WAENGA: What the fuck.
Following that exchange, Ms Waenga walked up the hill towards her house at 75 Shrives Road. The applicant also walked to that position, but then returned to the Audi vehicle, opened the door and looked inside, and then ran back to where Ms Waenga was standing. They then ran together to Ms Waenga’s house. They were there joined by Ms Waenga’s friend, Emily Joya, and the three of them, shortly afterwards, departed from the premises at 75 Shrives Road in the applicant’s Mercedes Benz vehicle. After they had departed, Ms Waenga telephoned the 000 emergency number and reported having been in the vehicle with Passanise and walking to a house when ‘someone came out of nowhere’, smashed on the window and caused a loud bang. Ms Waenga said that she saw Passanise in the vehicle, dazed, but not moving.
The applicant then drove to near Moorabbin airport, where he and the two women slept in the vehicle. They dropped Ms Joya off at her home, and moved to a hotel in Dandenong, and then to other premises. On 19 March 2020, the police located the applicant and Ms Waenga together, and arrested the applicant, in the carpark of Bunnings at Clyde North.
In the meantime, after the applicant and Ms Waenga had left the scene, Passanise remained conscious in the Audi vehicle. He activated the horn of the Audi vehicle and called for help for some considerable time. He was later discovered by a passing motorist, slumped on the footpath, next to his vehicle. Sometime after that, the police arrived, an ambulance attended, and Passanise was conveyed to the Alfred Hospital Emergency and Trauma Centre. Medical officers identified a penetrating gunshot wound to his forehead. CT scans demonstrated an entry wound through the right frontal sinus, with a 12 x 9 millimetre foreign body in the superior aspect of the right rear lobe of the brain. The wound path contained fragments of bullet, bone, blood, and hair. There was a substantial amount of bleeding in the brain, which had led to a blockage of fluid flow and swelling of the brain.
Passanise underwent emergency surgery, which took place between 7:47 am and 1:08 pm. The bullet was unable to be removed, due to the risks involved in that procedure. Some bullet fragments in the head were extracted and provided to police.
Passanise remained in a coma, and continued to be intubated for eighteen days. On 30 March 2020, he was transferred from the Intensive Care Unit to a ward, and further surgery was undertaken to repair some of the damage from the injuries. Subsequently, he was transferred to a rehabilitation facility for daily physical and psychological treatment. By September 2020, he was able to mobilise for a short distance, using a walking aid and assistance.
The trial
The trial was of short duration. The key issue in the trial was whether the prosecution had established, beyond reasonable doubt, that the applicant deliberately discharged the firearm at Passanise and, if so, whether he did so with the intention of killing Passanise. The prosecution called three civilian witnesses, and three police witnesses gave evidence. The principal witness in the trial was Ms Waenga. Her evidence was, in a number of aspects, unfavourable to the prosecution. In the course of her evidence, the prosecutor was granted leave to cross-examine her pursuant to s 38 of the Evidence Act 2008.
The proposed ground of appeal, against conviction, is based on five points in the evidence of Ms Waenga, in which the trial judge intervened and asked questions of her. The fundamental proposition, advanced on behalf of the applicant, is that the effect of the five interventions by the trial judge was that his Honour entered the arena of the adversarial process, and, in doing so, conveyed to the jury the impression that he regarded Ms Waenga to be an untruthful witness.
For the purposes of determining that ground, it is necessary to summarise Ms Waenga’s evidence in a little detail.
Evidence of Kiriana Waenga
Ms Waenga gave evidence that about 12 months before March 2020, she had commenced a romantic relationship with the applicant. At that time, she was living at 75 Shrives Road. She said that she had discussions with the applicant concerning her relationship with Newton, with whom (she said) she had had a ‘flirty’ relationship. Ms Waenga stated that the applicant was not happy about her relationship with Newton, and that he became angry and upset about it. When the applicant learnt that Ms Waenga had ‘cheated’ on him and had such a relationship with Newton, he displayed ‘a lot of anger, a lot of emotions’.
That section of Ms Waenga’s evidence occupied a number of pages of the transcript, in which the prosecutor adduced from Ms Waenga evidence about the conversations that she had had with the applicant concerning her relationship with Newton, and the applicant’s attitude to it.
The prosecutor then asked Ms Waenga questions about the circumstances in which she met up with Passanise on 7 March. She explained that she had known, and had been friends with, Passanise for a long time. Some years previously, Passanise had moved interstate. On the evening before 7 March, Passanise had messaged Ms Waenga, and arranged to meet with her in the early hours of the following morning. At that stage, Ms Waenga had not mentioned Passanise to the applicant at all.
At that point in Ms Waenga’s evidence, she was asked questions about the Facebook messages that she had exchanged at that point with Passanise. In the course of those messages, Ms Waenga had stated: ‘My ex pops in randomly to see if I’m with guys’. The prosecutor asked Ms Waenga what that message meant, and Ms Waenga responded that she did not know why she said it, that she was in fact lying, but that she and the applicant were ‘a bit rocky at the time’.
It was at that point that the judge asked three questions of Ms Waenga, which constitute the first intervention complained of by the applicant in this application. They were in the following terms:
HIS HONOUR: Was he your ex at the time or not?---No, he wasn’t – I just said that, Your Honour.
You just said it and you don’t know why?---We were fighting and stuff like that – I was a bit – not, not confused but conflicted as to the way I feel about the relationship. Um and in the moment, that’s just what I said to Kevin.
But you don’t know why you said it?---I was probably a bit angry about the fact that me and Phil were having – it was a bit rocky at this time so I was probably angry at the fact that things were a bit rocky and we were both doing things that we shouldn’t have been doing to each other and that was just sort of my way at getting back at him – I guess.
The prosecutor then asked Ms Waenga questions about the nature of her relationship with the applicant at the time. She said that he would visit her each day, but she was being ‘a bit of a fake person’ with him. She said that the main arguments between herself and the applicant were about Newton. She said that she was never cheating with Passanise, they had simply been good friends for a long time. The prosecutor then asked Ms Waenga about some of the comments she had made to Passanise about the applicant in the course of the messages that were exchanged between them.
Ms Waenga then gave evidence about how Passanise messaged her when he arrived at her premises, and that they then went for a drive together. While they were doing so, the applicant texted Ms Waenga. Earlier in the day, he had visited Ms Waenga, and he had said that he wanted to return later that night. When the applicant texted her while she was with Passanise, she responded by text that she would be at home waiting for him. In her evidence, she agreed that, in doing so, she lied to the applicant. She said that the applicant ‘caught [her] out’ telling that lie, and she said to him that she was out ‘with another guy’.
Ms Waenga then explained that when Passanise drove her back home, he parked a few houses away from 75 Shrives Road. She said that at that point, the applicant came down the street and, as he did so, she got out of the car. The applicant was very angry, and he went to Passanise’s side of the car. She said they were exchanging words. Initially, the applicant was angry, because he thought that it was Newton who was in the car, but when he realised it was Passanise, ‘everything had died down and there was more talking’. Ms Waenga then said that while they were talking with each other, the applicant tapped the gun he was holding on the glass and it went off ‘by accident’.
The prosecutor then asked Ms Waenga a number of questions concerning her description of the incident. That part of the questioning of the witness occupied some 16 pages of the transcript. In the course of that part of her evidence, Ms Waenga said that after Passanise was shot, she went back to her house, and she was on the telephone to the ambulance, explaining what had happened. At that point, the prosecutor then played to the witness the recording of the telephone call that she made to 000. In the course of the telephone call, she explained that her friend was about to pull up into her house and he was saying goodbye to her. She then said that ‘Someone came out of nowhere and … he smashed on the window or something like that and then it was a loud bang on the window and then my friend … in pain …’. The prosecutor asked Ms Waenga why she referred to ‘someone coming out of nowhere’. Ms Waenga said that she had panicked, and she did not know what to say. She said she did not know how to ‘handle it’.
