Keshtiar v The Queen
[2011] VSCA 122
•2 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2007 0848
| MOHAMMED AKBAR KESHTIAR | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and HARPER JJA and LASRY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 May 2011 | |
DATE OF JUDGMENT: | 2 May 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 122 | |
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Criminal law – Practice and Procedure – Previous application for leave to appeal against conviction abandoned – Whether application to withdraw notice of abandonment and reinstate appeal – Basis upon which court may permit withdrawal of notice of abandonment - Application for grant of leave to extend time within which notice of application for leave to appeal against conviction may be given refused by Acting Registrar – Determination of application by Court of Appeal – Application founded, at outset, on allegedly fresh evidence – New and different grounds relied upon in Court of Appeal - seven and a half years after verdicts – Applicable statutory regime - R v Davis (2003) 6 VR 538 - Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Valos Black & Associates |
| For the Crown | Mr J D McArdle, QC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
On 22 September 2003, Mohammed Keshtiar (conveniently, ‘the applicant’), a man now aged 41, was found guilty after trial in the County Court on counts of common assault (Count 1) and intentionally causing serious injury (Count 4). The events leading to these convictions occurred on the night of 28-29 May 2000. He thereafter pleaded guilty to a drugs offence on a second presentment. On 18 December 2003 he was sentenced to three months' imprisonment on Count 1 and to seven years and four months' imprisonment on Count 4. On the drugs count, he was sentenced to be imprisoned for three months, two months of which was cumulated on the sentence on the first presentment. The total effective sentence was thus seven years and six months' imprisonment. The judge fixed a non‑parole period of five years' imprisonment.
The applicant sought leave to appeal against conviction and sentence by notices dated 23 December 2003. The grounds of the conviction application were:
(1)the learned trial judge erred in the exercise of her discretion to exclude the evidence of the witness Peter Ross; and
(2)the verdicts of the jury are unreasonable and cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice.
The grounds did not identify the conviction(s) which the applicant sought to attack. But clearly, having regard to a later outline of submissions, it was his conviction on the count of intentionally causing serious injury, a conviction which arose out of the shooting of a security guard in a suburban nightclub.
Subsequent to the County Court trial, the applicant was found guilty, after trial in the Supreme Court, on two counts of attempted murder. The offences were committed on 18 January 2003 and the victims were his girlfriend and a male friend, each of whom he shot. On 26 April 2004, he was sentenced to a total effective sentence of 12 years' imprisonment for those offences, eight years of which was cumulated on the sentence imposed in the County Court. The consequence was an overall sentence of 15 years and six months' imprisonment. The judge fixed a new non‑parole period of 12 years' imprisonment.
The applicant sought leave to appeal against his conviction and sentence in the Supreme Court matter.
The two conviction and sentence applications were listed for hearing in this Court on 19 June 2006. Before that date, the notice of appeal in the County Court matter had been amended to add a third ground, namely –
(a)That there is fresh evidence relating to the conviction on the count of intentionally causing serious injury which has led to a miscarriage of justice.
(b)The fresh evidence was not available at the time of the trial; and
(c)The evidence is relevant, credible and is of such a nature that there is a significant possibility that the jury acting reasonably would have acquitted the applicant at trial if that evidence had been available at that time.
(d) That accordingly there has been a substantial miscarriage of justice.
By counsel's written outline of submissions, only ground three was to be pursued. To make the matter crystal clear, paragraph 1.2 of the submissions read-
It is not proposed to address argument in support of grounds one and two.
The gist of the written outline was that a statement had recently been made by Michael Wati, the victim of the shooting which had resulted in the applicant being found guilty of intentionally causing serious injury. It was said that Wati had retracted his identification of the applicant and that this was of decisive importance having regard to the significance of Wati's evidence at trial.
On 19 June 2006, however, applicant's counsel applied to adjourn the hearing of the County Court conviction application. At that stage, Wati had not sworn an affidavit which had been prepared in draft.
The Court refused the application to adjourn. It considered that there was no real prospect of the position with respect to the ability of the applicant to call the desired fresh evidence being different on any adjourned date. The Court also stated that -
As at present advised, we are of the opinion that the abandonment of the appeal would not preclude the applicant from mounting a fresh appeal in the event that the evidence which he seeks becomes available and is proffered to the Court.
On the oral application of senior counsel for the applicant, the applicant was then granted leave to abandon his applications.[1]
[1]His counsel had applied for grant of leave to abandon all extant applications.
