Emrah Avder v The Queen
[2015] VSCA 154
•16 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0069
| EMRAH AVDER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY, WEINBERG and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 June 2015 |
| DATE OF JUDGMENT: | 16 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 154 |
| JUDGMENT APPEALED FROM: | DPP v Avder (Unreported, County Court of Victoria, Judge Stuart, 10 March 2015) |
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CRIMINAL LAW — Conviction — Application for leave to appeal against conviction — Recklessly causing injury — Whether verdict unsafe and unsatisfactory — Identification evidence — Circumstantial evidence case — Evidence adduced from witnesses called by defence that another man had been assailant — Verdict not unsafe and unsatisfactory — Leave to appeal refused — No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Turnbull Lawyers |
| For the Crown | Ms D Piekusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
ASHLEY JA:
On 6 March 2015, Emrah Avder was found guilty by a jury in the County Court of recklessly causing injury. He had pleaded guilty to a charge of theft before his trial commenced. On 10 March 2015, he was sentenced to 30 days’ imprisonment on the charge of theft and to 8 months’ imprisonment on the charge of recklessly causing injury. Fourteen days of the sentence on the theft charge was cumulated on the sentence on the charge of recklessly causing injury. The total effective sentence was 8 months and 14 days’ imprisonment.
Avder had been charged, relevantly, with the theft to which I have already referred (it was charge 1 on the indictment) with intentionally causing serious injury (charge 2), and with recklessly causing serious injury (charge 3). It follows from what I have already said that the jury found him not guilty on charge 2, not guilty on the statutory alternative of intentionally causing injury, and not guilty on charge 3. The guilty verdict of recklessly causing injury related to the statutory alternative to charge 3.
Ground of application
Avder seeks leave to appeal, and, if leave is granted, that his appeal be allowed, on the following ground:
1.The verdict of Guilty on the statutory alternative to Charge 3 is unsafe and unsatisfactory
Particulars:
The only witness at Trial who gave evidence that the Applicant was his Assailant was the complainant, Samuel Griffin:
(a)To the extent, if at all, that Samuel Griffin purported to identify the Applicant as his assailant, he also agreed at Trial that it was possible that he was wrong in making that purported identification (refer Trial Transcript pages 47 and 48 in particular);
(b)The purported identification by Samuel Griffin was so attended by doubt, (particularly for the reasons set out at paragraph 25 of the Written Case of the Applicant), that the jury should not have relied upon the purported identification; and
(c)There was no basis upon which the jury should have rejected the evidence of Steven Lin and Linden Wooley as being an accurate and truthful account as to who in fact was the assailant, namely, that Steven Lin was the assailant.
Circumstances
On Friday 30 November and Saturday 1 December 2013, a music festival was held at Pyalong. The applicant attended as a spectator. The complainant, Samuel Griffin, and his girlfriend, Sarah Condon, also attended the festival. They ran a retail clothing stall in the market area, which was some distance away from the main stage area. At night time, lighting in and around the market stalls was not good.
Some time before midnight on 30 November, the applicant went to the complainant’s stall. He argued with the complainant about the price of the clothing. He then left. Some time after midnight, he returned. He picked up a number of jumpers and ran away without paying. This conduct was the subject of charge 1, the charge of theft to which the applicant pleaded guilty.
The complainant chased after the applicant and caught up to him. According to the complainant, it only took him a short distance — about two stall frontages — to do so. He said to the applicant, ‘Give me back the jumpers’, and tried to grab them from the applicant.
It is uncontroversial that the complainant was then punched once, perhaps twice, to the right side of his jaw and that he suffered a bilateral jaw fracture in consequence.
Further as to the sequence of events, the complainant gave evidence, inter alia, that -
I tried to grab them back and then I was punched to the face.
And
I was really grabbing at the jumpers and then being punched,
And
I think I just grabbed at the jumpers and then I was punched straight away
And
I grabbed at them and then because there was quite a lot of them I came into contact with one or two and then as soon as I grabbed that, then I was punched to the face
And, adopting part of his police statement
He just dropped the jumpers onto the ground, then using his closed fists he punched me to the face twice, I think he must have used his right and left hands because I was hit to the right and left side of the jaw.[1]
[1]Applicant’s trial counsel relied upon this passage from the complainant’s statement, because it did not sit quite comfortably with his evidence at trial. But for whatever purpose it was introduced, it was part of a body of evidence standing against the applicant.
It is uncontroversial that, proximate to the time when the blow or blows was struck, other persons were in the vicinity of the complainant and the applicant.
It is further common ground that the applicant ran away, and was apprehended by security staff.
