Josef Molfese v The Queen
[2018] VSCA 297
•14 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0049
| JOSEF MOLFESE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, WEINBERG JA and ALMOND AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 October 2018 |
| DATE OF JUDGMENT: | 14 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 297 |
| JUDGMENT APPEALED FROM: | [2018] VSC 32 (J Dixon J) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Circumstantial case – Victim killed during armed robbery – Applicant held knife to victim’s neck – Whether death caused by applicant’s deliberate act – Alternative hypothesis that applicant was pushed – Whether reasonably open on evidence – Whether prosecutor unfairly misrepresented relevant evidence – No miscarriage of justice – Application for leave to appeal refused – R v Baden-Clay (2016) 258 CLR 308 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G F Connelly | Papa Hughes Lawyers |
| For the Respondent | Mr C B Boyce with Ms D Karamicov | J Cain, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA
ALMOND AJA:
On 29 June 2017, the applicant was found guilty of the murder of Ricky Trinh. He was sentenced to 20 years’ imprisonment on that charge.[1]
[1]He was also sentenced on other charges, relating to a separate incident, to which he had pleaded guilty.
He seeks leave to appeal against the murder conviction on the following grounds:
1.The verdict of the jury is unreasonable and cannot be supported having regard to the evidence.
2.A substantial miscarriage of justice was occasioned by the prosecutor departing from the Crown opening to suggest that a statement to the effect that ‘she pushed me’ had not been made by the [applicant] to Carly Simms-Parsons.
Before embarking on a short summary of the evidence, it is convenient to address the legal basis for the first ground of appeal, which is expressed in the language of s 276(1)(a) of the Criminal Procedure Act 2009. The principles to be applied when this ground is advanced have been restated by the High Court on several occasions since its decision in M v The Queen.[2]
[2](1994) 181 CLR 487.
In Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) stated the test as follows:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[3]
[3](2007) 230 CLR 559, 596-7 [113] (emphasis in original) (citations omitted).
In R v Klamo this Court summarised the relevant principles as follows:
The approach of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3.In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[4]
[4](2008) 18 VR 644, 653-4 [38] (citations omitted).
This is a stringent test. The jury is ‘the constitutional tribunal for deciding issues of fact’,[5] and the setting aside of a jury verdict on the ‘unreasonable’ ground is a serious step.[6]
[5]R v Baden-Clay (2016) 258 CLR 308, 329 [65] (‘Baden-Clay’).
[6]Ibid.
In this case, the ‘unreasonable’ ground, whilst expressed broadly, is relatively confined. Simply put, the applicant contends that the jury could not have excluded beyond reasonable doubt the possibility that there was an ‘intervening act’ which caused the fatal injury, which was a deep cut to Trinh’s neck. More particularly, it is contended that, whilst the applicant may have placed a knife at Trinh’s throat, the jury could not have properly excluded the hypothesis that an act by Trinh’s girlfriend, Natasha Lamb, had ‘caused the knife to cut Trinh’s neck’.
We shall first review the evidence that bears upon this issue.
Summary of evidence
Ms Lamb, Trinh’s partner, gave evidence that she went to Clarendon Street with Trinh and another person, Troy Nelson, to buy ice-cream. Trinh and Lamb went to Coles. As they walked back to Nelson’s prime mover, someone came up behind Trinh and put a knife to his throat. The assailant said, ‘Have you got any drugs’ or ‘Hand over all your drugs’. According to Lamb, everything happened very quickly ‘and … then I just remember my partner going to the ground’. The knife was half as long again as a biro, she said, and had a hooked blade. Ms Lamb received an injury to her index finger. ‘I tried to grab the knife but when it cut my finger I pulled away … because it hurt’. In cross-examination she accepted that she was a daily heroin user in March 2016 and on this day had injected heroin.
Lamb knew that Trinh was a drug dealer. After the judge had granted her a s 128 certificate,[7] she agreed that she had assisted his sales activities by lending him her telephone. She accepted she would have had ‘drugs’ (heroin) in her system that night. She denied that she went to South Melbourne to deal drugs, but could give no explanation as to why there appeared to be an empty syringe packet in the plastic bag which contained the ice-cream. She initially denied that she had concealed Troy Nelson’s identity from the police but subsequently admitted that she had done so because Nelson had told her to.
[7]See s 138 of the Evidence Act 2008 titled ‘Privilege of self-incrimination in other proceedings'.
