Marrogi v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0067

GEORGE MARROGI	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, MACAULAY and HARGRAVE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2023
DATE OF JUDGMENT:	19 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 83
JUDGMENT APPEALED FROM:	DPP v Marrogi (Unreported, Supreme Court of Victoria, 15 December 2021, Coghlan JA) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Murder – Circumstantial case – Whether jury’s verdict is unreasonable or cannot be supported by the evidence – No hypothesis consistent with innocence reasonably open – Leave to appeal refused – Criminal Procedure Act 2009 s 276(1)(a) – M v The Queen (1994) 181 CLR 487 – R v Baden-Clay (2016) 258 CLR 308.

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Counsel
Applicant:		Mr M Morrissey SC with Ms A Dixon
Respondent:		Mr B F Kissane KC with Mr G Buchhorn
Solicitors
Applicant:	Melasecca Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MACAULAY JA
HARGRAVE JA:

Introduction

Kadir Ors (for the sake of convenience, ‘Ors’), a man aged 24 years, was shot dead at about 3.24 pm on Monday, 26 September 2016, in the vicinity of the Campbellfield Shopping Plaza (‘the Plaza’) carpark. George Marrogi, the applicant, then aged 27,[1] was charged with his murder. More than five years later, on 15 December 2021, a jury in the Supreme Court found the applicant guilty of Ors’ murder.[2] On 29 April 2022, the trial judge sentenced the applicant to be imprisoned for 32 years, with a non-parole period of 27 years.[3]
[1]His date of birth is 25 March 1989.
[2]There were three previous trials. In the first trial, the jury failed to agree upon a verdict. In the other two trials, the jury was discharged without verdict because of juror difficulties.
[3]DPP v Marrogi [2022] VSC 210.
The applicant seeks leave to appeal against his conviction on a ground that contends that the jury’s verdict
is unreasonable and cannot be supported having regard to the evidence because on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was the person who shot and killed the deceased.
We would refuse leave to appeal. For the reasons that follow, we consider that it was open to the jury to be satisfied beyond reasonable doubt ‘that the applicant was the person who shot and killed the deceased’.

