Jumer Selimovski v The Queen
[2018] VSCA 236
•17 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0245
| JUMER SELIMOVSKI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH, NIALL and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 17 September 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 236 |
| JUDGMENT APPEALED FROM: | [2016] VSC 325 (Croucher J) |
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CRIMINAL LAW – Application for extension of time to seek leave to appeal against conviction – Delay of approximately 16 months – Applicant convicted of murder – Merits of proposed appeal – Whether miscarriage of justice occasioned by prosecutor’s failure to challenge eyewitness testimony – Conduct of trial – Proposed ground of appeal directly contrary to way case conducted by applicant at trial – Proposed ground of appeal totally devoid of merit – Whether conviction unreasonable or unable to be supported by evidence – Not reasonably arguable that conviction unreasonable or unsupported by evidence – Explanation for applicant’s delay thin – Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Turnbull Lawyers |
| For the Respondent | Mr C B Boyce SC with Mr J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
BEACH JA
NIALL JA
EMERTON JA:
A little after 11:00 pm on Saturday, 17 May 2014, Mr Benjamin Monteath was shot once in the chest with a .380 calibre handgun. He fell to the floor. Despite the best endeavours of those who attempted to revive him, he died then and there.
On 4 April 2016, following a 13-day trial in the Supreme Court, the applicant was convicted of the murder of Mr Monteath. On 10 June 2016, following a plea hearing conducted in May 2016, the applicant was sentenced to 22 years and 6 months’ imprisonment with a non-parole period of 17 years.[1]
[1]R v Selimovski [2016] VSC 325. The applicant was sentenced to 22 years’ imprisonment for the murder of Mr Monteath. Prior to trial, however, the applicant pleaded guilty, on a separate indictment, to one charge of recklessly causing injury. The applicant received a sentence of 2 years and 3 months’ imprisonment on this charge, 6 months of which was cumulated on the murder sentence, giving a total effective sentence of 22 years and 6 months, on which the non-parole period of 17 years was fixed.
On 29 November 2017, the applicant filed an application for an extension of time within which to file a notice of application for leave to appeal against conviction. The applicant required an extension of time because the time for appealing provided for in s 275(1) of the Criminal Procedure Act 2009, being 28 days after the date of sentencing, had expired on 8 July 2016.
The applicant’s application for an extension of time was supported by an affidavit affirmed by the applicant’s solicitor, Mr Adrian Lewin, and an affidavit affirmed by the applicant’s daughter, Ms Sibel Selimovska. In his application for an extension of time, the applicant identified the reason that he failed to file his notice seeking leave to appeal within time as being:
The applicant’s lawyers not initiating appeal proceeds (sic) despite instructions and funding issues thereafter as set out in the supporting affidavits filed with this application.
At the same time as he filed his application for an extension of time, the applicant filed an application for leave to appeal and a written case. The application for leave to appeal and the written case disclosed two proposed grounds of appeal:
1.A substantial miscarriage of justice has occurred because of the failure of the prosecutor to challenge three eyewitnesses that they were mistaken about their observations and, despite the absence of such a challenge, the advancement of an argument to the jury in the prosecutor’s closing address that the testimony of all three eyewitnesses should be rejected because they were mistaken and/or unreliable.
2.The verdict is unreasonable or cannot be supported having regard to the evidence.
Particulars
The prosecution could not exclude a reasonable hypothesis consistent with innocence: that Ozan Yusuf was the shooter.
On 13 March 2018, a deputy registrar refused the applicant’s application for an extension of time. On 3 April 2018, the applicant filed a notice of election to have his application for an extension of time determined by the Court of Appeal. Subsequently, the application for an extension of time, the application for leave to appeal and the appeal were fixed for hearing. The parties, however, agreed that the extension of time application, the application for leave to appeal (if the extension of time application succeeded) and the appeal (if the application for leave to appeal succeeded) should be determined on the papers, without the need for an oral hearing.[2] Thus, the applicant’s proceedings in this Court fall to be determined by us.
[2]The request that this course be taken came from the applicant and was then consented to by the respondent.
Principles relating to extensions of time
The principles relating to applications for an extension of time within which to appeal against conviction are well known.[3] As was said in Madafferi v The Queen:
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case, the length of the delay — and the reasons for it — and the prospects of success should the extension be granted, are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise. Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension. The discretion must, as we have said, be exercised according to the individual facts of each case.[4]
[3]See Kentwell v The Queen (2014) 252 CLR 601, 613–4 [29]–[33]; Derwish v The Queen [2016] VSCA 72 [55]–[57]; Madafferi v The Queen [2017] VSCA 302 [11] (‘Madafferi’); Chen v The Queen [2017] VSCA 335 [22]–[23].
