Orman v R
[2010] VSCA 246
•21 September 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| FARUK ORMAN | S APCR 2009 0920 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE and NEAVE JJA and BEACH AJA |
| WHERE HELD | MELBOURNE |
| DATES OF HEARING | 17, 18 and 20 August 2010 |
| DATE OF JUDGMENT | 21 September 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 246 |
| JUDGMENT APPEALED FROM | [2009] VSC 538 (Weinberg JA) |
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CRIMINAL LAW – Murder – Gangland killing of one ‘hitman’ by another – Accused alleged to have acted as driver of get-away car in concert with killer – Evidence that killer ‘a hitman’ and that accused did ‘jobs’ with killer – Discharge of jury in course of trial – Discretion of trial judge – R v Boland [1974] VR 849, The Queen v Crofts (1996) 86 CLR 427, applied.
Evidence – Bad character – Whether evidence of reputation of killer and of accused’s association with killer admissible against accused as probative of facts inherent in background of case, killer’s motive and scope of accused’s agreement to act in concert with killer – Observations of McHugh J in Harriman v The Queen (1989) 167 CLR 590, 630, applied – R v Knowles [1984] VR 751, followed – Plomp v The Queen (1963) 110 CLR 234, McAuliffe v The Queen (1995) 183 CLR 108, referred to.
Quaere whether evidence inadmissible against killer at trial of killer would otherwise be inadmissible against accused at trial of accused to which killer not party – R v Lowery (No 3) [1972] VR 989, considered, R v Robson [2006] 1 Cr App R 480, referred to.
Circumstantial evidence – Essential intermediate fact – Whether identity of get-away car an essential intermediate fact which, standing alone, required proof beyond reasonable doubt – The Queen v Hillier (2007) 228 CLR 618, applied.
Witnesses – Gaol-house informer – Pollitt direction – Matters necessary to be referred to in direction – Need to mould direction to circumstances of case – Pollitt v The Queen (1992) 174 CLR 558, considered, R v Clough (1992) 28 NSWLR 396, followed.
Verdict – Whether unsafe and unsatisfactory – Whether doubt as to credibility of principal Crown witness sufficient to render verdict unsafe – Whitehouse v The Queen (1983) 152 CLR 657, Chidiac v The Queen (1991) 171 CLR 432, Libke v The Queen (2007) 230 CLR 559, 596, referred to.
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Appearances: | Counsel | Solicitors |
| For the Applicant | Mr R Richter QC with Mr C B Boyce | Grigor Lawyers |
| For the Crown | Mr J D McArdle QC with Dr S B McNicol | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA
NEAVE JA
BEACH AJA:
The applicant, Faruk Orman, was jointly presented with Vincent Benvenuto on one count of the murder of Victor George Peirce at Port Melbourne on 1 May 2002. Following a trial of some five weeks duration, the applicant was convicted and Benvenuto was acquitted. The applicant now seeks leave to appeal against his conviction.
The Crown case at trial
The Crown opened its case at trial on the basis that the deceased, Victor Peirce, was a man of ‘unenviable reputation’, a ‘professional criminal’ and a ‘drug trafficker’ who was known as ‘a man of violence’ and as ‘a hitman’.[1] It alleged that he had been associated as a bodyguard with one Frank Benvenuto, brother of the Vincent Benvenuto, until Frank Benvenuto was shot dead in his car outside his home in Beaumaris on 8 May 2000. Vincent Benvenuto was thought to believe that Peirce was responsible for his brother’s death. That was said to be Vincent Benvenuto’s motive to kill Peirce.
[1]T.296.22.
The Crown also alleged that Victor Peirce had once been associated with one Andrew Veniamin but that they had later fallen out, and Veniaman had then formed the belief that, unless he killed Perice, Peirce would kill him. That was said to be Veniamin’s motive to kill Peirce.
