Mohammed Tiba v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0103

MOHAMMED TIBA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2020
DATE OF JUDGMENT:	17 August 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 204
JUDGMENT APPEALED FROM:	[2019] VCC 6 (Judge Lewitan)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of two charges of reckless conduct endangering life and one charge of intentionally causing serious injury – Photo board identification of applicant by witness – Hearsay evidence by police as to terms in which witness identified photograph of applicant – Whether trial judge erred in admitting hearsay evidence – Whether memory of witness fresh at time of making identification of applicant pursuant to s 66(2) of Evidence Act 2008 – Whether prosecutor should have sought leave for witness to refresh memory of previous identification of applicant pursuant to s 32 of Evidence Act 2008 – Whether prosecutor should have sought leave to cross-examine witness under s 38 of Evidence Act 2008 – Whether miscarriage of justice – Whether applicant denied procedural fairness – Hearsay evidence relevant and admissible – Verdict of the jury reasonable having regard to the evidence – Application for leave to appeal dismissed – Saddik v The Queen [2018] VSCA 249; Ritchie (a pseudonym) v The Queen [2019] VSCA 202; Murillo (a pseudonym)v The Queen [2020] VSCA 68; Astbury v The Queen [2020] VSCA 132; Evidence Act 2008 ss 32, 38, 66 and 137 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Morrissey SC with Mr P J Smallwood	Milides Lawyers
For the Respondent	Ms D Piekusis QC with Ms J Warren	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
KAYE JA
EMERTON JA:

The applicant was convicted, by the jury empanelled on his trial in the County Court, of two charges of reckless conduct endangering life (charges 1 and 3) and one charge of intentionally causing serious injury (charge 2). He was sentenced to a total effective sentence of eight years’ imprisonment with a non-parole period of five years.

The applicant seeks leave to appeal against his conviction on two grounds, namely:

Ground 1:There has been a substantial miscarriage of justice as a result of the prosecution leading inadmissible hearsay evidence through Sergeant Potts.
Particulars:
The inadmissible hearsay evidence given by Sergeant Potts was that, when shown a photo board, Jayden Happel — a witness who gave evidence in relation to charges 1 and 2 — identified the applicant’s image and very confidently said ‘it’s definitely that guy there’, ‘that’s the guy who shot the other person’ and ‘that’s the guy with the gun’.
That evidence was of a very different quality to that given by Mr Happel, and led in circumstances where Mr Happel was never invited to refresh his memory and was never directly asked (or given an opportunity to directly address) whether he in fact said (or agreed with) what Sergeant Potts attributed to him.
That the leading of this inadmissible hearsay evidence resulted in a substantial miscarriage of justice is confirmed by the fact that identification was the issue in dispute in the trial and also given that the prosecution was permitted to rely on coincidence evidence.

Ground 2:The verdict of the jury was unreasonable and cannot be supported having regard to the evidence.

Background

Charges 1 and 2 concern an incident that occurred on 20 January 2017 at the premises of the Addikted to Ink tattoo shop in Sydney Road, Coburg. Charge 3 (and the alternative charge 4) arose out of an incident that occurred on 31 January 2017 in respect of the premises of Ink Bound tattoo shop in Wheatsheaf Road, Glenroy. The issue in the trial common to each incident was the identification of the applicant as the offender in each case.

On 17 January 2017, three days before the first incident, the applicant’s brother, Omar Tiba, was shot in the car park that serviced Coles and Kmart in Campbellfield. The prosecution alleged that that incident was, or might have been, the motive for the involvement of the applicant in the offences that occurred in each of the two incidents. Shortly after the incident in which Omar Tiba was shot, two witnesses observed a man, answering the description of the applicant, in the car park of those premises, driving a silver Mercedes-Benz vehicle registered number WAB 898 with which the applicant was connected.

On 20 January 2017 at about 10.30 am, two men entered the premises of Addikted to Ink in Sydney Road, Coburg. At the time, Jayden Happel (‘Happel), Luke Dyson (‘Dyson’), Brian Darling (‘Darling’) and Josh Baker (‘Baker’), who were employees of the business conducted at the premises, were present. Dyson was applying a tattoo to the leg of a customer, Roger Dio (‘Dio’). After one of the two men spoke to Happel, they then approached Dio. The other man (who had not spoken to Happel) took hold of Dio and told him to leave the premises with him. When Dio refused, the offender produced a weapon, fired it into the ground, and then shot Dio in the right leg. As a result, Dio’s right femur was fractured. The two men departed the premises. The prosecution alleged that the applicant was the offender who took hold of Dio and who shot him in the leg. Subsequent ballistic evidence established that the weapon that was used was a .32 calibre handgun.

Shortly after 11 am on 31 January 2017, a man in a silver Mercedes-Benz motor vehicle discharged eight rounds into the glass window of the Ink Bound tattoo shop on Wheatsheaf Road, Glenroy. One of the bullets lodged in the headrest of a tattooist’s chair. One bullet round, and a fragment of another, were recovered when the police searched the premises. They were found to have been fired from a 9 millimetre handgun.

In order to address each of the two grounds of the application, it is necessary to summarise the evidence in the trial in a little detail.

Summary of evidence

On the evening of 17 January 2017, Valentine Letoga and her husband Roman Fale, attended the Kmart department store in Campbellfield. After they left those premises, and while walking to the Coles supermarket, they both noticed two males running towards the Kmart premises, and being pursued by a security guard. Subsequently, after they had completed their shopping at the Coles premises, they went to the car park. Valentine Letoga gave evidence that she then noticed a man, of Middle Eastern appearance, in the car park. He was standing in front of his vehicle, which was a Mercedes-Benz, and appeared to be in an agitated state. Ms Letoga described the man as having facial hair, in his late-30s, and probably of medium build. She wrote down the registration number of the vehicle, WAB 898. The man drove off. A few days later Ms Letoga and Mr Fale reported the matter to the police.

In cross-examination, Ms Letoga agreed that in her statement to the police she described the man as having a beard, wearing a white T-shirt, and that he appeared to be in his late-20s to early 30s. Ms Letoga was shown a photo board on 27 April 2017. She nominated the photographs numbered 11 and 6 as the most likely images of the man who she had seen, but she was ‘not a hundred per cent’ certain.

Mr Fale stated that when he and Ms Letoga approached their vehicle in the car park, he noticed a vehicle pull up and a person jump out of it. That person did not park in the parking bay, but parked diagonally across it. As he exited the vehicle, the person was trying to ‘shove something down his pants’. He then got back into his vehicle, and sped off. Mr Fale stated that the man appeared to be in a ‘paranoid’ state, and that he was looking around. He described the person as being of Middle Eastern appearance with a medium build. He had facial hair and was wearing a white T-shirt. In cross-examination, Mr Fale said that he told the police that the man had a ‘flat-top’ haircut. When shown the photo board, he indicated photographs 1, 2 and 7, but he was not certain.

Surveillance operative 053 gave evidence that on 17 January 2017 he was conducting surveillance duties on the applicant. He commenced duty just before midday on that date. Shortly after midday, he observed a silver Mercedes-Benz registered number WAB 898 driven by a female to premises at 173 Elizabeth Street, Coburg where it parked. The applicant exited that address and met with the female and the two children who accompanied her. At 1.20 pm, he observed the applicant leave the premises, and drive off in the vehicle.

On 19 January 2017, surveillance operative 40 was also undertaking surveillance duty in respect of the applicant. At 7.31 pm, he observed the applicant driving a 2007 Mercedes-Benz vehicle WAB 898 west along Bell Street, Preston. His brother, Osman Tiba, was in the front passenger seat. The surveillance operative made further observations of the applicant driving the vehicle at 7.55 pm and at 9.58 pm. At 10.16 pm, he observed the vehicle parked directly outside 173 Elizabeth Street, Coburg. The applicant and Osman Tiba exited the vehicle and entered those premises. The applicant had been driving the vehicle.

The next group of witnesses described the incident on 20 January 2017 at the premises of Addikted to Ink tattoo shop in Coburg, that was the subject of charges 1 and 2.