[4]Madafferi [2017] VSCA 302 [11].
As is disclosed by the authorities to which we have referred, the application for an extension of time requires consideration of the merits of the proposed appeal and the applicant’s reasons for not instituting his application for leave to appeal within the prescribed time. We will look first at the merits of the applicant’s proposed appeal, before then turning to the applicant’s explanation for failing to seek leave to appeal within time.
The Crown case
The Crown case may be briefly summarised as follows.
At about 10:00 pm on 17 May 2014, Mr Monteath went to the Epping home of Adrian and Belinda Grech to pick up his friend Wayne Grech, who was at the house attending his nephew’s birthday party. Mr Monteath accepted his friend’s invitation to come in for a while and ‘join the men in the shed’.
At about 11:00 pm, the applicant and two other men, Oguzhan Gurkan and Ozan Yusuf, arrived in the court outside of the house, armed and wearing disguises. Mr Yusuf was carrying a fire extinguisher filled with petrol, Mr Gurkan was carrying a sawn-off shotgun, a bottle of kerosene and a tennis ball, and the applicant was carrying a .380 handgun. The applicant had been feuding with Adrian Grech over a belief that Mr Grech had stolen his car parts. The applicant’s plan was to spray Mr Grech’s car with petrol using the fire extinguisher, then to throw a kerosene-soaked and burning tennis ball at the car so as to ignite and burn it, and to shoot the car with the shotgun.
At the time Yusuf began spraying a car parked in the driveway, some of the men from the party were already out the front of the house, or on their way out. The applicant, who was standing behind Yusuf, drew his handgun and fired at least two shots in the general direction of the people and the house. One of those shots struck and killed Mr Monteath.
The applicant also directed Gurkan to fire the shotgun at the car, which he did, twice. The second shot ricocheted and glanced Shane Grech on the leg, causing him an injury. The three men (the applicant, Gurkan and Yusuf) then fled back down the court.
Each of the three men were subsequently arrested and charged with the murder of Mr Monteath and intentionally causing injury to Shane Grech. The Director of Public Prosecutions ultimately accepted pleas of guilty from Mr Gurkan and Mr Yusuf to manslaughter and recklessly causing injury.[5] Both men made statements to police implicating the applicant, undertook to give evidence against him and were called as witnesses at his trial.
[5]This charge related to an injury caused to Mr Shane Grech when he was shot in the leg with the shotgun said to have been used by Mr Gurkan.
The defence case at trial
At trial, the defence did not dispute that the applicant was one of the three men (along with Yusuf and Gurkan) who arrived in the court outside the Grechs’ home. The defence case was that the applicant did not shoot Mr Monteath. As it was put by counsel for the applicant in his response to the prosecution opening:
What’s not in dispute — despite whatever some of the lay witnesses, the householders at the scene might say, there is no dispute between the parties here — that’s the Crown and the defence — that two of the three participants were shooters — two of the three — not three of the three. That’s not in dispute between the parties. There’s only two. What’s in dispute between the parties is who these shooters were. The Crown, through Yusuf and Gurkan will say that it’s [the applicant] and Gurkan. They will say that [the applicant] had the handgun and that Gurkan had … the shotgun.
What the defence say, the issue is, no, it’s Gurkan had the shotgun and it’s Yusuf who had the handgun.
The trial in more detail
There was no dispute at trial that the cause of Mr Monteath’s death was the gunshot wound to his chest. The critical witnesses, so far as the applicant’s proposed grounds of appeal are concerned, were Mr Adrian Grech, Mr Joel Graham, Mr Shane Grech, Mr Wayne Grech, Gurkan and Yusuf. Mr Graham, Mr Shane Grech and Mr Wayne Grech are the three witnesses described as ‘eyewitnesses’ in the applicant’s proposed ground 1. Yusuf is, of course, the witness whom the applicant claims in proposed ground 2 could not be excluded as ‘the shooter’.
Adrian Grech
Adrian Grech gave evidence that he and the applicant were friends. Mr Grech knew the applicant as ‘Roo’. He used to carry out mechanical work on the applicant’s behalf. The applicant had stored at Adrian Grech’s address a boat, a car, and a trailer full of parts for use in work that was required to be done on the applicant’s car.