The Crown further alleged that, in order to locate Peirce, Veniamin sought the assistance of Alphonse Traglia, who was a major drug trafficker associated with Carl Williams with a sideline in supplying illicit weapons. As the prosecutor explained in opening, Traglia later pleaded guilty to assisting Carl Williams in the planning of, and supplying the weapon for, the murder of William’s rival gangster, Jason Moran, at Cross Keys Reserve in Pascoe Vale South on 21 June 2003.
The Crown alleged against the applicant that, although he was only 20 years of age at the time and considerably younger than Veniamin, he lived in the Sunshine area relatively close to Veniamin and he was a close associate, constant companion and driver for Veniamin. In that way, it was said, he became involved in Peirce’s killing.
It was not in dispute that Victor Peirce was shot dead while sitting in his stationary motor car in Bay Street, Port Melbourne on 1 May 2002 at approximately 9.15 pm. Several eyewitnesses deposed to seeing a light coloured VK or VL Holden Commodore pull up beside Peirce’s car, and a gunman get out and shoot Peirce and then get back into the Commodore and be driven away.
The Crown alleged that the killing was a planned, deliberate execution in which Veniamin, the applicant and Benvenuto were all complicit: Vemiamin as the gunman; the applicant, acting in concert with Veniamin, by stealing the car used as the get-away car and driving Veniamin in it to and from the scene of the murder; and Benvenuto, acting in concert with Veniamin, by arranging to get Peirce to the spot where Peirce was executed (in effect by pretending that he would meet Peirce there).
To a significant extent, the Crown based its case on evidence given by Traglia concerning events which he said he witnessed, and as to admissions which he said were made to him by Veniamin and the applicant, before and after the killing. The Crown also tendered several recordings of covertly intercepted telephone conversations between Veniamin and Traglia, which were said to support or confirm aspects of Traglia’s testimony, and covert recordings of telephone conversations between Veniamin and the applicant, both before and after the killing, on which the Crown relied as circumstantial evidence as to the nature of the relationship between Veniamin and the applicant; Veniamin’s fear that Peirce intended to kill him; Veniamin’s attempts to locate Peirce so that he could kill Peirce; and the theft, use and later destruction of the VL Holden Commodore get-away car.
Traglia gave evidence that he first met Veniamin sometime before October 2000 and later became his friend. He said that he used to speak to Veniamin every day and that he would sometimes take Veniamin with him when he went out to do drug deals. Traglia deposed that he later met the applicant through Veniamin. He said that the applicant used to drive Veniamin, usually in a silver Porche Boxter, registration ALLHOT, and do jobs with Veniamin.
Traglia said that, approximately eight to ten weeks before Peirce was killed, he had a meeting with Veniamin at Veniamin’s request and that the applicant came to that meeting as Veniamin’s driver. At the meeting, Veniamin asked Traglia whether he knew the whereabouts of Victor Peirce, and Traglia said he derived the impression from the way Veniamin asked about Peirce that there was a ‘beef’ (meaning anger) between Veniamin and Peirce. Traglia told Veniaman that he did not know where Peirce lived but that he would see if he could find out an address.
Traglia recounted that, approximately four to six weeks before Peirce was killed, he had another meeting with Veniamin at Veniamin’s request, to which the applicant also came as Veniamin’s driver. At that meeting, Veniamin asked if Traglia had found out anything about Peirce and Traglia said that he had not. Traglia then asked Veniamin what was the problem between Veniamin and Peirce, and Veniamin replied that he was worried about his own safety and that, if he did not get Peirce first, Peirce would get him.
Traglia said that he then had a third meeting with Veniamin, to which Veniamin came alone, but to which the applicant came later. At that meeting, Veniamin was upset with the applicant because the applicant was supposed to be ‘doing surveillance trying to find Victor Peirce’ and had come back with nothing. He said that Veniamin later calmed down, however, because he realised that Peirce was ‘hard to find’. There was also a fourth meeting to which Veniamin came alone.
