Mehmet Kurt and v The Queen and
[2014] VSCA 147
•17 July 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0015
| MEHMET KURT |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | WEINBERG and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 July 2014 |
| DATE OF JUDGMENT: | 17 July 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 147 |
| JUDGMENT APPEALED FROM: | DPP v Kurt & Anor (Unreported, County Court of Victoria, Judge Chettle, 2 November 2012) |
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ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009
CRIMINAL LAW – Conviction – Applicant convicted of kidnapping, recklessly causing injury, intentionally causing injury, false imprisonment, making threats to kill (two counts), blackmail and possession of a controlled weapon – Sole ground of appeal whether trial miscarried in that jury were given inadequate directions on aiding and abetting – Applicant contended that trial judge’s revised charge failed accurately to reflect what was said at trial – DVD recording of trial and unrevised trial transcript unable to be located – Nothing in revised transcript of trial to suggest that judge’s direction defective or erroneous – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | The Applicant appeared in person | |
| For the Crown | Mr R A Elston QC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
On 19 October 2012, the applicant was convicted after a trial in the County Court at Melbourne of a series of offences, all of them arising out of an incident, or incidents, that occurred in the Noble Park and Dandenong areas in the early hours of Sunday 14 February 2010.
On 2 November 2012, he was sentenced as follows:
Charge
Maximum Penalty of Imprisonment
Sentence of Imprisonment
Cumulation
1. Kidnapping
[common law]25 years
[s 320 Crimes Act 1958 (Vic)]2 years
-
2. Recklessly cause injury
[s 18 Crimes Act 1958 (Vic)]5 years
[s 18 Crimes Act 1958 (Vic)]12 months
6 months
3. Make threat to kill
[s 20 Crimes Act 1958 (Vic)]10 years
[s 20 Crimes Act 1958 (Vic)]12 months
6 months
4. False imprisonment
[common law]10 years
[s 320 Crimes Act 1958 (Vic)]2 years 6 months
12 months
5. Make threat to kill
[s 20 Crimes Act 1958 (Vic)]10 years
[s 20 Crimes Act 1958 (Vic)]12 months
6 months
6. Blackmail
[s 87(1) Crimes Act 1958 (Vic)]15 years
[s 87(1) Crimes Act 1958 (Vic)]18 months
6 months
7. Intentionally cause injury
[s 18 Crimes Act 1958 (Vic)]10 years
[s 18 Crimes Act 1958 (Vic)]2 years 6 months
Base
8. Possession of a controlled weapon
(summary charge)
[s 6(1) Control of Weapons Act 1990 (Vic)]1 year
[s 6(1) Control of Weapons Act 1990 (Vic)]3 months
-
Total Effective Sentence: 5 years 6 months’ imprisonment Non-Parole Period: 3 years 9 months’ imprisonment Circumstances surrounding the offending
On Saturday 13 February 2010, the complainant, Cihan Ayna, was at the Sandown Park Hotel. He was telephoned by the applicant shortly after midnight, and the two arranged to meet at the entrance to the premises.
The applicant and his three co-offenders, Peter Federpoulai, Peter Ulutui and Laki Ulutui, arrived at the hotel in a four wheel drive vehicle. At that stage only two of the men in the vehicle could be seen by the complainant, Federpoulai in the driver’s seat, and the complainant in the passenger seat. The applicant told the complainant to get into the vehicle as the Ulutui brothers wanted to see him. He threatened the complainant by stating that if he did not get into the car, ‘these people they’re gunna go your parents’ house, you know?’ The complainant then got into the rear of the vehicle (charge 1 – kidnapping).
At that moment, Laki Ulutui emerged from where he had been hiding in the vehicle and pointed an air rifle at the complainant’s head. He said to the complainant ‘you owe me two years gaol’. Peter Ulutui, who had gotten out of the vehicle after it arrived at the hotel, and hidden behind a tree, then got into the car. He said ‘let’s … drive’ and repeated that the complainant owed them two years’ gaol (charge 4 – false imprisonment).