Mr Grech’s relationship with the applicant deteriorated in the months prior to 17 May 2014. He had the applicant’s items removed from his property. The applicant accused him of stealing parts out of the trailer and started sending him abusive messages. On 17 May 2014, some hours before Mr Monteath was shot, the applicant came to Mr Grech’s door and started banging two metal batons, saying that he wanted his parts. The applicant was very loud, angry and aggressive. Mr Grech’s evidence of this encounter was supported by evidence given at trial by Belinda Grech (whose statement was read to the jury).
Mr Grech gave evidence that at about 11:00 pm that evening (17 May 2014) when Mr Monteath and Wayne Grech were leaving, he saw three men in the street. They were wearing black clothing with their faces covered. They had guns and started firing at the house. He did not see them holding any items other than guns. He heard about eight gunshots. He chased them up the street as they started to run away. He recognised the applicant by the way he ran. He went back to the house and realised that Mr Monteath had been shot.
Joel Graham
Joel Graham gave evidence that he visited Adrian Grech at his house on 17 May 2014. While Mr Graham was there, the applicant arrived in his car and took two metal batons from the boot. Mr Graham ran down the street when he saw the applicant approaching. The applicant said, ‘You’re dead, you fucking dog’. The applicant yelled this again before he left and drove away. Mr Graham then went home before returning to Adrian Grech’s house at about 10:00 pm that evening.
At about 11:00 pm, he went out to the front of the house and saw three men who were masked. He heard guns firing and hid behind a ute. He heard loud bangs and things ricocheting. He later entered the house and gave assistance to Mr Monteath.
In cross-examination, Mr Graham agreed that he told police on 4 June 2014 that he saw the man drop the fire extinguisher and stood like he was using a handgun, although he could not exactly see a gun, and then saw a flash like a flame coming out from his hands. Mr Graham, however, could not recall at the time of trial whether that was in fact what he saw.
Shane Grech
Shane Grech gave evidence that he received a telephone call on 17 May 2014 from his brother, Adrian Grech, who told him that the applicant came to his door armed with certain items and was yelling. Shane Grech became angry and asked for the applicant’s telephone number. He then telephoned the applicant and there was ‘a lot of bickering back and forth’. To give the applicant ‘a bit of a stir up’, he told the applicant that he had melted down the applicant’s cylinder head. He and the applicant then exchanged text messages.
That evening, Shane Grech went to Adrian Grech’s house at about 6:30 pm. He went to leave at about 11:00 pm and walked towards his car. He heard Wayne Grech say, ‘Who’s that?’ or ‘What’s that?’. He looked up and saw three people at the end of the court. He saw one man holding a fire extinguisher and the other two men each holding what looked like a rifle. The man with the fire extinguisher started spraying with it. Shane Grech then saw ‘little flashes’ from the other two men and heard eight or nine gun shots. He was hit in the leg by a shotgun pellet.[6] The three men then ran away. He started chasing them and another shot was fired.
[6]Giving rise to the charge, on the separate indictment, of recklessly causing injury, to which, as we have said, the applicant pleaded guilty prior to trial.
Mr Grech was cross-examined about the conditions and his ability to see and make observations at the time of the shooting. He agreed with the applicant’s counsel that it was ‘a pretty dark night’. He also agreed with the proposition, ‘Shocked, blocked and obscured, poor vision’, that was put to him by the cross-examiner.
In cross-examination, Mr Grech agreed that he told police on 31 May 2014 that he saw the man with the fire extinguisher with what he thought was a pen gun, and the other two men with rifles or shotguns. He also agreed that on an earlier occasion (18 May 2014) he told police that one of the men had a fire extinguisher under his arm and was holding what he thought was a pen gun. When questioned further, however, about the pen gun that he had said he had seen, the witness said, ‘Well now I think about it maybe it could have been just the pressure of the fire extinguisher’. The last thing put to the witness by the cross-examiner was that the witness was ‘just a liar’.
In re-examination, Mr Grech’s evidence about having seen the man with the fire extinguisher having a pen gun became even less certain. He was asked and answered the following questions:
And you understand I’m not asking you about at the moment anything about May 2014, I’m just trying to understand what you’re describing when you say that you’re describing something you think might have been a pen gun?---Yes. Like I say, I only described the pen gun because it looked like the actions that he was doing with the extinguisher.