At that point, the judge asked Ms Waenga two questions that constitute the second intervention, that is the subject of the proposed ground of appeal, as follows:
HIS HONOUR: Were you trying to tell the truth when you answered the questions to the operator?---As best as I could, but I was thinking about all parties, not just - - -
Well was that the truth? Did someone come out of nowhere?---Yes it did, but I did – I didn’t say that I knew them or not. I – that was the part I missed out. I did know Phil but he did, we were parked in front of the house so he did come down um from the house. I didn’t think that he would come out. I thought he would just stay inside and I’d just go inside and we’d maybe, like we’d talk about it or whatever but he ended up coming down, you know? So - - -
The prosecutor then asked Ms Waenga questions about Emily Joya, and how she came to be with Ms Waenga at the time at which she was making the telephone call. The prosecutor then asked what next occurred, and Ms Waenga explained that she and the accused and Ms Joya then left her home and drove around ‘for a little’. The judge clarified that evidence by asking the witness what she then did, and the witness responded. The prosecutor continued to ask the witness questions about her movements after the incident. In the course of doing so, he made an application to the judge for leave to cross-examine the witness pursuant to s 38 of the Evidence Act. Counsel for the defence did not oppose the application, and the judge gave the prosecutor leave to cross‑examine her.
At that point, the prosecutor returned to the circumstances of the incident in which Passanise was shot. He specifically put to Ms Waenga that she did not see the applicant tap his gun against the window, and he disputed her evidence that, at that time, she was ‘half in, half out’ of the car. The prosecutor put a series of propositions to Ms Waenga to the effect that there was not any conversation between the applicant and Passanise, and that the applicant was in a heightened state. The prosecutor suggested to Ms Waenga that the applicant’s mood did not calm down, to which Ms Waenga said that she heard them both speak, and that is why the mood had changed ‘from crazy to down’.
It was at that point that the judge asked Ms Waenga the following six questions that constitute the third intervention, that is the subject of the proposed ground of appeal, as follows:
HIS HONOUR: What did they say to each other?---Pardon?
What did they say to each other?---Ah so it was just to say that it wasn’t Ricky. He goes, “I’m Kevin, I’m Kiriana’s friend. We’ve been friends for a long time, we were just smoking weed in the car, we weren’t doing anything as to cheating, nothing like that”, because - - -
He said all that, did he?---Yes he did, yes he - - -
Word for word as you’ve just described?---Not word for word, but that, as much as I can get, that’s what he said. That’s why everything was okay. Like everything died down.
What did Mr Constantinou say?---He was ah, he was all good, he was - - -
What did he say?---Oh, he was like, “Yeah, okay – all good, bro”, you know. He thought he was Ricky. Once that was established that he wasn’t, it was, it was all good.
The prosecutor then showed Ms Waenga some footage that was captured on the CCTV camera outside the premises at 83 Shrives Road. Having done so, the prosecutor asked Ms Waenga a series of questions directed to identifying when she claimed that things had calmed down and that the applicant and Passanise had spoken with each other. The import of the line of questioning was to the effect that Ms Waenga was not telling the truth when she maintained that the applicant’s mood had calmed down, when he realised that the person in the vehicle was not Newton. The prosecutor pressed Ms Waenga to identify the point at which, in the sequence that was depicted on the CCTV footage, a number of the aspects of the account given by her took place.
The prosecutor also challenged the evidence, given by Ms Waenga, as to what she did after Passanise was shot. In that part of the cross-examination, the CCTV footage was again replayed to the witness. The prosecutor put to the witness that her evidence was inconsistent with that footage, and he suggested to her that she was lying. In particular, he put to the witness that she was not telling the truth when she said that she was inside the vehicle when Passanise was shot. In response, she maintained that she was telling the truth.
At that point, the judge asked four questions that constitute the fourth intervention, that is the subject of proposed ground of appeal, as follows:
HIS HONOUR: So when you said, “Phil, don’t, don’t, don’t, don’t. Phil, don’t. Phil, stop”. What were you referring to?---For him not to go off. For him not to get angry, for him not to do anything stupid towards Kevin or me.
So at that stage did you think Phil was going to use his gun?---I didn’t think he really – I didn’t think he would and to be honest I don’t think – I didn’t think Phil - - -
No, no. At that stage?---No. I didn’t think he had the balls to do it, to be honest.
So, “Phil, don’t, don’t, don’t, don’t. Phil, don’t. Phil, stop”. Then the gunshot. Does that accurately describe what happened?---Yes. Well, yeah, on – yes.
Yes.
The prosecutor then played to Ms Waenga the CCTV footage from Harold Keys Drive. He put to Ms Waenga that the footage contradicted her evidence, and that her explanation to the jury, that matters had calmed down before the shot was fired, was an outright lie. The prosecutor then played to the witness the compilation of the two CCTV footages displayed side by side and with audio, synchronised as to time. He put to Ms Waenga that, directly after the applicant moved to the driver’s side window of the Audi, he shot at the window, and that there was no conversation between him and Passanise. As the prosecutor sought to pursue that line of questioning, the judge intervened, stating, ‘I think we’ve been through all this’. As a consequence, the prosecutor ceased his cross-examination.
Counsel for the applicant then commenced cross-examination of Ms Waenga. She confirmed that the evidence that she had given was the truth. Counsel then took Ms Waenga through the account that she had given in evidence-in-chief, and sought to clarify some aspects of that evidence. In particular, Ms Waenga confirmed that her clear recollection was that the firearm was tapped on the window immediately before she heard the loud bang. She confirmed that the applicant looked shocked or startled when the firearm discharged. She said: ‘He really looked like he didn’t mean – like it was an accident. He didn’t actually intentionally shoot him, pull the trigger and shoot. I could see it. It was written all over his face. It was an accident …’.
It was at that point that the judge asked five questions that constitute the fifth intervention, that is the subject of the proposed ground of appeal, as follows:
But he said, “Fucking dog”?---Was that afterwards or before?
Afterwards. Then he said, “Who’s this dog here?” Was he looking shocked when he said those things?---I think I was up – more up – I left the car.
Never mind where you were, did you hear him say those things?
---Oh, yeah, watching it, yes I did. Yes.So was he looking shocked when he said, “Fucking dog. Who’s this dog here?”?---I – yeah he did.
Looked shocked?---Yeah. Angry and shocked, but very shocked at the events that had just happened had happened.
Counsel for the applicant then asked the witness questions about what occurred after the weapon discharged. She said that when the applicant returned to where she was standing on Shrives Road, he could not believe what had happened, and he was telling her that it was an accident and that he did not pull the trigger. She said that, subsequently, she telephoned 000 because the applicant had told her to do so. She agreed with the leading question, ‘… but it was Phil who was saying “call them”’.
After the cross-examination of the witness by defence counsel concluded, the prosecutor briefly re-examined the witness. He put to her that in the telephone call to 000, there was no mention of the applicant, because, although she wanted Passanise to be all right, she also ‘wanted Phil to be okay too’.
Summary of other evidence
In view of the proposed ground of appeal, relied on by the applicant, it is only necessary to summarise the other evidence in the trial in short compass.