Federpoulai then produced a machete and threatened to kill the complainant by cutting his throat with it (charge 3 – make threat to kill). Federpoulai held the machete near the complainant’s face. It seems that as the complainant pulled away he received a scratch to his face (charge 2 – recklessly cause injury). At that point Peter Ulutui emphasised that the complainant’s life was in his hands and threatened to kill him (charge 5 – make threat to kill).
The complainant was then told by one of the men, whose identity could not be precisely determined, to ‘get anything money, anything you have to get us now’ (charge 6 – blackmail).
The complainant was then driven to the Keysborough Hotel. Some time prior to getting out of the car at that Hotel, Federpoulai inflicted a deep wound to the complainant’s arm using the machete (charge 7 – intentionally cause injury). I note that in the actual records of the County Court it is erroneously identified as ‘intentionally cause serious injury’. The Court will order that that record be corrected to reflect the correct charge which, as I say, is intentionally cause injury. The complainant was not certain exactly when that occurred.
When the complainant got out of the vehicle at the Keysborough Hotel, Peter Ulutui told him that he was to go into the premises escorted by the Ulutui brothers and that he was going to ‘get us some money’. The Ulutui brothers then accompanied the complainant into the Hotel. Hotel staff noticed the complainant’s injuries and became suspicious. They called the police.
The applicant and Federpoulai were arrested near their vehicle. The air rifle and machete were located on the ground beside the vehicle.
When interviewed by police, the applicant stated that he had little recollection of the events on the night in question as he had been drinking heavily. He admitted to having been in the complainant’s presence, along with the co-accused. However, he denied having threatened him, or having made any demands of him.
Procedural history
The applicant sought leave to appeal against conviction upon a single proposed ground. That ground was in the following terms:
The trial of the applicant miscarried in that jury were given inadequate directions on aiding and abetting.
On 7 November 2013, Coghlan JA refused leave on that ground. His Honour noted that the principal complaint embodied within the ground concerned the trial judge’s direction to the jury as to the applicant’s awareness of his co-offenders’ state of mind in relation to the two injury charges. He further noted that the applicant contended that the law had been insufficiently related to the facts on that issue.
Coghlan JA, in refusing leave, observed that no exception had been taken to the trial judge’s charge on either of these bases. His Honour added that, when the charge was read as a whole, there was no deficiency which could give rise to a substantial miscarriage of justice.
When dealing with complicity, as Coghlan JA noted, the trial judge had said:
A person can aid and abet by words, actions or both, but it must be intentional assistance. So in this case, the Crown case primarily is that the accused were party to a plan or an arrangement, but if you were not satisfied you would have to say, ‘Well, look, was the crime actually committed, did the accused I am considering know and was aware that the crime was being committed, and did that accused I am considering intentionally provide assistance and encouragement to the people who were committing it either by words, actions or presence?’
Coghlan JA concluded that the direction regarding the requisite mental state for complicity was clear and unambiguous. His Honour considered that it was not reasonably arguable that the jury may have been misdirected on this point, and accordingly refused leave.
The applicant has elected to renew his application for leave to appeal.
The matter was initially listed to be heard in February 2014. However, it was adjourned due to Victoria Legal Aid (VLA) funding issues, and the applicant’s desire to obtain alternative legal representation. Once funding had been approved, on a particular basis, and new representation arranged, the matter was listed for hearing in May 2014.
However, in April 2014, the applicant again expressed his dissatisfaction with the way in which his application was being conducted. He once again sought different legal representation, indicating that he wished to pursue his appeal on specific grounds for which funding had not been approved. The solicitors then representing him requested a nine week adjournment in order to allow the applicant to secure alternative representation.
Apparently the applicant has refused to follow the advice of his former solicitors, as well as that provided by two experienced counsel, as to the grounds upon which an appeal should be based. One of those counsel had prepared the applicant’s initial written case. The other had reviewed that written case and perused the trial transcript in order to ascertain whether there were any further arguable grounds of appeal. It seems that they were not convinced that such grounds existed.