As confirmation of the relationship between the applicant and Veniamin, and of the fact that Veniamin feared that Peirce intended to kill him, the Crown relied in part on a covertly recorded telephone conversation of 22 April 2002 between the applicant and Veniamin in which Veniamin told the applicant that he had been tipped off that he was going to ‘get knocked’ and complained that every month there was a ’a hit out on me’. He added, with apparently intended levity, that he proposed to get around with the applicant every day so that ‘hopefully they shoot you in the gut first and then the bullet goes through you and kill [sic] me at the same time.’ The applicant replied that, if anyone were coming for Veniamin, they would not be coming for the applicant, it would be ‘a waste of thirty cents of the bullet’. The conversation then continued as follow:
APPLICANT: (Laughs).
VENIAMIN: These cunts are fucked mate. I – I’m sick of listenin’ to bullshit everyday.
APPLICANT: Oh don’t even worry about it.
VENIAMIN: I wish mate. I wish – (Inaudible).
APPLICANT: Lucky you don’t get out there and run around the city and that.
VENIAMIN: (Laughs).
APPLICANT: You just-
VENIAMIN: You but I don’t give a fuck for (inaudible)
APPLICANT: Then you – you just sit at home and you cop all this, imagine if you went out runnin’ around.
VENIAMIN: I know, listen, I, I, -
APPLICANT: Yeah.
VENIAMIN: At least if I wore Versace fuckin’ clothes everyday and fuckin’ runnin’ around eatin’ caviar, well it’s not bad you know what I mean –
APPLICANT: Oh yeah.
VENIAMIN: You think to yourself, oh well, you know.
APPLICANT: You’ve got more hits than fuckin’ Elvis.
VENIAMIN: (Laughs) …
In a further telephone conversation later that day, Veniamin asked the applicant to make some enquiries as to whether it was possible to purchase a bullet-proof vest. When the applicant responded facetiously that the Veniamin was a ‘funny cunt’, Veniamin replied, with apparently greater seriousness:
It’s not illegal to wear a fuckin’ vest if you’ve been threatened that you’re gonna get knocked. At least, it’s the dumb cunts, they’re that dumb and they shoot you in the fuckin’ chest, you’re still alive you know what I mean.
The applicant said that he would make enquiries.
It was part of the Crown case that Veniamin and the applicant twice set out to kill Peirce. According to Traglia’s testimony, the first occasion was on or about 24 April 2002. The idea was that the applicant’s co-accused, Vincent Benvenuto, would lure Peirce to the car park at the top of Coles in Bay Street, Port Melbourne and that Veniamin and the applicant would ambush him there and kill him.[2] Traglia said that in the lead up to 24 April 2002, Veniamin asked him to supply a .38 revolver, which ultimately he did, although not until after 24 April 2002, and that Veniamin and the applicant also told him that they were having great difficulty in getting hold of a ‘hot’ car. Then, on 25 April 2002, Veniamin told him that Peirce failed to show up for the meeting on 24 April 2002 and that another meeting had been arranged for a later date.
[2]T.898.22-.27.
The Crown tendered several more covertly recorded telephone conversations in support of that testimony. The first was between Veniamin and Traglia on 23 April 2002. In that conversation, there was reference to ‘a sheila’ who lived at ‘number thirty eight’. In evidence, Traglia explained that, in that conversation, ‘sheila’ was code for ‘gun’ and that the address ‘number thirty eight’ was code for the .38 calibre of the weapon which Veniamin was seeking to acquire. That conversation included the following exchange:
VENIAMIN: Yeah, no notin’ mate, I’m just fuckin’ – remember that thing from – remember that um, that sheila’s phone number from Baby – Do you know that phone number from Baby’s when we picked it up. Remember that day?
TRAGLIA: Which? Yeah.
VENIAMIN: You know that phone number and you told me can you get her address for me, you know what I’m tryin’ to say because you didn’t have an address for it. You know just a - - -
TRAGLIA: Yeah.
