Diab v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0132

FADI DIAB	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2023
DATE OF JUDGMENT:	11 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 107
JUDGMENT APPEALED FROM:	[2022] VCC 788 (Judge Chambers)

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CRIMINAL LAW – Appeal – Conviction – Charges of discharging a firearm being reckless as to safety of police officers contrary to s 31C of Crimes Act 1958 – Prosecutor advancing argument in address that was unsupported by evidence – Whether capable of being redressed by direction by trial judge – Whether verdicts unreasonable or could not be supported by evidence – Applicant discharging firearm at night a few seconds after arrival of unmarked police vehicle – Whether open to jury to conclude applicant heard and understood identification by police – Appeal allowed – Convictions quashed – Applicant convicted on alternative charge of discharging weapon at vehicle contrary to s 131A(1) of Firearms Act 1996.

Pell v The Queen (2020) 268 CLR 123.

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Counsel
Applicant:	Mr D Dann KC
Respondent:	Ms E Ruddle KC with Ms B Goding
Solicitors
Applicant:	Marcevski Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KAYE JA:

The applicant was charged on an indictment containing five charges. Following pre-trial argument, the indictment was severed. The first indictment contained two charges of discharging a firearm, being reckless as to the safety of a police officer (contrary to s 31C(1) of the Crimes Act 1958), and one charge of discharging a firearm at a vehicle (contrary to s 131A(1) of the Firearms Act 1996). The third charge was an alternative to the first two charges. The applicant pleaded not guilty to the first two charges, but guilty to the third charge. Following a trial before a jury, the applicant was convicted of the first and second charges on the indictment.
The second indictment contained one charge of possession of a general category handgun without a licence (contrary to s 7(1) of the Firearms Act), and one charge of handling stolen goods, namely, a .38 Smith & Wesson revolver (contrary to s 88 of the Crimes Act). The revolver was the firearm that was the subject of the three charges on the first indictment. The applicant pleaded guilty to the two charges on the second indictment, as well as to a summary charge of failing to store cartridge ammunition (contrary to s 121(1A) of the Firearms Act).
Following a plea, presented on his behalf, the applicant was sentenced, in respect of the charges, to a total effective sentence of 7 years, 5 months and 18 days’ imprisonment, with a minimum non-parole period of 5 years.
The applicant seeks leave to appeal his conviction on the two charges on the first indictment on three grounds, namely:
1.The Learned Trial Judge erred in the approach to Section 108A and 108B of the Evidence Act 2008.
2.A substantial miscarriage of justice has occurred in circumstances where the Learned Prosecutor advanced an unsustainable theory in her final address.
3.The guilty verdicts on charges 1 and 2 were unsafe and unsatisfactory.

Summary of circumstances of offending

The alleged offending occurred on 12 September 2019 at approximately 4:52 am on a service road on the southern side of Providence Road near the intersection with Section Road in Greenvale.
On 11 September 2019, Acting Senior Sergeant Kyle Stacey and Senior Constable Tyson Gee were on duty at the Melbourne Airport Operations Centre, Tullamarine. They were both members of the Australian Federal Police, but they were also special members of Victoria Police. The latter capacity authorised each of them to exercise the powers of Victoria Police.
At about 4.40 am on the following morning, while they were on duty, Stacey and Gee were travelling in Providence Road in an unmarked white Ford Territory vehicle. They noticed a black Volkswagen Jetta sedan parked on a gravel service road on the southern side of Providence Road, near the intersection with Section Road in Greenvale. Stacey alighted from the police vehicle, conducted a visual inspection of the Volkswagen, and then commenced to relay information about it to the watchhouse member at Broadmeadows Police Station. As he was doing so, a call came over the police radio that a police vehicle had been rammed by another vehicle, at a location which was approximately 500 metres from their then position. Accordingly, Stacey and Gee returned to their vehicle, and drove to that location. There, they spoke briefly to other police members, and then decided to return to the location of the Volkswagen. In his evidence, Gee stated that while they were returning along Providence Road, he observed the tail lights of a vehicle travelling ahead of them. In his evidence, Gee also stated that both he and Stacey formed the view that that vehicle might have been the same vehicle which had rammed the police vehicle.
After they arrived at the location of the Volkswagen, Stacey and Gee did not activate the flashing lights or siren on their vehicle. They noticed that at that point, there was another vehicle parked close to the Volkswagen. In his evidence, Gee described the vehicle as a black utility, which matched the description of the vehicle that was earlier involved in the ramming episode. On the other hand, in his evidence, Stacey described the second vehicle, as a black SUV Hyundai. Stacey and Gee both noticed two men in the vicinity of the open boot of the Volkswagen. They both got out of the police vehicle and drew their firearms. A critical issue in the case was whether, at that point, either, or both, of them identified themselves as a police officer.
At that point, the applicant was armed with a .38 Smith & Wesson revolver. As the two police members alighted from their vehicle, the applicant fired two shots from the revolver. One of the two bullets made contact with the driver’s side door of the police vehicle. Stacey then returned fire, as a result of which the applicant was shot in the neck and shoulder. While the incident was taking place, the other vehicle left the scene. After the applicant was shot, he collapsed to the ground, and his firearm was removed by police.
The applicant was conveyed, by ambulance, to the Royal Melbourne Hospital, where he remained until 24 September 2019. After he was discharged, he was then conveyed to the Melbourne West Police Station for interview. In a covert field interview, conducted en route to the police complex, and in an interview that followed, the applicant maintained that he did not think, at the time that he discharged his firearm, that Gee and Stacey were police officers.
At the conclusion of the record of interview, the applicant was charged by police and remanded in custody.