On 3 November 2007, the applicant applied for an extension of time within which to give notice of application for leave to appeal against his County Court conviction. His application was supported by an affidavit of his then solicitor, Peter Monagle, sworn 18 October 2007. The gist of that affidavit, which referred to three affidavits sworn earlier on - one of them as early as 21 July 2006 -was that there was now different fresh evidence available which would exculpate the applicant. The fresh evidence was contained in the affidavit of Farhad Jamal, a man who had been involved in the incident which led to the applicant's conviction. Jamal averred that the applicant had not been the man who fired the shots which injured the victim.
The Director of Public Prosecutions opposed the application, contending that the alleged fresh evidence was different fresh evidence than that contemplated in June 2006, that there was no arguable ground of appeal, and that the Crown was prejudiced by the delay, exhibits having been destroyed and witnesses being difficult to locate.
The application was refused by the Acting Registrar of Criminal Appeals on 22 April 2008. A notice of election was sent to the applicant. He did not respond in good time. The file was closed. Then, by notice dated 23 December 2008, the applicant elected to have his application for extension of time determined by the Court of Appeal.
The application was eventually listed for hearing today. The delay was not attributable either to the Court or to the respondent.
In April this year, the applicant’s solicitors filed a statement of the grounds upon which their client proposed to rely. The grounds were as follows –
1A.The trial on count 4 (alleging the offence of causing serious injury intentionally) miscarried by a reason of the trial judge’s having failed properly to direct the jury on the lesser alternative of causing serious injury recklessly (preferred as count 5). In particular, the judge erred by, inter alia, directing that recklessness in law was made out by:
(a) foresight of ‘the risk of [serious] injury’; or
(b) knowledge of a ‘probable risk of [serious] injury’.
1B.The trial on count 4 miscarried by reason of the trial judge’s having failed, adequately or at all, to summarize the evidence and, in particular, the cross-examination of complainant Michael WATI.
2.The verdict on count 4 was unsafe and unsatisfactory, since a properly instructed and reasonable jury ought to have had a reasonable doubt about the guilt of the applicant.
It can be seen that: (1) there was now no reliance on fresh evidence, whether it be the evidence of Wati or Jamal; (2) grounds 1A and 1B were altogether new; and (3), ground (2) was a ground which had previously been raised but specifically not relied upon in the applicant's 2006 submissions.
But that was not an end to it. By written submissions dated 9 April 2011, counsel for the applicant abandoned reliance on the proposed ground 2, which was thus now abandoned for the second time. It follows that the applicant's election to have his extension of time application determined by this Court is now reliant upon two grounds, neither of which is the only ground which was relied upon when the application was initiated.
In my opinion, in the circumstances which I have described, this Court should refuse to grant the leave sought.
Before explaining that conclusion, I should make some mention of the applicable regime. It appears that the present application is governed by ss 572(1) and 582A of the Crimes Act 1958, and the Rules of Court applicable thereto, rather than by ss 278, 279(1) and 313 of the Criminal Procedure Act 2009 and the applicable rules; see clause 10(4) of Schedule 4 of the latter Act. Both counsel agreed that this was so. But in any event, as I see it, nothing turns on which provisions apply. There is no reason to think that the discretion reposed in the Court by s 572(1) of the Crimes Act and by s 313(2) of the Criminal Procedure Act is any different. Further, the consequences of abandonment under the rules which preceded the commencement of the Civil Procedure Act, the rules being authorised by s 583 of the Crimes Act, appear to be no different to the regime introduced by s 314 of the Criminal Procedure Act and by Rules 2.40 and 2.41 of Chapter VI.
I return to explain my conclusion. The application before the Court is, as I have already said, an application to extend time for giving notice of application for leave to appeal against conviction. It is not an application which seeks the Court's permission to withdraw the notice of abandonment in the exercise of the Court's inherent jurisdiction, although counsel for the applicant initially submitted to the contrary today. That is not what was contemplated by this Court in what it said on 19 June 2006. Moreover, even if that had been what the Court contemplated, it was only in circumstances where Wati’s foreshadowed retraction became available.
I add this. Even if the matter was treated as an application to withdraw the notice of abandonment, that would not assist the applicant. The particular jurisdiction has been confined almost entirely to cases where it can be said that the mind of the applicant did not go with the notice of abandonment. See, in Victoria, R v Gardiner,[2] R v Zakarian,[3] R v Scott,[4] and R v McNamara(No 2),[5] decisions consistent with the English decision in R v Medway,[6] which was approved by the Court of Appeal in R v Grant.[7] There is no reason to conclude that in June 2006 the applicant did not intend to abandon his then-extant applications. His counsel stated that he had written instructions to do so.
[2][1970] VR 278.
[3][1971] VR 455.