VENIAMIN: Phone number. You know that I’m talking about?
TRAGLIA: Yeah, she lives at number thirty eight.
VENIAMIN: Yes, that’s the address, yeah.
TRAGLIA: Yeah.
VENIAMIN: Have you still got it?
TRAGLIA: Yeah.
VENIAMIN: Alright.
TRAGLIA: It’s yours.
VENIAMIN: I need it, I need it tomorra.
TRAGLIA: Well, I’ll give you the phone number not a problem.
VENIAMIN: Alright, I’ll tell you when I see ya tomorra. If you wanna catch up tomorra…
The second was a conversation on 23 April 2002 between the applicant and someone called Catana, as to difficulties the applicant was having in getting hold of a car. It was the Crown case that the applicant was looking to borrow a car to drive to the place where he proposed to steal another car to be used as the get-away car for the murder and that, ultimately, when he could not borrow a car for that purpose, he hired one on 24 April 2002. That conversation included the following:
CATANA: Where are ya?
APPLICANT: (Inaudible).
CATANA: Where are ya?
APPLICANT: I’m s-still tryin’ to find a car.
CATANA: I’ve been fuckin’ sittin’ here for fuckin’ ages mate.
APPLICANT: Yeah I’m tryin’ to find a car.
CATANA: I – I – I even had to go fuckin’ uh, go do a job for someone I said – told ‘em I can’t make it.
APPLICANT: Listen, have you got the tools.
CANTANA: No, I haven’t.
APPLICANT: Nothin’ at all.
CANTANA: You know I haven’t, yeah.
APPLICANT: Alright, see ya.
There was also a conversation between the applicant and someone called Costa as to whether the applicant could borrow a car from Costa and, if not, whether Costa knew where the applicant might get one; and a recording of a later conversation that day, between the applicant and Halil Sertli, a kebab shop proprietor who sometimes held weapons on behalf of Veniamin,[3] which suggested that Sertli had a car and was at home filling it with petrol. The latter conversation included this exchange:
[3]Sertli claimed he did not know that they were weapons.
SERTLI: Hi.
APPLICANT: Halil how’d you go?
SERTLI: How’d I go?
APPLICANT: Yeah.
SERTLI: Oh well, I’m home now, I’m putting juice in the cunt.
APPLICANT: Well quick, because I’m in a rush mate, I got to –
SERTLI: Alright sweet.
APPLICANT: Alright mate.
There was undisputed evidence that a light-coloured VL Holden Commodore, registration PQL 565, was stolen on 24 April 2002 and found by police near in Ainsworth Street, Sunshine West, near Veniamin’s home in Glengala Road, Sunshine, on 26 April 2002. The jury were asked to draw the inference that the applicant stole the car for use as a get-away car for the execution of Peirce planned for 24 April 2002 and that, when Peirce did not show up that day, Veniamin and the applicant kept the car for a second attempt until police found the car on 26 April 2002.
In support of that inference, the Crown relied on evidence that, at 2.30 pm on 24 April 2002, the applicant hired a car from Hertz, Braybrook with funds provided by Veniamin. He then almost immediately attempted to make a mobile telephone call to Veniamin but it went unanswered. Then, at some time after 4.30 pm, PQL 565 was stolen from the car park of the La Porchetta restaurant in Keilor Road, Niddrie. Then, at 5.53 pm the applicant used his mobile telephone to call Veniamin and the call was transmitted via the Essendon North telephone transponder tower. That tower is within ‘a stone’s throw’ of the La Porchetta restaurant in Keilor Road, Niddrie.
Telephone company records established that Veniamin’s mobile telephone was switched off between 7.30 and 8.20 pm; that the applicant’s mobile telephone was switched off between 6.25 pm and 9.00 pm; and that, when the applicant’s mobile telephone was switched on again at 9.00 pm, it was picked up by the telephone transponder tower on the Glengala Motel in Glengala Road, Sunshine, very close to Veniamin’s home in Glengala Road, Sunshine. The jury were asked to draw the inference that the applicant and Veniamin were together during the period between 7.30 pm and 8.20 pm for the purpose of the first attempt on Peirce’s life.