Summary of Evidence

In their evidence, Sergeant Stacey and Senior Constable Gee each stated that, at the time of the incident, they were wearing their Australian Federal Police uniform, which consisted of a dark blue and powder blue shirt and trousers, and ballistic armour. On the rear of the uniform, they wore a large Federal Police badge that was reflective, and there was another police badge on the front of the uniform. In addition, there was an Australian Federal Police emblem on each sleeve of the uniform.
Sergeant Stacey said that, when they were driving along Providence Road, the Volkswagen attracted their suspicion. After they had parked in front of it, he formed the view that the numberplate might be cloned. He contacted the watchhouse member at the Broadmeadows Police Station, who confirmed that the vehicle was, in fact, stolen. It was at that time that the call was interrupted by a call over the police radio that a police vehicle had been rammed in Fielding Street, which was about 500 metres from their then location. Accordingly, Stacey and Gee proceeded to that position. When they arrived, there were other police vehicles already in attendance, and, as a consequence, Stacey and Gee then drove back towards the Volkswagen. Stacey said that, after they crested the hill, before arriving at the Volkswagen, he could see some tail lights in the general area of where the Volkswagen was located. The tail lights were also stationary, and it appeared that a second vehicle was parked to the left hand side of the Volkswagen. When they were closer to the two vehicles, Stacey observed two people at the back of the Volkswagen, and the Volkswagen boot was open. Stacey stopped the police vehicle about eight metres from the rear of the Volkswagen, and immediately exited the police vehicle. In evidence, he said that as he did so, he drew his firearm, and yelled, ‘Police, don’t move’. Stacey said that he drew his firearm, because he believed that the individuals, who he observed, were the same persons who had been involved in the incident in which the police car had been rammed. Stacey stated that the male who was on the right hand side remained stationary. He understood that Senior Constable Gee also exited the vehicle. He heard Gee, but he did not know what Gee said.
Stacey further said that, after drawing his firearm and calling, ‘Police, don’t move’, he walked briskly towards the man. The male on the right hand side was facing him, and the other man (on the left hand side) might have been stepping backwards. As Stacey walked towards the man on the right hand side, he heard a gunshot, and, at the same time, saw a muzzle flash from the barrel of a firearm. He said that there might have been a second shot. The flash came from the area where the man on the left hand side of the car was. When asked further about the number of gunshots that he heard, Stacey said that he heard the first one, and there may have been ‘two in quick succession’, but he could not be ‘100 per cent sure’. Stacey was then positioned about two metres ahead of the police vehicle. When he heard the two shots, he then discharged two rounds from his own firearm, towards the man on the left hand side. Stacey then moved forward, and saw that man lying on the left hand side of the vehicle.
Stacey further said that, as he had exited the police vehicle, the second vehicle had commenced to move away quite quickly after he had called out, ‘Police, don’t move’.
When Stacey reached the man who was on the ground, he observed a firearm near the man’s legs. Stacey used his foot to kick it away from the man. He asked the man why he had shot at him (Stacey), to which the man responded, ‘Sorry’. The man was having obvious difficulty talking at the time. At that point, Senior Constable Gee was at the rear of the Volkswagen, with the other man, who he had handcuffed.
In cross-examination, Stacey confirmed that when he drove the police vehicle towards the Volkswagen, he did not activate the lights or the siren in the police vehicle. The headlights of the police vehicle were on high beam, so that if the applicant turned to face the police vehicle, the high beams would have been shining into his eyes. Stacey agreed that he heard or saw the first shot, two seconds after he had exited from the police vehicle. The engine on the police vehicle was still running, and the engine on the third vehicle was also running. Stacey did not activate the lights and siren on the police vehicle, because he believed that people in the vicinity of the Volkswagen were likely to have been involved in the incident in which the police vehicle had been rammed, and he thought that, tactically, the most appropriate thing to do was to get close to them before he effected an arrest. In particular, he did not want to alert the people at the scene to the fact that he and Gee were police.
Sergeant Stacey agreed that he had no recollection of Gee identifying himself as a police officer. Specifically, he did not hear Gee saying that he and Stacey were police officers. Stacey also confirmed he had no memory of Gee saying, ‘Show us your hands’, or instructing the two men to get onto the ground, and to put their hands to the side. Stacey agreed that the only thing he said before the first shot fired by the other man was, ‘Police, don’t move’, and at that point, he had no memory of Gee saying anything. He further confirmed that, when he attended the man on the ground, who had been shot, he asked the man, ‘Why did you shoot at police?’, to which the man responded, ‘Sorry’.
Sergeant Stacey confirmed that, when other police attended after the incident, he spoke to Sergeant Karen Medwid, and gave her an account of what happened. He agreed that he may not have told Sergeant Medwid that, before the incident, he had identified himself as a police officer. He said he may not have told Sergeant Medwid that because, ‘it was immediately after a critical incident, my recall may not have been 100 per cent’. Sergeant Stacey confirmed that he also spoke to other police members. He believed, but could not recall, that he told other police that when he and Gee got out of the unmarked police vehicle, they identified themselves as police.
Sergeant Stacey confirmed that when he and Gee were driving back towards the Volkswagen, after attending the site at which the police vehicle had been rammed, he did not see any tail lights moving in the same direction some distance ahead of him. He did not say to Gee that he thought he saw tail lights from a vehicle that had been involved in the ramming. He agreed that, when they pulled up back at the site where the Volkswagen was, he knew that the Volkswagen itself was not involved in the ramming of the police vehicle, and it was in exactly the same position, that it had been, when they had earlier left that scene. Stacey also agreed that he had heard from the police radio that the vehicle involved in the police ramming was a dark utility. He agreed that the second vehicle, which was at the scene when they returned to it, was not a utility, but a dark coloured Hyundai SUV.
Senior Constable Gee gave similar evidence about the first observation, that he and Stacey had made at the black coloured Volkswagen Jetta vehicle, and their attendance at the scene at which the police vehicle had been rammed. He said that when they were then driving back to the position where they had earlier observed the Volkswagen, he observed tail lights travelling some distance ahead of them. He said that he and Stacey had a conversation, in which they thought that the vehicle might be connected with the vehicle that had rammed the police vehicle. They lost sight of the tail lights as it drove over a crest. The police vehicle then drove towards the Volkswagen, where they had earlier found it. When they pulled up behind the Volkswagen, there was another vehicle, parked to the left of it. Gee believed, at the time, that it was a dark coloured utility. When they pulled up, the boot of the Volkswagen was open, and there was a male standing behind the boot. There was also a second man, standing between the two vehicles on the left hand side. At that point, the police lights were not activated. Gee quickly got out of the police vehicle and yelled, ‘Police, don’t move’. At that point, he was focusing on the man, who was standing at the boot of the Volkswagen. He could see a gym bag in the back of the boot. The man at the boot was doing something within the boot, near the gym bag. Gee yelled out, ‘Show me your hands, show me your fuckin’ hands’. At that point, Gee drew his service firearm. The man, who was at the boot, did not comply with the direction to show his hands to Gee. Gee then walked towards that man. In the meantime, the other vehicle departed. During that time, Gee saw a flash to the left hand side of him, and he heard what he believed to be a gunshot. After he heard that gunshot, he then heard another gunshot. He said, ‘I heard two or three gunshots in total’. At that point, Gee was pointing his firearm at the man, who was standing at the boot of the Volkswagen. In his evidence, he said that he did not know where Stacey was then standing. After he heard the gunshots, Gee started to retreat back towards the Territory. He heard Stacey yell out something. Gee himself yelled at the man at the Volkswagen, directing him to put his arms out and to lie on the ground. Gee then handcuffed the man, while he was on the ground. In the meantime, Stacey contacted the Australian Federal Police radio communications and notified them that shots had been fired. Gee then maintained custody of the first man, who was on the ground, until other members of the police arrived.
In cross-examination, Gee stated that, after the shots were fired, he asked Stacey if he was okay, and Gee then observed that there was blood on the neck of the other man. Gee did not ask Stacey what had happened to that man. Gee agreed (in cross-examination) that the other man may have been close to death, but that Gee nevertheless did not ask Stacey what had happened to him. He said that at that point, ‘I was just concerned for my welfare and Kyle’s welfare as well’. Gee further stated that, when he made a statement to the police (at the police station), he did not then ask whether the man, who had been shot, was still alive.
In cross-examination, Gee further confirmed that the first time, that he could hear Stacey yelling out anything, was at the time the shots were fired. When Gee, himself, yelled out, ‘Police, don’t move’, he did not hear Stacey also yell out, ‘Police, don’t move’. After the man had been shot, Gee did not hear Stacey yelling at that man, to put his hands on the side, or asking the man where the gun was.
Gee confirmed that, when they arrived at the scene on the first occasion, they did not activate the lights and siren on the police vehicle. He said that, when they were returning towards that scene, having attended the site where the police vehicle had been rammed, he noticed a vehicle ahead of him, travelling with tail lights in the same direction, and he had a suspicion that that vehicle might have been involved in the ramming of the police vehicle. Accordingly, he decided to follow that vehicle. He had a conversation with Stacey, in which they mentioned that the vehicle, that they observed, might have been linked with the police vehicle ramming. When they arrived back at the scene where the Volkswagen Jetta was located, Gee thought that the vehicle alongside it was a dark utility with a tray. When further pressed in cross-examination, he denied that he had made that up, and that he had fabricated that part of the evidence, in which he stated that he followed a vehicle that he believed had been involved in the ramming of a police car.
Senior Constable Gee confirmed that he had subsequently been shown CCTV footage, which demonstrated that when he and Stacey were travelling back towards the location of the Volkswagen Jetta, the vehicle that was travelling ahead of them was a Range Rover. In those circumstances, Gee accepted that he would have had no basis to conclude that that vehicle had anything to do with the ramming of the police vehicle. When asked why he and Stacey then drew their revolvers after they had pulled up behind the Volkswagen, Gee said that the fact that the man was at the boot and was doing something in the boot, and it was a stolen vehicle, made him consider that his safety might be at risk.
In September 2019, Sergeant Karen Medwid was stationed at Broadmeadows Police Station. On the morning of 12 September 2019, she received a communication that a police vehicle had been rammed by a black Nissan Navara in Providence Road, Greenvale. When Sergeant Medwid attended that scene, she heard an Australian Federal Police member, on the radio, saying that shots had been fired at a nearby location. When she attended the scene, she spoke with Sergeant Stacey, who told her that when he had attended the location, there was a black Hyundai parked next to the Volkswagen, that two shots were fired, and that he had returned fire in response. In cross-examination, Sergeant Medwid said that Sergeant Stacey had told her that when he and Senior Constable Gee had returned to the location of the black Volkswagen Jetta, he noticed that the boot of the vehicle was open, and that there was a man, standing at the rear of that vehicle. He also observed the black Hyundai parked next to the Volkswagen. Sergeant Stacey then said that he heard shots being fired, and that after he heard them, he returned fire, discharging two shots himself. Sergeant Medwid confirmed that the statement that she made, after speaking with Sergeant Stacey, did not contain any other detail as to anything that Sergeant Stacey had told her relating to the incident.