[4][1971] VR 381.
[5][1997] 1 VR 257.
[6][1976] QB 779.
[7][2005] EWCA Crim 2018. This line of authority may be contrasted with several decisions in the New South Wales Court of Criminal Appeal: R v Bell (1987) 8 NSWLR 312, 313; R v Cartwright (1989) 17 NSWLR 243.
It has been postulated that circumstances may arise where a person files a notice of abandonment in the belief that at a latter stage it is open to reinstate the appeal on a new ground anticipated to arise in the future: La Rosa v R,[8] citing Johnson v R.[9] But that was not the situation in the present case.
[8](1999) 105 A Crim R 362, 371 (Pidgeon J, with whom Malcolm CJ and Kennedy J agreed).
[9](1992) 57 A Crim R 290.
Focusing upon the application which is before the Court, the proper approach is that stated by Winneke ACJ in R v Davis –
[5]The bases upon which this court will grant an application to extend time for leave to appeal against conviction and/or sentence are not in doubt. Those bases were conveniently summarised by Gowans J in the case of R v Darby and encapsulated in the reasons for judgment of the Full Court in the case of R v O’Keefe. They have been followed in this court subsequently in numerous applications, including R v Martin, R v Craker and other cases. As Gowans J said in the case of Darby:
The principles which govern an application for extension of time are as follows:
(1) the prescription by the statute of the time limit for giving notice is intended to secure finality, and compliance is intended to be required in the ordinary case;
(2) extension of the time is a matter for discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3) rigid restrictions cannot be imposed on the exercise of discretion, but in general the Court will require special and substantial reasons for extending the time;
4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6) a reasonably satisfactory account of the failure to comply with the statutory requirements needs to be forthcoming.
In the case of O’Keefe, the court, having referred to those principles set forth by Gowans J, went on (at 5 of the report):
An applicant who has been dilatory or has acted in such a way as to indicate that he does not intend to appeal has small, if any, claim to the exercise of the discretion of the Court in his favour. On the other hand, if the applicant has acted promptly, his case will be considered very differently. Where there has been a long delay the practice of the Court has not been to grant the extension sought unless it is clear that the decision is attended with such doubt as to make it probable that the appeal will succeed.
[6]It is to be emphasised that the court’s decisions upon applications of this kind involve discretionary considerations, and the longer the time which elapses between the closure of the statutory time limit and the date of the application, the more exceptional will the circumstances have to be. Certainly the applicant must, in any case, put forward material to demonstrate satisfactory reasons for the failure to comply with the time and also to show, in the event that the time lapse is considerable (as it is in this case), that there are such merits in the proposed appeal that it will probably succeed.[10]
[10](2003) 6 VR 538, 539, [5]-[6].
In the present case, the following circumstances are pertinent:
1. The offending of which the applicant was found guilty was committed 11 years ago.
2. The applicant was found guilty more than seven and a half years ago.
3. Two of the three grounds sought to be relied upon in the April 2011 statement of grounds were raised then for the first time - seven and a half years after the jury returned its verdicts.
4. Those two grounds could have been, but were not, the subject of exception at trial. No explanation has been offered why no exception was taken.
5. The applicant has given no explanation why grounds 1A and 1B were not advanced when he sought leave to appeal against conviction in December 2003.
6. The third ground (numbered 2) set out in the April 2011 statement of grounds, was raised at the outset. But it was specifically not pursued when the application for leave to appeal against conviction was to be heard in June 2006. Now it has been not pursued again.
7. The only ground which was to be relied upon in June 2006 ‑ that is, fresh evidence constituted by Wati’s alleged recantation - is not now pursued.
8. In June 2006, this Court contemplated a single basis for the applicant making a new application for leave to appeal against his County Court conviction – that Wati went on affidavit and recanted his identification of the applicant.
9. The only ground upon which the present application was supported at the outset - that is, fresh evidence constituted by Jamal's affidavit - is not now pursued.
10. To judge by past events, it is likely that the Crown would be prejudiced if there was to be a retrial by difficulty in locating witnesses. I note that the applicant's trial was aborted in November 2002 because Wati, who is a New Zealand resident, could not be located and now more than a further eight years have gone by.
11. It is not at all probable, in my opinion, that an appeal would succeed on either proposed ground 1A or 1B. But, in any event, such prospect of success as there may be is overwhelmed by the other considerations to which I have adverted.
Proposed ground 1A is essentially a complaint that the judge did not summarise Wati's evidence, but rather told the jury that he was the single most important witness in the trial, that his evidence was crucial and that the transcript of his evidence was available if the jury wanted any part of it read out.