In support of Traglia’s evidence that Veniamin told him that Peirce failed to show up for the meeting on 24 April 2002, the Crown relied on a covertly recorded telephone conversation between Veniamin and Traglia on 25 April 2002, in which Veniamin told Traglia that ‘that moll never fronted’. Traglia deposed that, in that conversation, ‘the moll’ was code for Peirce.
The evidence that Veniamin and the applicant kept PQL 565 with intent to use it as the get-away car for a further attempt on the life of Peirce included a covertly recorded telephone conversation between Veniamin and the applicant, at 15 minutes after midnight on 27 April 2002, in which reference was made to the need to go looking for ‘that sheila’ tomorrow and to ensure that the car was filled with petrol. That conversation included this exchange:
APPLICANT: Hello.
VENIAMIN: What are you doin?
APPLICANT: Oh nothin’ I’m just givin’ Bruce a hand.
APPLICANT: Yeah. It’s all – til I get back.
VENIAMIN: Fuckin’ do that brother, it’s fuckin important.
…
APPLICANT: Ah, I’ll come past soon.
VENIAMIN: Listen you know.
APPLICANT: Yep, yeah.
VENIAMIN: Tomorrow you gotta go –
APPLICANT: Yeah alright. Relax.
VENIAMIN: Look for that sheila –
APPLICANT: Okay, okay, okay.
VENIAMIN: I’m just sayin’ you gotta go lookin’ -
APPLICANT: Right.
VENIAMIN: For that sheila tomorrow, you know what I mean.
APPLICANT: Yeah I know, I know. Yeah.
VENIAMIN: Mm?
…
APPLICANT: Yeah.
VENIAMIN: Organise to fill up the car with petrol, you know what I’m talkin’ about.
APPLICANT: Alright.
VENIAMIN: I don’t wanna run out of petrol in the morning you know what I mean.
…
VENIAMIN: Listen please brother, fill up the car with petrol so that I don’t run out tomorrow.
APPLICANT: Alright.
VENIAMIN: Alright?
…
APPLICANT: Yeah.
VENIAMIN: Send Bruce to get the can.
APPLICANT: Alright.
VENIAMIN: Get the can.
APPLICANT: Alright.
VENIAMIN: Just tell ‘em mate, just go and grab the can from the back, alright?
APPLICANT: Alright mate.
VENIAMIN: Don’t go yourself…
There was undisputed evidence that PQL 565 was found by police at 7.55 pm on 26 April 2002 and recovered. As further support for the conclusion that it was the car which the applicant had intended to fill with petrol, the Crown relied on a covertly recorded telephone conversation between Veniamin and the applicant, at 3.15 pm on 27 April 2002, in which the applicant told Veniamin that he had gone to fill up ‘the car’ with petrol but found that the car had gone. That conversation included this exchange:
VENIAMIN: Alright you’d rather not. Listen, we gotta do that thing today, you know, that –
APPLICANT: I dunno.
VENIAMIN: You there?
APPLICANT: Yeah. That cruiser?
VENIAMIN: Yeah.
APPLICANT: Yeah I know.
VENIAMIN: Alright then, well then don’t worry about it, even us to go [sic] don’t worry. We’ve got other things to worry about.
APPLIACNT: Yeah.
VENIAMIN: Tryin’ to – t – tryin’ to get –
APPLICANT : You know last night?
VENIAMIN: Yeah.
APPLICANT: I went to pick up the car to go put petrol, but what’s his name must have already took off with it, alright.
VENIAMIN: Yeah.
APPLICANT: It wasn’t around.
VENIAMIN: Nah?
APPLICANT: No.
VENIAMIN: Oh you’re kiddin’ me.