Detective Acting Sergeant Peta Rouse, who was then attached to the Hume Criminal Investigation Unit at Broadmeadows, also attended at the site at which the police vehicle had been rammed in Providence Road. While she was there, she heard a call from Federal Police members, stating that shots had been fired at a nearby location. When she attended at that location, Sergeant Stacey told her that when he and Senior Constable Gee had returned to the Volkswagen vehicle, there were two males outside the vehicle, and the boot of the vehicle was open. There was also a black coloured SUV vehicle parked next to the Volkswagen. Sergeant Stacey said that he identified himself as a police officer, and he saw one of the males run down the left hand side of the vehicle, before turning slightly. Sergeant Stacey then heard two gunshots, and he returned fire by discharging two rounds from his police issue firearm. Sergeant Stacey said that, during that incident, the black SUV had departed from the scene. In cross-examination, Acting Sergeant Rouse confirmed that Stacey told her that he and Gee had got out of their unmarked vehicle and identified themselves as police. Stacey then said that a male ran down the passenger side, that they heard gunshots, and that, in response, Stacey drew his firearm and returned two shots to where the male then dropped to the ground.
Detective Senior Constable Benjamin Redwood was also a member of the Hume Crime Investigation Unit, stationed at Broadmeadows Police Station. In response to a call over the police radio, he also attended at the scene of the shooting incident in Providence Road. When he arrived there, police were in the process of setting up a crime scene tape. Senior Constable Redwood spoke to Sergeant Stacey and asked him what had occurred. In response, Stacey stated that when he and Senior Constable Gee had returned to the location in Providence Road, where the Volkswagen was located, there was another vehicle present, and there were multiple people standing around. As soon as Stacey and Gee arrived, the second vehicle departed. Stacey said that he and Gee then got out of their vehicle. There were two males standing around the boot of the Volkswagen, one of whom went to the passenger side of the Volkswagen, and then spun around very rapidly. At the same time, Stacey heard two gunshots, and, believing that he had been fired upon, he fired at the male who he believed was shooting at him, and that male then fell to the ground. Stacey also told Senior Constable Redwood that the other vehicle, that had departed from the scene, was a black SUV, possibly a Hyundai. In cross-examination, Senior Constable Redwood confirmed that Stacey told him that when he and Gee arrived, the two men were standing at the boot of the Volkswagen. One of the two men then ran to the passenger side of that vehicle before spinning around quickly, and, at that point, Stacey heard what he believed was shots being fired, and that Stacey then discharged his weapon in response.
Leading Senior Constable Paul Griffiths, who was attached to the Ballistics Unit of the Victoria Police Forensic Services Centre, gave evidence as to the firearm that was used by the applicant, and also as to cartridge cases that were found at the scene of the incident. Relevantly for present purposes, Senior Constable Griffiths described the revolver that was found at the scene as a .38 calibre Smith & Wesson double action revolver. On examination of the firearm, there were three (unfired) cartridge cases and three fired cartridge cases in the chamber. Leading Senior Constable Griffiths stated that only one fired bullet, located by police at the scene of the incident, could have been discharged from the applicant’s firearm. In cross-examination, he agreed that he could not determine whether the three fired cartridges had been discharged at the one time, or on separate occasions.
Finally, the informant, Detective Senior Constable Paul Mullenger, of the Armed Crime Squad, gave evidence as to a number of matters relating to the investigation, conducted by police, in respect of the incident. On 24 September 2019, he was informed that the applicant was to be discharged from hospital. Accordingly, Senior Constable Mullenger, with Detective Senior Constable O’Brien, attended at the hospital in order to transport the applicant to Melbourne West Police Station. While they were en route, Senior Constable Mullenger recorded the contents of the conversation that he, and O’Brien, had with the applicant. The recording of that conversation was tendered in evidence at the trial. On arrival at the police station, a formal recorded interview was conducted by Senior Constable Mullenger with the applicant, and the recording of that interview was also tendered.
In both the recorded conversation, and the recorded interview, the applicant explained how he had come into possession of the firearm, the reason why he was present in Providence Road in the early morning of 12 September 2019, and the circumstances in which he discharged the firearm at the two police members.
In short, the applicant told police that, some time previously, shortly before his grandmother passed away, she gave him the firearm, which had belonged to his late grandfather. When his grandmother gave it to him, the firearm was loaded, and it was wrapped. He said that on the morning in question, he went out to Providence Road because it was a remote area, close to home, in order to test whether the weapon in fact fired. He said that he had had the weapon at home for some six months, that he had not used it, that he had unsuccessfully attempted to get it registered, and that he wanted to see if it could work.
The applicant further stated that, while he was at the location, another vehicle, which turned out to be the police vehicle, arrived, with its lights on high beam. He said that the occupant of that vehicle then got out of the vehicle and said, ‘What are youse doing?’. The applicant said that he became ‘paranoid and scared’ for his life. He explained that he was fearful, because he had grown up in a rough environment. The voice that he heard was loud and aggressive. He was concerned that he would be killed or kidnapped. He said that the occupants of the vehicle did not use any lights or sirens to signify that the vehicle was a police car, and they did not identify themselves as police members. He said that, accordingly, and in response, he deliberately fired in the direction of the vehicle, trying to hit the engine block, so as to disable the vehicle. After he was shot, the occupants of the vehicle asked him, ‘What are you doing, shooting at police?’. When the applicant realised that he had fired at police members, he then said, ‘Sorry’. In the recorded conversation that took place in the police vehicle en route back to the police station, the applicant also told the police a bit more about his background. He said that when the other vehicle arrived at the scene, he thought that the people who were in it were members of a rival gang, who were coming to kill him. He said as a result, he was scared. He also said that if he had known that the occupants of the vehicle were police, he would not have fired his weapon.