Overview of the shooting

As we have mentioned, Ors was fatally shot in the vicinity of the Plaza carpark during the afternoon of 26 September 2016.
The Plaza carpark, which services the shopping complex, is roughly oblong in shape, and is oriented north-south. At the northern end of the carpark is an Officeworks store (‘Officeworks’), the entrance to which faces west onto the carpark. Immediately in front of the store, angle parking bays adjoin the footpath. The north-western corner of the shopping complex buildings is situated a short distance north along the footpath from Officeworks. Extending to the north and east of that corner of the complex is a grassed area. A dirt path runs roughly north-easterly through that grassed area to a bus shelter with a bench seat, situated in Jeffrey Street. The bus shelter is located in that part of Jeffrey Street which runs along the northern boundary of the Plaza. Mahoney’s Road runs east-west on the southern boundary of the Plaza. Entering from Mahoney’s Road, Jeffrey Street runs in a northerly direction along the eastern boundary of the Plaza, then curves at the north-eastern corner to run from east to west.
A number of the Plaza shops were fitted with external closed circuit television (‘CCTV’) cameras which captured the critical events in the Plaza carpark and the area of the bus shelter. Hence, CCTV footage played at trial showed that, at 3.05 pm, a white Range Rover (‘the Range Rover’) arrived at the Plaza carpark and reverse parked outside Officeworks. In the Range Rover were Sam Abdulrahim (‘Abdulrahim’) and Nivin Yousef. CCTV footage also established that Ors arrived at the Plaza carpark at 3.11 pm in a white Jeep (‘the Jeep’). He had travelled there with Daha Amin and Maythan Hamed. Ors can be seen on CCTV footage getting out of the front passenger side of the Jeep at about 3.12 pm and walking easterly through the carpark towards the entrance of Officeworks. Abdulrahim is then seen to get out of his vehicle, and he and Ors shake hands and embrace. They then walked out of the view of the CCTV cameras for about five minutes.
Significantly, at 3.17 pm, Ors, Abdulrahim and Alex Harrouk (‘Harrouk’) — who had earlier arrived at the Plaza carpark in a maroon Commodore, ostensibly to meet Abdulrahim for lunch — are seen on CCTV footage walking together along the path through the grassed area to the bus shelter, where they remained for about seven minutes.
CCTV footage played at trial also showed the passage of a stolen red Holden Commodore Clubsport, registration number XMB 477 (‘the red Commodore’), from the vicinity of Beechworth Avenue, Greenvale — the street in which the applicant resided — to the Plaza. Thus, the red Commodore was caught on CCTV footage from a camera located at Kolbe Catholic College (‘Kolbe College’) on Lysterfield Drive, Greenvale — which adjoins Beechworth Avenue — leaving Beechworth Avenue at 3.04 pm. CCTV footage showed that it arrived at the Plaza carpark at 3.20 pm. The footage shows the red Commodore to drive slowly around the carpark for four minutes or so, before hurriedly driving onto, and along, Jeffrey Street. (A witness Steven Hawkins gave evidence that, as the red Commodore left the carpark, it cut him off. He said the red Commodore was being driven at high speed with a flat tyre.)
At 3.24 pm the red Commodore pulled up in Jeffrey Street, a few metres east of the bus shelter where Ors, Abdulrahim and Harrouk, were apparently talking. CCTV footage shows that Ors then commenced to walk back in the direction of Officeworks. When the driver of the red Commodore — dressed in black and wearing gloves — emerged from the vehicle armed with a handgun, Ors and the others started to run away. Ors is seen on the footage to run back towards Officeworks, whilst Abdulrahim and Harrouk appear to run more westerly towards Sydney Road. Ors is seen to be chased by the driver, who is shooting at him. The shooter fired the handgun at Ors eight times, including after Ors fell to the ground outside Officeworks (‘the first shooting’). The shooter then returned to the red Commodore in Jeffrey Street, and once more drove into the Plaza carpark. He drove to a position adjacent to where Ors lay wounded, then fired five more bullets at Ors from the driver’s seat through the passenger side window (‘the second shooting’).
As we have said, the person who shot Ors — by its verdict, the jury found that person to be the applicant — confronted him first in the area of the bus shelter. Ors was then pursued and shot. In all, some 13 rounds were fired in the course of the first shooting and the second shooting. Ballistic evidence revealed that all 13 rounds were nine millimetre Sellier & Bellot brand ammunition, fired from a nine millimetre semi-automatic pistol. The ballistic evidence included that of Alan Pringle, a firearm and toolmark examiner with the Victoria Police Forensic Services Centre, who testified that he had examined the 17 cartridge cases that had been recovered.[4] From markings left on a number of the cartridges — including firing pin impressions, extractor marks and rifling characteristics — he was able to say that they were all fired from ‘a nine-millimetre Luger calibre … semi-automatic pistol’. He could not identify the precise weapon used — the weapon used to shoot Ors was never recovered — but said that ‘various manufacturers’ produced weapons of that kind that were capable of being loaded with between seven and 18 nine millimetre cartridges.
[4]Thirteen were recovered from the vicinity of the Plaza, and four more were located in or near the red Commodore after its detection in Katandra Crescent, Broadmeadows.
In the evening of the day he was shot, at 11.26 pm, Ors died from his injuries at the Royal Melbourne Hospital. He had suffered seven bullet wounds to his buttocks, back, left upper arm, left thigh and lower leg. Although some of the bullets had passed all the way through his body, during an autopsy performed the following day, 27 September 2016, forensic pathologist, Dr David Ranson, recovered four projectiles from Ors’ left lower leg, right lower chest, left posterior arm and left lower abdominal wall. Dr Ranson gave evidence that the cause of Ors’ death was ‘gunshot wounds’, many of which ‘contributed to substantial blood loss’, that blood loss being the ‘mechanism of death’.
Returning to the narrative, at about 3.26 pm the red Commodore hastily drove out of the Plaza carpark pursued by the Jeep. At about 3.29 pm, the pursuit reached the roundabout on Blair and Riggall Streets, Broadmeadows. Part way through the roundabout, the driver stopped the red Commodore, got out of it, and fired four shots at the Jeep. The Jeep then drove west along Riggall Street with the red Commodore following. Witnesses observed that the red Commodore’s rear near-side tyre had blown out, and the vehicle was not travelling very fast.
Travelling in a roughly westerly direction along Riggall Street from Blair Street, one encounters Pearcedale Parade — which runs roughly north-south — on the left, forming a ‘T’ intersection with Riggall Street. If one continues westerly on Riggall Street, Nathalia Street intersects with it on the right. Turning right from Riggall Street onto Nathalia Street, a person then travels in a roughly north or north-easterly direction. A short distance along Nathalia Street (travelling north or north-easterly) Katandra Crescent intersects with it on the left. Turning left onto Katandra Crescent, one travels in a roughly north-westerly direction, until one reaches a bend adjacent to parkland, at which point Katandra Crescent heads back south-westerly to intersect with Riggall Street. It is also possible for a vehicle travelling westerly on Riggall Street to go past Nathalia Street, make a right turn onto Katandra Crescent, negotiate the bend, turn right at Nathalia Street, and then come once more to Riggall Street.