APPLICANT: I swear to God.
VENIAMIN: Oh you’re kiddin’ me.
APPLICANT: You know when you rang me, about half an hour after that.
VENIAMIN: Told you , you should have went earlier.
APPLICANT: But it would have no – what – what – times was it when you last seen him?
VENIAMIN: Oh I dunno. I’m shattered now mate, that ‘s it…
Traglia gave evidence that, after Victor Peirce failed to show up at the meeting on 24 April 2002, Vince Benvenuto set up a second meeting for 1 May 2002:
What do you mean a second meeting that Andrew Veniamin went to? --- There originally was, Vince Benvenuto set up the first meet with Victor Peirce about three or four days earlier. He didn’t show up. And then Vince Benvenuto set a second meeting, that was May the 1st, that’s the day they got him.[4]
…
Vince was supposed to set up a meeting with Victor Peirce to lure him, to get him on top of the carpark where Andrew[Veniamin] and Faruk [Orman] were supposed to execute him there. He didn’t turn up at the first meet. Then there was another meet arranged and that was what Andrew was trying to tell me, a couple of hours after that. So I knew exactly what he was saying.[5] (Emphasis added).
[4]T.898. 20-.27. Later in his evidence, Traglia said that he did not learn until some time after 1 May 2002 that it was Vince Benvenuto who set up the meetings: T904.4-.20.
[5]T.899.27.-T.900.2.
Traglia explained that his reference to Veniamin trying to tell him that another meeting had been arranged was a reference to a telephone conversation shortly after 1.00 pm on 1 May 2002 in which Veniamin told Traglia that he had a situation with ‘the sheila’ that night and that he was going to break up with her. Traglia said that the reference to ‘the sheila’ was code for Victor Peirce and that the reference to ‘breaking up’ was code for killing Peirce.[6] That conversation, which was also covertly recorded, included the following exchange:
[6]T.900.5-.13; T.908.15-.T.909.17.
TRAGLIA: Cheer up, I hate it.
VENIAMIN: I’m under pressure bad mate.
TRAGLIA: How much do you need?
VENIAMIN: No, it’s not how much I need, listen I’ve gotta work out that situation, remember?
TRAGLIA: Yeah are you under pressure there, with that sheila?
VENIAMIN: Yeah, I’m fuckin’ –
TRAGLIA: Women mate. Break up with ‘em mate, they’re nothing but headaches.
VENIAMIN: Listen um, yeah I am –
TRAGLIA: Does sheila know you’re playin’ up?
VENIAMIN: No I’m gonna let her know, I’m gonna let know l – a bit later on, know what I mean.?
TRAGLIA: Yeah.
VENIAMIN: That I’m breaking up with her.
TRAGLIA: Oh you –
VENIAMIN: You know –
TRAGLIA: Break up with ‘em mate, dump – there’s plenty of fishes out in the sea, son.
VENIAMIN: Yeah I –
TRAGLIA: I don’t like you upset.
VENIAMIN: I am a bit later, I’m gonna break up with her so if you know what I mean, I’m gonna break up with her a bit later.
TRAGLIA: Yeah, it’s not a drama, I’ll make sure.
VENIAMIN: Alright.
TRAGLIA: Most time now I’m around so you can fuckin’ cry your sorrows to me.
VENIAMIN: Buddy it’s not gonna be until like – remember the last time – a couple of hours after that…
There was also telephone company record evidence that Benvenuto spoke by mobile telephone to Victor Peirce at approximately 12.30 pm on 1 May 2002, and evidence given by a number of witnesses, including Victor Peirce’s widow, Mrs Wendy Peirce, that Peirce had told them he was going to meet someone that night.
The Crown alleged that, in order to carry out the killing, the applicant stole another VL Holden Commodore, registration NUM 590. Mr Patrick McInerney gave undisputed evidence that he was the owner of NUM 590, a blue VL Holden Commodore, fitted with an e-tag. He said that it was stolen from the car park of RMIT, Bundoora between 10.00 am and 4.00 pm on 1 May 2002 and recovered by police, burnt out, later that night.[7]
[7]T.769. 4—774.9.