Grounds 1 and 2 – Background

For reasons that we will explain, grounds 1 and 2 were argued together.
By way of background to ground 1, as we have already stated, originally, the five charges against the applicant were contained in the one indictment. It was in that context that, before the jury was empanelled, counsel for the applicant submitted that the judge should exclude from the interview conducted by police, the passages in which the applicant had explained how and in what circumstances he had come into possession of the firearm, namely, that he had received it as a gift from his grandmother. Counsel submitted to the trial judge that that evidence was not relevant to any fact in issue, but that it might be misused as credibility evidence, because it was in conflict with the evidence (that was the subject of the fifth charge on the indictment) that the firearm was stolen property. Accordingly, counsel submitted that that part of the applicant’s interview was inadmissible, pursuant to s 102 of the Evidence Act 2008, and, further, that s 108A and s 108B did not apply as exceptions to that principle.
The judge delivered a ruling, in which she concluded that the evidence was admissible.[1] Her Honour considered that s 108A and s 108B did not apply to the admissibility of the evidence. Rather, the evidence itself was admissible as being relevant under s 55 of the Act. Her Honour considered that the evidence was relevant, because the jury might conclude that the applicant had lied to police in stating that he had received the firearm as a gift from his grandmother, and that that evidence was rationally capable of bearing on the question whether the account, that he gave to the police, as to the circumstances of the incident with the police, should be relied on.[2]
[1]DPP v Diab (unreported, County Court of Victoria, 10 February 2022) (‘the Ruling’).
[2]Ibid [19].
Following that ruling, the parties agreed that the original indictment should be severed, so that the two charges, to which the applicant was to plead guilty, would be contained in a separate indictment. The two new indictments were filed, and the applicant pleaded guilty, before the judge, to the two charges on the second indictment, namely, possession of a general category handgun without a licence, and handling stolen goods (the firearm). The jury was then empanelled to hear the trial of the three charges on the first indictment, namely, the two charges of discharging a firearm, being reckless as to the safety of a police officer, and the one (alternative) charge of discharging a firearm at a vehicle. Relevantly, in the course of the trial, the jury was not informed that the applicant had pleaded guilty to the two charges on the second indictment.
The principal point that was pressed under ground 1, on this application, was that, in those circumstances, the answers given by the applicant, in the interview, as to how he had come into possession of the firearm, were irrelevant to the charges that were before the jury. Specifically, it was made plain, at the outset and before the jury was empanelled, that the only issue was whether the prosecution could prove, beyond reasonable doubt, that the applicant knew, or was aware, that the two men in the vehicle, which had arrived at the location of the incident, were, in fact, police officers. Accordingly, the explanation given by the applicant for his possession of that firearm was not relevant to any issue in the trial of the charges on the first indictment. On this application, counsel for the applicant submitted, under ground 2, that the parts of the interview, to which objection had been taken, were, in fact, misused by the prosecutor at the trial, in support of an impermissible contention to the jury that it could proceed on the basis that not two, but three, shots were fired by the applicant at the two police members.
In that respect, in the course of her final address, the prosecutor drew the jury’s attention to the fact that the applicant had stated to police that he had fired his weapon twice. She then said to the jury that the ‘physical evidence tells a different story’, because Leading Senior Constable Griffiths found that the firearm had been discharged three times. The prosecutor then noted that the applicant had said, in the interview, that he, himself, had never fired the firearm previously, but that when he received it, it was wrapped in a package. The prosecutor further noted that the applicant did not tell anyone else that he had the weapon, and that the jury should reject any proposition, advanced on behalf of the defence, that someone else might have fired the firearm at another time. Accordingly, the prosecutor submitted that the jury could conclude that the applicant had fired the revolver at least twice, ‘but probably three times’.
At the conclusion of the prosecutor’s address, counsel for the applicant objected to that part of the address. He noted that the prosecutor had not, during the trial, adverted to the proposition that the applicant might have fired three shots from the weapon. Accordingly, the applicant had not had any opportunity to challenge, or rebut, that proposition. In those circumstances, counsel submitted to the judge that the prosecutor had unfairly raised a ‘fundamental credit issue’, which the applicant had not had the opportunity to properly meet. Accordingly, counsel submitted that the judge should discharge the jury without verdict.
The judge then delivered a ruling in which she rejected the application for the discharge of the jury. Her Honour noted that it had not been part of the prosecution opening that the applicant had fired three shots. The proposition, so advanced by the prosecution, had no basis in the evidence. The judge considered, however, that directions to the jury, as to the proper basis upon which to draw inferences in the trial, would be sufficient to address any risk that the jury might misuse the evidence and rely on the proposition so advanced by the prosecution. Accordingly, her Honour did not consider that there was a high degree of necessity for the discharge of the jury.
In accordance with that ruling, the judge, in the course of her charge, gave the jury specific directions to that effect. Her Honour gave the jury the usual directions, relating to the drawing of inferences. In that connection, she referred to the fact that the prosecution had argued that the jury could infer, based on answers given by the applicant in his record of interview, that three shots had probably been fired by him on the night of the incident. The judge then instructed the jury in the following terms:
However, this inference was neither consistent with the evidence of Acting Sergeant Stacey, that he heard one, possibly two shots. His evidence of that is found at Transcript 124, Line 28. Nor is it consistent with that of Senior Constable Gee, that the initial shot came from the location of the male and that he heard two or three shots in general, meaning once he had included the shots fired by Acting Sergeant Stacey. Although Leading Senior Constable Griffiths gave evidence of three indented cartridges being found in the handgun. He could not say when they had been discharged.
The evidence is that only one bullet from Mr Diab’s firearm was located which was the bullet lodged in the car door. The inference that three shots were probably fired is not consistent with the direct evidence in the case. It could only safely be inferred that three shots were fired if that is the only rational inference that can be drawn from the evidence. Here, however, it is not. Another reasonable inference based on the direct evidence is that only one, possibly two shots were fired from Mr Diab’s firearm that night.
I again remind you that the prosecution case relates to the one shot only, that is the shot that was fired at the police vehicle and it is the circumstances in which that shot was fired that will be the focus of your attention.

Grounds 1 and 2 – Submissions

On the present application, counsel for the applicant, under ground 1, reiterated the submission, that he had made to the trial judge, that the answers given by the applicant, in the interview, concerning how he had come into possession of the firearm, were irrelevant and should have been excluded from the evidence. As mentioned, counsel submitted that the evidence, having been wrongly admitted, was misused by the prosecutor as the foundation for the submission that the applicant had fired three shots from the firearm. That proposition involved an implied attack by the prosecution on the credibility of the account, given by the applicant in the interview, as to the circumstances in which he had come to fire the shots at the police members. In particular, it was submitted, the proposition that the applicant fired three shots tended to undermine the account that he gave to police as to the circumstances, in which he had fired two shots at the police members.
Counsel further submitted that the proposition, advanced by the prosecution, had no foundation in the evidence. In particular, Acting Sergeant Stacey gave evidence that the applicant had only fired one shot, and ‘maybe’ a second shot. Senior Constable Gee gave evidence that he heard two or three gunshots. In view of the fact that Acting Sergeant Stacey had fired two shots at the applicant, Gee’s evidence was inconsistent with the theory that the applicant had fired three shots. Further, Leading Senior Constable Griffiths gave evidence that there was only one fired bullet located by the police at the scene, that could have come from the applicant’s firearm. Counsel submitted that the prejudice, that was occasioned to the applicant, by reason of the wrongful submission advanced on behalf of the prosecution, could not be sufficiently dispelled by any direction, given by the judge to the jury. Accordingly, it was submitted, that there had been a high degree of necessity for the judge to have discharged the jury without verdict.
In response, counsel for the respondent submitted that the applicant had not suffered any unfair prejudice by reason of the submission so advanced on behalf of the prosecution at the trial. Indeed, counsel contended that the fact, that the prosecutor advanced that proposition, gave the judge the opportunity to appropriately direct the jury that it must act on the evidence, and that the evidence, on that aspect of the case, was that the applicant had fired no more than two shots. Accordingly, it was submitted, the direction, given by the judge, was sufficient to dispel any prospect that the jury might misuse the argument, advanced on behalf of the prosecution.