Debris from the red Commodore’s rear passenger-side tyre was found on the roadway on Riggall Street, between Pearcedale Parade and Nathalia Street, by police attached to the Hume Crime Investigation Unit at 3.45 pm. Moreover, CCTV footage captured from cameras situated on homes at number 12 and number 19 Katandra Crescent showed the red Commodore drive past, coming from the direction of Nathalia Street, at around 3.30 pm. It did not drive past those addresses again. That evidence strongly suggests that, from the roundabout at Blair and Riggall Streets, the red Commodore continued along Riggall Street — leaving tyre remnants on the road prior to reaching Nathalia Street — then made a right-hand turn onto Nathalia Street, before turning left onto Katandra Crescent. Its progress along Katandra Crescent at 3.30 pm was then caught by CCTV cameras at numbers 12 and 19.
When eventually located by police, at 4.02 pm, the red Commodore had apparently negotiated the left-bend on Katandra Crescent, and had then been parked very close to the bend outside number 8 Katandra Crescent, facing towards Riggall Street, with the damaged rear near-side tyre against the kerb. As we have indicated, there is an area of parkland immediately to the right.
At 3.35 pm, police attached to the Hume Crime Investigation Unit received information via police communications that there had been a shooting at the Plaza, and that the offender had escaped in a red Holden Commodore sedan. A few minutes later, at 3.40 pm, Acting Detective Senior Sergeant Jerry Mircovic, Detective Senior Constable Thomas Miles, Detective Leading Senior Constable Andjelko Miljesic and Detective Senior Constable Luke Coulhoun then left Broadmeadows Police Station in an unmarked police sedan, using the callsign ‘Hume 559’. Detective Mircovic was the driver; Detective Coulhoun was in the back seat behind him; Detective Miljesic was in the front passenger seat; and Detective Miles was in the rear passenger seat behind him. They were looking for a red Commodore. At 3.45 pm, they observed a section of damaged tyre on the southern side of the road on Riggall Street, Broadmeadows, between Nathalia Street and Pearcedale Parade, which Detective Miles photographed. The officers in Hume 559 then resumed their search, now looking for a red Commodore with a ‘blown-out tyre’. They were ‘flying round’ a ‘rabbit warren’ of local streets until they heard a radio call from Leading Senior Constable George Debrincat at 4.02 pm that the offender’s car had been located in Katandra Crescent. At 4.08 pm they attended at Katandra Crescent and saw Leading Senior Constable Debrincat guarding the red Commodore, which was parked on the southern side of the road, facing west, outside number 8. Of significance for the applicant’s contentions, at about 3.49 pm Hume 559 officers’ sedan had entered Katandra Crescent from Riggall Street, and was captured on CCTV footage driving past numbers 12 and 19 Katandra Crescent towards Nathalia Street after negotiating the right hand bend situated at about number 8.
We pause to note the importance of the police officers’ evidence. After finding the tyre debris at 3.45 pm, the officers in Hume 559 drove along Katandra Crescent (and past numbers 12 and 19) at 3.49 pm, yet did not notice the red Commodore parked at the kerb outside number 8. Detective Miljesic’s evidence was that he may have missed the red Commodore because he was looking at the park. Detective Miles’s evidence was that it was possible he missed it. Detective Mercovitch said he did not see the red Commodore, and Detective Coulhoun had no memory of the search. The defence case was that, if the red Commodore had indeed been parked outside number 8, the four police could not have failed to see it. Since the police did not see it, so the defence argued, that meant that the red Commodore must still have been ‘mobile’ at 3.30 pm, and could not have been parked at the place where it was eventually found until some time after 3.49 pm. That in turn meant that the applicant could not have been driving the red Commodore, since the evidence established that the applicant was at or near his Beechworth Avenue address at 3.49 pm. The evidence established that the applicant answered a telephone call on his mobile phone at 3.49 pm, and that the call ‘pinged’ off a telephone tower in Roxburgh Park, being the dominant telephone tower for the applicant’s Beechworth Avenue address. Furthermore, at a time when, on the prosecution case, the applicant was in possession of his sister’s Mercedes, CCTV footage recorded at 3.58 pm showed the Mercedes near his residence and travelling away from it. He was still in possession of the Mercedes at 4.38 pm when he arrived at the Craigieburn Police Station to report on bail. If the red Commodore had only been parked outside 8 Katandra Crescent at or after 3.49 pm, it was impossible that the applicant had been its driver (and, therefore, the person who shot Ors). It was a physical impossibility for the applicant to have simultaneously been dumping the car in Broadmeadows whilst taking a telephone call near his home in Greenvale.
When the red Commodore was discovered, a piece of cardboard apparently torn from a box that had held Sellier & Bellot brand Luger nine millimetre ammunition was found on the driver’s seat. Upon inspection, one can observe ‘9mm LUGER’, ‘9mm PARA’ and ‘9 x 19’ printed on the piece of cardboard. A partial fingerprint was located on the piece of ammunition box (albeit that a fingerprint expert, Sonia Geremia, gave evidence that the partial fingerprint on the lid was insufficient to be useful for comparison purposes). More importantly, however, the applicant’s DNA was also found on the piece of box.[5] Sellier & Bellot brand nine millimetre ammunition had been used in the first shooting and the second shooting, and when shots were fired at the Riggall Street roundabout.
[5]At trial, the defence did not contest that it was the applicant’s DNA. A forensic biologist, Maxwell Jones, gave evidence that it was at least one hundred billion times more likely that the applicant was the source of the DNA on the ammunition box lid than another randomly selected person.
The red Commodore belonged to Elvis Kesic. Trent Johnson stole it on 25 September 2016 and passed it on to Abdul El Abed (‘El Abed’) the same day. When questioned by police, El Abed initially denied having possessed the car. Forensic analysis, however, detected El Abed’s DNA in and around the red Commodore. El Abed accepted that he knew the applicant. On 25 September 2016 — the day the red Commodore was stolen — there were 19 calls or text messages between El Abed and the applicant. El Abed explained that these related to his purchase of drugs. He said, however, that even though he had a significant drug problem and had called to ‘buy drugs’, he could not recall going to the applicant’s house that day (although he accepted that he had done so in the past). The prosecution relied on this connection with El Abed to explain how the applicant came to be in possession of the red Commodore.
As we will later discuss in greater detail, the prosecution relied on several pieces of CCTV footage to establish that the applicant had the opportunity to shoot Ors. First, footage captured at 1.05 pm showed the applicant at Highpoint Shopping Centre (‘Highpoint’) in Maribyrnong with his sister. Secondly, footage showed him leaving Highpoint just after 2.00 pm with his sister, arriving at Broadmeadows Shopping Centre at 2.42 pm. Thirdly, the applicant drove away from there in his sister’s car at 2.45 pm. Fourthly, at 2.53 pm, the car was captured on CCTV close to the applicant’s address. Fifthly, ten minutes later the red Commodore was captured by CCTV heading away from the vicinity of the applicant’s residence, and was captured on several cameras en route towards the Plaza.