The matter was listed for hearing, for a third time, on this day, 17 July 2014. However, a week or so ago, the applicant contacted the Deputy Registrar (Legal), requesting a further three month extension in order to ‘obtain permission to engage other legal counsel who will appropriately follow instructions and present [his] legal case professionally and ethically balanced to the Court of Appeal’.
It is difficult to ascertain from the written material before this Court precisely what new ground the applicant seeks to invoke in support of his renewed application for leave. When I say the written material before this Court, I include a five page document handed to the Court this morning by the applicant in support of the adjournment that he seeks. Basically what can be gleaned from that material is that he wishes to rely on a ground of appeal for which he does not have VLA funding, namely, that in some largely unexplained way, the trial judge misdirected the jury. It is possible, based upon a letter dated 7 July 2014, sent to the applicant by his former solicitors (a copy of which has been provided to the Court), that he wishes to argue that the trial judge had made ‘inappropriate remarks and misdirected the jury’, presumably in a manner that, he claims, did not find its way into the transcript. To that end, the applicant has sought a copy of the audio/visual recording of the trial, and the trial judge’s charge to the jury.
The applicant has also foreshadowed, in a letter dated 10 July 2014, sent to the Deputy Registrar (Legal), that:
Evidential material was also located that emphatically demonstrated the Victorian police were derelict in their duty and responsibility involving primary investigation.
We were told this morning that the applicant has followed up that particular point by making a complaint to the Independent Broad-based Anti-corruption Commission.
No particulars were provided of that new allegation, assuming it is to form the basis of a ground of appeal. This morning in oral argument the applicant sought to identify the points which he wished to raise and referred to what he says were the inappropriate remarks made by the judge that do not find their way into the revised transcript. It must be said, however, that the examples provided by the applicant are of little consequence and take the matter no further.
The recordings of the trial and judge’s charge cannot now be located. The transcript of the trial, and that of the charge, are of course available, but the recording itself cannot be procured. The applicant has been told this on a number of occasions. He refuses to accept this reality, and insists that his former legal representatives have refused to comply with his instructions.
As such, the applicant is now unrepresented. He advised his former solicitors that he had engaged a ‘lay advocate’ to ‘pursue with other grounds of his appeal’. That ‘lay advocate’ wrote to the offices of the applicant’s former solicitors, on the applicant’s behalf, advising how, in his opinion, the appeal should proceed. There is nothing in that particular document that takes the matter any further.
The applicant now seeks an adjournment of three months in order to again approach VLA to make funding available generally for his proposed renewal application, or an order from this Court requiring VLA to provide such funding.
The applicant was notified by the Deputy Registrar (Legal) that, in the event that his application for an adjournment was refused, he should be in a position today to proceed with his application for leave to appeal.
I would refuse the adjournment sought. This is the third time that this matter has been listed for hearing. The applicant is dissatisfied with the advice provided by his former legal representatives, and that is his right. It does not, however, entitle him to the indulgence of a third and lengthy adjournment in circumstances where, as best I can ascertain, there is little or no merit in the particular points he wishes to agitate.
The applicant’s contention that the passage in the judge’s charge dealing with aiding and abetting (to which Coghlan JA referred when refusing leave) did not in any way reflect what the trial judge had said on this subject in the course of his charge to the jury seems so improbable as to be almost fanciful. It should be noted that that particular passage is merely part of a far longer direction delivered by the judge dealing with the very issue of complicity that lay at the heart of the trial.
Had there been a failure to deal with basic issues of complicity one can be confident that experienced counsel who appeared at the trial would have raised the matter. No exception was taken. Moreover, the applicant was represented by competent counsel on the renewal application. Yet the issue he now wishes to agitate was not, it would seem, raised before Coghlan JA.
There is nothing to suggest that the decision to refuse leave was in any way attended with error. There being before this Court no viable ground upon which the conviction can be challenged, either extant or foreshadowed, I would refuse the application for an adjournment and dismiss the application for leave to appeal.
SANTAMARIA JA:
I agree with the reasons given by Weinberg JA.
WEINBERG JA:
The order of the Court is that the application for leave to appeal is dismissed.
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