Michael Cross, the partner of Charly Pringle, gave evidence. He was asked about some recorded conversations, which he had with the applicant, but in his evidence, he was unable to recall the details of those conversations. At the conclusion of the day on which Mr Cross commenced to give his evidence, it was noted that he appeared to be unwell. On the following day, he did not return to continue his evidence. The prosecution adduced the evidence of recordings of the conversations between the applicant and Mr Cross on 24 February 2020, in which they discussed the applicant’s relationship with Ms Waenga. In the course of the conversations, the applicant twice stated that he wanted to ‘pop’ a man who he suspected was sleeping with Ms Waenga, and the applicant said, ‘Yeah, that’s what I’m s — that’s what I’m saying, to actually put one in him, it’s as simple as that, good, done’.
Ms Emily Joya made a statement to the police, but she did not attend the court, and the warrant, which had been issued, had not been served on her. The informant, Detective Senior Constable Appathurai, read into evidence relevant portions of her statement. In her statement, Ms Joya said that at approximately 4:00 am or 5:00 am on the morning of the shooting, Ms Waenga woke her and hurried her into a motor vehicle, with the applicant and herself. When she was in the vehicle, Ms Joya saw the applicant place a gun in the driver’s side door. She said that the gun looked like a handgun, but because it was dark, it was difficult to properly discern the colour of it.
The other three witnesses in the trial were police witnesses.
Leading Senior Constable Lisa Atkinson was the first witness to attend the scene. In her evidence, she described how she locked down the scene. She said that Passanise was conscious at the time of her arrival, but he lost consciousness before being transported to hospital. She described the glass on the driver’s side of the vehicle window as having been fractured, but held together due to the tint or safety glass.
Senior Constable Ligery Pearson, of the Ballistics Unit, gave evidence of attending the scene at 6:26 am on the morning of the incident, and conducting an examination of the scene. The firearm itself was never located. The only evidence of it at the scene was the fired cartridge case. Senior Constable Pearson noted that the cartridge case was of a .22 calibre long rifle cartridge. The .22 calibre round could have been chambered in a rifle, but it could also have been chambered in a .22 calibre pistol. Senior Constable Pearson stated that the hole in the window was quite round, which indicated that the firearm had been discharged at an angle that was almost perpendicular to the window.
Senior Constable Pearson also gave evidence directed to the question whether it was possible the firearm in question could have discharged accidentally. She said that without having the firearm available to her, she could not express an opinion on that issue. If the firearm were available, it could be tested. One such test would involve striking the muzzle of the firearm. In her seven years of experience with firearms, Senior Constable Pearson had not, on any occasion, found any firearm to be discharged by being struck on the muzzle. In cross-examination, Senior Constable Pearson confirmed that, in the absence of the relevant firearm, she could not say anything about the probability or possibility of the weapon having accidentally discharged.
The final witness for the prosecution was the informant, Detective Acting Sergeant Damien Appathurai. In the course of his evidence, a number of exhibits were tendered, including a map of the scene, photographs, the crime scene video, the footages from the CCTV cameras located at 81 Shrives Road and in Harold Keys Road, and the composite CCTV footage. In addition, Acting Sergeant Appathurai tendered some still photographs that were extracted from the CCTV footage. Acting Sergeant Appathurai confirmed that the white Audi vehicle was searched by police, but nothing of evidentiary value was located in it.
The application to discharge the jury
On the day after Ms Waenga had completed her evidence, counsel for the applicant made an application to the judge to discharge the jury as a consequence of the questioning of the witness, by the judge, that comprised the third, fourth and fifth interventions. Counsel submitted that there was a real and substantial risk that the jury would infer that the judge had significant doubts concerning Ms Waenga’s evidence. Counsel submitted that the questions, asked by the judge of the witness, gave the appearance that his Honour had adopted the role of a party cross-examining a witness at a trial.
In a brief ruling, the judge declined to discharge the jury. His Honour considered that the questions, which he had asked the witness, raised issues which were likely to have been in the minds of the jury, and that the questions were intended to clarify obvious matters that required elucidation. His Honour further noted that almost all the questions, which he asked of the witness, were non-leading, and they were designed to elicit answers which would clarify what the witness was saying about the issue in question.
Submissions
In support of the proposed ground of appeal, counsel for the applicant submitted that the combined effect of the five interventions, by the trial judge, was such as to convey to the jury, at the least, his Honour’s significant scepticism as to the truth of the evidence given by Ms Waenga, and, more probably, that the judge regarded Ms Waenga to be an untruthful witness. In addition, it was submitted that the combined effect of the interventions was that the judge entered the arena of the adversarial process. Accordingly, it was submitted that the trial miscarried.
Counsel commenced by noting that the trial was particularly short. Ms Waenga was the only witness whose evidence was in issue. Her credibility was critical to the ultimate outcome of the trial. Before the commencement of the trial, the prosecution had provided to the defence a detailed notice pursuant to s 38 of the Evidence Act, which specified the particular aspects of the evidence, which it was anticipated Ms Waenga would give, and in respect of which the prosecution would seek leave to cross-examine her. Thus, from the outset of the trial, it was expected that the prosecution would ultimately engage in a wholesale attack on Ms Waenga’s evidence and her credibility as a witness. Counsel submitted that each of the first four interventions by the judge occurred in the course of questioning by the prosecutor which challenged the particular evidence that was given by Ms Waenga. In that context, it was submitted that those interventions could have left the jury in no doubt as to the negative view that the judge had as to the credibility of the witness.
Counsel contended that the first intervention occurred immediately after Ms Waenga stated that she did not know why, in the text message referred to, she had described the applicant as being her ‘ex’. In those circumstances, it was submitted, there was no need for the judge to ask any questions to clarify that aspect of the witness’s evidence. It was submitted that the questions, addressed by the judge to the witness, were the commencement of a series of interventions that left the impression that the judge did not regard her evidence as credible.
Counsel further noted that the two questions, asked by the judge, which constituted the second intervention, occurred when the prosecutor was asking questions, attacking the credit of Ms Waenga by reference to the content of the 000 call that she had made. It was submitted that there was nothing in the evidence, given by the witness, which required clarification by the judge. The question, whether she had been ‘truthful’ when she made the call to the emergency number 000, could only be relevant to her credibility as a witness.
Counsel noted that the third intervention occurred shortly after the prosecution had been given leave, pursuant to s 38 of the Evidence Act, to cross-examine Ms Waenga. Counsel submitted that the manner of that intervention, and the fact that it was made in the midst of a direct attack by the prosecutor on the credit of Ms Waenga, conveyed to the jury that the truthfulness of the most crucial witness for the defence (Ms Waenga) was being called into question, not only by the prosecutor, but also by the judge. Counsel submitted that the questions asked by the judge did not address a matter which required any clarification by the witness. Further, it was submitted that the third and fourth questions in the intervention — asking whether the applicant said the particular words and whether the witness’s account of what he said was verbatim — were such as to convey to the jury that the judge was incredulous as to that aspect of her evidence.
Counsel similarly noted that the questions, that constituted the fourth intervention, occurred in the course of a direct challenge, by the prosecutor, to the evidence of Ms Waenga that she was inside the vehicle when the shot was fired. In the course of those questions, the prosecutor put to the witness that she was not telling the truth as to that aspect of her evidence. It was submitted that the intervention, by the judge, did not involve any issue that required clarification, and, as such, it again conveyed the impression to the jury that the judge did not accept the evidence, given by the witness, on an important aspect of the defence case.