The applicant’s submissions

In this Court, the applicant’s counsel submitted that the jury in the applicant’s trial could not reasonably have excluded the hypothesis that the person who shot Ors was not the applicant, but some other person.[6]
[6]Counsel cited M v The Queen (1994) 181 CLR 487 (‘M’), 492–4; R v Hillier (2007) 228 CLR 618, 637 [46] (‘Hillier’); Libke v The Queen (2007) 230 CLR 559, 596–7 (‘Libke’); and Abbas v the Queen [2022] VSCA 39.
Somewhat simplified, the argument advanced by applicant’s counsel had five principal limbs:
·    First, it is highly improbable that the red Commodore was abandoned in Katandra Crescent prior to 3.50 pm, making it virtually impossible that the applicant could have been driving it shortly after Ors was shot.
·    Secondly, the piece of cardboard from the ammunition box found in the red Commodore containing the applicant’s DNA was a ‘moveable object’, so that, although the DNA may have connected the applicant to the ammunition box, it did not necessarily connect him to the red Commodore (particularly in circumstances where no other part of the vehicle was found to contain his DNA).
·    Thirdly, although DNA from one or more unidentified individuals was found on four parts of the red Commodore — including the gear stick and steering wheel — neither the applicant’s DNA nor his fingerprints were found in any fixed location within it.
·    Fourthly, it was common ground at trial that the CCTV which captured the shooting in the vicinity of the Plaza would not alone permit the jury to be satisfied beyond reasonable doubt of the identity of the applicant by comparing images of the shooter and images of the applicant — the judge directed the jury to that effect — and, in any event, there are clear points of distinction between the shooter as depicted in the footage and the contemporaneous appearance of the applicant shown in other images and footage.
·    Fifthly, there were a number of evidentiary ‘gaps’ in the prosecution case, including (but not limited to): the absence of any evidence of a connection between the applicant and Ors, let alone any animus between them; the lack of any direct evidence that the applicant had been inside the red Commodore; and the absence of evidence that Abdulrahim could have (or did) advise the applicant of Ors’ movements at relevant times.

The respondent’s submissions

Counsel for the respondent submitted that there was ample evidence from which the jury could reasonably conclude that it was the applicant who shot Ors. None of the matters relied upon by the applicant represented ‘barriers’ to the jury safely being satisfied of the applicant’s guilt beyond reasonable doubt. There was, senior counsel submitted, no ‘solid obstacle’ standing in the way of the inference that the applicant was the person who shot Ors. Indeed, counsel submitted, the combined force of the evidence demonstrated that only one reasonable hypothesis was open; that is, that the applicant was the shooter. This was so, given that the applicant:
·    was connected to Abdulrahim, who provided a means of knowing Ors’ whereabouts at the time of the shooting;
·    could be connected to the red Commodore on the day before the shooting;
·    was in close physical proximity to the red Commodore at the time it left the street on which the applicant lived en route to the Plaza;
·    left Broadmeadows Shopping Centre in an apparent hurry to return to his home, in circumstances where the red Commodore emerged from his street minutes after he must have arrived at his residence;
·    shared ‘striking features’ that resembled the shooter;
·    had deposited his DNA on the cardboard lid of a box for the very same ammunition used to shoot Ors; and
·    had sufficient time to abandon the red Commodore and return to his residence.

Discussion

The applicable principles

The applicant’s sole ground of appeal invokes s 276(1)(a) of the Criminal Procedure Act 2009, which requires the Court to allow an appeal against conviction if the appellant satisfies the Court that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. Recently, in Pell,[7] the High Court reaffirmed[8] that the correct approach to a ground such as this is as set out in M. Hence, the Court must ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[9] After examining the record, the Court must set aside the verdict if satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt.[10]
[7]Pell v The Queen (2020) 268 CLR 123 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
[8]Ibid 145 [39].
[9]M, 493, 494–5.
[10]Pell, 145 [39].
As we have mentioned, in oral argument senior counsel for the respondent submitted that an examination of the evidence revealed that there was no ‘solid obstacle’ to the applicant’s conviction. It is to be noted that this was one of two metaphors — drawn from Shah[11] and Morabito[12] — given apparent endorsement by Maxwell P in Klamo.[13] Notwithstanding that apparent endorsement, it needs to be understood that the relevant test remains as was laid down in M. Thus, it was observed in O’Brien:[14]
It needs to be borne steadily in mind that the metaphors referred to … are no more than that. They were apt for the facts of the cases from which they were drawn, but it should not be thought that they add any gloss or additional requirement to the essential test spelled out by the High Court in M[15] (and the later cases in the High Court which apply it[16]) — whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Such metaphors — convenient for the cases in which they were used — should not be permitted to obscure (let alone displace) the fundamental test prescribed by M.
The two metaphors referred to by Maxwell P in Klamo are derived respectively from remarks of Doyle CJ in Shah and Mason P in Morabito. In Shah,[17] the Court of Criminal Appeal of South Australia, by a majority (Doyle CJ and Sulan J, Debelle J dissenting), set aside as unsafe and unsatisfactory convictions for wounding with intent to cause grievous bodily harm and assault. The convictions had arisen out of an attack in a suburban Adelaide street in the early hours by one group of men on another group. Identification was in issue. Evidence from a security video — if the time was correctly recorded on the video — showed that the appellant could not have been in the vicinity of where the attack took place at the time that it occurred. There was no evidence that the time recorded by the video was incorrect. Doyle CJ agreed with the reasons of Sulan J (who applied the test from M),[18] and added:[19]
The real obstacle to acceptance of the prosecution case is, as Sulan J says in his reasons, the evidence from the security cameras strongly suggesting that Mr Shah was still at the hotel when the attack was happening. I agree with Sulan J that there was no basis upon which the jury could have been satisfied that the attack occurred later than Sulan J puts it, or that the security cameras displayed incorrect times. It was not open to the jury to speculate that, for some unknown reason, the evidence about the time of the attack, or from the security cameras, was unreliable. There was simply no basis upon which the jury could put that evidence aside. This body of evidence is, on the material before the jury, a solid obstacle to reaching a conclusion beyond reasonable doubt, based upon the identification evidence and the other circumstantial evidence, that Mr Shah was a participant in the attack.
[11]R v Shah [2007] SASC 68 (‘Shah’).
[12]Morabito v the Queen [2007] NSWCCA 126.
[13]R v Klamo (2008) 18 VR 644, 654 [40].
[14]O’Brien (a pseudonym) v The Queen [2014] VSCA 94, [79]–[80] (Priest JA) (citations as in original).
[15]M v The Queen (1994) 181 CLR 487 (‘M’).
[16]Jonesv The Queen (1997) 191 CLR 439; Gipp v The Queen (1998) 194 CLR 106; MFA v The Queen (2002) 213 CLR 606; R v Hillier (2007) 228 CLR 618; SKA v The Queen (2011) 243 CLR 400. See also Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J).
[17]R v Shah [2007] SASC 68.
[18]Ibid [143].
[19]Ibid [4] (emphasis added).
Moreover, in Baden-Clay the High Court spelled out the approach to be adopted in a circumstantial case such as the present:[20]
The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled.[21] In Barca v The Queen,[22] Gibbs, Stephen and Mason JJ said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King.[23] To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen;[24] see also Thomas v The Queen.[25]
For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’[26] (emphasis added). Further, ‘in considering a circumstantial case, 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’[27] (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[28]
[20]R v Baden-Clay (2016) 258 CLR 308, 323–4 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations as in original).
[21]Barca v The Queen (1975) 133 CLR 82 at 104.
[22](1975) 133 CLR 82 at 104.
[23](1911) 13 CLR 619 at 634.
[24](1963) 110 CLR 234 at 252.
[25](1960) 102 CLR 584 at 605–606.
[26]Peacock v The King (1911) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133 CLR 82 at 104.
[27]R v Hillier (2007) 228 CLR 618 at 637 [46] (footnote omitted).
[28]R v Hillier (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535.