Under cross-examination, Ms Lamb accepted that she had mistakenly told police that the man she had seen approach Trinh was a man with no ears, whom she knew as Will. Explaining her error she said that it had been a sudden and frightening experience. She confirmed that she heard a person say ‘Hand over your drugs’, saw a person but did not see a knife, and saw that person put Trinh in a headlock. She tried to help her partner. She denied pushing the man or even touching him. She repeated this denial on four further occasions.
Carly Simms-Parsons was a childhood friend of Trinh’s. She went with the applicant to the Clarendon Centre to buy heroin. There they met Trinh and Lamb. They offered to trade a laptop for drugs. Trinh expressed interest but said they would have to meet somewhere else as he did not have any heroin with him.
Ms Simms-Parsons had walked along Clarendon Street for a time with Lamb and then walked to near a florist. She had not seen the applicant for a time when she heard screams. She ‘freaked for a minute’, then made a few phone calls and arranged to meet the applicant at Bells Hotel.
When she met the applicant, he said there was a lot of blood. He was cleaning himself with baby wipes. In cross-examination, Ms Simms-Parsons agreed that the applicant said to her, ‘She pushed me’. (This evidence is relevant to both grounds of appeal.)
Kirsty Franklin was a passenger in a car driven by Jake Pascu, an associate of the applicant’s. The applicant entered the car shortly after the altercation. He rocked backwards and forwards and said ‘oh fuck’ a few times. At the casino the applicant got out of the car, got something from the boot and changed his clothes.
Jake Pascu gave evidence that he had agreed to pick up the applicant and another man in Dorcas Street. While waiting, he heard a female scream. When the applicant arrived at Pascu’s car, Pascu asked ‘What happened?’ The applicant said he had ‘hit someone’ or ‘kinged someone’. In cross-examination, Pascu said he had no recollection of that exchange with the applicant.
Rikki Newton was also a passenger in Pascu’s car. He was in the parked car waiting for the applicant when he heard a female scream. A few minutes later, the applicant hopped in the car. Newton said to the applicant, ‘Fuck, what did you do?’ The applicant answered ‘Nothing’. Cross-examined on his police statement by the prosecutor under s 38 of the Evidence Act 2008, Newton agreed the applicant was rubbing his head with his right hand when he got in the back seat and seemed ‘generally stressed’.
When Newton asked him again what he had done, the applicant said, ‘I just punched this bloke and knocked him out’. The applicant changed some of his clothes in the back seat. In cross-examination, Newton accepted that he was an ice user; his memory was affected by lack of sleep; and he had used ice on the day he made his statement.
Several hours later, Dr Lim (medical practitioner) treated Ms Lamb’s cut finger. Ms Lamb told Dr Lim that a man put a knife to her friend’s neck. She had tried to grab the knife, felt it cut her finger and she pulled away. The cut was a
2.5 cm superficial laceration to the right index finger.
Theodore Kossart (ambulance officer) and Senior Constable Christopher O’Casey (police officer) gave evidence of their observations. O’Casey took the first statement from Lamb. He did not form the opinion she was affected by heroin when he spoke with her.
Dr Bedford is the forensic pathologist who performed the autopsy on Trinh. The main injury was an incised sharp force lesion that extended from the left side to the right side of the neck. The length of the lesion was 110 mm, with a vertical opening of 50 mm. There was almost total transection of the left and right carotid arteries. The jugular vein was totally transected. The incision went ‘most of the way through the trachea’, which is composed of cartilage rings and muscle.
The injuries were almost non-survivable. Dr Bedford thought it was likely there was one ‘slash’ only but there could have been three. There were no defensive injuries. He could not say whether the horizontal movement of the knife was right to left or left to right. He felt uncomfortable saying how the injuries had actually occurred. In his opinion, ‘moderate force’ would have been required for the knife to go through the cartilage at the front of the trachea and the muscles around the side of the neck. (Dr Bedford explained that forensic pathologists use a three-level classification of force: mild, moderate and severe.)
The applicant did not give evidence.
Ground 1: unreasonable verdict unable to be supported by evidence
Although this was not spelt out in terms for the jury, the case against the applicant was circumstantial. There was no direct evidence of his having actually cut Trinh’s throat. As already noted, Ms Lamb saw the applicant place Trinh in a headlock and, in her attempt to assist Trinh, cut her finger on the knife which the applicant was evidently holding.