Grounds 1 and 2 — analysis and conclusion

In the course of oral submissions, counsel for the applicant accepted that the applicant could only succeed on ground 1, if he also succeeded on ground 2. That concession is correct. The applicant was not arraigned before the jury on the second indictment, that contained the charge of handling stolen goods. It was not suggested to the jury, at any time in the trial, that the applicant’s account, as to how he had come into possession of the firearm, was untruthful or lacked credibility. Thus, the only point made under ground 1 was that the evidence was irrelevant, and, as such, ought not to have been admitted.
It was clear, as the trial judge accepted, that the prosecutor had no appropriate evidentiary basis upon which to submit to the jury, that the applicant had probably discharged three shots from his firearm. That proposition was not supported by the evidence of Acting Sergeant Stacey and Senior Constable Gee. Further, and importantly, the proposition had not been raised by the prosecutor at any time before final address. Thus, as counsel for the applicant submitted, both at trial and before this Court, the applicant did not have an opportunity, in evidence, to address the proposition, so raised by the prosecutor.
It might also be accepted, that if the jury had relied upon the proposition, advanced by the prosecutor, that the applicant had, in fact, discharged three rounds from his firearm, then that proposition would, at least to a material extent, have adversely affected the jury’s view of the account, given by the applicant, as to the circumstances in which, and the reason why, he had discharged the firearm when the police vehicle arrived at the scene in Providence Road.
The critical question, then, is whether the direction, given by the judge, was sufficient to dispel any reasonable possibility that the jury might misuse the proposition, so wrongly advanced by the prosecutor, to the disadvantage of the applicant.
In that respect, it is relevant that counsel for the applicant, both at trial and on this application, did not raise any point as to the content of the direction given by the judge to the jury, nor did he suggest that the judge might have given any further direction to the jury concerning the matter. Rather, his submission was that the proposition, advanced by the prosecutor, was such that it could not properly be met by any direction given by the judge to the jury.

In determining whether she should accede to the submission, made on behalf of the applicant, that jury be discharged, the judge, correctly, relied on the principle that she should only do so if there was a high degree of necessity.[3] In our view, there was no such high degree of necessity made out in the present case.
[3]The Queen v Boland [1974] VR 849, 866-7 (Adam, Little and McInerney JJ); The Queen v O’Callaghan (2001) 4 VR 79, 101 [41]; [2001] VSCA 209 (Winneke P).
The directions, given by the judge to the jury, concerning the proposition advanced by the prosecutor, were clear, precise, and readily comprehensible. The judge directly addressed the proposition, and, as a matter of law, directed the jury that the inference, relied on by the prosecution, was not consistent with the evidence in the case. It is the long experience, and expectation, of the law, that juries can, and do, adhere to directions given by the judge. In the present case, the direction by the judge was as to a topic on which her Honour had given specific instruction, concerning the drawing of inferences. It was a realistic direction, and one based on the fundamental proposition, on which the judge had given the usual direction, that the jury must only act on the evidence before it.
In those circumstances, we are persuaded that the direction, given by the judge, was appropriate and sufficient to dispel any realistic risk that the jury might rely on the proposition, wrongly advanced by the prosecutor, and then misuse it to discount, or detract from, the credibility of the account, given by the applicant to the police, as to the circumstances in which he came to discharge his weapon at the police members. For those reasons, the judge was correct to conclude that there was no high degree of necessity to discharge the jury.
Accordingly, grounds 1 and 2 of the application for leave to appeal must fail.

Ground 3 – Submissions

In support of ground 3, counsel for the applicant effectively advanced two principal submissions. First, he submitted, the jury could not reasonably conclude, on the basis of the evidence given by Acting Senior Sergeant Stacey and Senior Constable Gee, that either of them had identified themselves to the applicant as police members before the applicant fired the two shots in their direction. Secondly, it was submitted that, in any event, it was not open to the jury to conclude, beyond reasonable doubt, that, before he discharged his firearm, the applicant perceived that the two persons who alighted from the vehicle were in fact police members.
Counsel then advanced very detailed submissions in support of each of those two propositions. In respect of the first submission, he relied on the following aspects of the evidence which, he submitted, are the inconsistencies or improbabilities in the accounts given by the police as to their evidence, that they had, in fact, identified themselves as police members.
First, counsel pointed to the inconsistency, between the evidence given by Stacey and the evidence given by Gee, as to whether, while they were driving back from the point at which the police vehicle had been rammed, they observed another vehicle travelling ahead of them. Senior Constable Gee gave evidence: that they noticed taillights of a vehicle ahead of them, travelling in the same direction; that, as a result of that observation, they decided to follow the vehicle; that he discussed with Stacey the sighting of the vehicle ahead of them; and that both of them remarked that the vehicle may have been the car that was involved in ramming the police car. On the other hand, counsel noted the following aspects of the evidence of Sergeant Stacey concerning that matter: Stacey did not give any evidence of seeing the taillights ahead of him; he did not give any evidence that, as a result of any such sighting, they decided to follow the vehicle; and he specifically said in his evidence he did not recall any conversation about the vehicle, or discussing with Gee that it must have been the vehicle involved in the episode in which the police car had been rammed. Further, counsel noted that Senior Constable Gee did not give any explanation why, having sighted a vehicle, which he thought was involved in the ramming of the police vehicle, he did not then communicate that matter over police radio.
Secondly, counsel noted that there were significant differences between the accounts given by Stacey and Gee as to their observations when they returned to the location of the Volkswagen vehicle. In particular, Gee gave the following evidence: that on arriving back at the scene, one of the two men sighted was at the boot of the vehicle; that he had his hands in the boot, handling a gym bag; and that he (Gee) called out, ‘Show us your hands’. By contrast, Stacey said: that the two men were positioned on either side of the boot of the vehicle; that he did not see anyone reaching into the boot with their hands; and that he did not hear Senior Constable Gee yell out, ‘Show us your hands’. Sergeant Stacey also gave evidence that the man in front of the boot was facing the unmarked police car (and not into the boot of the Volkswagen).
Thirdly, counsel noted that the descriptions, given by Stacey and Gee, of the other vehicle adjacent to the Volkswagen, were very different. Gee gave evidence that he thought the vehicle was a dark coloured utility with a tray at the back. On the other hand, Stacey described the vehicle as a SUV vehicle. In fact, the objective evidence, of the CCTV footage, suggested that the vehicle was a Range Rover. The vehicle would have been illuminated by the high beam lights of the unmarked police vehicle. It was submitted that the evidence by Gee — describing the vehicle as a utility — was concocted by Gee to falsely justify the production by the police members of the guns at that point.
Fourthly, while both Stacey and Gee each claimed that he had called out the words, ‘Police, don’t move’, neither police member heard his fellow officer issue that command. That is, Gee could not recall hearing Stacey issue that command, and Stacey gave evidence that he did not hear Gee give it. The applicant, in his record of interview, maintained that he did not hear either officer call out that command.
Fifthly, counsel noted, that when Stacey spoke to Sergeant Medwid and to Detective Senior Constable Redwood at the scene, he did not make any mention of either himself or Gee identifying themselves as police, before shots were fired. It was only when he had the third opportunity to give his account — to Detective Rouse — that Stacey said that, ‘We identified ourselves as police’.
Sixthly, counsel noted, that in the statement that Gee made back at the police station, he said, ‘We yelled, police, don’t move’. However, in his evidence, he said he did not hear Stacey yell that out. When asked why he had included it in his statement, he could not give any explanation.
Seventhly, counsel submitted, the evidence of Stacey and Gee was inconsistent, as to when they identified themselves as police. Stacey said that he issued that command when he exited the police vehicle. However, in re-examination, he said that he did so after he and Gee had advanced from the police car to a position where he thought they would be able to make an arrest.
Eighthly, it was submitted, there were significant aspects of Stacey’s evidence that infected its credibility and reliability. He told Detective Redwood and Detective Rouse that the man, who was shot, had started to run away before spinning around and firing his gun at the police. However, he did not give that evidence at the trial.
Ninthly, it was submitted, that there were differences in the evidence of Stacey and Gee, as to why they drew their respective firearms. Gee gave evidence that he did so, because the man at the boot did not comply with the command that he ‘Show us your hands’. That was a command that Stacey did not hear. Further, it differed from Gee’s account in his statement, that both he and Stacey drew their firearms when the applicant did not comply with that command. Further, it was pointed out, that account given by Gee was inconsistent with an account contained in a ‘Copy of injured person report’, in which it was stated that the police members only drew their firearms, after the applicant had fired shots in their direction.
In those circumstances, counsel submitted that it was not open to the jury to be satisfied, beyond reasonable doubt, that either police member identified himself as a member of the police force before the applicant discharged his weapon.
The second fundamental proposition, advanced under ground 3, was that it was not reasonably open to the jury to conclude that the applicant heard, or perceived, that Stacey and Gee were police members, before he discharged his weapon. In support of that proposition, counsel relied on the following circumstances: it was ‘pitch black’, in the middle of nowhere; the police did not activate the flashing lights or the siren on their unmarked vehicle; at the time, the applicant would have been looking directly into the high beam lights of the unmarked police vehicle; the whole incident, from the police alighting from their vehicle until the shots were fired, lasted between two and four seconds; a number of things occurred during that period; and the applicant, at the time, was in a state of acute anxiety.
It was pointed out that the contention, that the applicant would intentionally or recklessly shoot at police members, was not consistent with the evidence that, seconds after he himself had been shot by the police, he apologised to them when they approached him. Further, the prosecutor could not point to any reason why the applicant would have discharged his weapon at the police members if he had known of their identity. Finally, it was submitted, that the applicant’s conduct, in requesting the interviewing police to check any ‘dash cam’ footage of the incident, was consistent with his belief in his innocence in respect of the charges.
In response, counsel for the respondent submitted that, notwithstanding the various matters identified by counsel for the applicant, nevertheless, it was reasonably open to the jury to be satisfied, beyond reasonable doubt, as to the truthfulness and reliability of the evidence of each of Stacey and Gee, and, in particular, their evidence that they had identified themselves as police members before the applicant discharged his weapon at them. It was submitted that, while it would have been open to the jury to have a doubt about that aspect of their evidence, nevertheless, none of the inconsistencies, relied on by the applicant, necessitated the jury having such a doubt. In particular, it was submitted, given the traumatic circumstances of the incident, it was understandable that the two police witnesses might have had differing recollections and perceptions of a number of the details and aspects relating to the incident.
Finally, it was submitted that, notwithstanding the dynamic nature of the incident in question, nevertheless, there was sufficient lighting, and the two police members each gave evidence, that they called out their identity in loud tones, to enable the jury to be satisfied, beyond reasonable doubt, that the applicant did realise that they were police members before he discharged his firearm at them.