Happel was employed at the premises of Addikted to Ink as a tattoo artist. He gave evidence that on the morning of 20 January 2017, he was present at the premises with other employees. At that time the premises had not opened. However, a customer, Roger Dio, was present, being tattooed by Luke Dyson. Later in the morning, two men entered the shop. One of the men was stocky. He was wearing a hoodie and a baseball cap. He had a ‘rough’ beard which was one or two centimetres long, and he did not have a moustache. The other man was a little shorter and slimmer. Happel spoke to the second slimmer man, while the other man stood a few steps behind him. The two men then proceeded through the shop and approached Dio. Happel heard shouting. He observed the man with the baseball cap (who the prosecution alleged to be the applicant) grab Dio, and tell him to leave his seat. Happel said that that man, on ‘multiple occasions’, said something about a Kmart shop. His demeanour was aggressive. Dio resisted him, and said he would not go with the man. The stocky man then produced a short pistol. Happel then heard two shots. Dio remained in place, and then stood up. In the meantime, the two men ran through the shop towards the front of it. As they were leaving they said that those in the shop would be in trouble if anyone saw the video cameras, and that they were to be got rid of.

After the incident, Happel and the others, who were present in the shop, packed their belongings and departed. A few weeks later, Sergeant Bradley Potts showed him a photo board image. Happel circled number 6 on that board and initialled it. Sergeant Potts asked him what the role of that person had been in the incident. Happel said he did not recall exactly what he had said to Sergeant Potts. When the prosecutor asked him to give his best recollection of what he had said to Sergeant Potts, he responded ‘I said I believed that was the shooter’.

In cross-examination, Happel agreed that when he viewed the photo board, he knew that a person had been arrested, and that that person’s photograph was on the photo board. He agreed that when he identified photograph 6, he considered that out of the twelve possible photographs on that page, that photograph was most like the person who did the shooting. He agreed that he had not seen either of the two men previously. His main focus had been on the other person who spoke to him about obtaining a tattoo. He agreed that when he spoke to another police officer (Detective Sergeant David Woolfe) on 23 January, he described one of the two men as being in his mid-30s, of stocky build, and wearing a black hoodie and blue baseball cap, and he described the person as having a stubble on his face and not a beard.

The prosecution called two witnesses who were relevant to the identification by Happel of the applicant as one of the two men who were involved in the incident.

Detective Sergeant David Woolfe attended the premises of Addikted to Ink on 20 January 2017. Subsequently, on 23 January 2017, he had a conversation with Happel, in which Happel gave him the description of the people who came into the premises on 20 January. Happel described the first person as being in his mid-30s, stocky, having stubble and wearing blue jeans, a black hoodie, and a blue baseball hat with a bent peak. He described the second person as being in his early 20s, with a beard, and being ‘a bit skinny’, and wearing a hoodie. Happel told Detective Sergeant Woolfe that the first person had stood near the door, and the second person enquired about having a tattoo.

Leading Senior Constable Mark Dawson is a police artist. On 25 January 2017, he interviewed Happel by remote access, for the purposes of compiling a composite image of the other person Happel had seen. As a result of that process an image was compiled, which was exhibit 7 in the trial. At the conclusion of the process, Senior Constable Dawson asked Happel about the value of the face image by comparison to the person he could remember. In response, Happel said that it was a ‘70 per cent’ likeness. After the face image had been compiled, Senior Constable Dawson produced an image of the handgun that Happel had observed during the incident. For that purpose, Happel viewed about 70 images of different handguns. Senior Constable Dawson said that the process did not take long, because Happel was ‘very satisfied’ with the image that he selected as depicting the firearm that was produced during the incident.

On 16 February 2017, Sergeant Bradley Potts conducted a photo board identification with Happel. It was that evidence that is the subject of ground 1. Sergeant Potts gave evidence that Happel indicated the image that was depicted in photograph 6 by pointing to it and circling it. Happel said to Sergeant Potts, ‘It’s definitely that guy there’. Sergeant Potts asked him what that person’s role was in the incident. Happel replied, ‘That’s the guy who shot the other person. That’s the guy with the gun.’ Sergeant Potts said that when he showed the photo board to Happel, Happel almost immediately identified image number 6.

Dio gave evidence that on 20 January 2017, at about 8.30 am, he attended the Addikted to Ink premises in order to have his leg tattooed by Dyson. For that purpose he was sitting in a chair with his leg raised. About two hours after the process commenced, a man came and grabbed him on the shoulder around his neck, and said ‘come with me’. Dio initially thought that the man was joking. However, the man then said ‘come on, let’s go’ and pulled out a gun. Dio refused to go. The other man then pulled up the top that he was wearing and produced a gun. The first man said to Dio that the gun was not a fake, and he fired a shot into the ground. He then instructed Dio again to accompany them, but Dio refused. In response, the man shot Dio in the leg. The two men then departed, and instructed staff who were present ‘don’t call the cops’.

Dio described the person, who held him by the shoulder and neck, as having olive complexion, being Middle Eastern in appearance and of average build. He had a small head and a scruffy beard. However, Dio was not able to recollect much about his face, because he (Dio) was focussing on the gun.

On the next day, while in hospital, Dio participated in the compilation of a facial composite image of the person who shot him. The reconstruction was undertaken by Leading Senior Constable Caroline Passingham. After Dio’s discharge from hospital, he was visited by Detective Sergeant Woolfe on 14 February for the purpose of undertaking a photo board identification. Dio put his initials next to photographs numbered 1, 5 and 12 on that board (the applicant’s photograph was number 1 on the photo board). He said that although he was attempting to visualise that person, at the time of the incident he had been more focussed on the gun that was in his face rather than on the person who was holding it.

In cross-examination, Dio said that neither of the two men said anything about Kmart. He agreed that the person, depicted in the computer-generated picture and two of the photographs that he selected on the photo board, had a closely-cropped beard also.

Detective Senior Constable Georgeana Jones gave evidence that on 20 January 2017, while performing crime response duties, she was directed to attend Dio at the hospital. When she spoke to Dio in the early hours of 21 January, he described the two male offenders as persons who appeared to be of Arab descent with olive coloured skin, medium height and build. He said that the male, who shot him in the thigh, was wearing a blue cap and his associate was wearing a grey hoodie.

Leading Senior Constable Caroline Passingham gave evidence that she attended the Austin Hospital on 21 January 2017 to compile a facial composite image with Dio. Dio described the person as being a male aged mid to late-30s, five feet nine to five feet ten in height, of average build and having an Arabic face. He had a round face with a dark complexion, and his facial hair was described as being ‘a bit longer than a five o’clock shadow’. After Leading Senior Constable Passingham produced an image, Dio said that it was a good likeness to the offender.

Detective Sergeant Woolfe gave evidence that on 14 February 2017 he attended Dio’s house and showed him the photo board. Dio chose numbers 12, 5 and 1. He said to Detective Sergeant Woolfe that he had been focussing on the gun and was not looking much at the faces of the two men. He described the first person as being in his mid-30s, of a stocky build, with stubble on his face and having a black hoodie and a blue baseball hat.

Darling gave evidence that on 20 January 2017 he was employed by Addikted to Ink as a tattooist. He was working towards the back of the store in a station. He said that while he was there he did not hear anything because there was very loud music playing in the premises. He heard some scuffling but he did not pay attention to it. He then heard two shots being discharged in close succession. A customer said that he had been shot. Darling went to check him. He did not see any person who had fired the shots. He said the staff then packed up and departed.

Dyson gave evidence that he commenced work at the Addikted to Ink premises on 20 January 2017 between 10 am and 11 am. After Dio arrived at the premises, Dyson began to tattoo his lower leg. He noticed two men walk towards him, but did not take much notice of them. After a few seconds, he heard Dio say, ‘What are you doing?’ Dyson saw there were two men. They approached him, and had something in their hand. Dyson then heard a shot being discharged, whereupon he hid behind his toolbox. He waited until the men departed.

Subsequently, Dyson participated in a photo board identification at Melton Police Station on 13 March 2017. He did not identify any person on the photo board, and said to the police, ‘I don’t think he’s on there. I just can’t remember, everything happened so fast and I had adrenaline’. In cross-examination, he said that the music was playing very loudly, and he could not hear anything being said. He did not hear the word ‘Kmart’ mentioned.