The key evidence

In our view, based on six key pieces of evidence, it was well-open to the jury to be satisfied beyond reasonable doubt that the applicant was the person who shot Ors, and was therefore guilty of Ors’ murder. Indeed, we consider that when all of the circumstances established by the evidence are considered together, no hypothesis consistent with innocence is reasonably open.
First, CCTV footage clearly establishes that, at about 1.00 pm on 26 September 2016, the applicant was with his sister, Meshlyn Marrogi, at Highpoint Shopping Centre (‘Highpoint’) in Maribyrnong. CCTV footage also shows that, at 2:01 pm, they left together in Meshlyn Marrogi’s silver Mercedes, registration VCJ 063 (‘the Mercedes’). She then drove them to Broadmeadows Shopping Centre.
Secondly, CCTV footage shows the Mercedes parking in the Broadmeadows Shopping Centre carpark at 2:42 pm. It remained there, however, for only a matter of minutes. The Mercedes exited the shopping centre carpark at 2.45 pm and drove onto Pascoe Vale Road, leaving the applicant’s sister behind. From this and other evidence it was reasonable to infer that the applicant was the driver of the Mercedes,[29] and that he left the shopping centre in apparent haste. Quite apart from his quick exit from the shopping centre, the Mercedes driver’s haste was demonstrated by the evidence of Fayten El Sayed. At 2.50 pm, Ms El Sayed called the ‘000’ emergency telephone number to report that a ‘male driver’ of the Mercedes — she had accurately recounted its registration number — had cut her off while travelling at high speed on Pascoe Vale Road.
[29]We note that the evidence establishes that the applicant drove the Mercedes later that day to drive himself to the Craigieburn Police Station to sign in on bail. Thus, the Mercedes travelled south past Kolbe College at 3.58 pm. The applicant arrived at the Craigieburn Police Station at 4.39 pm and signed his bail documents at 4.42 pm.
Thirdly, CCTV footage from a camera at Kolbe College on Lysterfield Drive, Greenvale — which, as we have said, adjoins Beechworth Avenue, where the applicant’s residence was situated — shows that the Mercedes travelled past Kolbe at 2.53 pm, heading towards Beechworth Avenue. Having inferred that the applicant was the driver of the Mercedes, it was plainly open to infer that the applicant was returning home — or at least close thereto — in something of a hurry.
Fourthly, further CCTV footage reveals that only minutes later, at 3.04 pm, the red Commodore left Beechworth Avenue by turning left onto Lysterfield Drive, and then drove past Kolbe College. Although the driver — and whether there are passengers — cannot be determined from the footage, taken with other evidence, it could readily be inferred that the applicant was the driver. It was also reasonable to infer that he had driven the Mercedes to the vicinity of where the red Commodore was situated in or near Beechworth Avenue.
We pause to note that, as mentioned above,[30] at about the time the red Commodore was leaving Beechworth Avenue, Ors was meeting Abdulrahim and Harrouk. Hence, Abdulrahim arrived at the Plaza at 3.05 pm with Yousef in the Range Rover, supposedly to meet Harrouk for lunch. Ors then arrived in the Jeep at 3.12 pm, with Amin and Hamed. Harrouk arrived separately in the maroon Commodore. At 3.17 pm, Ors, Abdulrahim and Harrouk walked together along the path through the grassed area to the bus shelter, where they remained for about seven minutes.
[30]At [7].