The complainant saw the applicant whilst he was in the hands of the security officers. On its face, he identified the applicant as the man who had assaulted him. There was no challenge to the admissibility of that evidence either at trial or in this Court. But there were deficiencies in that purported identification, and the trial judge correctly charged the jury that this evidence could not stand as evidence of identification. His Honour said this:
In this case there is evidence before you that Mr Griffin came back, seeing Mr Avder in the company of the security personnel and saying words to the effect, ‘He’s the man who hit me’…. I direct you as a matter of law that you cannot use that evidence as evidence that in fact it was Mr Avder who struck Mr Griffin. …. Mr Avder was conspicuous by [being] in the custody for want of a better word of the security officers. What Mr Griffin was presented with was a choice of one…
The complainant and Ms Condon identified the applicant as the thief. The applicant’s plea of guilty to the theft charge validated that identification.
The issue at trial
The issue at trial was whether the applicant was the person who had assaulted the complainant.
Although in his evidence the complainant identified the applicant as the man who hit him, he admitted of the possibility that it had been someone else. Further, his purported identification of the applicant as the attacker when the latter was being restrained by the security officers was not to be treated as identification evidence at all.
But the Crown case did not depend upon certainty of observation by the complainant that it was the applicant who struck him. The applicant stole the jumpers and fled. He was pursued by the complainant, who caught him within a short distance. The complainant grabbed the jumpers. Straightway, he was punched, and the applicant ran away. It was, the Crown argued, an irresistible inference that the applicant was the attacker.
Always remembering that it was for the prosecution to establish its case, a case which the defence contended lacked strength, the defence in fact raised a positive case — that is, that the man who assaulted the complainant was not the applicant, but was a man named Steven Lin. Evidence to that effect was given by Lin. Some evidence was also given by a second witness, Lynden Wooley.
Lin, who was the operator of an insulation business, said that he attended the music festival with the applicant, the applicant’s brother Murat, the applicant’s brother Ahmed, and another friend. He said that he was a particular friend of Murat Avder. He said that he was friends with the applicant, as Murat Avder’s older brother. He did not reveal — it emerged in the evidence of Wooley — that the applicant was working with him at the time.
Lin gave evidence that at about midnight on 1 December 2013, he was with Wooley and Murat Avder. Wooley drew his attention to the applicant, who was running with several people chasing him. At the time, he, Lin, was 20 or 30 metres away from where this was happening.
The witness said that he and Wooley ran up to intervene, ‘to break it up’. The applicant was in the middle, everyone was ‘grabbin’ each other’. After he and Wooley arrived, there were six people present — the applicant, Wooley, himself, the complainant, another store owner, and an unidentified man. He did not know at the time that the complainant was the ‘clothes store’ owner, but later he ascertained that this was so. The witness gave evidence that ‘everyone was tryin’ to grab [the applicant] and push him …’ and ‘When Emrah was in the middle there was two other guys on his other side, Lynden Wooley’s next to me, and there’s another male trying to separate them. Yeah, someone comes over the top and hits me and I turned around and hit him’.
The witness said that ‘I just retaliated, turned around and hit him back, ah yeah, once or twice, or twice’. He said that he hit the person in the face and the person fell forward. The applicant ran away. The person that he had hit went away with the security guards.
In substance, Lin identified the complainant as the person whom he had struck. A ‘good hour’ after the confrontation in which the blows were struck, he saw the applicant was being restrained by security guards. He heard the man whom he had struck saying that the applicant had grabbed some stuff from his store.
The witness said that the applicant did not strike anybody.
In cross-examination, the witness stated that he had made a statement asserting his role in the matter to a solicitor on 27 October 2014, although he had earlier mentioned it to other solicitors whom he could not identify. This was the first time — that is, when he was giving evidence — that any police officer had heard this account.
Wooley gave evidence that he had met friends, including Lin and Murat Avder, at the festival. He knew the applicant as Murat’s brother.
He said that he saw the applicant walk into a store, grab a jacket and start running away. Then a ‘tall kind of skinny guy’ chased the applicant. He pointed out to Lin what was happening, and they started walking that way. When the complainant caught up to the applicant, they grabbed each other. He and Lin ran up to where they were. At that stage, there were another two or three men present. These other men were ‘just trying to split it up and kind of grabbing at [the applicant] as well’. The witness then stated that he saw the applicant run off to the right.
At this point in his evidence, Wooley had not referred to any blows being struck. He was then asked these questions and gave these answers:
Now, during the time that you were at this scuffle, which appeared to be in relation to the jacket, did you see Emrah for his part, hit anybody? ———No.
Did you see Steve hit anybody?———Yes.
Did you see Steve being hit by anybody? ———Yes.
In answer to a question asked by the trial judge, Wooley said that he believed that the man whom Lin had struck had stumbled back, swore and held his face.
I pause to make these observations.