Accordingly, it was for the prosecution to satisfy the jury beyond reasonable doubt that the only inference reasonably open on the evidence was that:
(a) it was the applicant’s conscious, voluntary and deliberate act which caused Trinh’s death; and
(b) at the time of doing that act, he intended to kill Trinh or cause him really serious injury.
In a circumstantial case, it is open to the defence — but, of course, not obligatory — to advance one or more hypotheses which may explain the evidence in a manner consistent with the accused’s innocence. As the High Court reaffirmed in Baden-Clay, however, such an alternative hypothesis ‘must rest upon something more than mere conjecture’.[8] All of the circumstances established by the evidence are to be considered and weighed
in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[9]
[8]Baden-Clay (2016) 258 CLR 308, 324 [47].
[9]Ibid quoting R v Hillier (2007) 228 CLR 618, 637 [46] (citations omitted); see R v Doyle [2018] QCA 303 [29]–[32] (‘Doyle’).
In the present case, the defence advanced its ‘alternative hypothesis’ at two levels, one entirely general, the other more specific. The general proposition was spelt out by defence counsel at the beginning of his final address to the jury, in these terms:
Mr Molfese was looking for heroin. He hadn’t been able to get it earlier.
Mr Trinh was an opportunity for him to get heroin. He was going out of his way to get the heroin. Trinh takes off. What's he going to do? He approaches him with a knife and he makes a demand for the heroin. What does he want? What does Mr Molfese want? He wants heroin. That's what this is all about. That's what he wants to get.
The prosecution case is [he] suddenly just decides, for no reason, without any motive, to just slash his throat and give up that desire for heroin. Thinking about it. Use your common sense. It doesn’t make any sense. It’s not consistent with a murder. It’s completely consistent with an armed robbery gone wrong. It's completely consistent with something unexpected happening. He’s a heroin user. He wants heroin. He’s been after it. He’s not going to suddenly give it up to slash someone's throat. It doesn’t make sense and it doesn't make sense because this is not a murder, this is an armed robbery that went terribly wrong.[10]
[10]Emphasis added.
Later in final address, counsel reinforced this notion of ‘something unexpected happening’:
An intentional killing just does not fit. Mr Molfese is not going to go to the trouble of heading down to rob a drug dealer, make a demand for drugs, to get drugs, and then on Ms Lamb’s version, without doing anything, without Mr Trinh doing anything, just suddenly decide ‘I’m going to slit his throat and then leave’. You might think that the one thing that a person who is using drugs like heroin wants more than anything is the heroin, it's common sense. But on the prosecution [case] Mr Molfese supposedly has just given up that craving in an instant and then intentionally killed Mr Trinh. It doesn't fit, it doesn't make sense. Of course, what makes complete sense is Mr Molfese seeking drugs, engaging in an armed robbery, making the demand for drugs, and then something unexpected happening, something that then causes him to take off and leave the drugs there, and one of those unexpected things may be the intervention of Ms Lamb.[11]
[11]Emphasis added.
In this Court, counsel for the applicant (who did not appear at the trial) drew attention to these submissions as encapsulating the defence case. She contended that it was simply inexplicable that the applicant, having set out to do no more than rob Trinh of drugs, could have decided on the spur of the moment to kill him.
The ‘something unexpected’ hypothesis can be disposed of shortly. Plainly enough, it invited the jury to engage in speculation or conjecture. While this line of argument might have prompted jurors to doubt the Crown case, they were certainly not bound to have a doubt. As we have made clear, apart from the specific hypothesis (discussed below) that Ms Lamb pushed the applicant, there was nothing in the evidence to suggest that anything else ‘unexpected’ had happened. And the only person who might have provided a different explanation was the applicant, who elected not to give evidence.[12]
[12]Cf Baden-Clay (2016) 258 CLR 308, 324-5 [50]–[51].
The specific hypothesis was that, in her attempt to assist Trinh, Ms Lamb had pushed the applicant and that this contact had provided the motive force necessary to drive the knife through Trinh’s neck. As will be apparent from the summary of evidence, this hypothesis had the slenderest of evidentiary foundations. It rested on what Ms Simms-Parsons had said in cross-examination, namely, that shortly after the attack the applicant had said to her, ‘She pushed me’.[13]
[13]See [13] above.