Sorry, say that again?---I only described the pen gun because of the actions that he was doing with the fire extinguisher.
What actions?---As in like he was like pulling back kind of (witness demonstrates). Like I said before, I may have only said that because of the pressure of the fire extinguisher may do that. I don’t know.
Wayne Grech
Wayne Grech gave evidence that he went to his brother Adrian Grech’s house on 17 May 2014. He had arranged for Mr Monteath to come and collect him. Mr Monteath arrived shortly before 10:00 pm and came inside.
At about 11:00 pm Wayne Grech was leaving through the front door and saw three men in front of the house wearing balaclavas. Two of the men each had a handgun and one had a shotgun. One of the men with a handgun also had a fire extinguisher. The man with the fire extinguisher started to spray with it and then put it down. Wayne Grech saw the other two men firing their guns. He ducked down and ran inside.
In cross-examination, Wayne Grech agreed that he saw the man with the fire extinguisher holding a handgun and what looked like flames come out of it when it went ‘bang bang bang’.
Oguzhan Gurkan
Gurkan gave evidence that he met the applicant through Yusuf, who he had known for many years.
On 17 May 2014 at about 6:30 pm, the applicant came to Gurkan’s house and said that he was trying to get a hold of Yusuf. The applicant said that Yusuf owed him money and was not answering his calls. The applicant seemed ‘pretty pissed off’. Gurkan rang Yusuf a couple of times before he finally answered. They eventually met Mr Yusuf at The Stables hotel.
The applicant gave Gurkan some money to buy kerosene, latex gloves and a tennis ball from the nearby Safeway supermarket. He did what he was asked and returned to the applicant’s car. The applicant, Gurkan and Yusuf got in the applicant’s car. Yusuf gave the applicant some money that he had asked for, but the applicant went ‘ape shit’. Gurkan offered to give the applicant more money later.
The applicant then asked Gurkan and Yusuf to do him a favour, saying that someone owed him money and that he wanted to burn their car to teach them a lesson. Gurkan and Yusuf told the applicant that they did not want to do it, but they ‘couldn’t get a word in’. The applicant then drove to a court. The applicant took some balaclavas out of the boot and said to put them on. The applicant then pulled out a fire extinguisher and a shotgun. The applicant said that there was petrol in the fire extinguisher. The applicant said that Yusuf was to spray the car, and Gurkan was to put kerosene on the tennis ball, light it and throw it to where the petrol was sprayed. The shotgun was to be fired at the car.
Gurkan gave evidence that he said to the applicant that if the shotgun was to be brought then they were not coming. The applicant responded, ‘No one’s turning back now, cunt’. The applicant had the shotgun and gave Yusuf the fire extinguisher. The applicant told Yusuf, ‘when we get close enough, you’ll just spray’. The applicant showed them the house. Gurkan did not recognise the house or know the occupants of the house. The applicant handed the shotgun to Gurkan. Yusuf and Gurkan told the applicant to turn back. They saw two people coming out of the house.
The applicant told Yusuf to ‘fuckin spray’. Yusuf sprayed briefly for a couple of seconds before the applicant pulled out a pistol. The applicant held the pistol in two hands and started firing shots. The gun was being pointed towards the people standing outside the front of the house. Gurkan saw or heard the applicant fire about four shots. The applicant then turned to Gurkan and said, ‘Fuckin’ fire cunt, fire’. Gurkan fired one round from the shotgun towards a car, and another in the air. They then ‘took off’. Yusuf ran off first, then Gurkan and then the applicant. As they were retreating, the applicant was still firing.
In cross-examination, Gurkan said that it was the applicant who shot Mr Monteah and that he had seen it.
Ozan Yusuf
Yusuf gave evidence that he had known Gurkan from when he was a young child. Yusuf had known the applicant for a couple of years prior to May 2014.
Yusuf’s evidence was that, on 17 May 2014, he ignored a number of calls from the applicant before answering a call from Gurkan. Gurkan told him that the applicant wanted to get in contact with him. They agreed to meet at The Stables hotel.
Yusuf owed the applicant about $1,800 but could only give him $300 when they met at the hotel. The applicant did not react well to this. He was aggressive and ‘was just in a rage’. The applicant asked Yusuf and Gurkan to do him a favour. The applicant said that someone owed him money, so he wanted to ‘burn a car’ and ‘teach him a lesson so he pays what he owes’. Gurkan asked Yusuf for a lift home, but the applicant said, ‘you’ve got to come’ and had already reversed out the carpark and started driving.