Ground 3 – Analysis and conclusions

Ground 3 is based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that a court should allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
In order to succeed on that ground, the applicant must demonstrate that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on the charges that are in issue.[4] In addressing that question, the court is required to make its own, independent assessment of the evidence. However, in doing so, it must give full weight to the advantage, enjoyed by the jury, in observing and hearing the witnesses, and to the principle that the jury was the body entrusted by law, with the principal authority of determining the guilt or innocence of the accused person.[5]
[4]M v The Queen (1994) 181 CLR 487, 492-3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’); SKA v The Queen (2011) 243 CLR 400, 405-6 [11]-[14] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123, 146-7 [42]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (‘Pell’).
[5]R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35; Fennell v The Queen (2019) 373 ALR 433, 451-2 [82]; [2019] HCA 37 (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).
In Pell, the High Court emphasised that the assessment of the credibility and reliability of a witness, which is based on the manner in which that witness gave evidence in court, is a matter for the jury, and not the appellate court. The court expressed that principle in the following terms:
Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
…
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[6]
[6]Pell (2020) 268 CLR 123, 144-5 [37], [39]; see also M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ) (citations omitted).
As we have noted, the critical issue at trial, on each of the two charges on which the applicant was convicted, was whether the jury could be satisfied, beyond reasonable doubt, that, at the time at which he discharged his firearm, he knew, or was reckless as to whether, the two men who exited the unmarked police vehicle, were police officers. On that aspect, the jury was instructed by the judge that, in order to conclude that the applicant was reckless as to that matter, it must be satisfied, beyond reasonable doubt, that the applicant knew, or believed it was probable, that Stacey (charge 1) and Gee (charge 2) were police officers.
In the present case, it is clear that the jury accepted, and was satisfied, beyond reasonable doubt, that Stacey and Gee, or at least one of them, was truthful and reliable in their evidence, that before the applicant discharged his firearm, one or both of them identified themselves as police officers, and that they did so in a manner that could be heard and understood by the applicant. In making that assessment, the jury had the advantage of hearing and observing each of the two police witnesses give their evidence. The question, which this Court must decide, is whether, in view of the various inconsistencies and discrepancies in the evidence of those witnesses, which have been identified by counsel for the applicant, this Court is satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt, as to at least one of the two critical factual questions that were in issue, namely, first, whether the police witnesses did identify themselves as police officers, and, secondly, whether the applicant heard, or perceived, that they were police officers, before he discharged his firearm.
In addressing that question, it must be acknowledged that there were a number of inconsistencies between the evidence of Acting Senior Sergeant Stacey and the evidence of Senior Constable Gee, which were relevant to an assessment of the reliability of those witnesses and their evidence.
In general, two points may be made about those discrepancies. First, it is understandable that as witnesses to an incident, which happened spontaneously and in circumstances involving a significant degree of trauma, they might give different accounts as to their recollections and observations of the incident. Secondly, the jury was entitled to take into account that when Stacey and Gee spoke to other police members, who attended at the scene, and, subsequently, when they made their statements later that morning, their recollections of the incident may have still been affected by the traumatic nature of the incident, in which they had each been involved, and, in particular, in which another person had been very seriously wounded.
The inconsistency between the evidence of Gee and the evidence of Stacey, as to whether they observed another vehicle travelling ahead of them, which they considered might have been involved in the ramming of the police vehicle, was quite curious. That discrepancy certainly raised an issue related to their credibility as witnesses, and, in particular, that of Senior Constable Gee. It was contended at the trial, and on this application, that the jury should conclude that Gee had embellished his account, by including in it such an observation, in order to provide some justification for having drawn his weapon immediately after he alighted from the police car, when it had returned to the location in which the Volkswagen vehicle was situated.
Certainly, it would have been open to the jury to consider that that proposition had some merit. However, the discrepancy, between the evidence of the two witnesses, on that matter was not, in our view, such as to necessitate that the jury should consider it to be a matter that adversely affected the credibility, or reliability, of either police witness. The observation, which Gee said that he had made of the headlights of the other vehicle travelling in the same direction, was a matter which was, to some extent, peripheral to the critical issues in the case. The jury would have been entitled to consider that the differences in the accounts given by Stacey and Gee in relation to that matter, were due to a misunderstanding, or mistaken recollection, by Gee, of the observation that he had made, and as to whether he had such a discussion with Stacey about it while they were still travelling in the police vehicle.
On the other hand, it is understandable that Stacey and Gee made different observations, and had different recollections, about the position of the two men, and about the second vehicle, that they observed, when they returned to the location of the Volkswagen vehicle. The circumstances that unravelled, shortly after they arrived, were dynamic and challenging. The evidence of each police member was that the second vehicle left the scene quite quickly, almost immediately after they arrived. In those circumstances, it is quite feasible that they did have different recollections of that vehicle. In view of the circumstances that immediately evolved after their arrival at the scene, it is also understandable that they may have misunderstood and misdescribed the positions of the two men, who they each observed at the scene, and what each of them was then doing.