Counsel noted that the fifth intervention by the judge occurred in the course of cross-examination of the witness by the defence counsel, in which she gave evidence that supported the defence that the shooting of Passanise was an accident. At the point at which the intervention occurred, the witness had given quite extensive evidence in the case, almost half of which comprised evidence under cross-examination by the prosecutor. It was at that point that defence counsel was seeking to re-establish the critical aspect of the evidence given by the witness. Counsel submitted that the questions, asked by the judge of the witness, were not necessary, and they were akin to a traditional direct challenge by counsel to the evidence given by a witness, by confronting her with other evidence, which was suggested to be inconsistent with the testimony that she had just given. It was further submitted that the tone and manner of the questioning conveyed that the judge was incredulous as to the evidence given by the witness. Importantly, it came at a point when defence counsel was seeking to highlight important evidence, which was relied on in support of the case of the applicant. It was submitted that, by that point, the jury could have had little doubt as to the judge’s negative view of the credibility of Ms Waenga as a witness.
Accordingly, it was submitted that, when taken in combination, the five interventions by the judge would have left the jury with the unmistakable impression that his Honour considered that Ms Waenga’s evidence should not be believed, or, at the very least, that he harboured great scepticism as to it. As a consequence, the force of his Honour’s judicial office was added to the already significant attack, made by the prosecution, on the credibility of the witness. In those circumstances, it was submitted that there was a substantial risk that the judge unfairly influenced the jury in favour of the prosecution and against the case of the applicant. Accordingly, it was submitted that, as a result of the judge’s interventions, there was a substantial miscarriage of justice, such that the verdict of the jury should be set aside.
In response, counsel for the respondent submitted that the questions, asked by the judge, in each of the five interventions, were permissible, and do not constitute a miscarriage of justice. In particular, the questions were not formulated in a leading form, they were not extensive, and each of them was directed to clarify particular aspects of the evidence, given by Ms Waenga. It was submitted that, by asking those questions, the judge did not ‘descend into the arena’, but rather, his Honour performed the important role of clarifying particular matters for the assistance of the jury.
Counsel submitted that the first intervention amounted to no more than the judge asking the witness to explain why she had referred to the applicant as her ‘ex’, when, at the time, she said she was still in a relationship with him. Counsel contended that that question would have been uppermost in the minds of the jury, and it was not directed to the credit of the witness.
Counsel noted that the second intervention concerned the aspect of the 000 call, which was played to the jury, in which Ms Waenga had referred to someone coming out of ‘nowhere’. Counsel contended that it was quite appropriate for the judge to clarify, in a non-leading manner, whether in fact someone had ‘come out of nowhere’. In effect, the witness had given two different accounts as to what had occurred, the first such account being given in the 000 call, and the second account being given in her evidence. In those circumstances, it was submitted it was appropriate for the judge to clarify with the witness the account to which she adhered.
In respect of the third intervention, counsel again noted that the questions, asked by the judge, were expressed in a non-leading form, and that they were directed to clarifying important evidence given by the witness that, immediately before the gunshot, the mood of the applicant had calmed down. In particular, the question asked by the judge — ‘What did they say to each other?’ — was formulated in a non-leading form, and was, it was submitted, an appropriate clarification in view of the evidence by the witness that a conversation took place at that point. It was submitted that it was appropriate for the judge to clarify the witness’s evidence both as to the content of the conversation that she said took place between the applicant and Passanise, and, relevantly, the duration of that conversation. Counsel noted that it is significant that, at that point, the judge did not seek to challenge the evidence so given by the witness, by reference to the CCTV footage that had been tendered in evidence.
Counsel submitted that the fourth intervention comprised questions which were addressed in a non-leading manner, in which the judge sought clarification as to what the witness was referring to when she called out to the applicant, ‘Stop’. Thus, it was submitted, the questions, asked by the judge, addressed an important point of detail in respect of the narrative given by the witness, which was somewhat ambiguous. Counsel further contended that the questions that were asked by the judge could not be characterised as an attack on her credit.
Finally, counsel submitted that the fifth intervention by the judge again constituted no more than clarification, by his Honour, as to how the phrase ‘Fucking dog’ was uttered by the applicant, in light of the evidence given by the witness that everything at that point had calmed down.
In those circumstances, counsel for the respondent submitted that the interventions by the judge were not extensive and, with only one or two exceptions, they were not addressed in a leading form. It was submitted that the questions asked by the judge could not have been fairly viewed by the jury to have constituted an attack, by his Honour, on the credit of the witness.
Further, it was submitted, the prosecution had a strong case, in which the version, given by Ms Waenga, was quite implausible, and was contradicted by the objective evidence. Accordingly, it was submitted, the judge’s interventions added nothing or very little to the body of evidence in the trial, and could not have affected the outcome.
Legal principles
The principles, that apply to the conduct of a judge in a trial, derive from the essential nature of the role of the judge in such a proceeding, and are of particular importance in a trial before a jury.
It is well understood, but fundamental, that in a criminal trial, it is the jury which is the sole judge of the facts and of the verdict. The role of the trial judge is confined to ensuring that the trial is conducted in accordance with the rules of procedure and evidence that apply to the trial, and to instruct the jury on the principles of the law which it must apply in determining its verdict. As such, the trial judge is the sole judge of the law, but, as we have stated, the judge plays no part in the jury’s determination of the facts or its verdict.[1]
[1]Cesan v The Queen (2008) 236 CLR 358, 381-2 [74] (French CJ); [2008] HCA 52.
In Ratten v The Queen,[2] Barwick CJ described the role of a judge in a criminal trial in the following terms:
As Smith J. rightly said in expressing the reasons of the Full Court in this case, “Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence” [1974] VR 201, at p 214. It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law.[3]
[2](1974) 131 CLR 510; [1974] HCA 35.
[3]Ibid 517 (Barwick CJ).
Those principles do not, of course, preclude any involvement by the judge in the process by which the evidence is adduced before the jury. Commonly, it is appropriate for a judge to address questions to a witness to clarify the evidence given by that witness, and also to ensure that questions asked by counsel of witnesses are formulated in a manner in which they may be readily understood by the witness. However, in view of the essential role of the trial judge as described by Barwick CJ, it is recognised that excessive or inappropriate involvement, by a judge, in the conduct by the parties of a trial, may have the consequence of occasioning a substantial miscarriage of justice.
In R v Mawson,[4] the Full Court of the Supreme Court of Victoria stated, in that respect:
It is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. In those circumstances, such a miscarriage may result for any of a number of reasons. It may, for instance, involve an impairment of a party’s opportunity of putting his defence fully and fairly to the jury. An illustration of that kind of miscarriage is shown by the case of R v Clewer(1953) 37 Cr App R 37. The miscarriage may result from preventing witnesses at the trial from telling the full account of the facts as they understand them to be. An illustration of that kind of miscarriage is provided by the case of R v Bateman(1946) 31 Cr App R 106. Such a miscarriage may result from an apparent identification by the trial judge with one or other party to the litigation. A miscarriage of that kind is illustrated by the case of R v Cain(1936) Cr App R 204, or again the miscarriage may result from the jury being led to believe from the judge’s intervention that he is himself convinced of the guilt of the accused person. The illustrations given are sufficient to indicate how this kind of departure from the due and orderly processes of trial may result in a miscarriage. It also becomes apparent that a departure from due and regular process in any such respect as those mentioned, may infringe another fundamental principle of criminal law, namely, that criminal justice must not only be done but must also appear to be done.[5]
[4][1967] VR 205.
[5]Ibid 207-8 (Winneke CJ, Adam and Barber JJ).
In similar terms, in R v Esposito,[6] Wood CJ at CL (with whom James and Adams JJ agreed) stated:
The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.[7]
[6](1998) 45 NSWLR 442 (‘Esposito’).
[7]Ibid, 472; see also Buchwald v The Queen (2011) 38 VR 199, 228 [123]–[124] (Hansen JA); [2011] VSCA 445; Nwagbo v The Queen [2021] VSCA 93, [25] (Priest, Niall and T Forrest JJA) (‘Nwagbo’).