Baker was employed as a tattoo apprentice at the Addikted to Ink premises on 20 January 2017. On that day, he arrived at the premises at about 10 am. Dyson was present, tattooing Dio in his booth. Baker was working at the reception desk. He looked up and saw two people at the front of the shop, who were talking to Happel. He said one man had a beard and was wearing a hoodie. At that time music was not playing in the shop. Baker then went back to what he was doing. He then heard voices yelling, and two gunshots. The two men then departed the premises quickly. Dio said he had been shot in the leg. Baker put on gloves, and attended the wound by rubbing alcohol into it. The staff in the shop then departed.

On 13 February 2017 Baker participated in a photo board identification. He was not able to recognise anyone on the board. He told police, ‘I don’t think I’d really be able to help you, none of them really stand out to me.’

In cross-examination, Baker said that he knew he did not have any hope of picking anyone, because he did not really look at their faces on that day. When he looked at the 12 photographs, none of the them looked like either of the two people. He described the person, who was not talking to Happel, as having a big beard. He did not wear a hoodie and Baker could not recall whether he was wearing a cap.

Detective Acting Sergeant Robert Brain gave evidence that on 27 January 2017 he obtained CCTV footage from locations in Sydney Road, Coburg. The first location was My Chemist. The footage depicted a silver Mercedes-Benz driving past the premises at 10.26 am on 20 January 2017. The footage taken from the second location, AHA Compounding, also depicted a silver Mercedes-Benz driving past at 10.25 am on that day. Detective Acting Sergeant Brain also obtained footage from a Caltex petrol station that was opposite the premises of Addikted to Ink. The footage was taken at 10.15 am. The prosecution contended that it, too, depicted a silver Mercedes-Benz vehicle in the vicinity.

The prosecution called Nathan Langsford, the workshop manager of Mercedes-Benz Geelong City Motors, to give expert evidence concerning the vehicles depicted in the footage. Mr Langsford said that the vehicle, that was depicted in the footage taken from My Chemist and from AHA Compounding, was a 2008 Mercedes C-Class vehicle. Sergeant David Frazer, who was the informant, provided Mr Langsford with a VIN number in respect of a burnt-out silver Mercedes-Benz vehicle that had been located by Detective Acting Sergeant Brain on 2 February 2017 in parkland behind Latrobe Golf Course. Mr Langsford said that the wheels on the vehicle depicted in the CCTV footage were the same as the wheels recorded on the data card that was relevant to that vehicle.

The prosecution led evidence, based on telephone records, in respect of the mobile telephone used by the applicant, through the informant, Sergeant Frazer, and Senior Constable Desiree Macdonald. In essence, the telephone records demonstrated that on 20 January 2017 the applicant’s mobile telephone was in use between 6.37 am and 8.09 am in the Preston East, Heidelberg, Kingsbury and Reservoir area. The mobile telephone did not activate any of the cell towers between 10 am and 12 noon on that date, which meant that the telephone was either switched off, or that it remained stationary.

The prosecution led evidence from two witnesses as to the movements of the silver Mercedes-Benz vehicle registered number WAB 898 on the morning of 20 January 2017.

On that date, Senior Constable Melissa Mark was performing patrol duties in the Campbellfield area. At 4 am, she was patrolling the Campbellfield Plaza car park on Sydney Road near the intersection of Mahoneys Road, where she observed a silver Mercedes-Benz registration WAB 898 stopped in a parking bay outside Kmart facing south. The vehicle’s engine was running and she could observe two people inside it. She made good observations of the driver. He was male, 20-30 years of age, and Middle Eastern in appearance. He had short hair and a short beard. After the vehicle left the parking bay, Senior Constable Mark followed it for a short time and activated her red and blue lights. Thereupon, the vehicle performed a U-turn and departed.

In the morning of 20 January 2017, Leading Senior Constable Brian Izard was performing duties in the Darebin area, attempting to identify vehicles that might be stolen. At 10.52 am on that day, he checked the LEAP system in respect of vehicle WAB 898 which he observed in that area.

On 8 May 2018, in an investigation into unrelated offending, an automatic pistol was located in premises in Reservoir. Subsequently, Leading Senior Constable Darren Watson, a member of the Ballistics Unit of Victoria Police, conducted a comparison between three fired bullets which had been recovered from the scene of the incident at Addikted to Ink, and some fired cartridge cases recovered from it. He determined that the bullets and fired cartridge cases had all been discharged from the same gun, namely, the firearm that was located on 8 May 2018 at the Reservoir premises. The firearm was a .32 automatic calibre firearm. Subsequently, on 20 July 2018, Leading Senior Constable Watson conducted tests on the fired bullet fragment that was recovered from Dio’s leg. He determined that it had originated from the same firearm.

The next group of witnesses, whose evidence is summarised, relate to the incident that occurred on 31 January 2017 at the premises of Ink Bound tattoo shop on Wheatsheaf Road, Glenroy, which is the subject of charge 3 (and the alternative charge 4).

On that day, Samir Dawood was working as a tattooist at the premises. He commenced work at about 10 am. While sitting at his desk talking to a client on the telephone, he heard a loud noise. He panicked, and ran from the shop. At the time no one was sitting in the chair. When Mr Dawood was shown CCTV footage, he agreed that it depicted a series of shots coming into the tattoo shop through the front window. He said he was not able to see who fired the shots.

On the same day, Shane Azzopardi was driving his vehicle in the Glenroy area. At about 12.30 pm, he was stationary at the intersection of Wheatsheaf Road, facing north. He observed a silver Mercedes-Benz drive past him travelling in the opposite direction. Immediately after it passed him, he heard a loud bang. When he turned around he saw the Mercedes vehicle stopped on the side of the road, and he heard loud bangs in succession which sounded like gunshots. At that point the Mercedes-Benz was about 10 metres behind him. Mr Azzopardi observed a male in the driver’s seat of that vehicle performing a shooting-type motion. Mr Azzopardi was not actually able to see the weapon that was held by the man. However, he could see the hand of the man using his right index finger and thumb as if he was holding and firing a weapon. Mr Azzopardi described the man as having olive skin, and a short beard. He noted the registration of the Mercedes-Benz vehicle as WAB 898. Immediately after the shots were fired, the Mercedes-Benz drove off at a normal speed.

On 31 January 2017, at about midday, Senior Constable Jonathan Marzin, of the Operations Response Unit, was driving his vehicle, a marked police car, west on Dawson Street. When he came to a stop at the intersection of Grantham Street, a silver Mercedes-Benz sedan turned right in front of him. The vehicle caught the attention of Senior Constable Marzin because it had turned the corner sharply. When Senior Constable Marzin had a green light, he followed the Mercedes-Benz. Suddenly the Mercedes-Benz took off at a high speed. When it approached an intersection, the vehicle pulled onto the incorrect side of the road and continued to accelerate. Senior Constable Marzin increased the speed of his vehicle in order to try to intersect the Mercedes-Benz. However, the Mercedes-Benz continued through a red light, turning left into Brunswick Street in order to travel east.

Senior Constable Marzin said that during the pursuit he had the opportunity to observe the driver. He described him as being male, Middle Eastern in appearance, with olive skin, dark hair, and a short beard or possibly heavy stubble. He was wearing a black baseball cap and a dark top. Having conducted a Google search, Senior Constable Marzin believed that the vehicle, that he observed, was a C200 Kompressor or similar model.

On 1 February 2017, Detective Acting Sergeant Brain, Sergeant Frazer and Sergeant Potts were involved in the arrest of the applicant in Reservoir. They located in his Holden Utility vehicle a bag which contained a 9 millimetre calibre Luger handgun.

On the following day, Detective Acting Sergeant Brain located a burnt-out silver Mercedes vehicle in parkland behind Latrobe Golf Course. He found number plates WAB 898 nearby in a creek. When he searched the front passenger side of the vehicle he located two shell casings which he lodged in the property office.

Detective Acting Sergeant Brain produced CCTV footage from the Ink Bound premises and from the premises of Falafel House which were down the road from Ink Bound. The footage from Ink Bound depicted the Mercedes-Benz pulling up at the front of the premises, discharging a number of shots into the premises, and then continuing along Wheatsheaf Road past Falafel House.