First, at no point did Wooley identify the complainant as the man whom he observed Lin strike.
Second, there were obvious differences in the accounts given by Lin and Wooley. A jury might have regarded the differences as bespeaking honest witnesses doing their best to give accurate accounts of what had occurred. That was the gist of the submission advanced this morning by applicant’s counsel in this Court. But a less favourable conclusion was also available.
Third, the evidence of Lin and Wooley that there was something of a melee going on, with people grabbing at the applicant, when the blows were struck, was not put to the complainant.
Fourth, Lin’s evidence that, before making his statement in late October 2014, he had spoken to more than one solicitor about what had occurred shows that he must have been aware that the applicant had been charged. On his account, he had nothing to fear from revealing what had happened to the police — for the complainant had struck him, and he had defended himself.
The charge
Even before the prosecution case was complete, the judge had sought submissions from counsel whether the statutory alternatives of intentionally or recklessly causing injury should be put to the jury. Both the prosecutor and applicant’s counsel had agreed that this should be done. Applicant’s counsel, speaking of the jury, submitted that
They might say we are not satisfied that this was a serious injury, it was an injury but not a serious injury, or they might say we are not satisfied that the accused man, if he punched him that he intended to cause serious injury.
Against that background, because of arguments raised by the applicant in this Court, I note the following aspects of his Honour’s charge.
In the first place, his Honour repeatedly instructed the jury that, for injury to be ‘serious injury’, it had to be ‘substantial and protracted’. His Honour emphasised, a number of times, the conjunctive ‘and’.
Second, and relatedly, his Honour identified as a live issue at the trial the question whether the Crown had proved that the injury sustained by the complainant was a serious injury.
Third, his Honour directed the jury that, even if serious injury was proved, neither the offence of intentionally causing serious injury nor the offence of recklessly causing serious injury was established unless the prosecution proved relevant intent. His Honour pointed out that intent had to be proved by inferential reasoning. With respect to the charge of intentionally causing serious injury, the intent which had to be proved was an intent to cause serious injury. In the case of the charge of recklessly causing serious injury, what the prosecution must prove was that at the time the accused struck the complainant, and assuming that serious injury was inflicted, the applicant was aware that his acts would probably result in the complainant being seriously injured but decided to go ahead anyway.
His Honour further directed the jury that, with respect to the alternative charges of intentionally causing injury and recklessly causing injury, the relevant intent was on the one hand to cause injury and, on the other hand, to act whilst being aware that what he did would probably result in the complainant being injured, but decided to go ahead anyway.
Fourth, the judge directed the jury that the prosecution case depended upon a combination of direct and inferential evidence. There was the evidence of the complainant, and there was also the sequence of events. In the latter connection, there was the fact of the theft, a relatively short chase, apprehension of the applicant, a grabbing for the stolen jumpers, and a punch or punches thrown.
In that last connection, His Honour gave a conventional warning on the drawing of inferences.
Fifth, as I have already noted, the judge directed the jury that it must not use evidence of what the complainant said to the security guards as evidence that it was in fact the applicant who had struck the complainant. The jury could only use that evidence as a consistent account given by the complainant.[2]
[2]No challenge was raised below, or in this Court, as to what his Honour directed the jury was a permissible use of the evidence.
Sixth, the judge gave the jury a strong conventional warning with respect to identification evidence.
Jury deliberations
The jury commenced its deliberations on the morning of 5 March 2015. On the afternoon of that day, it asked to watch a replay of the complainant’s evidence in cross-examination pertaining to the sequence of events which culminated in him being punched. It also asked for a recapitulation of his Honour’s identification direction warning.
Each of those matters was attended to.
On the afternoon of 6 March 2015, the jury requested answers to four questions. They were —
(1)Could we have the definition of ‘intentionally’?
(2)Could we please have the definition of ‘substantial’ and ‘protracted’?
(3)For an injury to be considered serious, does the injury have to continue to be substantial for the entire period it is protracted?
(4)Is protracted seen from a medical viewpoint or from the viewpoint of the person who is injured?
The judge answered those questions in a way that did not attract criticism. Not long thereafter, the jury returned the verdict in respect of which the applicant now seeks leave to appeal.
Submissions
In written submissions, counsel for the applicant drew attention to deficiencies of the complainant’s identification evidence. He submitted that — (1) it was clear on the evidence, considered in totality, that the complainant could not be certain that it was the applicant that punched him; (2) evidence called by the defence, most notably the evidence given by Lin, established that the complainant was assaulted by Lin, rather than the applicant. Neither Lin nor Wooley had been shown to be unreliable or untruthful by cross-examination; (3) in all, there was ‘no basis upon which the jury could have rejected the evidence called in the defence case as being either unreliable or untruthful’.