The judge's summary of Wati's evidence was undoubtedly short. It contrasted with her summaries of the evidence of less important witnesses.
It was not satisfactory for her Honour to invite the jury, as she did, to tell her if it wanted any of Wati’s evidence read out. But counsel for the applicant did not object to the course and there was good forensic reason why he would not have objected. The witness’s evidence was damning of the applicant, whereas some other evidence adduced by the prosecution was arguably more advantageous to his client. Moreover, the cross‑examination of Wati was largely tangential and a summary of his evidence by the judge was likely to have underlined that fact. Again, the applicant had the benefit, rightly, of extensive warnings with respect to identification evidence.
None of what I have said should be taken to endorse a practice of judges not summarising the evidence of important witnesses and relating that evidence to the issues in the trial. But the judge’s invitation to the jury, repeated after the jury foreman had asked what would happen if, after discussion, ‘someone decides that they would like to hear some of that evidence’, and the understandable acquiescence of applicant’s counsel in the course adopted, have persuaded me that what the judge did in the particular case was just adequate. In all, ground 1B, though having some merit, is overwhelmed by the other considerations which I have mentioned and which tell against the success of this application.
Ground 1A seeks to attack the direction which the judge gave on an alternative count on which the applicant was not convicted - that is, a count of recklessly causing serious injury. Counsel referred to cases which show that such a misdirection can cause the trial on the primary count to miscarry: R v Kane,[11] Gilbert v R,[12] compare King v R.[13]
[11](2001) 3 VR 542.
[12](2000) 201 CLR 414.
[13][2011] VSCA 69.
In this case, applicant's counsel submitted, the judge unduly distinguished the mens rea of the lesser offence from the state of mind necessary to make out the primary offence. The foresight required by the lesser offence was described by the judge, counsel submitted, as being very low. In consequence, counsel submitted, the jury was, by implication, nudged towards a preference for the guilty verdict on the primary count.
In my opinion, those submissions lack force. Having directed to the jury that it would only consider the lesser offence if it found the applicant not guilty on the counts ‑ there were two of them ‑ of intentionally causing serious injury, the judge said this with respect to the mental element of the lesser offence –
For a person to act recklessly, he must foresee the risk of injury occurring or being inflicted as a result of his acts. He must then determine to act in that manner, despite what he foresees would be the probable consequences of those actions. So he has to foresee that if I take these actions there is a probability, not a possibility, a probability that serious injury will result, that I am going to go ahead and take these actions despite that.
So a person is reckless if he acts knowing that there is a probable risk of injury being inflicted as a result of those acts, that he proceeds on to act, nevertheless, not caring whether or not injury is caused as a result.
At several points, it can be seen, the judge referred to injury rather than serious injury. At the instance of the prosecutor, that apparent slip was remedied:
You will recall when I was telling you about intentional, I said that it is not sufficient that the Crown prove that the accused intended to cause injury; they must prove that he intended to cause serious injury. When I was talking to you about reckless, I did not refer to that aspect of it. What I said was, he must turn his mind [to] the probability of injury being caused. Of course, it must be the probability of serious injury being caused, not injury. That would be insufficient. The probability must be that serious injury would be caused and he, despite that, continues with his actions. That would constitute reckless. So that aspect must include the serious injury, not just injury.
The mental element of the offence of recklessly causing serious injury is this: the prosecution must prove to the criminal standard that at the time the accused did the relevant act, he or she was aware that the act would probably result in the
complainant being seriously injured; that is, that the applicant knew the complainant was likely to be seriously injured by his or her actions.
Applicant's counsel focused upon the judge's reference to foresight of injury. He contrasted that with foresight of probability of serious injury. He made another contrast between the latter concept and a probable risk of injury.
In my opinion, what counsel did was to deconstruct a short passage in the judge's charge in an artificial and unrealistic way. At the heart of the passage was the concept that the accused must have foreseen that the probable consequence of his actions was serious injury. That concept accurately described the necessary mental element. In the circumstances, it is unsurprising that no exception was taken to the charge by applicant's then counsel.
I add only this: Wati's evidence was, as applicant’s counsel contended, of great importance. On Wati’s evidence, there was not the slightest prospect, if identification was established, of the applicant being found guilty of recklessly -rather than intentionally - causing serious injury.
In those circumstances, I propose that the application be refused.
HARPER JA:
I agree, for the reasons given by the learned presiding judge, that the present application should be refused.
LASRY AJA:
I also agree, for the same reasons, that the application should be refused.
ASHLEY JA:
The formal order of the Court is that the application for leave to extend time within which to give notice of application for leave to appeal against conviction is refused.
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