For those reasons, it has been emphasised, on a number of occasions, that a trial judge must exercise restraint and particular caution when intervening in evidence, given by a witness in a trial, or in commenting on the facts before a jury.[8] It has been recognised that the need for such caution is of particular moment in a case in which a judge may be minded to intervene in the course of the questioning, or cross-examination, of an accused person, or of a key witness in the trial.[9]
[8]McKell v The Queen (2019) 264 CLR 307, 323 [47] (Bell, Keane, Gordon and Edelman JJ); [2019] HCA 5; Esposito (1998) 45 NSWLR 442, 468; Nwagbo [2021] VSCA 93, [102].
[9]See, for example, R v Brdarovski (2006) 166 A Crim R 366, 374-5 [25] (Nettle JA); Nwagbo [2021] VSCA 93, [34], [38] (Priest, Niall and T Forrest JJA); Becker v The King [2023] VSCA 332, [116], [119] (Emerton P, Priest JA and Kidd AJA).
As was noted in Mawson and Esposito, the intervention, by a trial judge, in the conduct of the trial by the parties does carry with it a number of relevant risks, which were adverted to in the passages from those decisions, which we have quoted. We would add to those risks that it may also involve the judge entering upon an area or issue, which the parties, for good reason, have agreed should not be agitated before the jury.[10]
[10]Nwagbo [2021] VSCA 93, [102] (Priest, Niall and T Forrest JJA).
In the present case, the central question is whether the judge, by asking the questions contained in the five interventions complained of by the applicant, unfairly conveyed to the jury the view that Ms Waenga’s evidence, which was exculpatory of the applicant, should not be believed, so as to constitute a substantial miscarriage of justice.
Analysis and conclusion
In applying those principles, it is appropriate, first, to note that this case is not one in which the fundamental point, relied on by the applicant, is akin to that in Nwagbo, in which the questioning by the judge of an expert witness, called by the accused on the central issue in the trial, occupied some 40 per cent of the transcript of the cross-examination of the witness in that case.[11] At one point, in that case, the trial judge had asked the accused, in the course of cross-examination, some 30 consecutive questions. By contrast, in the present case, the five interventions, that are the subject of the application, comprised in total some 66 questions, which occupied a little over 2 per cent of the transcript of the evidence of Ms Waenga.
[11]Ibid [98] (Priest, Niall and T Forrest JJA).
Rather, the focus of the submissions, made on behalf of applicant, was on the content and nature of each of those interventions. As we have noted, the central point contended for on behalf of the applicant is that the questioning was such as to convey to the jury that the judge did not accept the truthfulness of the evidence, given by Ms Waenga, that was exculpatory of the applicant.
Ultimately, the critical submission made on behalf of the applicant was that the totality of those five interventions, in combination, was such as to convey to the jury that it should not regard Ms Waenga as a credible witness. In analysing that submission, it is necessary, first, to consider each of the five interventions separately, before assessing the effect of them in totality.
The first intervention
In respect of the first intervention, counsel submitted that there was no necessity for the judge to ask questions of the witness, and that the effect of them was to leave the impression that the judge did not regard the witness’s evidence as being credible.
As we have set out earlier, the first intervention occurred as the prosecutor was taking the witness through her Facebook messages, and, in particular, the message in which she referred to the applicant as her ‘ex’. The prosecutor asked the witness to explain what she meant by that reference. In response, the witness gave answers which were quite unclear and confused. She commenced by stating that she and the applicant were ‘dating’ at the time. She then said that she did not know why she had referred to the applicant as ‘ex’. When counsel asked her whether it was correct that she did not know why she had referred to him in that way, the witness responded, ‘I was lying … me and Phil, we were a bit rocky at the time …’.
It was at that point that the judge asked the witness whether the applicant was in fact her ‘ex’ at that time. That question was unexceptional, and, indeed, was appropriate to elucidate the evidence of the witness whether, at the relevant time, the applicant was, in truth, still in a relationship with her. When the witness said that the applicant was not her ‘ex’, the judge, understandably, asked her to clarify why, therefore, she had described the applicant as her ‘ex’.
In that context, the questions were an appropriate and relevant clarification of the issue, relating to the nature of the relationship between the applicant and the witness at the particular time. The questioning was limited (to three questions), and each of the questions was appropriately expressed by the judge. Certainly, standing alone, we do not consider that, collectively or individually, they could have conveyed to the jury any view, which the judge may, or may not, have had about the credibility of the witness on that aspect of her evidence or at all.
The second intervention
The second intervention occurred some 35 pages later in the transcript, after the recording of the witness’s telephone call to 000 had been played and tendered, in which the witness described to the operator what had just occurred. In that passage of the 000 call, Ms Waenga had told the operator that her friend was going to call at her house and was saying goodbye to her, when ‘… someone came out of nowhere and I don’t know — I don’t know what … he smashed on the window or something like that and then it was a loud bang on the window …’.
After that telephone call was played to the jury, the prosecutor asked Ms Waenga why she had referred to ‘someone coming out of nowhere’. The witness responded that she was then in a state of panic and she did not know how to handle it. By the two questions, which constituted the second intervention, the judge then asked the witness whether she was trying to tell the truth when she answered the questions of the operator.
Two points are clear about those questions. First, they were asked in a non-leading manner. Secondly, they were relevant and assisted in clarifying the witness’s evidence. In particular, they were questions which no doubt would have occurred to the jury, if they had not been asked of the witness directly by the judge. At that point, the jury had received two different, and contradictory, accounts of the incident given by the witness, the first such account being contained in the 000 telephone call, and the second in her evidence-in-chief. It was appropriate for the judge to clarify whether, nevertheless, the witness maintained that the account that she had given to the 000 telephone operator was a true account. Significantly, the witness’s answer did clarify her position. She explained that, from her perspective, the applicant’s appearance at the scene was unexpected, but what she ‘missed out’ saying to the operator was that she knew the applicant. In those circumstances, we do not consider that it could be concluded that that questioning would or could have caused the jury to gain the impression that the judge did not believe the evidence of Ms Waenga, or that the judge considered that the applicant was guilty.
The third intervention
The third intervention occurred some six pages later in the transcript. At that point, the prosecutor, by leave, had commenced to cross-examine Ms Waenga. At the point of the intervention, the prosecutor was asking Ms Waenga questions directed to her evidence that, although the applicant had originally been in a ‘heightened state of anger’, he had calmed down after speaking with Passanise. In a series of appropriately leading questions, the prosecutor put to Ms Waenga that the mood did not calm down, and that no words were exchanged between Passanise and the applicant. In response to the latter proposition, Ms Waenga said that she knew it had happened because she was there, and she said, ‘I heard both them speak’.
It was at that point that the judge then asked the six questions that comprised the third intervention complained of. Each of those questions were directed to eliciting from the witness what she heard Passanise and the applicant say to each other. Each of the questions were asked in a non-leading and short form. Quite clearly, they were addressed to a relevant topic that was central to the question whether the firearm, held by the accused man, discharged accidentally or deliberately. The questions were asked in the context of the issues raised by the prosecution. They were directed to elucidating for the jury a question which, no doubt, would have been foremost in their minds, namely, the content of the conversation, which Ms Waenga said that she heard between Passanise and the applicant before the firearm discharged. In our view, there was nothing about the context, content or formulation of the questions, contained in the third intervention, that might or would have conveyed to the jury that the judge had doubts about the credibility of the evidence given by Ms Waenga.