The cross-examination of Ms Lamb on this topic was, likewise, extremely confined. Far from seeking to paint a picture of the setting in which the alleged ‘push’ occurred, defence counsel had Ms Lamb confirm that she had no recollection of where she was standing in relation to Trinh when he was attacked. She agreed that she could not recall whether she had been beside him, or behind him, or in front of him. Against that entirely hazy background, defence counsel asked Ms Lamb about her reaction to seeing Trinh put in a headlock.
She agreed that she had reacted immediately, by moving forward to try to help him. Counsel then put to her the bald proposition that she had pushed at the assailant, with ‘both hands pushing on his arm’. As noted earlier, Ms Lamb responded by saying, ‘I never touched him’. Defence counsel put the same proposition to Ms Lamb on three further occasions and, on each occasion, she denied making any contact with the applicant. Her evidence was, and remained, that her only contact was with the knife, as a result of which she cut her finger and withdrew.
In this Court, counsel for the applicant conceded — properly, in our view — that the jury were reasonably entitled to accept Ms Lamb’s denials of contact with the applicant. It follows that they were entitled to reject the ‘push’ hypothesis altogether.
Once again, the absence of evidence from the applicant was significant. In Baden-Clay, the High Court quoted with approval the following statement from Wiessensteiner v The Queen:
In a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.[14]
[14]See Baden-Clay (2016) 258 CLR 308, 324-5 [50], quoting Weissensteiner v The Queen (1993) 178 CLR 217, 227–8 (‘Weissensteiner’).
The absence of such evidence was particularly important given the inherent improbability of a ‘push’ by any other person having caused an incision as deep and as wide as that which killed Trinh.[15]
[15]Section 44 of the Jury Directions Act 2015 has abolished trial directions based on Weissensteiner, but the decision remains applicable to appellate consideration of the ‘unsafe’ ground. In Queensland, by contrast, the trial judge may give a Weissensteiner direction: Doyle [2018] QCA 303 [20]–[21].
Ground 2: prosecution departure from Crown opening?
In her statement to police, Ms Simms-Parsons said that the applicant had told her that ‘his missus pushed him’. The prosecutor indicated to the judge in pre-trial argument that he would lead this evidence as an admission by the applicant to having been present and involved in the incident.
In opening, the prosecutor told the jury that Ms Simms-Parsons would give evidence to the effect that, some time after the incident, she and the applicant had gone to the house of a friend of the applicant’s in Fairfield. According to the prosecutor, Ms Simms-Parsons remembered that, while they were together at that location, the applicant had told her that ‘his missus had pushed him’ and that she understood this to mean that Ms Lamb had pushed the applicant at the time of Trinh’s death.
In this Court, counsel for the applicant pointed out that the reference to Fairfield was not accurate. Ms Simms-Parsons was asked at the committal where this statement was made and answered as follows:
I can’t recall right now. It was later on. Like, it was a — had been a few days. Um, after the house in Fairfield, the guy there sort of set him up with somewhere to stay, with his mum or something, and I’m pretty sure we had, like, a bit of a talk about it there, and … he said that, ‘his missus pushed me’.
In examination-in-chief, Ms Simms-Parsons said that, after the altercation, she and the applicant ended up in a taxi going to the home of a friend of the applicant’s. Asked where the house was, Ms Simms-Parsons said, ‘I thought I heard Fairfield.’ She confirmed that the two of them had stayed at that house for a while. The following exchange then took place:
And did you hear a conversation about what happened or did you ask
Mr Molfese about what happened that night?---Um, no, I saw him looking at the - - -
Don’t worry about that, just the conversation that you had?---No, not between me and Joey about what had just happened, no.
Did he say something there about the incident?---Only back in the car.
Nothing at the house?---No, he hadn’t, not to me, he hadn’t said nothing, no.
Did you overhear him say something to someone else that night?---Over – saw him looking - - -
HER HONOUR: Just wait for the question. The question was did you overhear him saying something to someone else?---No, not that I recall.
As can be seen, Ms Simms-Parsons made no mention of any statement by the applicant that ‘his missus pushed me’. The applicant’s complaint is that she was not given the opportunity to give that evidence, because she was not asked about what had happened after she and the applicant had left the Fairfield house. The submission for the respondent is that this was an innocent mistake by the prosecutor, who was evidently proceeding on the assumption that the relevant exchange had occurred while they were in the Fairfield house.