On 31 January 2017, Leading Senior Constable Paul Griffiths, a member of the Ballistics Unit of Victoria Police, attended at the premises of Ink Bound. He observed eight areas of fired bullet damage to the outside of the premises. He recovered a fired bullet fragment from outside the premises, and also a fired bullet from the desk area inside the premises. He also observed fired bullet damage to a tattoo chair inside the premises. On examination, the fired bullet fragment and the fired bullet were found to be 9 millimetre Luger-calibre bullets.

On 15 February 2017, Leading Senior Constable Griffiths conducted a comparison between the two fired cartridge cases, that were located by Detective Acting Sergeant Brain from the silver Mercedes vehicle that he located on 2 February 2017, with a 9 millimetre Luger-calibre firearm that was seized from the applicant’s Holden Rodeo utility on his arrest on 1 February 2017. On examination, there were residues present in the bore of the weapon. Leading Senior Constable Griffiths tested the pistol to produce test fired cartridges. He noted that the pistol was loaded by a magazine which contained eight rounds of ammunition. One of the cartridge cases, recovered from the Mercedes-Benz, was not in a condition that enabled it to be tested. However, Leading Senior Constable Griffiths was able to conclude that the other cartridge case had been fired in the Luger firearm. He also expressed the view that the bullet, and the bullet fragment, that were recovered from the Ink Bound premises, were capable of being fired out of the weapon.

Ms Alexandra Salerno, a forensic officer at Victoria Police Forensic Services Centre, examined the 9 millimetre Luger handgun and the magazine attached to it for DNA evidence. Her conclusions may be summarised as follows:

·DNA swabs from the trigger guards produced a mixed DNA profile indicating four contributors. The DNA profile taken from the applicant was compared to it. The DNA evidence was 1,900 times more likely if the applicant was a contributor to the DNA that was detected. That provided very strong support for the conclusion that the applicant was a contributor to the DNA.
·A swab taken from the front and rear levers produced a DNA profile indicating three contributors, one of which was the applicant. The DNA evidence was 3.6 million times more likely if the applicant was a contributor. That provided extremely strong support for the proposition that he was a contributor.
·A mixed DNA profile indicating four contributors was found in a sample above the trigger and the weapons grip. The DNA evidence was 22 times more likely if the applicant was a contributor, which provided moderate support for that proposition.
·Swabs taken from the magazine produced a mixed DNA profile indicating four contributors. The evidence was 96,000 times more likely if the applicant was a contributor to the DNA profile.
·A partial mixed DNA profile was taken from the cartridges contained in the magazine. The DNA evidence was 1,800 times more likely if the applicant was a contributor.

Ground 1

Ground 1 concerns the evidence that Sergeant Potts gave concerning the identification made by Happel of the applicant in the photo board identification on 16 February 2017. The ground is directed to the evidence given by Sergeant Potts as to the words spoken to him by Jayden Happel when Happel identified the photograph of the applicant as the person who he had observed at the premises of Addikted to Ink on 20 January.

After Happel completed his evidence, counsel for the applicant, for the first time, objected to evidence that the prosecution intended to call from Sergeant Potts as to the words spoken to him by Happel when the latter identified the photograph of the applicant during the photo board identification exercise. Counsel raised that objection on two principal bases. First, he contended that there was no evidence that, at the time at which Happel spoke to Sergeant Potts, the events of 20 January, and in particular his recollection of the identification features of the person involved in the offence, was fresh in his memory, for the purposes of s 66(2) of the Evidence Act 2008. Secondly, the process by which the evidence was to be adduced from Sergeant Potts was unfair to the applicant. Counsel submitted that the prosecutor should have made an application for Happel to refresh his memory from the statement that he made on 16 February 2017, pursuant to s 32 of the Evidence Act, or for leave to cross-examine Happel, as to that matter, pursuant to s 38 of the Evidence Act. It was submitted that in the absence of such an application, it would be unfair to the applicant for Sergeant Potts to give evidence as to what Happel said to him.

In response, the prosecutor submitted that the judge should be satisfied that, at the time at which Happel spoke to Sergeant Potts, his recollection of the fact asserted, namely, the facial features of the person involved in the offending, was fresh, for the purposes of s 66(2) and s 66(2A) of the Evidence Act. The prosecutor noted that the identification process took place less than one month after the event in question. There was nothing about the age or health of the witness which would have led to any concern about his capacity to recall the events that he had witnessed. The incident was of such a nature that Happel was likely to have recollected it well. Further, on 24 January, Happel made a detailed statement to police about the circumstances of the offence in which he described the features of the offender. On the following day, 25 January, he participated in the compilation by computer of the composite image of the handgun he had observed to be used in the offence.

After hearing submissions, the trial judge ruled that the evidence, to be given by Sergeant Potts, was admissible. Her Honour accepted the submission made by the prosecution that the facts, asserted by Happel to Sergeant Potts, would have been fresh in his memory at the time at which he spoke to Sergeant Potts. Her Honour was not satisfied that the probative value of the evidence of Sergeant Potts was outweighed by the danger of unfair prejudice to the applicant.

Ground 1 — submissions

In support of ground 1, counsel for the applicant submitted that the evidence of Sergeant Potts, as to what Happel said to him, resulted in a fundamental procedural unfairness, in circumstances in which that evidence had not been put to Happel under s 32 or s 38 of the Evidence Act. Alternatively, it was submitted that the evidence of Sergeant Potts should have been excluded under s 137 of the Evidence Act, on the basis that its probative value was outweighed by the unfairness that resulted to the applicant.

Counsel contended that based on the evidence of Happel, his identification of the person depicted in photograph number 6, as one of the two persons involved in the incident at Addikted to Ink, was vague and quite weak. In his evidence-in-chief, Happel had said that while he could not recall what he said to Sergeant Potts, nevertheless his best recollection was that he told Sergeant Potts that he ‘believed’ that the person depicted in photograph 6 was one of those two persons involved in the incident. In cross-examination, Happel agreed that in selecting photograph 6, he was saying that out of the twelve photographs on the photo board, number 6 was what looked most like the person who he believed did the shooting. Happel by then understood that the police had already arrested someone, and that that person’s image was on the photo board. At the time of the incident his main focus was on the unidentified male and not on the shooter. In addition, he told Detective Sergeant Woolfe that the shooter had stubble and not a beard. Accordingly, as it stood in the trial, Happel’s evidence as to his identification of the person in photograph 6, as one of the offenders, was quite weak.

Counsel for the applicant submitted that, in those circumstances, Happel’s evidence was such that it was open to the prosecution to seek to put to him the statement that he had signed when he participated in the photo board exercise (in which he said that photograph 6 was ‘definitely’ the person who shot Dio), by having Happel revive his memory from that statement under s 32 of the Evidence Act, or by seeking leave to cross-examine him under s 38 of the Evidence Act. However, the prosecutor chose not to pursue either such course. Instead the prosecutor, having adduced the evidence from Sergeant Potts as to what Happel said to him, proceeded to rely on that evidence, in preference to the evidence of Happel. In that way, it was submitted, the prosecutor converted a weak and inconclusive reported identification by Happel of the applicant as one of the offenders, into a strong and definite identification. In particular, in his final address, the prosecutor contended that Sergeant Potts’ evidence, as to what Happel said to him, was more reliable, and should be accepted by the jury, on the grounds that Happel’s recollection of that evidence, some eighteen months later, was compromised. The prosecutor further submitted that the concession made by Happel in cross-examination — that he had only selected the photograph of the person who was most similar to one of the offenders — was the product of a leading question in cross-examination, in which in effect words were put into the mouth of Happel.