Fifthly, we consider that CCTV footage reveals clear similarities in the applicant’s and the shooter’s appearance. Thus, CCTV footage shows that, at 3.24 pm, the red Commodore pulled up in Jeffrey Street, a few metres east of the bus shelter where Ors, Abdulrahim and Harrouk, are apparently talking. Ors can be seen to commence to walk back in the direction of Officeworks. When the driver of the red Commodore emerges from the vehicle armed with a handgun, Ors and the others start to run away. The footage shows Ors to run back towards Officeworks, whilst Abdulrahim and Harrouk run more westerly towards Sydney Road. Ors is chased by the driver, who is shooting at him. Importantly, the footage clearly shows the shooter to have a beard which has a reddish tinge. As we have said, we consider that there are clear similarities between the applicant’s appearance as shown by CCTV footage (and stills taken from it) earlier that day, and the shooter’s appearance. In particular, CCTV footage which captured the applicant in a corridor at Highpoint earlier in the day shows his beard also to have a reddish-tinge.
When observing that the CCTV evidence reveals clear similarities between the shooter’s appearance and the applicant’s appearance as captured by footage taken earlier on the day of the shooting, we have not ignored the criticisms levelled at the evidence by the applicant’s counsel. Counsel argued that the CCTV footage of the shooter is ‘demonstrably poor’, and that there are clear points of distinction between the shooter and the applicant. These points of distinction include the shooter’s face shape and his attire (as compared to what the applicant was wearing earlier and later that day). Further, counsel submitted, CCTV footage taken earlier on the day of the shooting shows that the applicant had a square patch of dark facial hair just below his lower lip and above his chin (described as a ‘soul patch’), but that a soul patch was ‘conspicuously absent’ from the CCTV footage of the shooter.
The arguments referred to above were, however, all put to the jury. And quite plainly, they were all issues that the jury were capable of resolving. We consider that the differences in clothing are clearly explicable on the basis of the applicant having had ample time to change clothes both before and after the shooting. Moreover, we do not believe that examination of the CCTV footage necessarily reveals any differences between the shooter’s and the applicant’s face shape. Indeed, to our observation, it is well-open to conclude they are consistent. With respect to the purported absence of the ‘soul patch’, we note that counsel for the applicant themselves submitted that the CCTV footage of the shooter is poor — although, it must be said, not so poor that one is unable to observe the shooter’s beard and moustache are red-hued — thereby underscoring the difficulties in determining with certainty from the footage alone whether a soul patch is present or absent in the shooter’s beard and moustache.
Sixthly, when the red Commodore was discovered, there was a piece of cardboard — apparently torn from a box that held Sellier & Bellot brand nine millimetre Luger ammunition — which had a partial fingerprint, and, importantly, the applicant’s DNA.[31] Upon inspection, one can observe ‘9mm LUGER’, ‘9mm PARA’ and ‘9 x 19’ printed on the piece of cardboard. As we have mentioned,[32] ballistic evidence revealed that all 17 rounds fired by the shooter were from a nine millimetre Luger calibre semi-automatic pistol, capable of being loaded with between seven and 18 nine millimetre cartridges (depending on manufacturer). It was therefore plainly open to infer to the criminal standard that — at the very least — the applicant had handled a box that had contained the very same ammunition which had been used to shoot Ors dead.
[31]See fn 5 above.
[32]See [10] above.
Taken in combination, we consider that these six key pieces of evidence clearly were capable of founding an inference that the applicant was the driver of the red Commodore, and, ultimately, the person who shot Ors. Given that counsel for the applicant submitted, however, that this evidence, and other critical pieces of evidence, did not permit the drawing of those inferences, it is necessary to consider the various limbs of their argument in a little more detail.

The abandonment of the red Commodore in Katandra Crescent

Counsel for the applicant submitted that the evidence established that the red Commodore was not parked in Katandra Crescent — where it was later found at 4.02 pm — when the officers from Hume 559 drove along Katandra Crescent at 3.49 pm. That meant that the red Commodore must have been abandoned there somewhere between 3.49 pm and 4.02 pm. That in turn meant that the applicant could not have been its driver, since the applicant’s telephone ‘pinged’ off a mobile telephone tower in Roxburgh Park, close to his home, at 3.49 pm — that tower is about a 14 minute drive from Katandra Crescent — and at 3.58 pm the applicant was captured on CCTV footage driving his sister’s Mercedes.
As mentioned above,[33] the red Commodore left the Plaza carpark at 3.26 pm, pursued by the Jeep. Part way through the roundabout at Blair and Riggall Streets, the driver stopped the vehicle at 3.29 pm and fired four shots. When the red Commodore then continued westerly along Riggall Street, witnesses observed that its rear near-side tyre had blown out. CCTV camera recorded the red Commodore’s progress along Katandra Crescent from Nathalia Street at 3.30 pm. At 3.40 pm, police in Hume 559 — Detectives Mircovic, Miles, Miljesic and Coulhoun — left the police station. Five minutes later, at 3.45 pm, they found debris from the red Commodore’s rear near-side tyre on Riggall Street, between Nathalia Street and Pearcedale Parade. Four minutes after that, at 3.49 pm, Hume 559 drove along Katandra Crescent from Riggall Street, and was captured by CCTV cameras driving towards Nathalia Street.
[33]At [13]–[17].
When Hume 559 drove along Katandra Crescent at 3.49 pm, none of the four officers in the police vehicle observed the abandoned red Commodore. Leading Senior Constable George Debrincat located it at 4.02 pm outside number 8 Katandra Crescent. At 4.08 pm, police in Hume 559 again attended at Katandra Crescent. They then saw the red Commodore parked on the southern side of the road, facing west, outside number 8. Significantly, at 4.09 pm, one of the four officers from Hume 559, Detective Miljesic, made a radio call via ‘VKC’ police communications, saying: ‘In relation to that recovered red Commodore, we came up – with the blown-out tyre – we were actually patrolling doing laps and it wasn’t in Katandra about 10 minutes ago, so it’s only fairly recently been dropped there’.
Counsel for the applicant submitted that, if the red Commodore was not parked outside number 8 Katandra Crescent when Hume 559 went past at 3.50 pm, the prosecution case is ‘impossible’. The applicant could not have been simultaneously in Broadmeadows and Greenvale at 3.49 pm, and could not have been in Broadmeadows at 3.50 pm and then in his sister’s Mercedes in Greenvale at 3.58 pm.
Underpinning these submissions is the contention that it is inconceivable that the four trained police officers in Hume 559 — who were looking for a red Commodore as their sole focus — could all independently have failed to see the red Commodore if it was parked outside number 8 when they drove along Katandra Crescent at 3.49 pm. They were trained detectives seeking a well-described car. Indeed, being parked near a bend in Katandra Crescent, the red Commodore was ‘unmissable’, by the occupants of any vehicle passing along it. The prosecution’s assertion that all four police in Hume 559 could drive past the red Commodore without seeing it was ‘vanishingly improbable’.
In our view, however, it is not wholly implausible that the police in Hume 559 failed to appreciate the significance of a red car being parked in Katandra Crescent. The evidence established that, from about 3.35 pm, police — including those in Hume 559 — were alerted to keep watch for ‘a red Holden Commodore sedan’. At 3.45pm, police in Hume 559 found the tyre debris on the southern side of Riggall Street, and relayed the information to police command via radio that the vehicle had a blown-out tyre. From that point on, police in Hume 559 resumed their search, now looking for a red Holden Commodore with a ‘blown-out tyre’. The evidence was that Hume 559 then ‘flew down’ the ‘rabbit warren’ of streets in the vicinity (including Katandra Crescent) — the exact route was not recorded — looking for a red Holden Commodore with a blown-out tyre. Photographs of the red Commodore taken where it was found show it to be parked facing in the direction of Riggall Street, with the rear near-side tyre positioned close to the kerb in such a way that it would not have been obvious to anyone passing by it that the tyre was blown-out. Not only were the police looking for a red Commodore, they were looking for an armed shooter. Driving roughly eastward from Riggall Street, a large area of parkland ran adjacent to Katandra Crescent on the left hand side, the opposite side to where the red Commodore was later seen to be parked. In these circumstances, we consider it to have been open to the jury to conclude that the police in Hume 559 either missed the red Commodore, or failed to appreciate its significance.