It is for the same reason that it was open to the jury to consider that it was understandable that, while Stacey and Gee each gave evidence that they, themselves, called out and identified themselves as police officers, they did not hear each other do so. The incident occurred in a very short space of time. If Stacey and Gee both called out at about the same moment, it is possible that they did not hear the other do so.
Further, as we have discussed, while the differences between the account that Stacey gave to Sergeant Medwid and Senior Constable Redwood, and the account he gave in evidence, and the differences, in the account given by Gee in evidence, to that which is contained in his statement, are matters which did require consideration, nevertheless, they did not necessitate an adverse finding, against either witness, as to the critical question whether he did identify himself as a police officer. In the circumstances in which the matter unravelled, the jury may have considered it understandable that both Gee and Stacey might have spoken in the plural when they each said, ‘We identified ourselves as police’, and, equally, it is understandable that Stacey may have omitted to mention that matter when he spoke to Sergeant Medwid and Senior Constable Redwood.
As we have discussed, the various considerations, that were raised by counsel for the applicant, both at trial and on this application, were relevant to the assessment by the jury of the credibility and reliability of the evidence given by each of the two witnesses, Sergeant Stacey and Senior Constable Gee, that they did, in fact, identify themselves as police officers when they exited the police vehicle. As senior counsel for the respondent properly acknowledged, taken in combination, the matters relied on by the applicant might have raised a reasonable doubt as to whether, in fact, the police did so identify themselves. However, there were appropriate explanations, which could account for the various discrepancies and inconsistencies in the evidence of the two prosecution witnesses. Taking those explanations into account, we are not persuaded that the jury, acting rationally, ought to have had a reasonable doubt as to whether Stacey and Gee did verbally identify themselves as police officers immediately after they had left the police vehicle.
The second issue is whether it was reasonably open to the jury to conclude, beyond reasonable doubt, that the applicant heard, or perceived, that Stacey and Gee were police members, before he discharged his firearm.
At the trial, and on this application, it was contended, on behalf of the respondent, that the jury was entitled to be satisfied, beyond reasonable doubt, that the applicant not only heard the police members call out and identify themselves, but that he was also in a position to have observed the uniforms, and the insignia on them, identifying them as police members.
In respect of that matter, we consider that it was not open to the jury to be satisfied, beyond reasonable doubt, that the applicant saw, or, indeed, could have visually observed, that Stacey and Gee were police members. When Stacey and Gee alighted from the police vehicle, the applicant was some eight metres distant, immediately in line with the high beam headlights of the unmarked police car. While there was some lighting from the roadway, nevertheless, it would appear that it was otherwise quite dark. On any estimate, no more than two to four seconds elapsed between the police leaving their vehicle, and the applicant discharging his firearm. In those circumstances, the conclusion is inescapable that it was not open to the jury to be satisfied, beyond reasonable doubt, that the applicant could, and did, actually see that the two persons who addressed him, were members of the police force.
Further, having examined the evidence in the trial, we are persuaded that the jury, acting rationally, ought to have entertained a reasonable doubt as to whether the applicant heard, and understood, Stacey and Gee identify themselves as police officers, before he discharged his firearm.
As we have discussed, it was open to the jury to be satisfied that as Stacey and Gee alighted from the police vehicle, one, or both, of them called out, ‘Police, don’t move’. In his interview with the police, the applicant said that, after the vehicle arrived, he heard voices shouting aggressively at him, ‘What are youse doing?’. Thus, the question for the jury was not whether it was satisfied, beyond reasonable doubt, that the applicant heard one, or both, of the police members calling out to him. That issue was uncontroversial. The critical issue was whether the jury could be satisfied, beyond reasonable doubt, that the applicant heard, and understood, one, or both, of the two persons, who alighted from the vehicle, to have identified himself, or themselves, as police.
In that respect, it is relevant that neither Stacey nor Gee could hear the other call out the words, ‘Police, don’t move’. They were then standing closer to each other than to the applicant. The incident occurred in a very short space of time, estimated, by Stacey, to be between two and four seconds after they alighted from the vehicle. In the very brief, dynamic and agitated moments after the vehicle arrived, and in the circumstances in which neither police member could hear the other identify himself as a police officer, there was, we consider, real reason to doubt whether the applicant himself did hear and understand one, or both of them, identify himself, or themselves, as police. It must be kept in mind that, at that point, the applicant was facing the headlights of the police vehicle, that were on high beam, and that no lights or sirens had been activated on the police vehicle. The arrival of the police vehicle was sudden, and unexpected, in circumstances in which the applicant could have had a real reason to have some apprehension for his safety and wellbeing, taking into account the time, location and circumstances in which the incident took place.
At the trial, the prosecution did not advance any reason why the applicant would have discharged his weapon, if he had known, or understood, that Stacey and Gee were police officers. Apart from being in possession of an unlicensed and stolen handgun, the applicant did not have with him any other incriminating evidence. There was no evidence that the applicant bore any antipathy to the police. On the contrary, after he was shot, and lying seriously wounded on the ground, he apologised to the police, when it would have been clearly apparent to him that two persons, at whom he had shot, were, in fact, members of the police force. Nor was there any evidence that the applicant might have been intoxicated or drug affected, or that he was otherwise acting irrationally. There was thus an inherent improbability in the proposition that the applicant, knowing that the two men who alighted from the motor vehicle were police officers, for no apparent reason discharged his firearm twice at or near them.
Finally, there was nothing improbable about the account, given by the applicant, in his interview, and in the recorded covert field interview that preceded it. The account that he gave, and his explanation for discharging his weapon, was, in the circumstances, reasonably coherent, consistent and credible.
This Court is in as good position as the jury to determine whether, based on the evidence, it could be concluded, beyond reasonable doubt, that, before the applicant discharged his weapon, he heard, and understood, Stacey and Gee identify themselves as police officers. For the reasons that we have just discussed, we are persuaded that the jury, acting rationally, ought to have entertained a reasonable doubt as to whether the applicant did hear, and understand, Stacey and Gee to so identify themselves. Taking into account the circumstances in which the incident occurred, and the improbability of the proposition that the applicant, for no apparent reason, discharged his firearm after hearing, and understanding, Stacey and Gee to identify themselves as police officers, we are satisfied that the jury, acting rationally, ought to have had a reasonable doubt as to the critical issue in the prosecution case, namely, that when he discharged his firearm, he knew, or believed that it was probable, that Stacey and Gee were police officers.

For those reasons, it must be concluded that the verdicts of the jury, on charges 1 and 2, were unreasonable and could not be supported having regard to the evidence. It follows that the applicant should be granted leave to appeal on ground 3, that the appeal should be allowed, and that the applicant’s conviction on those two charges should be set aside. In lieu of the verdicts of the jury, and consistent with the applicant’s guilty plea to charge 3, the applicant should be convicted of that charge, namely, discharging a firearm at a vehicle contrary to s 131A(1) of the Firearms Act 1996.