Counsel for the applicant submitted that where a prosecutor seeks to traverse the evidence given by a prosecution witness, the prosecutor must first have given that witness the opportunity to respond to the matters relied on by the prosecutor in final address. In support of that submission, counsel relied on the decisions of this Court in Saddik v The Queen,[1] Ritchie (a pseudonym) v The Queen,[2] Murillo (a pseudonym) v The Queen[3] and Astbury v The Queen.[4] Counsel further submitted that in the absence of cross-examination by the prosecutor of Happel about that evidence, it could not be determined whether, at the time that Happel spoke to Sergeant Potts, his recollection of the facial features of the offender was fresh, for the purposes of the exception to the hearsay rule contained in s 66(2) of the Evidence Act. The fact that that question remained open, it was submitted, compounded the procedural unfairness.
[1][2018] VSCA 249, [90] (Kaye and Niall JJA, Whelan JA agreeing at [1]–[8]) (‘Saddik’).
[2][2019] VSCA 202, [57], [67]–[68] (Kaye and Weinberg JJA and Kidd AJA) (‘Ritchie’).
[3][2020] VSCA 68, [110], [117(3)] (Kaye JA, T Forrest and Osborn JJA agreeing at [119]) (‘Murillo’).
[4][2020] VSCA 132, [71] (Kaye, Niall and Weinberg JJA) (‘Astbury’).

Counsel for the applicant submitted that a further aspect of the procedural unfairness arose from the effect of the evidence given by Sergeant Potts on the directions given by the judge to the jury on the identification evidence in question. First, it was contended, in giving those directions, the judge (appropriately) summarised the final addresses of both parties. In the circumstances, due to the failure of the prosecutor to put Sergeant Potts’ evidence to Happel, the prosecution was able to make a submission, which was repeated by the judge to the jury, that the evidence of Sergeant Potts was preferable to that of Happel. Further, it was submitted, if the evidence of Sergeant Potts had been put to Happel, the directions given by the judge to the jury, under s 36 of the Jury Directions Act 2015, might have been more favourable to the defence.

In response, counsel for the respondent submitted that the evidence of Sergeant Potts, as to the representation made by Happel, was properly admitted pursuant to s 66(2) of the Evidence Act. Counsel submitted that the judge was correct to conclude that at the time at which Happel spoke to Sergeant Potts, his recollection of the fact asserted by him — the visual image of the face of the person involved in the incident – was fresh pursuant to s 66(2A) of the Evidence Act. The representation was made one month after the offending, Mr Happel was young and in good health, and the traumatic nature of the incident was such that it would imprint itself on his recollection.

Counsel for the respondent further submitted that there was no basis upon which the prosecutor could have sought leave to cross-examine Happel, and put to him the evidence that was intended to be led from Sergeant Potts. Happel’s evidence was not unfavourable to the prosecution. Nor was it inconsistent with the statement that he had previously made at the time at which he participated in the photo board identification process with Sergeant Potts.

It was submitted that no procedural unfairness resulted from the circumstance that Sergeant Potts’ evidence was not put to Happel in cross-examination, or by Happel refreshing his memory from the statement that he made to Sergeant Potts. Counsel for the applicant did not seek to further cross-examine Happel concerning those matters. Rather, counsel made a tactical decision not to have the issue further pursued with Happel, in cross-examination by either himself or the prosecutor.

Counsel for the respondent further submitted that the authorities relied on by counsel for the applicant — Saddik, Murillo, Ritchie and Astbury — were distinguishable from the present case. In those cases, the prosecutor sought to impugn the evidence given by a prosecution witness, without first applying for leave to cross-examine that witness under s 38 of the Evidence Act. In the present case, the prosecutor did not seek to impugn the evidence given by Happel. Instead, the prosecutor submitted that the jury should prefer the evidence given by Sergeant Potts, to the evidence given by Happel, concerning the content of the conversation which took place between them at the time of the photo board identification process.

Accordingly, it was submitted, the evidence given by Sergeant Potts, that is the subject of ground 1, did not result in any procedural unfairness to the applicant, and that the judge was correct in admitting the evidence of Sergeant Potts on that matter.

Analysis and conclusion on ground 1

In his written case, and in oral submissions, the applicant relied on two principal submissions. The first submission — which received less attention in oral argument — was that the evidence of Sergeant Potts was inadmissible hearsay evidence, which did not come within any of the exceptions provided in s 66 of the Evidence Act. The second submission advanced on behalf of the applicant — which was at the forefront of the oral argument presented on his behalf — was that the evidence of Sergeant Potts, as to the words spoken to him by Happel, resulted in a fundamental procedural unfairness to the applicant in circumstances in which Happel was not given the opportunity to consider and address that evidence. Alternatively, it was submitted that the judge erred in failing to exclude the evidence of Sergeant Potts pursuant to s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the applicant.

The first proposition, so advanced on behalf of the applicant, must fail, for two reasons. First, the evidence of Sergeant Potts, as to the words spoken to him by Happel, was, of course, hearsay. However, the evidence of Sergeant Potts related to the same conversation, and indeed the same aspect of that conversation, about which evidence had already been given by Happel without any objection on behalf of the applicant. That is, the evidence of Happel, as to what he said to Sergeant Potts after he had identified photograph 6 as depicting the face of the person involved in the incident on 20 January, was hearsay evidence, which was not objected to by the applicant. Thus, the hearsay evidence, as to the previous representation made by Happel to Sergeant Potts, was already admitted in the trial at the time at which Sergeant Potts gave his evidence. The evidence given by Sergeant Potts, which is the subject of ground 1, concerned precisely the same representation about which Happel had already given evidence, namely, the words spoken by Happel to Sergeant Potts when he selected photograph 6 of the photo board.

Further, and in any event, the evidence given by Sergeant Potts was admissible under s 66(2) of the Evidence Act.

When s 66 was originally enacted in the Evidence Act 1995 (NSW) it did not include sub-s (2A). In Graham v The Queen[5] the High Court held that the word ‘fresh’, in s 66(2), meant ‘recent’ or ‘immediate’.[6] As a result of that decision, sub-s (2A) was introduced into s 66. The effect of that amendment was considered in a number of subsequent cases which concerned sexual offences that had occurred some years previously, and in which the first complaint of the offending was made well after the offending. In those cases, it was held that, in view of the nature of the offences that were alleged, it was probable that the events, described in the complaint, had remained vivid in the complainant’s recollection at the time of the complaint, so that the complainant’s memory of the event was, at that time, still fresh for the purposes of s 66(2).[7]
[5](1998) 195 CLR 606 (‘Graham’).
[6]Ibid 608 [4] (Gaudron, Gummow and Hayne JJ).
[7]See, eg, R v XY (2010) 79 NSWLR 629, 645 [85] (Whealy J); LMD v The Queen [2012] VSCA 164, [24] (Harper JA); Clay (a Pseudonym) v The Queen (2014) 43 VR 405, 413–14 [38]–[48] (Weinberg, Osborn and Priest JJA).

The effect of those decisions was considered by the High Court in R v Bauer (a pseudonym).[8] That case involved sexual offences which were alleged to have been perpetrated by the accused over an eleven year period. The complainant first made a complaint about the offending at the conclusion of that period. The Court held that the memory of the complainant of the offending at the time, at which she made the complaint, was still fresh in her memory. Having referred to the effect of Graham, the Court stated:

…sub-s (2A) was inserted into s 66 of the Evidence Act to make clear that the intention of the section is that “freshness” is not confined to the time which elapses between the occurrence of the relevant event and the making of the representation about that event. Since then, it has rightly come to be accepted by intermediate courts of appeal that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years. It depends on the facts of the case.[9]

[8](2018) 266 CLR 56.

[9]Ibid [89] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted).

In the present case, the photo board identification, and the discussion between Sergeant Potts and Happel, took place four weeks after the event in question. During that time, Happel had had occasion on which he had been required to recall the incident. On 23 January 2017, he had spoken to Detective Sergeant Woolfe and described the facial features of the offender, who he had observed involved in the incident. Further, quite plainly, the incident itself was of such a nature that the details of the persons involved in it were likely to have been clearly imprinted on his recollection. There was no suggestion in the evidence that Happel suffered any health or other issue which might have impaired his capacity to recollect those matters.

Accordingly, it is, we consider, unarguable that at the time at which Happel spoke to Sergeant Potts, his recollection of the facial features and appearance of the person, who he identified, was fresh in his memory for the purposes of s 66(2) of the Evidence Act. As such, the evidence was relevant and admissible.