The applicant parked the car at an address Yusuf did not know. The applicant and Gurkan walked to the rear of the car. Yusuf heard Gurkan say, ‘What do you need that for?’. Yusuf saw a fire extinguisher and a sawn-off shotgun. Gurkan said, ‘We’re not coming’. The applicant responded, ‘we’ve come this far, we’re going all the way’. Yusuf was too afraid to say anything. The applicant ‘was in a rage’.
Yusuf gave evidence that the applicant told them (Yusuf and Gurkan) that he wanted Yusuf to spray the fire extinguisher and Gurkan to light up the tennis ball and throw it at the car so that it would catch on fire. The applicant said that he wanted to put a couple of holes in the car with the shotgun.
Yusuf’s evidence was that, before this night, he did not know the address to which they had driven, nor any member of the Grech family. When they walked into the court the applicant said, ‘That’s the house there’. There were a ‘heap of cars in front of the house’. One of the cars was a four-wheel drive. The applicant said to Yusuf, ‘When you get close enough, spray at the car’. The applicant then gave the shotgun to Gurkan and said, ‘hold this’. The whole time this was happening, Yusuf was telling the applicant to turn back, but the applicant would not listen.
They made their way towards the four-wheel drive. The applicant kept telling Yusuf to, ‘spray it, spray it’. Yusuf sprayed for no more than three or four seconds before he noticed that there were people in the driveway. He stopped and said, ‘There’s people there. Let’s go’ and went to leave.
Yusuf gave evidence that he then saw the applicant pull a handgun from his jacket, point it towards the people at the house and let off about five or six shots. Yusuf and Gurkan pleaded with the applicant to stop, but he did not listen. The applicant then turned around and pointed his gun at Gurkan and said, ‘Fire at the car, fire at the car’. Gurkan fired the shotgun at the car. Yusuf then took off. He said that then he ‘noticed that [Gurkan] wasn’t all that far behind me and behind me was [the applicant]. The applicant fired two more shots as he ran towards a footbridge.
CCTV footage
CCTV footage was played at trial. The CCTV footage taken at the time of the shooting is somewhat grainy. It showed, however, at about 11:03 pm, three men approaching the Grechs’ home. The man in the middle had the fire extinguisher. He sprayed the fire extinguisher for approximately 12 seconds. As they ran away, a flash can be seen emerging from the last man to leave the premises. We interpolate that it would have been open to the jury to conclude that this was a gunshot fired by the applicant (he, according to Gurkan, being the last to flee the scene). Additionally, and contrary to the evidence of Mr Graham and Wayne Grech, one cannot see in the CCTV footage any occasion where the man with the fire extinguisher dropped it or put it on the ground.
Remaining prosecution witnesses
Having set out a summary of the evidence of the witnesses critical to the applicant’s proposed grounds of appeal, it is not necessary for us to say anything further about the evidence of the remaining prosecution witnesses (some of whom gave oral evidence and some of whose evidence was given by reading their statements to the jury).
Defence witnesses
The applicant called no witness and did not give evidence at trial.
Proposed ground 1
In his final address, the prosecutor submitted that there were two competing versions: the first being that the applicant shot Mr Monteath; and the second being that the man with the fire extinguisher (Yusuf) was the shooter. To the extent that any of the witnesses (and in particular, Mr Graham, Mr Shane Grech and Mr Wayne Grech) gave evidence that they observed the man with the fire extinguisher using a handgun, the prosecutor invited the jury to reject that evidence as unreliable. In doing so, he relied in part upon the cross-examination of Mr Shane Grech by the applicant’s counsel that it was ‘a pretty dark night’ and that opportunities for observation were at least partially blocked or obscured. It is this part of the prosecutor’s address about which complaint is made in proposed ground 1.
The issue first arose at trial during the re-examination of Mr Graham. (Shane Grech and Wayne Grech gave evidence after Mr Graham). In re-examination, the prosecutor attempted to read an additional sentence of Mr Graham’s police statement to the effect that all three of the offenders were armed with guns. Given that both the prosecution and the defence case was conducted on the basis that only two of the offenders were armed with guns this was plainly intended as a foundation for a submission that, on this point, the witness was unreliable. This was objected to by counsel for the applicant. In substance, counsel for the applicant objected to the prosecutor leading or cross-examining Mr Graham.