Counsel also drew attention to the questions asked by the jury on 6 March 2015, and submitted that, whatever might be said about proof of ‘serious’ injury, it was difficult to see how the jury was ultimately satisfied that the causing of injury by the applicant was other than intentional. Particularly given the length of time that the jury deliberated, the verdict should be regarded either as erroneous or as representing a compromise between jurors.
By written submissions, counsel for the Crown submitted that the question raised by the ground of appeal was whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[3] It was not enough to show that there was material which might be taken by the jury to be sufficient to preclude satisfaction of guilt. The starting point, counsel submitted, is that the jury was entrusted with the primary responsibility to determine guilt or innocence, and had the benefit of seeing and hearing the witnesses.[4]
[3]Libke v The Queen (2007) 230 CLR 559, 596 [113] (Hayne J).
[4]Citing SKA v The Queen (2011) 243 CLR 400, 405 [13] (French CJ, Gummow and Keiffel JJ).
Counsel submitted that the focus by the applicant on what was said to be the uncertainty of the complainant’s identification of the applicant focused upon just a part of the prosecution case. The sequence of events to which I have earlier referred gave rise to a most powerful inference that it had been the applicant who assaulted the complainant. The logical inference deriving from the complainant’s evidence was that it was the man with whom he was tussling who punched him ‘straight away’ and ran off.
Counsel submitted also that the jury had the benefit of hearing and seeing the evidence given. That comprehended the evidence of the complainant, Lin and Wooley. The jury was not obliged to accept the evidence of the defence witnesses. Their evidence was not consistent, and Wooley had to be led into giving evidence that there had been an assault by anybody.
Counsel further submitted that there was nothing to suggest that the jury’s verdict was a compromise. To the contrary, there were reasons why the jury might have found the applicant guilty of recklessly causing injury. It was open to the jury to find that the applicant was ‘reckless as to causing injury in circumstances in which he was in the midst of a tussle with the complainant and likely punched him reckless as to injury, wishing to break free as he did’.
Conclusions
The prosecution case did not principally depend upon the complainant’s identification of the applicant as the man who punched him. Rather, there was a body of evidence, to which I have already referred, which invited an inference that the applicant was the assailant. In my opinion, an inference of the quality required by the criminal law was certainly available.
Notwithstanding the fact that the jury might have accepted the evidence of Lin and Wooley, and have found the applicant not guilty for that reason, it cannot be said that the jury must have accepted the evidence of those witnesses. Putting to one side the question whether one or both of them was demonstrably partial, and putting aside divergences in their accounts of what occurred, and putting aside Wooley’s belated reference to there having been any assaults, acceptance of Lin’s account involved acceptance of his evidence that, for no reason, the complainant had punched him, and that he had responded (presumably in self-defence).
The complainant was cross-examined as to whether, when he grabbed the jumpers, he was ‘sort of thrashing around and thrashing your arms around at that stage or not?’. The witness said that he did not think so. He denied swinging a punch or punches at the applicant. He said that he did not recall any swinging of arms, punches, or swearing. It was not put to him that he had punched anyone else who was then present.
Presumably, if Lin’s account was to be accepted, he must have been struck by the complainant as the latter was thrashing his arms around, swinging his arms, or attempting to punch the applicant. But it seems to me to have been well open to the jury, having regard to the complainant’s evidence, to have concluded that the complainant did none of those things; and if the jury so concluded, Lin’s evidence melted away.
I am, of course, conscious that it was for the prosecution to establish its case, and that rejection of the evidence of Lin and Wooley could not make good deficiencies in that case. But I am not at all persuaded that such deficiencies existed. I could not say that the jury, having had the opportunity of seeing and hearing the complainant and the witnesses upon whom the defence case particularly relied, must have had a reasonable doubt as to the applicant’s guilt of the offence of which he was found guilty.
Further in my opinion, it was well open to the jury to have reasoned that the blow struck was reckless, rather than intentional, as those concepts are relevantly understood. Again, it was well open to the jury to have concluded that the applicant, by his reckless act, was aware that what he did would probably result in the complainant being injured — rather than seriously injured — but decided to go ahead anyway.
Still further, the judge repeatedly emphasised, as I have said, the need for the prosecution to prove that injury was both substantial and protracted in order for it to qualify as serious injury. The second to fourth questions asked by the jury on 6 March 2015 show clearly that the jury was alive to the issue. It would be doing the jury an unwarranted disservice, in the circumstances, to treat the verdict which followed its evidently careful consideration of the issue as revealing an impermissible compromise.
Order
I would refuse the applicant leave to appeal against his conviction for recklessly causing injury.
WEINBERG JA:
For the reasons given by Ashley JA, I agree that leave to appeal should be refused.
WHELAN JA:
I also agree, and have nothing to add.
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