The second — and more significant — contention advanced on behalf of the applicant under ground 1 was that a procedural unfairness was occasioned to the applicant as a result of Happel not having the opportunity to respond to the evidence of Sergeant Potts. Allied to that question is whether the evidence of Sergeant Potts, in those circumstances, should have been excluded under s 137 of the Evidence Act, on the basis that its probative value was outweighed by the danger of unfair prejudice to the applicant. In particular, counsel for the applicant submitted that the principles of procedural fairness required that, in order for Sergeant Potts to give evidence as to the words spoken by Happel to him when Happel selected photograph 6 on the photo board, that evidence should have been put to Happel by the prosecutor, by resort to the procedures contained in ss 32 or 38 of the Evidence Act.

Under s 32, the prosecution might have been able to seek leave for Happel to revive his memory of what he said to Sergeant Potts, by referring to a statement taken from him, and signed by him, immediately after he had made the selection of the photograph on the photo board. In that statement, Happel stated that he had indicated photograph 6 by pointing to it and saying ‘it’s definately [sic] that guy there … He’s the guy who shot the other person. He was the guy with the gun’. It is relevant to note that that document was not tendered in evidence in the trial.

However, if the prosecutor had sought and obtained leave for Happel to refresh his memory from that document, that process could not have assisted the applicant, and it might well have worked significantly to his disadvantage. If Happel had been provided with the document to refresh his memory, he would either have maintained the evidence that he had already given, both evidence-in-chief and in cross-examination, or alternatively he might have altered his evidence and adopted, in effect, what he said in the statement as being correct. In either case, it is most unlikely that defence counsel would have taken a course which resulted in the statement being put before the jury as evidence. Any cross-examination by defence counsel, on that matter, would have been limited, in order to ensure that the statement was not tendered. Thus, the fact that the prosecutor did not seek to avail himself of s 32 of the Evidence Act did not result, nor could it have resulted, in any procedural unfairness to the applicant.

On the other hand, it was open to the prosecutor to have sought leave to cross-examine Happel under s 38(1) of the Evidence Act. The question, whether particular evidence of a witness is ‘unfavourable’ to a party pursuant to

s 38(1)(a), has been considered in a number of authorities.[10] In the circumstances of this case, it is debatable whether the evidence given by Happel was ‘unfavourable’ within the meaning of that phrase as discussed in those cases. However, it is not necessary to resolve that issue. For, it is clear that the evidence given by Happel, as to what he said to Sergeant Potts, was inconsistent with the statement signed by Happel at the conclusion of the photo board identification process. In essence, the evidence given by Happel, was that he had said to Sergeant Potts that he ‘believed’ that the person, depicted in photograph 6, was the shooter, and that he had selected photograph 6 on the basis that it bore the closest resemblance to that person. That evidence was not consistent with the content of the statement signed by Happel, that the person depicted in photograph 6 was ‘definitely’ the person who shot Dio.
[10]See, eg, DPP v Garrett [2016] VSCA 31, [38]–[72] (Maxwell P, Redlich and Beach JJA) (and cases cited therein).

Thus, it was open to the prosecutor to seek leave to cross-examine Happel about that prior inconsistent statement made by him. Counsel for the applicant, at the trial, did not make a submission that that course should be undertaken, before Sergeant Potts gave evidence. It is clear that counsel refrained from making that submission for good forensic tactical reasons. If the prosecutor had sought leave to cross-examine Happel concerning the differences between his evidence and the statement, it would have resulted in the statement, signed by him, being tendered in evidence, or, at the very least, the content of it being put before the jury orally. Either such course would have been highly disadvantageous to the applicant. In the absence of any evidence that Happel had in fact signed a statement in which he said that the person depicted in photograph 6 was ‘definitely’ the shooter, the prosecution was left with a case in which there was a relevant difference between the evidence of Happel and the evidence of Sergeant Potts as to the degree of certainty expressed by Happel when he selected photograph 6 on the photo board as depicting the ‘shooter’ in the incident. That difference in the evidence enabled counsel for the applicant, in final address, to place significant weight on the evidence of Happel. In his address to the jury, counsel emphasised that Happel had said that he ‘believed’ that the person in photograph 6 was the shooter, and that he had selected photograph 6 as depicting the person who looked most like the shooter. As Happel’s signed statement was not tendered, counsel was able to advance cogent arguments as to why the evidence of Happel should be preferred to that of Sergeant Potts.

Certainly, it was submitted on behalf of the applicant, the course that was adopted in the trial did not give Happel the opportunity to respond to the evidence of Sergeant Potts as to the terms in which Happel selected photograph 6 on the photo board. However, for the reasons we have discussed, we consider that counsel for the applicant, at trial, made a legitimate forensic decision not to press for that course to be adopted. At the risk of repetition, such a course of questioning of Happel, pursuant to s 38 of the Evidence Act, would have involved the jury becoming acquainted with the fact that, at the conclusion of the photo board process, Happel had signed a document in which he had said that the person, whose photograph he had selected, was ‘definitely’ the offender involved in the incident who had shot Dio. In those circumstances, we do not accept the submission made on behalf of the applicant that a procedural unfairness was occasioned by Sergeant Potts giving evidence as to the terms in which Happel had selected photograph 6, in circumstances in which Sergeant Potts’ evidence, concerning that matter, was not put to Happel in cross-examination.

Counsel for the applicant also submitted that the applicant’s right to procedural fairness was breached because the prosecutor ‘traversed’ the evidence of Happel in final address without first putting to him, in cross-examination, the evidence of Sergeant Potts. Counsel relied on the decisions of this Court in Saddik, Ritchie, Murillo and Astbury in support of the proposition that it is a breach of procedural fairness for a prosecutor to traverse the evidence of a witness called by the prosecution without first giving that witness the opportunity to respond to the criticism made of his or her evidence pursuant to the rule in Browne v Dunn.[11]
[11](1893) 6 R 67.

Contrary to the underlying premise contained in that submission, the prosecutor did not, in final address, seek to impugn or traverse the evidence given by Happel as to the terms in which he selected photograph 6 on the photo board. In essence, the prosecutor made two submissions concerning Happel’s evidence in that respect. First, no doubt with a view to offset the concession made by Happel in cross-examination, the prosecutor submitted that the jury should prefer the evidence given by Happel in evidence-in-chief, rather than in cross-examination, in which (the prosecutor submitted) the witness was responding to ‘packaged words put together’ by counsel. Secondly, the prosecutor submitted that the jury should prefer the evidence given by Sergeant Potts, to the evidence given by Happel, as to the terms in which Happel selected photograph 6. He made that submission on that basis that the jury should be more comfortable accepting what Happel said immediately on viewing the photograph, rather than what the witness recalled some eighteen months later.

Thus, the prosecutor did no more than advance reasons why the jury should prefer the evidence of Sergeant Potts, to the evidence given by Happel, in respect of the terms in which Happel selected photograph 6 on the photo board. It was not necessary, in the circumstances of the case, for the prosecutor to have confronted Happel with Sergeant Potts’ evidence in order to be entitled to advance that submission. Certainly, it might have been preferable for the prosecutor to have done so. However, in the circumstances we have discussed, such a course was most likely to have resulted in a significant disadvantage to the case of the applicant. In Saddik, Kaye and Niall JJA stated relevant principles in the following terms:

It is well-established that the prosecution does not warrant the truthfulness of its witnesses. Accordingly, the prosecution is not obliged to accept the evidence given by any particular witness called by it. That is because the prosecution has the obligation to present its case in conformity with the requirements of fairness to an accused person, and, as such, is ordinarily required to call all relevant witnesses in the trial, unless there is a good objective reason for not doing so. Consequently, a prosecutor is entitled to invite a jury to accept the evidence of one particular witness in preference to another.[12]

[12]Saddik [2018] VSCA 249, [79] (Kaye and Niall JJA) (citations omitted); see also R v Le (2002) 54 NSWLR 474, 486–7 [68] (Heydon JA).

The authorities relied on by counsel for the applicant, in support of the proposition that, for the prosecutor to be entitled to submit to the jury that it should prefer the evidence of Sergeant Potts to that of Happel, Happel must have been given the opportunity to respond to Sergeant Potts’ evidence, involved cases in which the prosecutor, in final address, went much further than simply inviting the jury to prefer the evidence given by one witness to that given by another witness.