Summary of conclusions

For the foregoing reasons, we have reached the following conclusions:
(1)The application for leave to appeal against conviction on grounds 1 and 2 should be refused.
(2)The applicant should be granted leave to appeal on ground 3, and the appeal allowed. As a consequence, the convictions on charges 1 and 2 on indictment number K12499808.2A, and the sentences imposed, will be set aside and, in their place, judgments of acquittal will be entered.
(3)We will receive submissions from the parties concerning the sentence to be imposed on charge 3, and on any consequential orders to be made in respect of the total effective sentence imposed on the applicant.

NIALL JA:

I have had the advantage of studying the reasons for judgment of Beach and Kaye JJA. I agree, for the reasons their Honours give, that grounds 1 and 2 must be rejected. I differ however, on ground 3. For the reasons that follow, I would reject that ground with the result that I would dismiss the appeal.[7]
[7]I agree that leave to appeal should be granted.
Given the comprehensive reasons of Beach and Kaye JJA and because I agree with much of what they have written I can express my conclusions briefly and without repetition of the facts. Ground 3 alleges that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.[8] The principles that this Court must apply were not the subject of any dispute by the parties. I gratefully adopt the summary of them contained in the joint reasons.
[8]Criminal Procedure Act2009, s 276.
For the reasons given in the joint reasons, I agree that it was open to the jury to conclude, beyond reasonable doubt, that both Officers Stacey and Gee identified themselves as police officers as, or very shortly after, they exited the unmarked police vehicle. I have no doubt that they did so. They were confronting one or more persons, in the dead of night, in circumstances which would reasonably give rise to suspicion that the persons were involved in some nefarious activity and which caused them to draw their service weapons. Identifying themselves as police officers in a clear and assertive tone would likely be instinctive and involved an important aspect of self-protection.
The various inconsistencies raised by the applicant needed to be assessed however they are explicable and do not cause me to doubt that the two officers identified themselves as police.
The next, and critical, issue is whether the applicant heard and understood that the men who appeared from the dark were police. It is on this question that I have reached a different conclusion.
At this point, the earlier conflicts on the evidence cease to assume significance. I am satisfied that the officers identified themselves as police officers in an assertive and audible manner. Having felt compelled to draw their weapons there would be absolutely no reason to be timid or ambivalent in their declaration that they were police and for the person not to move. The heightened danger and dynamic nature of the confrontation would have made it more likely that the two officers spoke in an aggressive way. Although I am unable to accept much of what the applicant said about this aspect in his record of interview, he did volunteer that the persons who confronted him approached in an aggressive or very aggressive way.
The applicant was relatively close to the police officers, around 8 to 10 metres away. The incident occurred late at night in a remote area and there was no suggestion or evidence of ambient noise that might have affected the applicant’s ability to hear the police officers.
The process of the applicant hearing and understanding what he was told involved a number of factors relating to audibility and perception. The jury were required to use their common sense and experience in evaluating this aspect of the prosecution case. That the people confronting the applicant were police officers was neither surprising nor improbable. The applicant was out at night in a remote location inspecting a vehicle when another car approached and its occupants alighted. He was carrying a loaded firearm, and the jury might legitimately reason that being apprehended by police might be a concern that would quickly come to mind.
The officers were in uniform. Although given the position of the officers in front of the high beam head lights of the vehicle it could not be proved beyond reasonable doubt that the uniforms were seen by the applicant, the jury was entitled to take into account, as part of the context in which the incident occurred and its assessment of what the applicant perceived, the fact that uniforms were worn but also the limited or compromised opportunity to see them.
Thus there was a substantial basis to conclude that the applicant knew or believed that they were probably police officers.
There were a number of other matters that bore on the likelihood of the applicant not hearing or perceiving that the persons were police officers. They include that neither officer heard nor recalled their colleague’s declaration; it was a hectic and dynamic situation with the events unfolding in a matter of seconds; the applicant’s account that he thought he was going to be killed or kidnapped and was terrified; and the likelihood that the applicant, understanding that the persons were police, would have fired at them.
Each of the matters required close consideration, bearing steadily in mind the onus and standard of proof. The prosecution had to prove beyond reasonable doubt that the applicant knew or believed that the persons who confronted him were police. Given the state of the evidence the prosecution could only do that if it could prove that the applicant heard and perceived the police identify themselves, although as already observed that was not the only evidence. It was also necessary to exclude as a reasonable possibility that the applicant believed they were persons involved in some criminal activity who might kidnap or kill him.
Notwithstanding these matters, I am persuaded that it was open to the jury to be satisfied beyond reasonable doubt that at the time he fired the two shots the applicant knew or believed the men were probably police.
It was open to the jury to conclude that the fact that each officer did not hear or recall what the other said did not resolve the question as to whether the applicant heard them. Each officer was concerned with the persons they were confronting. Their focus would have been on the people they were looking at and they would have been in a heightened state of mind directed to that object. On the other hand, the applicant would have been focused on the people emerging from the vehicle. Each officer’s failure to recall what the other officer said is explicable and does not cast doubt on whether the applicant heard.
The applicant’s account in his record of interview and in the covert recording was that he was terrified and thought that the persons were criminals who might kill or attack him. On his own account he heard them speak aggressively to him and heard them say ‘what are youse doing’. In his record of interview he said:
- - and I just hear voices and a headlight - - -
Mm’hm.
comes up - - -and that’s it.
Q. Tell me what happened then.
And then I - and - and then I heard, ‘What are youse doing?’ and I thought maybe we are on someone’s stash or someone’s put hidden, like, money or drugs or something on the side of the road or something.
Mm’hm.
And fuckin’ I got scared and I fired two rounds, and then I’d seen the middle car leave, and I was stuck there, and I’ve seen it was the police, and then I was in shock and I stood there, and then that’s when I got shot and then I went blank from there.
It is clear form this account that the applicant does not dispute hearing something. I note that this account that he had seen police before he was shot is inconsistent with other parts of his account in which he says he only became aware they were police after he was shot and the officers approached him.
The applicant’s explanation that he thought the people were criminals was given in a context where he had told police, that ‘people were coming to get — kill me, other gang members’ and ‘this fuckin’ war’s going on left right and centre’. That explanation had to be assessed in the light of his account that he was not carrying the gun for protection but was out to test out the gun to see of it worked, and that the persons had said ‘what are youse doing’. His professed reason that he was out to test the gun in the dead of night was easy to reject. It was also well open to reject his account that they said ‘what are youse doing?’. Although on its face the account is not implausible the evidence in support of it was exceedingly thin and depended on acceptance, at least to the extent of raising a reasonable possibility, of the applicant’s account which in many respects was suspect. His account that he thought the people were going to kill him and that he aimed at the engine block to disable their vehicle is redolent of reconstruction.
It must be accepted that shooting at police in the circumstances in which the applicant found himself was foolhardy and extremely dangerous. It was almost certainly likely to provoke return fire. Rationally, it was extremely unlikely to secure an escape and there was a very high risk of being shot and killed. No one acting sensibly would do it. That said, it was well open to the jury to accept that this is what had occurred.
The prosecution did not need to prove that the applicant made a considered or thoughtful decision or that he had time for reflection. On any view, the situation was dynamic and things moved incredibly quickly. It was however common ground that it was the applicant who fired first. It was open to the jury to conclude the applicant was someone who, in that moment, was willing to shoot and take the real risks that this entailed no matter the identity of the people who were confronting him.
The verdicts on charges 1 and 2 were, to my mind, well open to the jury. The jury was well placed to assess the evidence and had an advantage over this Court in seeing and hearing the police officers give their evidence. Further, having regard to all of the evidence, I do not have a doubt about the applicant’s guilt on charges 1 and 2.
I would dismiss the appeal.
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[2023] VSCA 107

11 May 2023