We should mention that counsel for the applicant also submitted that, even without the evidence relating to Hume 559, the ‘speculative timeframes are unrealistically tight’. Hence, on the prosecution case, if the applicant was the shooter and had been driving the red Commodore, he would have had to have found another vehicle very quickly to get him back to Greenvale by 3.49 pm, in circumstances where the red Commodore’s arrival in the vicinity of where it was found must have been an unplanned consequence of the Jeep’s unforeseeable pursuit and the ‘roundabout confrontation’. It is enough to say of that argument that the jury would have been justified in concluding that, although the timeframes for the applicant dumping the car and returning home were ‘tight’, they were far from impossible.
Acting reasonably, the jury were not compelled to have a reasonable doubt that the applicant was the driver of the red Commodore — and hence the shooter — based on the evidence relating to the activities of the police in Hume 559.

The forensic evidence

With respect to the finding of the applicant’s DNA on the piece of lid from the cardboard ammunition box, counsel for the applicant submitted, as we have said, that it was a moveable object.[34] Although the forensic evidence was that the applicant’s DNA was probably deposited onto the ammunition box directly, counsel submitted that the DNA expert could not provide any real sense of when the DNA was likely to have been deposited onto the box, nor whether this occurred inside or outside the red Commodore. Counsel submitted that the finding of DNA on the ammunition box could not exclude the possibility that the applicant had merely supplied the ammunition to the shooter.
[34]See [22] above.
Given the state of the DNA evidence, we consider that it was — at the very least — open to the jury to conclude that the applicant was in possession of the ammunition box at the time that the shooting occurred.
So far as the DNA evidence was concerned, Maxwell Jones, a forensic biologist and DNA expert, gave evidence that the DNA detected on the lid was the result of direct transference from a single source, and not the product of secondary or tertiary transference. Hence, the amount of DNA detected totalled an estimated 18.42 nanograms, equivalent to approximately 3,000 cells. Based on this quantity of DNA, Mr Jones’ opinion was that the DNA sample was a good source of biological material likely to have come from saliva or blood as opposed to skin. Furthermore, the quantity of DNA located was not typical of that produced from secondary transference. There was ‘no indication whatsoever’ — ‘not even a hint’ — that the sample came from a mixture of contributors. The DNA test results ‘unambiguously’ and ‘clearly’ showed that the sample taken from the lid was derived from a single source only. Moreover, the discovery of a partial fingerprint on the lid reinforced Mr Jones’ conclusion that the DNA detected was from a single source. Additionally, the absence of evidence of any significant degradation suggested that the lid had not been in the red Commodore for very long. Environments in which DNA is exposed to sunlight and heat — like the interior of a car — are conducive to degradation. In this case, however, despite the discovery of the piece of cardboard lid inside the red Commodore, there was no evidence of significant degradation of the DNA sample.
In our view, the evidence supports the hypothesis that the applicant touched the ammunition box shortly before Ors was shot. Since the ammunition used to shoot Ors, and fired at the Riggall and Blair Streets roundabout, was of the same kind as that packaged in the box from which the lid piece with the applicant’s DNA was derived, it could reasonably be inferred that the shooter touched the lid just before, or on the way, to the first shooting. Indeed, we consider that the DNA evidence provides very strong support for the hypothesis that the applicant was the shooter.