The fourth intervention
The fourth intervention occurred while the prosecutor was cross-examining Ms Waenga by reference to the footage that was captured on the CCTV camera outside 83 Shrives Road. In particular, the prosecutor put to Ms Waenga that the footage recorded the sound of Ms Waenga saying, ‘Phil, don’t don’t don’t don’t’ as the door was closed, which (the prosecutor put to the witness) was when Ms Waenga left the vehicle to try to intercept the applicant. The witness did not accept those propositions. The prosecutor then put to the witness that she was not telling the truth when she said that she was inside the vehicle when Passanise was shot. In answer to that question, the witness responded, ‘I am telling the truth today’. It was at that point that the judge asked the four questions that comprised the fourth intervention.
Clearly, those questions were raised by the judge in the context of, and relevant to, the evidence that had just been given by the witness. They assisted to clarify an important part of her evidence as to what she was referring to when she had said to the applicant, ‘Phil, don’t don’t don’t don’t …’. When the witness responded to that question by stating that she was telling the applicant not to get angry, it was then helpful for the judge to ask the next question, as to what she thought the applicant was going to do at that point. Equally, it was helpful for the judge to confirm with the witness that, at the very point at which she uttered the words just quoted, the firearm discharged.
In that way, the questions asked by the judge of the witness were of assistance to the jury in that they were directed to elucidating an important aspect of the account, given by the witness in her evidence. It was relevant — and, indeed, desirable — that the witness explain what she was referring to when she called out to the applicant (repetitively), ‘Don’t’ and ‘Stop’. The next two questions did no more than clarify and, to some extent, expand on the answer that the witness gave to the first question. The fourth question was directed to another relevant matter, namely, whether the sequence, which could be heard on the audio of the CCTV footage, did accurately describe what, in fact, had occurred at that point.
The questions, that constituted the fourth intervention, were not formulated as leading questions. While the clarification of the matters, that were the subject of the questions, might not have assisted the case of the applicant, nevertheless, they were of assistance to the jury. Further, we do not consider that the jury could have inferred from the questions that the judge did not accept the account given by the witness as to the circumstances in which the firearm was discharged.
The fifth intervention
As we have noted, the fifth intervention, that is the subject of the proposed ground of appeal, occurred in the course of the cross-examination of Ms Waenga by counsel for the applicant, at the point at which the witness had said that after the firearm discharged, the applicant looked shocked. The questions asked by the judge were directed to the question whether the applicant, at that point, looked shocked, which was also the point at which the applicant had said, ‘Fucking dog, who’s this dog here?’.
Quite clearly, the matter raised by the judge necessarily put in question the evidence of the witness that at that point the applicant looked shocked. However, the questions asked by the judge were directed to clarifying a matter which, ultimately, the jury would, inevitably, have in mind when assessing the evidence of the witness concerning the demeanour of the applicant immediately after the firearm had discharged. Although the witness had been asked questions by the prosecutor about her evidence that the applicant, at that point, had looked shocked, it had not been put to her that, at that time, the applicant had said the words, ‘Fucking dog, who’s this dog here?’. The judge addressed this obvious gap. The judge’s questions were not addressed in a leading manner, or in a manner which suggested that the judge challenged, or did not accept, the evidence of the witness. Rather, the questions gave the witness an opportunity to clarify and explain an objective circumstance that, if left unexplained, would have contradicted or undermined her evidence on that point.
Thus, for the reasons we have discussed, none of the five interventions, by the judge, of themselves, and taken in isolation, constituted an impermissible intervention by his Honour into the trial process as to occasion a miscarriage of justice to the applicant.
The combined effect of the interventions
The question which then arises is whether, nevertheless, taken together and in combination, the effect of the five interventions was such as to constitute such a departure from the due processes of the trial as to amount to a substantial miscarriage of justice in the case.
Plainly, Ms Waenga was the most significant witness in the trial. She was the only person who was an eyewitness to the incident, in which Passanise was shot. Apart from her testimony, all the other evidence in the trial strongly implicated the applicant in the attempted murder of Passanise. It is noteworthy that the evidence, given by Ms Waenga, in that context, was substantially exculpatory of the applicant.
In assessing the effect of the five interventions by the judge, four points are of particular importance. First, as we have already noted, the interventions themselves constituted only a small percentage of the evidence given by Ms Waenga. Secondly, and related to that, none of the interventions were, themselves, prolonged. The questioning by the judge was confined to a few short questions. Most of the questions were formulated by the judge in non-leading terms. Thirdly, each set of questions asked by the judge was directed to an issue or issues, which, in the context of the intervention, had been raised by questioning by counsel of the witness. That is, none of the interventions involved the judge raising issues which were not otherwise under consideration at the time at which the judge intervened.
The fourth point, which is relevant, is that each of the issues, which were the subject of the questions asked by the judge, concerned matters which required clarification and explanation to the jury. It was important that the matters which were the subject of the questions asked by the judge, should be raised with the witness, and the witness given the opportunity to address them. Each of the questions was directed to the elucidation of the evidence, given by the witness, or her explanation of the contents of an exhibit (such as the CCTV footage and the contents of the telephone call to emergency services) which involved the witness herself.
Taking those considerations into account, and given the amount, form and nature of the questions asked by the judge of the witness, we are not persuaded that the totality of the questions, contained in the five interjections, was such as to involve an impermissible intervention by the judge into the adversarial process, such as to give rise to a miscarriage of justice.
In reaching that conclusion, we are conscious that, particularly in a criminal trial, it is most important that the judge exercise restraint in intervening in the questioning process, particularly when it involves an accused person or a witness whose evidence might be of particular consequence to the outcome of the trial. Nevertheless, for the reasons we have outlined, we are not persuaded that the judge’s interventions in this case were such as, in some way, to convey to the jury his Honour’s view that the witness, Ms Waenga, ought not to be believed. Rather, each of the interventions constituted a constructive set of questions asked by the judge that was designed to clarify and elucidate important matters which the jury was required to consider in determining the verdict in the case.
For those reasons, the proposed ground of appeal does not succeed, and, accordingly, the application for leave to appeal against conviction must be refused.
Application for leave to appeal against sentence
As set out earlier in these reasons, the applicant pleaded guilty to seven charges on a separate indictment (the ‘plea indictment’) and to six related summary offences. He was sentenced to a total effective sentences of 18 years’ imprisonment, and a non-parole period of 15 years as fixed by the trial judge. The sole ground upon which the applicant seeks leave to appeal against his sentence is directed to the term of the non-parole period. For the purposes of considering that ground, it is nevertheless necessary to set out, in brief detail, the circumstances of the offending that was the subject of the plea indictment and of the summary offences. That offending was alleged to have occurred on three dates, namely, 9 February 2020, 7 March 2020 (the date of the attempted murder), and 19 March 2020 (the date of the applicant’s arrest).
On 9 February 2020, the applicant drove a silver Holden utility on Shrives Road, Narre Warren South, near Ms Waenga’s home. Police attempted to follow the utility, but the applicant drove quickly ahead and abandoned the vehicle on Shrives Road. Police searched the vehicle and discovered a number of items in it that had been unlawfully possessed by the applicant.
In particular, police discovered two firearms, each of which were loaded and which were located on the front passenger side footwell. The applicant was then a prohibited person under the Firearms Act 1996, because no more than five years had expired since he had finished serving a term of imprisonment for an indictable offence (plea indictment, charge 1). Police also located 78 items of cartridge ammunition in the tray of the utility, for which the applicant did not hold a licence or permit (summary charge 12). Under the front driver’s seat, police located a case containing pills, which contained about 3.5 grams of the drug of dependence, methandienone, and androgen and anabolic steroid (plea indictment, charge 2). In the driver’s side doorwell, police located a packet of Viagra, and, in the tray of the utility, a box of ten vials of somatropin, which are listed poisons (summary charge 13).