In Saddik, the appellant, a medical practitioner, was convicted of two charges of indecent assault of a patient. The prosecutor called evidence from a parish priest, Father Abdelmalek, who, after the offences that were alleged to have occurred, had acted as an intermediary between the complainant and the appellant. Father Abdelmalek gave evidence that was favourable to the appellant in a number of respects. The prosecutor sought and obtained leave to cross-examine the witness, under s 38 of the Evidence Act, on a limited basis. In final address, the prosecutor impugned the credibility of the witness, alleging that he was biased in favour of the appellant, and suggesting that the witness, in his evidence, had concealed what he had been told by the appellant about the allegations made by the complainant. The prosecutor also sought to portray a joint collusion between the appellant, the witness and another priest, who had since deceased. It was for those reasons that the Court concluded that the conduct of the prosecutor constituted an irregularity in the trial which resulted in a substantial miscarriage of justice.[13]
[13]Saddik [2018] VSCA 249, [109]-[110], [117], [119] (Kaye and Niall JJA).

In Ritchie, the applicant was convicted of four charges alleging sexual offending against her stepson. The fourth charge concerned an incident that was alleged to have occurred on a couch, in the course of which the applicant’s husband (and the complainant’s father), Robert Ritchie, entered the room and found them in a compromising position. Mr Ritchie was therefore a critical witness in the case. His evidence supported the case of the applicant. The prosecutor sought and obtained leave to cross-examine him, on five specific topics. In his final address, the prosecutor addressed arguments impugning the credibility of the account given by Mr Ritchie, based on a number of propositions that were not put to him in cross-examination. In doing so, the prosecutor submitted that Mr Ritchie had tailored his evidence to assist the case of the applicant, and that his evidence was affected by bias in favour of the applicant. Neither of those propositions were put to Mr Ritchie in cross-examination, either directly or indirectly. For those reasons, the Court held that the submissions made by the prosecutor constituted a breach of his duty of fairness.[14]
[14]Ritchie [2019] VSCA 202, [106]-[108] (Kaye and Weinberg JJA and Kidd AJA).

In Astbury, the applicant was convicted of murder arising out of a confrontation that he had with the deceased in the course of an argument between them. The victim died as a result of severe blunt force trauma to the chest. The applicant gave evidence that in the course of the argument between them, the victim and he became involved in an altercation, in which they both overbalanced, with the victim falling on his back, and the applicant landing on top of him. The prosecutor cross-examined the applicant in some detail concerning his version of the incident. At no time did he put to the applicant that the fatal injury had been inflicted by the applicant jumping on the victim’s chest. Despite refraining from putting that proposition to the applicant in cross-examination, the prosecutor for the first time in the trial advanced that proposition — that the applicant had caused the victim’s death by jumping on his chest — in final address. The Court held that the failure of the prosecutor to put the proposition to the applicant in cross-examination was a serious departure from the prosecutor’s duty of fairness in the trial.[15]
[15]Astbury [2020] VSCA 132, [77]-[78] (Kaye, Niall and Weinberg JJA).

Thus, the authorities relied on by counsel for the applicant in this case may be readily distinguished. In each of those cases, the prosecutor had sought to impugn the evidence given by a witness (or, in Astbury, to rely on an important proposition) without first giving the relevant witness the opportunity to respond to it. By contrast, as we have discussed, in the present case the prosecutor did no more than invite the jury to prefer the evidence of Sergeant Potts to that given by Mr Happel in respect of the terms in which Happel selected photograph 6 on the photo board. Accordingly, the submission made by the prosecutor in final address did not contravene his duty of fairness, and did not involve any procedural unfairness to the applicant.

For similar reasons, we consider that the judge was correct to conclude that the probative value of the evidence of Sergeant Potts, as to that matter, was not outweighed by any unfair prejudice to the applicant. On its face, the evidence given by Sergeant Potts was of significant probative value to the prosecution. For the reasons that we have discussed, the adducing of that evidence did not involve any procedural unfairness to the applicant. On the contrary, it ensured that counsel for the applicant, at trial, still had available to him a respectable submission, which he put to the jury, as to why the evidence of Happel should be preferred to that of Sergeant Potts. Accordingly, the judge was correct not to exclude the evidence of Sergeant Potts pursuant to s 137 of the Evidence Act.

For those reasons, we do not uphold ground 1 of the application for leave to appeal.

Ground 2

Senior counsel for the applicant conceded that ground 2 could not succeed unless this Court upholds ground 1. That concession was plainly correct. Nevertheless, despite the conclusion that we have reached in respect of ground 1, it is appropriate we address the submissions advanced by the parties in respect of ground 2, on the assumption that, contrary to the conclusions that we have reached, ground 1 had succeeded.

On that basis, in support of ground 2, counsel submitted that the prosecution could only succeed, in respect of charges 3 and 4 (that related to the second incident), if the jury was satisfied beyond reasonable doubt of the guilt of the applicant in respect of charges 1 and 2 (relating to the first incident). Counsel contended that the identification evidence given by Happel was critical to the success of the prosecution on charges 1 and 2. Counsel noted that unless the jury was persuaded that Happel had made a positive identification of the applicant as one of the two offenders involved in the incident that occurred at the premises of Addikted to Ink, the prosecution case otherwise was circumstantial. In those circumstances, it was submitted that the prosecution case, either individually or taken as a whole, was not a sufficient basis upon which the jury could exclude a reasonable hypothesis consistent with the applicant’s innocence.

In response, senior counsel for the respondent submitted that, if the evidence given by Happel did not amount to a positive identification of the applicant, nevertheless the evidence, that was adduced by the prosecution, taken as a whole, was sufficient to exclude any hypothesis consistent with innocence. In that respect counsel referred, in particular, to the following evidence: the evidence of the presence of the silver Mercedes-Benz motor vehicle outside the premises of My Chemist and AHS Compounding at or about the time of the first incident; the descriptions given by witnesses, including Happel, Dio and Baker, of the offenders in that incident; the evidence connecting the applicant with a 9 millimetre Luger firearm found in his vehicle, which was of the same calibre as the weapon used in the attack on the Ink Bound premises on 31 January 2017; the observations made by Mr Azzopardi of the silver Mercedes-Benz vehicle outside those premises at the time of the shooting; the evidence linking the applicant to that vehicle; and the evidence linking one of the two cartridge casings, found in the silver Mercedes-Benz on 2 February 2017, with the incident at Ink Bound.

Ground 2 — analysis and conclusion

Ground 2 is based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that the Court must allow an appeal if it is satisfied that the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.

In order to succeed on that ground, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on the charges on which he was convicted.[16] In determining that question, the appellate court must give full weight to the principle that the jury is the body which is entrusted with the principal responsibility of determining the guilt or innocence of the accused person.[17] In performing that role, the jury, ordinarily, has the advantage of having observed the witnesses, and of having aspects of the evidence explained to it in a visual form, whether by reference to the exhibits, or by physical demonstration undertaken in the jury box by a particular witness.
[16]M v The Queen(1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); SKA v The Queen(2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ); Pell v The Queen[2020] HCA 12, [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
[17]M(1994) 181 CLR 487, 492–3; R v Baden-Clay(2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Fennell v The Queen[2019] HCA 37, [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ) (‘Fennell’).

Nevertheless, and giving appropriate weight to that consideration, it is the role of the appellate court to consider whether, based on the evidence, it was reasonably open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt. As the High Court recently stated in Pell:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[18]

[18]Pell [2020] HCA 12, [39] (citations omitted).

Assuming, for the purposes of addressing ground 2, that the jury did not accept the evidence of Happel as that of a positive identification of the applicant as one of the two offenders at the premises of Addikted to Ink, there was no direct evidence connecting the applicant with the offender involved in either of the two incidents that were the subject of the charges. As such, the prosecution case against the applicant was circumstantial. In order to be satisfied of the guilt of the applicant in such a case, the jury was required to conclude that the only reasonable inference, available on the evidence, was that the applicant was one of the two offenders involved in the incident at the Addikted to Ink premises on 20 January 2020, and that he was the offender involved in the incident at the premises of Ink Bound on 31 January 2017. Accordingly, on this application, the applicant must demonstrate that the jury could not have reasonably excluded an hypothesis consistent with the innocence of the applicant, namely, that the offender involved in each incident was not the applicant, but some other person.