Following the taking of the objection, there was a lengthy discussion between the judge and counsel about whether the prosecutor would be permitted to ask questions that might show that Mr Graham was mistaken when he told police that he saw the man with the fire extinguisher using a handgun. While the prosecutor did not formally make application under s 38 of the Evidence Act 2008 to cross-examine Mr Graham,[7] s 38 was referred to in the course of this discussion between the judge and counsel. Counsel for the applicant made it clear that he would oppose any application for leave under s 38. In the course of discussion, his Honour said:
I won’t allow the re-examination for several reasons, but I have a discretion of course under s 38 to exercise. I’m concerned that there will be this prejudice engendered that is not part of the Crown case, namely that three people were firing. I understand your point about wanting to point out that this witness whose given this account in cross-examination in a sense of saying that the person with the fire extinguisher fired the gun or a gun and you want to show that he’s unreliable and that this is one point in your potential armoury, if you like, to show the jury that he is unreliable in that respect; not least because the sentence that’s the subject of argument appears in the same passage immediately following the passage about the fire extinguisher person, but, as I say, I’m concerned that it introduces the spectre of another version of the Crown case which is not the Crown case and for really only a very small potential gain, so in other words its probative value to you is it’s very weak, it seems to me. You’ve still got the argument that well, this fellow was uncertain anyway about these things.
[7]As to which, see generally, Meyer v The Queen [2018] VSCA 140 [182].
Shortly thereafter, taking up from the judge’s observation, the prosecutor made it clear that he would say to the jury that on this issue the witness was unreliable. Later in the discussion, the judge described it as his ‘provisional view’ that the evidence the prosecutor sought to adduce in re-examination ‘shouldn’t be admitted for discretionary reasons … I’ve explained’.
Still later in the discussion, the prosecutor informed the judge that Shane Grech and Wayne Grech would likely also say that they observed the man with the fire extinguisher in possession of a gun. The judge responded by saying that this was another reason why he would ‘refuse leave’, and that this ‘confirm[ed] [his] view about this ruling’. Mr Graham was recalled and the prosecutor announced in front of the jury that he had no further questions in re-examination.
Subsequently, Shane Grech and Wayne Grech gave the evidence to which we have referred. The prosecutor did not make any further attempt to apply for leave to cross-examine any prosecution witness, and the matter proceeded to final addresses.
An examination of the trial transcript reveals that two matters were plain at trial. First, the applicant’s counsel opposed any attempt by the prosecutor to ask questions of any witness that suggested that their observation of the man with the fire extinguisher using a gun might be mistaken. Secondly, while the judge did not permit the prosecutor to ask questions of the kind that he attempted to ask Mr Graham in re-examination, the judge was prepared to let the prosecutor (and indeed the applicant’s counsel) to put any submission that was open on the evidence about the reliability of the impugned observations. Both trial counsel appear to have accepted that the trial would be conducted on that basis. It was thus unsurprising when trial counsel for the applicant made no objection at the conclusion of the prosecutor’s address to the submissions put by the prosecutor in final address and about which complaint is now made.
Notwithstanding that no complaint was made to the judge at the conclusion of the prosecutor’s final address, in his final address, the applicant’s counsel made a substantial attack on the Crown case on the basis that the prosecutor did not challenge the witnesses who had observed the gun in the hands of the man with the fire extinguisher. It was put by the applicant’s counsel to the jury:
There is a process open to the Crown to try to test, to try to cross-examine, to try to confront. And I cross-examined. They gave the evidence about the fire extinguisher man holding the firearm, without me having to undermine or to challenge, so because the Crown didn’t embark on that procedure, you, you, because you’re the triers of fact here, are in the position of having heard a closing address that goes for half a day on this point about why you should reject them, why you should just throw their evidence out, they’re just too unreliable, yet it has not been put to them so that they would have had an opportunity to respond to this lengthy argument so that you could engage with that process and determine well, listen to their response and say well, yeah, I don’t accept that explanation, oh yeah, I can see why you’re confused and perhaps why I should take up the suggestion by the prosecutor. You’ve been denied that. That just did not happen.
In his written case, the applicant asserts that the failure by the prosecutor to confront and challenge the reliability and accuracy of ‘the eyewitness testimony of the three independent witnesses’ has occasioned a substantial miscarriage of justice. The approach of the prosecutor was submitted to have had ‘manifold unfair consequences’. As put in the applicant’s written case, those consequences were:
First, it could not have been reasonably anticipated that the prosecutor would close in the manner that he did.