As already mentioned, the only reference to such a statement by the applicant came at the conclusion of the cross-examination of Ms Simms-Parsons, as follows:
When you got into the car at the ― when you got into the Astra at the Bells Hotel, Joey [the applicant] was freaking out wasn’t he? – – – Um yes. No. He was I don’t know down in his seat cleaning himself.
Listen to the question please. He was freaking wasn’t he? – – – A little bit, yep.
And he was saying things along the lines of ‘she pushed me’. That’s right? – – – He did say that, yes.
Yes? – – – Yep.
And you ― that was in the context of a conversation about what had happened down at Clarendon Street, wasn’t it? – – – Yes.
In final address, the prosecutor reminded the jury of the cross-examination of Ms Lamb and her repeated denials of pushing the applicant. The prosecutor then said:
And she was adamant. And when she was adamant then, that was about the only time you saw a spark of life in her in that witness box. At other times she was like a limp wet towel. But when it was suggested that she pushed him, no way.
So that’s the first bit of, or first attempt by the defence to try and get
Ms Lamb involved. There is no evidence there that she pushed him.
We accept the respondent’s submission that, when the prosecutor said ‘there is no evidence there that she pushed him’, he was referring to Ms Lamb’s denials. Counsel was correctly pointing out to the jury that there was nothing in Ms Lamb’s evidence to support the ‘push’ hypothesis.
The prosecutor then continued as follows:
As I said to you my learned friend did an absolutely magnificent job of making [Ms Simms-Parsons] out to be a liar. His cross-examination was exemplary, text book stuff. She is a liar. So the defence now relies on Carly Simms-Parsons to give you the evidence that it is Ms Lamb who caused this death. And so we go to [the cross-examination]. ‘Listen to the question please, he was freaking, wasn’t he?’ ‘A little bit, yep.’ This is a question put to Carly Simms-Parsons about the conversation occurring between her and Mr Molfese in the car. ‘And he is saying things along the lines she pushed me, that’s right.’ ‘Oh he did say that, yes.’ Now she didn’t volunteer that, it was put into her mouth, ‘he pushed her’. That’s it. That’s the extent of the evidence on which this theory that it was Ms Lamb that caused that injury is based on.
It is clear enough, in our view, that the premise on which this ground of appeal rests is false. That is, the prosecutor did not
suggest that a statement to the effect that ‘she pushed me’ had not been made by the accused to Carly Simms-Parsons.
On the contrary, the prosecutor stated, correctly, that:
·there was no evidence from Ms Lam suggesting that she had pushed the applicant; and
·the only evidence that there had been a push was the evidence given by Ms Simms-Parsons in cross-examination about the statement to that effect by the applicant.
Moreover, the prosecutor was entitled to point out that this evidence had not been volunteered by Ms Simms-Parsons but had been given in response to a suggestion, in so many words, from defence counsel. We accept that, but for the prosecutor’s misapprehension about the location, it is possible that Ms Simms-Parsons would have given this evidence in the course of evidence-in-chief. But we are not persuaded that the course of events occasioned any miscarriage of justice.
First, the evidence as it came out was far more advantageous to the applicant than the account which Ms Simms-Parsons had given at committal, and which the prosecutor had expected her to give. Instead of the reported conversation being said to have taken place days later, Ms Simms-Parsons told the jury that it had happened in the immediate aftermath of the incident.
Secondly, evidence from Ms Simms-Parsons was never going to carry much weight with the jury, since both sides characterised her as a habitual liar. Defence counsel’s final address included the following:
[T]here’s evidence in this case that Mr Molfese when he was in that car will, talk about the state that he’s in when he gets back to the car, said to Carly Simms-Parsons that his ‘missus pushed’, or words to that effect. Look, Carly Simms-Parsons is a liar, she is a shocking liar. If she thinks she’s going to be in trouble for something she will duck and weave and lie. Both sides of the Bar table say she’s a liar, but the prosecution rely upon Ms Simms-Parsons for certain things.
Finally, and most significantly, defence counsel raised no objection about what the prosecutor had said. This was doubtless because counsel recognised the considerable forensic advantage associated with the apparently close temporal connection between the applicant’s statement to Ms Simms-Parsons and the altercation in which he had been involved.
This ground also fails. Leave to appeal must therefore be refused.
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