At some time prior to Saturday, 7 March 2020, the applicant attended Ms Waenga’s bedroom at 75 Shrives Road, where he left drugs in a ziplock bag on an ottoman under the television. The bag contained 488.1 grams of methylamphetamine, with a purity of 80 per cent (plea indictment, charge 3). As set out earlier, in the early hours of 7 March 2020, the applicant attended the Shrives Road address, armed with a firearm. The discharge by him of the firearm is the offence that is the subject of charge 4 on the plea indictment. When the applicant, with Ms Waenga and Ms Joya as passengers, drove the Mercedes Benz away from Ms Waenga’s home, his licence was then suspended (summary charge 6).
The applicant was arrested on 19 March 2020. Before his arrest, at an unknown point, he abandoned the Mercedes Benz that he was driving, and then he drove a white Audi, which had been stolen from an apartment complex in Maribyrnong on the previous Sunday, 15 March. The applicant drove it while he was aware it was stolen (plea indictment, charge 5; summary charge 6). At 11:00 am on 19 March 2020, police arrested the applicant and Ms Waenga at Bunnings in Clyde North. The stolen Audi vehicle was in a carpark. Police officers subsequently searched the vehicle and found a number of items, including drugs and cartridge ammunition, unlawfully possessed by the applicant. Inside the vehicle were various quantities of white crystals in plastic bags, the combined weight of which was 39.73 grams. The crystals comprised methylamphetamine, with a purity of in excess of 80 per cent. It was possessed by the applicant for sale. There were other paraphernalia of sale also inside the vehicle (plea indictment, charge 7). Inside a black bag on the rear passenger seat was assorted ammunition, for which the applicant did not hold a licence or permit (summary charge 5). Police also located $2,983.60 in cash in Australian currency that was possessed by the applicant. There were reasonable grounds to suspect that that money was the proceeds of crime (summary charge 20).
After his arrest on 19 March 2020, the applicant remained in custody. On 21 July 2020, he conveyed, through his legal representatives, that he was prepared to plead guilty to most of the charges against him. Subsequently, on 15 December 2020, his legal representatives confirmed that he would plead guilty to all the proposed charges, except the charge of attempted murder. He was committed for trial on 11 February 2021 by way of a straight hand-up brief, having entered pleas of guilty to all charges of which he was committed for trial, except the charge of attempted murder.
The applicant’s personal circumstances
The applicant was born in September 1987 and, at the time of sentence, he was 34 years of age. He has a number of previous convictions for a variety of offences, including drug offences, aggravated burglary, and offences of violence.
The applicant was first before a court in June 2011, when he was, without conviction, placed on a community-based order for 12 months by the Dandenong Magistrates’ Court for the offence of using a drug of dependence. More significantly, in February 2014, he was sentenced, by the Dandenong Magistrates’ Court, to an aggregate sentence of 12 months’ imprisonment on charges that included intentionally cause injury, threat to inflict serious injury, traffick methylamphetamine, and theft.
On 3 August 2015, the applicant was sentenced by the Melbourne County Court to a total sentence of 5 years’ imprisonment with a non-parole period of 3 years on charges that included aggravated burglary, reckless conduct endangering serious injury, being a prohibited person in possession of a firearm, recklessly causing injury, and common law assault. A period of 493 days was declared as pre-sentence detention. Subsequently, in December 2015, the applicant was sentenced to a further term of imprisonment of one month on a charge of contravening a conduct condition of bail. On 21 March 2016, the Dandenong Magistrates’ Court sentenced the applicant to a period of 12 months’ imprisonment on charges that included intentionally cause injury, threat to inflict serious injury, traffick methylamphetamine, and theft. At the time of his sentence in the present matter on 12 September 2022, the applicant had spent seven years out of the previous 13 years in custody.
After the applicant completed his secondary education, he commenced, but did not complete, a bakery apprenticeship, and then commenced, but again did not complete, a plumbing apprenticeship. For a period of time, he worked in flooring, and then commenced his own business, which failed as a result of the applicant going into custody, and also as a result of his drug addiction. In 2018, he was apparently diagnosed with post-traumatic stress disorder by a psychiatrist, which had resulted from being shot at in 2013, and stabbed in 2014.
On the plea, the judge was referred to a report authored by Ms Sandra Cokorilo, psychologist, which noted that the applicant’s previous transition into the community after sentencing had been difficult for him. Ms Cokorilo considered that the applicant required specific interventions to address his anger management problems.
Reasons for sentence
In his reasons for sentence,[12] the judge accepted that, to an extent, the applicant’s offending, in respect of the attempted murder, was spontaneous. However, the applicant had armed himself with a firearm and walked some distance to where Passanise and Ms Waenga were sitting in the vehicle, in circumstances in which the applicant already harboured considerable hostility towards Newton.[13] The judge considered that the applicant’s conduct constituted the uninhibited infliction of near-fatal violence on a person who was unknown to him. The applicant was told by Ms Waenga that it was Passanise and not Newton who was in the vehicle. Accordingly, the applicant’s attitude was one of disinterest in who the passenger was, apart from the fact that he was a male in the vehicle with Ms Waenga.[14] The judge also noted that the applicant offered no assistance to Passanise after shooting him, although he did urge Ms Waenga to telephone the emergency number 000.
[12]DPP v Constantinou [2022] VSC 513 (‘Reasons’).
[13]Ibid [56].
[14]Ibid [57].
The judge considered that, in the circumstances, denunciation, community protection, general deterrence and specific deterrence were all significant sentencing factors. The violence of the attack on Mr Passanise, and the applicant’s persistence in drug and firearm offending, were particularly concerning in light of his criminal history. The judge considered that the applicant’s prospects of rehabilitation might be reasonable, but he would need to avoid using illicit substances altogether.[15]
[15]Ibid [60].
Submissions
The sole basis, upon which the applicant seeks leave to appeal against sentence, is that the non-parole period, fixed by the trial judge, was manifestly excessive. Counsel submitted that a key principle regarding the fixing of a non-parole period is that its relationship to the total effective sentence should be proportionate. Although the determination of the non-parole period does not involve employing a mathematical approach, nevertheless, in this case the non-parole period of 15 years constituted 83 per cent of the total effective sentence imposed on the applicant. Counsel submitted that such a proportion is ordinarily employed in cases of the most serious category of offenders, who have previously demonstrated that supervised release on bail does not curb or deter further offending. In the present case, counsel noted that the judge considered that the applicant’s prospects of rehabilitation were reasonable.
Counsel noted that the judge did not state any reasons for setting a non-parole period which was of such a duration. It was submitted that the non-parole period so fixed was manifestly excessive in view of a number of features, which include: the applicant was a relatively young man of 34 years; he had strong family support; he had a large pro-social network, supported by character references tendered on the plea; and he had successfully completed a period on parole between August 2017 and September 2019. Counsel further noted that it was after the applicant had completed his parole period and disengaged with support services that he had relapsed into drug use, which was the context of the attempted murder offending. Counsel submitted that, in the case of the applicant, the issue of community protection was closely connected to the question of his rehabilitation. It was submitted that the applicant’s prospects of rehabilitation would have been furthered by a more substantial potential parole period.
In response, counsel for the respondent submitted that the applicant’s offending, in respect of the charge of attempted murder, was a particularly serious example of that offence. The applicant used a loaded handgun in a public street to shoot an innocent man in the face at very close range, with the intention of killing him. In doing so, he was motivated by mere jealousy. The evidence indicated the applicant was given to carrying a handgun, and he had a familiarity with such weapons. At the time of the offending, he was in an angry state of mind, he walked some distance to the vehicle, and he ignored pleas by Ms Waenga, before discharging the firearm at Passanise. Counsel also noted that the impact of the offence was significant. The victim was a young man of 25 years, and the trajectory of the bullet was through his brain. The victim impact statements demonstrated the serious effect of the offence on the victim, his immediate family and the community.