Second, the failure to comply with the rule in Browne v Dunn impacted on the forensic decision that the applicant would have to make as to whether he would give evidence or not.
As it stood at the close of the prosecution case, the applicant could call in aid eyewitness testimony that raised the reasonable possibility that it was Yusuf — and not the applicant — who was in possession of the weapon that fatally injured the deceased.
Third, a forensic advantage divested to the prosecution — at the expense of the applicant — because the prosecutor relied on evidence that he had not sought to contradict or challenge. Thus, the ‘balance’ of the trial was affected to the detriment of the applicant.
Fourth, the weight of the evidence of independent eyewitnesses was unfairly diminished and criminally concerned witnesses — who had a motive to be dishonest and unreliable — were given greater apparent verisimilitude.
Fifth, the failure by the trial judge to give a Browne v Dunn direction only compounded the prejudice and unfairness suffered by the applicant.
Finally, the understandable complaint by the applicant’s counsel to the jury highlighted the issue, but was unencumbered by any direction of law by the trial judge to the jury as to the appropriateness of the prosecutor’s conduct in failing to confront any of the eyewitnesses with the strong submission made in the closing address that they should reject their testimony.
None of these submissions can be accepted. Contrary to the applicant’s primary submission that ‘it could not have been reasonably anticipated that the prosecutor would close in the manner that he did’, it was entirely foreseeable that the prosecutor would so close. The prosecutor had said as much in argument. Moreover, the judge had said that this was the appropriate course, and no objection to that course was taken by counsel for the applicant.
Moreover, the applicant’s complaint about a supposed failure to comply with the rule in Browne v Dunn[8] borders on the fanciful. It may be unfair for a prosecutor to criticise a prosecution witness without putting relevant matters to the witness after first laying the ground by an application under s 38.[9] However there was no unfairness here.
[8](1894) 6 R 67.
[9]R v Kennedy (2000) 118 A Crim R 34, 41 Studdert J, Heydon JA and James J agreeing, R v Livermore (2006) 67 NSWLR 666-667.
First, the applicant’s trial counsel made no such complaint to the judge.
Secondly, in final address the prosecutor was not critical of the credibility of Joel Graham, Shane Grech or Wayne Grech. He contended that, given the circumstances of the offence, which were fast moving, involved three offenders, at night, with several shots being fired, and that each of the witnesses had given different versions on whether the person with the fire extinguisher had held a gun their evidence on that point was not reliable. In the circumstances fairness did not require the prosecutor to put any further matters to the witnesses or make any further application under s 38 in order for that to be done.
Thirdly, there were corrective directions that could have been sought from the judge, as the applicant’s fifth consequence set out above acknowledges, if the applicant thought that there had been any material failure to comply with the rule. No such directions were sought by trial counsel.
Fourthly, if any such corrective directions had been sought no doubt the applicant’s counsel would have been reminded that any failure by the prosecutor to intimate to a witness that his account would later be the subject of challenge in final address was a direct result of the submissions made by him to the judge that the prosecutor should not be permitted to take that course.
In so far as the applicant makes complaint in his written case about the failure by the judge to give particular directions (see the fifth and the final consequences asserted by the applicant and set out above) the short answer is that no such directions were ever sought by the applicant’s counsel at trial.[10] Undoubtedly no such directions were sought by the applicant because of the rational forensic decision his counsel made that he did not want any of the evidence he relied upon to be subjected to a successful cross-examination.
[10]Section 15 Jury Directions Act 2015.
Far from there being any unfairness to the applicant in the way in which the trial was conducted, it is plain that counsel for the applicant made a forensic decision to take whatever steps he could to prevent the prosecutor from cross-examining or challenging those witnesses who gave evidence that the man with the fire extinguisher also had a gun. Having watched the CCTV footage for ourselves, we can well understand why trial counsel for the applicant took this course. The CCTV footage alone provided a substantial basis for cross-examining and undermining any evidence to the effect that the man with the fire extinguisher was also the man who shot Mr Monteath. Cross-examination of the witnesses whom the applicant now says should have been ‘challenged’ by the prosecutor would, in all likelihood, have destroyed the only real argument of substance in the defence case.