In Coughlan v The Queen,[19] the High Court expressed the applicable principles in the following terms:

An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.[20]

[19][2020] HCA 15.

[20]Ibid [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) (citations omitted).

In a case that is based on circumstantial evidence, the question, whether the prosecution has proven the guilt of the accused to the requisite standard, is determined by a consideration of the combined force of the evidence as a whole. In Fennell,[21] the High Court stated:

In an appeal where a ground of appeal is that the verdict was unreasonable or cannot be supported having regard to the evidence, and particularly where the Crown case is based upon a number of matters of circumstantial evidence, it is necessary for the appellate court to assess the whole of the case and to weigh that case as a whole. A circumstantial case cannot be considered in a piecemeal fashion.[22]

[21][2019] HCA 37.

[22]Ibid, [82] (citations omitted).

Assuming the success of the applicant on ground 1, we are nevertheless persuaded that the united and combined effect of the circumstantial case, relied on by the prosecution, was sufficient to exclude any reasonable possibility that the applicant was not one of the two offenders involved in the incident at the Addikted to Ink premises, and that he was not the offender involved in the incident concerning the Ink Bound premises. The prosecution case, taken as a whole, was a sufficient, and indeed a strong, basis upon which the jury was entitled to be satisfied, beyond reasonable doubt, that the only reasonable conclusion was that the applicant was guilty of the charges on which he was convicted.

The first aspect of the prosecution case concerned the shooting of the applicant’s brother, Omar Tiba, in the vicinity of Kmart, or the Kmart car park, on 17 January 2017. That incident was relevant for two reasons. First, it provided a motive or reason why the applicant might have been involved in the two violent incidents that occurred in the following two weeks. Secondly, there were two important links between the applicant and that incident. In the incident that occurred at Addikted to Ink three days later, Happel heard the offender, who wore the baseball cap, and who produced the pistol, mention Kmart on multiple occasions. In addition, there was the evidence of Mr Fale and his wife, Ms Letoga, as to the presence of a man in the Kmart car park, at that time, behaving in an agitated manner. Both those witnesses stated that that man, who answered the description of the applicant, was driving a silver Mercedes-Benz vehicle. Ms Letoga wrote down the registration number of the vehicle, namely, WAB 898.

The prosecution adduced evidence that connected the applicant to the silver Mercedes-Benz registered number WAB 898 at that time. Surveillance Operative 053 observed the applicant driving that vehicle in the afternoon of 17 January. Surveillance Operative 40 observed the applicant driving the vehicle on the evening of 19 January.

In that context, there was strong evidence implicating the applicant in the incident that occurred at the premises of Addikted to Ink on 20 January.

In the absence of a positive identification, at the least, Happel’s evidence was that the photograph, that he selected on the photo board, bore the closest resemblance to the person who he described as the ‘shooter’ in that incident. Dio selected three photographs from the photo board, one of which was the photograph of the applicant. When interviewed by Detective Sergeant Woolfe, he gave a description of the offender as a person who matched the appearance of the applicant.

In addition, there was evidence that connected a silver Mercedes-Benz vehicle with the incident at the premises of Addikted to Ink. On the early morning of 20 January 2017, Senior Constable Mark observed the silver Mercedes-Benz vehicle registered number WAB 898 stationary in a parking bay outside the Kmart premises in Campbellfield. She gave a description of the driver which, in broad terms, was consistent with the appearance of the applicant. Later that morning, Leading Senior Constable Izard observed the vehicle in the Darebin area at 10.52 am. The CCTV footage that was taken from My Chemist, and AHS Compounding premises, depicted a silver Mercedes-Benz vehicle driving past those premises at about 10.25 am on 20 January. The footage taken from the Caltex premises on the same morning at 10.15 am was consistent with the presence of a silver Mercedes-Benz vehicle in the background.

That evidence, taken as a whole, was a sufficient basis upon which the jury was entitled to be satisfied, beyond reasonable doubt, that the applicant was one of the two offenders involved in the incident that occurred at the premises of Addikted to Ink on 20 January 2017, and which is the basis of charges 1 and 2.

The incident at the premises of Ink Bound occurred eleven days later. Apart from the evidence connecting the applicant to the incident at Addikted to Ink, there were a number of pieces of evidence that independently also implicated him as the offender involved in the incident at Ink Bound. The evidence of Mr Azzopardi was that the vehicle, that was involved in that incident, was the silver Mercedes-Benz vehicle registered number WAB 898 that other evidence linked to the applicant. The weapon used in the incident was a 9 millimetre calibre weapon. One day later, a 9 millimetre Luger handgun was located in the applicant’s Holden Utility vehicle. DNA evidence strongly connected the applicant with that weapon. The bullets and the bullet fragment, that were recovered from the Ink Bound premises, were capable of being fired from that weapon. The ballistics expert, Leading Senior Constable Griffiths, identified one of the two cartridge cases, that were found in on 2 February in the silver Mercedes-Benz registered number WAB 898, as having been fired from the Luger weapon that was linked to the applicant. Thus, the vehicle involved in the incident, and the weapon that was used in it, were both linked to the applicant.

At the trial, the evidence linking the applicant with the first incident, at the premises of Addikted to Ink, was admitted as coincidence evidence that established the identity of the applicant as the offender involved in the incident at Ink Bound, pursuant to s 98 of the Evidence Act. The prosecution relied on a number of similarities as the basis for the coincidence reasoning. In particular, the prosecution pointed to the similarities in the two incidents. At about the time of the first incident the vehicle a silver Mercedes-Benz vehicle was captured on CCTV footage close to the premises of Addikted to Ink. The silver Mercedes-Benz vehicle registered number WAB 898, that was linked to the applicant, was used by the offender in the second incident at the premises of Ink Bound. In each incident, the offending related to tattoo premises. It occurred before normal opening hours. A handgun was used in each incident. The offender in each incident was identified as being a male of Middle Eastern appearance with a beard. The two incidents occurred within two weeks of each other.

In addition, in respect of the incident at Ink Bound, the prosecution relied on the evidence of Senior Constable Marzin in respect of the behaviour of the silver Mercedes-Benz sedan vehicle that he observed in the Brunswick area at about midday on 31 January. The vehicle acted suspiciously when the driver of it noticed the police vehicle. The driver of the vehicle matched the appearance of the applicant, being male, Middle Eastern appearance, with olive skin, dark hair and a short beard, and wearing a baseball cap.

Thus, taken together, there was a strong basis upon which the jury could be satisfied, beyond reasonable doubt, that the person involved in the offence at the Addikted to Ink premises, was the same person who committed the offences in the incident at the Ink Bound premises on 31 January. As we have discussed, there was strong evidence connecting the applicant to the first incident, and on the basis of which the jury was entitled to be satisfied, beyond reasonable doubt, that the applicant was one of the two offenders involved in that incident. In addition, there were two strands of evidence connecting the applicant with the incident at the Ink Bound premises, namely, the evidence relating to the weapon, and the evidence relating to the vehicle. The coincidence evidence, and that evidence, was, in our opinion, a sufficient basis upon which the jury was entitled to be satisfied, beyond reasonable doubt, that the applicant was the offender involved in the incident at the Ink Bound premises. The evidence in the case was sufficient to exclude the reasonable possibility that the applicant was not involved in either of the two sets of offences. In our view, the hypothesis, that he was not the offender in each case, was not reasonably open on the evidence.

It follows that, assuming that, contrary to our earlier conclusion, ground 1 had succeeded, we would nevertheless have held that ground 2 must fail.

Summary of conclusions

For the foregoing reasons, we have concluded that ground 1 of the application for leave to appeal must fail. Further, assuming (contrary to that conclusion) that we had upheld ground 1, ground 2 would, in any event, not succeed.

Accordingly, the application for leave to appeal against conviction must be refused.

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Citations

Mohammed Tiba v The Queen [2020] VSCA 204

Most Recent Citation

Director of Public Prosecutions v Lawson [2023] VCC 1986

Cases Citing This Decision

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Director of Public Prosecutions v Lawson [2023] VCC 1986

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[2020] VSCA 204

17 August 2020