The purported absence of the applicant’s DNA in the red Commodore

The applicant’s counsel submitted that, although DNA from one or more unidentified strangers was found on four parts of the red Commodore, including areas such as the gear stick and steering wheel, likely to have been touched by the driver, neither the applicant’s DNA nor his fingerprints were detected. The absence of the applicant’s DNA, counsel submitted, adds support to the innocent hypothesis that the applicant was not the shooter.
These submissions are not persuasive.
CCTV footage of Ors’ shooting showed the shooter wearing a long-sleeved ‘hoodie’, long trousers and gloves. So much might explain the absence of the applicant’s DNA on areas such as the red Commodore’s steering wheel and gear stick. Moreover, although there was some evidence that the shooter may not have been wearing gloves when he fired shots at the roundabout — the evidence was somewhat equivocal — it is far from certain that his DNA would necessarily have been deposited in the red Commodore. As to that, the evidence revealed that no DNA was detected in areas of the car known to have been touched by people other than the applicant. Hence, there was no fingerprint or DNA evidence definitively linking the owner and usual operators of the red Commodore — Mr Kesic and his wife, Dana Smith — to the car. Further, even though the red Commodore’s thief, Trent Johnson, admitted to driving the car and riding in the front passenger seat, he was ‘excluded’ as a potential contributor to the DNA left on the steering wheel and other parts of the car. The absence, therefore, of certain individuals’ DNA in places where it might be expected to have been deposited, did not provide empirical support for the proposition that those individuals had not been inside the red Commodore.
We would also observe that evidence of ‘unidentified’ contributors to some DNA located in the red Commodore was of limited probative value. As Mr Jones explained, mixture profiles denoted a combination of alleles from which ‘no clear distinct profile’ was discernible. When a comparison was made with reference samples, donors could be ‘excluded’ or, it could be said that there was ‘not strong support for their inclusion’. Partial profiles indicated a low level of DNA had been detected, possibly due to degradation. But it did not necessarily follow that the detection of mixed or partial DNA profiles meant the applicant had not been present in the car. All it did was raise the possibility of other persons having been present in the car at some stage.

The ‘comparison’ evidence

We have earlier discussed the ‘comparison evidence’ in moderate detail.[35] In summary, the applicant’s counsel contended that there are clear points of distinction between the shooter and the applicant, including the shooter’s face shape, his attire, and the absence of a ‘soul patch’.
[35]See [33]–[35] above.
In our view, however, it plainly was open to the jury to conclude from the photographs and CCTV footage that the applicant’s appearance matched that of the shooter in important respects. The jury had before them photographs of the applicant at times temporally proximate to Ors’ shooting. They also had before them CCTV footage showing the applicant at Highpoint hours before the shootings, and at the Craigieburn Police Station shortly after the shootings. These images clearly showed the applicant’s distinctive features, including his reddish-tinged beard and other features. From our own examination of the material, we consider that it was open to the jury to conclude that a number of these features may also be seen to be possessed by the shooter — including the soul patch — in the CCTV footage depicting Ors’ shooting.
We would add that, although perhaps of no great moment, we also regard it to have been reasonably open to the jury to conclude that various eyewitness descriptions of the shooter’s height, and of his ethnicity — ‘Middle Eastern’ and ‘Lebanese’ — are consistent with the applicant’s.
Finally, we note that, whilst it is clear that the applicant was wearing clothing different to the shooter’s when his image was captured at Highpoint and at the Craigieburn Police Station, it is also clear that, were he the shooter, he had adequate time to change his clothes. It might also readily be inferred that the shooter wore clothes — particularly gloves — designed to provide some disguise and to minimise the possibility of leaving behind potential forensic evidence. There is every likelihood that the shooter would have changed his clothes after shooting Ors and fleeing the scene.

Concluding matters

Counsel for the applicant submitted that the hypothesis that the shooter was someone other than the applicant was not irrational or plainly wrong. The applicant’s counsel submitted that there was no evidence that the applicant held animus for Ors, in circumstances where Ors had associations with other criminals. Forensic evidence did not put the applicant inside the red Commodore, and there was little that could be drawn from the fact that both the applicant and the shooter were bearded. The applicant’s apparent link to El Abed and the red Commodore’s proximity to Beechworth Avenue at 3.02 pm, counsel submitted, might support a link between the applicant and the car, but could not rationally place him inside that vehicle. So, too, although the applicant’s DNA on the ammunition box might create a ‘protean link’ to the box, the presence of the applicant’s DNA could not rationally support a conclusion that he was the shooter, or did more than handle the box at some point.
Ultimately, counsel submitted that whilst the cumulative effect of the evidence led in the trial could found a reasonable inference that the applicant had some kind of general involvement with the shooting — for example, by supplying the ammunition — there was insufficient evidence upon which the jury could be satisfied beyond reasonable doubt that the applicant was the shooter. Upon all of the evidence, an inference consistent with innocence remained reasonably open.
As we have indicated, we do not accept the contention that the jury’s verdict is unreasonable or cannot be supported by the evidence.
In our opinion, the combined force of the evidence was such that it plainly was open to the jury to conclude that the applicant shot Ors. Indeed, we regard the alternative hypothesis advanced by the applicant’s counsel to be untenable.
We consider that the evidence established that the applicant was connected to Abdulrahim, and that Abdulrahim had the capacity to alert the applicant to Ors’ whereabouts on the day he was shot. In our view, the evidence clearly was capable of founding the inference that, whilst he was at Broadmeadows Shopping Centre, the applicant was informed by some means that Ors was at the Plaza. So much explains why the applicant left the shopping centre, and drove to Beechworth Avenue, in such haste. Further, through his association with El Abed, the applicant could be connected to the red Commodore the day before the shooting, and the red Commodore could on the day of the shooting be connected to the street on which the applicant lived. Indeed, the red Commodore left Beechworth Avenue, close to where the applicant’s residence was located, soon after the applicant arrived there from the shopping centre, and was driven swiftly to the Plaza. There an individual sharing a number of the applicant’s characteristics — including his red-tinged beard — shot Ors dead with nine millimetre Sellier & Bellot brand Luger ammunition. Finally, and very significantly, inside the red Commodore to which he was connected, the applicant’s DNA was found on a piece of the cardboard lid from a box which had held the very same kind of ammunition which had been used to execute Ors, in circumstances which suggested that the applicant had handled the box very soon before the murder.
In our opinion, the evidence painted a compelling picture of guilt. The contention that the jury’s verdict is unreasonable or cannot be supported by the evidence must be rejected.

Conclusion

The application for leave to appeal against conviction must be refused.

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[2023] VSCA 83

19 April 2023