Counsel submitted that the head sentence of 16 years’ imprisonment for the attempted murder charge was well justified. The applicant only received two years further cumulation for the other offences to which he pleaded guilty. He had little to rely on in terms of mitigation. He had a significant criminal record, including being convicted of serious crimes of violence. Apart from specific deterrence, the judge correctly considered that the sentencing purposes of general deterrence, specific deterrence, community protection, and denunciation were relevant.
Counsel for the respondent accepted that a short non-parole period may invite appellate scrutiny for less serious offences than those which were committed in this case. However, in this case, the offending was serious and, it was submitted, the non-parole period was entirely appropriate. In particular, it was noted that the applicant’s previous period of parole had failed to achieve any lasting reformation, and had failed to deter the applicant from serious offending of the type that occurred in the present case.
Analysis and conclusion
In order to establish the proposed ground of appeal, that the non-parole period imposed by the judge is manifestly excessive, the applicant must demonstrate that that aspect of his sentence was wholly outside the range of sentencing options available to the judge. Such a test is, essentially, a stringent requirement. It is not sufficient for the applicant to establish that the non-parole period is longer than this Court might have imposed in the circumstances of the case. Rather, it must be demonstrated that it was so excessive as to bespeak error by the judge in the exercise of the sentencing discretion.[16]
[16]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v McArthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
The non-parole period is, in the particular circumstances of a given case, the minimum period which, in the estimation of the judge, must be served so as not to violate justice according to law, notwithstanding the proper application of factors in mitigation of sentence.[17] In each case, the determination of the non-parole period ordinarily involves the application of established sentencing principles. Ordinarily, in that process, the rehabilitation of the prisoner, and the interests of the community in the prisoner’s rehabilitation, may be given greater weight than in the fixing of the head sentence.[18] The basic purpose of parole is to enable and enhance the rehabilitation of a prisoner on release into the community. Parole provides an important means of supervising and facilitating the safe return of a prisoner to the community. In addition, the fixing of a non-parole period may provide a tangible incentive to a prisoner to work towards his or her rehabilitation while in custody.
[17]R v Morgan (1980) 7 A Crim R 146, 154-5 (Jenkinson J, Kaye J agreeing); R v Merritt (2008) 191 A Crim R 272, 276 [17], [18] (Vincent, Nettle and Kellam JJA).
[18]Kumova v The Queen (2012) 37 VR 538, 545 [27] (Redlich and Osborne JJA); [2012] VSCA 212 (‘Kumova’).
It is well-recognised that there is no fixed or ‘usual’ proportion between a head sentence and the non-parole period to which it applies. As a matter of practice, quite commonly, in the case of sentences of less than 10 years, the non-parole period constitutes between approximately 60 per cent and 75 per cent of the head sentence.[19] However, that consideration is of less assistance when the head sentence is in the order of 10 years or more. In such a case, the application of such a percentage to the head sentence would result, ordinarily, in a non-parole period which would be entirely out of proportion and which would not adequately reflect the gravity of the offending in the particular case.[20]
[19]R v Bolton [1998] 1 VR 692, 699 (Callaway JA); R v Tran [2006] VSCA 222, [27] (Warren CJ, Nettle and Redlich JJA).
[20]Romero v The Queen (2011) 32 VR 486, 493 [25] (Redlich JA); [2011] VSCA 45 (‘Romero’); Kumova (2012) 37 VR 538, 542–544 [12]–[19] (Nettle JA), 545 [27] (Redlich and Osborn JJA); Mush v The Queen [2019] VSCA 307, [102] (Maxwell P and Kaye JA).
A non-parole period, which is substantially less or more than that which is commonly fixed in a particular case, may invite scrutiny, but does not, of itself, bespeak error in the sentencing process.[21] Ordinarily, in such a case, the sentencing judge should give reasons for doing so.[22]
[21]DPP v Josefskios (2005) 13 VR 85, 94 [43] (Callaway JA); [2005] VSCA 265 (‘Josefskios’); Diver v The Queen [2010] VSCA 254, [32]–[33] (Ashley JA); Romero (2011) 32 VR 486, 493 [25] (Redlich JA).
[22]Josefskios (2005) 13 VR 85, 94 [43] (Callaway JA); DPP v Huby [2019] VSCA 106 [21], [70] (Priest, McLeish and Weinberg JJA).
In considering the proposed ground of appeal, the starting point is that, quite correctly, it is not in issue that the sentences imposed in respect of each charge, and the total effective sentence, were each appropriate.
The offending in the principal charge, of attempted murder, was particularly serious. The applicant deliberately shot Passanise in the head, at close range, with the intention of killing him. His conduct in doing so was not entirely spontaneous. The applicant had previously made the decision to take with him a loaded firearm as he approached the Audi vehicle. He walked, carrying that firearm, over a distance of some 150 metres. As he approached the Audi vehicle, he ignored urgent pleas by Ms Waenga to stop. The victim, Kevin Passanise, was unarmed and entirely defenceless. He was totally vulnerable, and a very easy target. The injury, inflicted by the applicant, was life-threatening and catastrophic, both for the immediate victim and for his family, as demonstrated by the victim impact statements.
The applicant had a significant criminal record, which included convictions for serious crimes of violence, namely, reckless conduct endangering serious injury, recklessly causing injury, intentionally causing injury, and aggravated burglary. He had limited mitigating circumstances available to him.
In those circumstances, it might be fairly concluded that the sentence of 16 years’ imprisonment for the attempted murder was quite reasonable.
The sentences imposed for each of the offences in the plea indictment, and the summary offences, were moderate. In that respect, the sentence of 4 years’ imprisonment imposed on charge 3 on the plea indictment (trafficking in a commercial quantity of a drug of dependence) was, to say the least, lenient. The cumulation of 2 years’ imprisonment for the offences in the plea indictment and the summary offences to which the applicant pleaded guilty, was particularly modest.
As we have discussed, the fixing of the non-parole period was a matter of discretion for the judge, taking into account all of the relevant circumstances. In that respect, it was necessary that the non-parole period be adequate to reflect the gravity and extent of the offending by the applicant. In the present case, the degree of violence involved by the applicant, the totality of his offending, his previous criminal record, and his longstanding abuse of prohibited substances were all factors which were relevant to take into account in determining the potential term of parole available to the applicant. The judge considered that the applicant’s prospects of rehabilitation ‘may be reasonable’, but added the important qualification that, in order to fulfil those prospects, the applicant would need to avoid the use of drugs ‘altogether’.[23]
[23]Reasons, [60].
In the present case, it might be accepted that the proportion, which the non-parole period bore to the head sentence, was somewhat higher than is commonly the case. However, the circumstances of the offending, the applicant’s previous convictions, and the judge’s assessment that the applicant’s prospects of rehabilitation were qualified, provided an adequate explanation for that equation. The three year period of potential parole available to the applicant would still be sufficient both to provide an incentive to him to reform while in custody, and it will also provide an adequate period of appropriate supervision upon the applicant’s release on parole.
For those reasons, we are not persuaded that the non-parole period, fixed by the judge, was manifestly excessive. It follows that the application for leave to appeal against sentence must be refused.
Summary of conclusions
For the reasons we have stated, the application for leave to appeal against conviction, and the application for leave to appeal against sentence, are each refused.
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