In reality, if there was any unfairness at trial, it was perpetrated by counsel for the applicant attacking the Crown case in a way that was entirely unjustified having regard to the conduct of the trial. The applicant’s address criticising the prosecution for not ‘challenging the eyewitnesses’ was, to say the least, audacious. For present purposes, however, it is sufficient to say that proposed ground 1 is totally devoid of merit.
Proposed ground 2
Proposed ground 2 engages s 276(1)(a) of the Criminal Procedure Act 2009. That section requires the Court to allow an appeal against conviction if the Court is satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. As has been said many times before,[11] the relevant question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt: that is, whether the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt.
[11]See, eg, M v The Queen (1994) 181 CLR 487, 494–5; R v Hillier (2007) 228 CLR 618, 629–30 [20]; Libke v The Queen (2007) 230 CLR 559, 596–7 [113]; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66].
The applicant submitted that the evidence of Mr Graham and Shane and Wayne Grech required the jury to have a reasonable doubt about the identity of the shooter. As it was put in the applicant’s written case, there was ‘no compelling reason why their evidence should be rejected (especially in circumstances where it was not challenged)’. We reject that submission.
In truth, the evidence of Mr Graham and Shane Grech was not as definitive as the applicant would contend. By the time of trial, Mr Graham could not recall the man with the fire extinguisher having used a gun; and Mr Shane Grech conceded that he ‘only described the pen gun because it looked like the actions that he was doing with the extinguisher’. The only real evidence in support of the defence hypothesis that Yusuf may have been the shooter came from Wayne Grech.
That said, the scene at the time of the shooting was a chaotic one and, as counsel for the applicant cross-examined out of Shane Grech, it was dark and there were impediments to the making of sound and reliable observations. Additionally, it was open to the jury to conclude that the CCTV footage was inconsistent, and told against, the notion that the man with the fire extinguisher also used a gun.
The judge gave appropriate and detailed unreliability directions in relation to the evidence of Gurkan and Yusuf.[12] Those directions explained in a comprehensive way why the jury should have been very careful before accepting the evidence of those two witnesses. No complaint is now made about those directions.
[12]See s 32 of the Jury Directions Act 2015.
In the end, having reviewed all of the evidence for ourselves, we are not persuaded that this was a case where the jury must have entertained a doubt about the identity of the shooter. It was open to the jury to accept the evidence of Gurkan and Yusuf that the applicant was the one in possession of the revolver that was used in the shooting of Mr Monteath. While the jury might have entertained a doubt about the applicant’s guilt, it is simply not reasonably arguable to contend that they must have entertained such a doubt.
Proposed ground 2 is not reasonably arguable.
Applicant’s explanation for delay
In his affidavit, the applicant deposes to instructing various lawyers to pursue an appeal against conviction. At one point he put a solicitor (Ms Zarah Garde-Wilson) in funds to pursue an appeal. That money was refunded to the applicant’s daughter (Ms Selimovska) in September 2016, when Ms Garde-Wilson advised the applicant that there was ‘no merit’ in his appeal.
In her affidavit, Ms Selimovska deposed to collecting the funds that had been provided to Ms Garde-Wilson, and returning those funds to her grandparents. Ms Selimovska said that, at that time, her grandparents told her that they were ‘keeping the refunded money as they needed it and that they no longer were willing and able to fund the appeal’.
Subsequently, the applicant had difficulty obtaining funding for his appeal because (according to Ms Selimovska) the applicant’s wife would not permit funds to be released. Relations between the applicant and his wife improved, however, in around September 2017 and, as a result of this, the applicant was able to institute the current proceedings in November 2017.
The respondent submitted that the applicant’s explanation for his delay in commencing proceedings in this Court did not sufficiently demonstrate a satisfactory reason for the applicant’s failure to comply with the statutory time limit. It was also submitted that the applicant had failed to demonstrate ‘special or substantial reasons for extending time’.
In our view, the applicant’s explanation for his delay in commencing proceedings is, to say the least, thin. We are unpersuaded by it. Strictly speaking, however, it is not necessary for us to consider this issue further. The applicant’s proposed appeal against conviction is totally devoid of merit. There would be no utility in granting him the extension of time he seeks. For that reason alone, his application for an extension of time within which to appeal against his conviction should be refused. We are, however, fortified in this conclusion by the lack of any real explanation by the applicant for his delay of more than 16 months.
Conclusion
The application for an extension of time within which to appeal from conviction will be refused.
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