In order to sustain the conclusion that the applicant stole that car, the Crown tendered several more covertly recorded telephone conversations between the applicant and Veniamin. The first was at 9.44 pm on 27 April 2002. In that conversation Veniamin told the applicant that ‘we need one of them things’ and the applicant responded to the effect that he would attend to it the following day, after he had some sleep. That conversation included this exchange:
VENIAMIN: I am going home myself because I’m fuckin crook can you organise anything.
APPLICANT: Can I?
VENIAMIN: Yeah, you know what I’m talkin’ about.
APPLICANT: Ah.
VENIAMIN: Like we need one of them things you know.
…
APPLICANT: Tomorrow morning after I slept at your joint, yeah?
VENIAMIN: Yeah.
APPLICANT: You gonna get me up about eight, nine o’clock, and then we’ll go from there …
The Crown contended that Veniamin’s reference to whether the applicant could ‘arrange for one of them things’ was in effect a request that the applicant steal another car to replace PQL 565.
The second of those conversations was at 7.40 am on 1 May 2002. It included this:
VENIAMIN: Yeah.
APPLICANT: Do we have to go meet any sheilas tonight?
VENIAMIN: What?
APPLICANT: Do we have to go meet any sheilas tonight?
VENIAMIN: Yeah.
APPLICANT: We do?
VENIAMIN: Yeah of course you do. What didn’t Al Capone speak to ya?
APPLICANT: No.
VENIAMIN: Oh he was gonna speak to you, alright. He told me that he spoke to ya.
APPLICANT: Huh?
VENIAMIN: He told me that he spoke to you.
APPLICANT: Yeah to catch up with him.
VENIAMIN: Ye-ah, that’s what it was for, tonight.
APPLICANT: Alright, alright see ya…
The Crown contended that the reference to whether it was necessary to go and meet any sheilas tonight was a question as to whether there would be a meeting with Peirce that night.
The third of the conversations was at 7.45 am on 1 May 2002. In that conversation, the applicant told Veniamin that he had the previous day returned the car which he hired from Hertz on 24 April 2002 and, therefore, needed a lift to St Albans. Veniamin expressed surprise and dismay that the hire car was no longer available and asked whether the applicant could organise to get it back. The applicant told him that he could but that he would first need to put some money on his credit card. Independent evidence established that at one o’clock that afternoon Veniamin transferred $300 into the applicant’s credit card account and that at 4.00 pm the applicant hired another car from Hertz and used his credit card to pay for it.
The fourth conversation was at 6.02 pm on 1 May 2002, just two hours after Mr McInerney found that NUM 590 had been stolen from the car park at RMIT, Bundoora. In that conversation, Veniamin asked the applicant whether he had organised ‘that other thing’, and the applicant said that he had:
VENIAMIN: Did you organise anything else, that other thing?
APPLICANT: Yeah.
VENIAMIN: Huh?
APPLICANT: Yes.
VENIAMIN: You did buddy?
APPLICANT: Yeah.
VENIAMIN: Oh because your phone was off before, I was just gonna ring ya, I was starting to panic.
APPLICANT: The battery went flat because I – I had a couple of hours snooze.
VENIAMIN: Alright well lay down and I’ll ring you in – back in another hour…
The fifth conversation was at 7.05 pm on 1 May 2002. In that conversation, Veniamin told the applicant to get up and, when he was ready, to come around.
The sixth was at 7.42 pm on 1 May 2002. In that conversation Veniamin asked the applicant where he was, and the applicant replied that:
Oh I’m just waitin’ for someone to drop off the thing.
Veniamin told the applicant not to be long and the applicant said that he should not be more than ten minutes.
That was followed by a SMS text message from the applicant’s mobile telephone to Veniamin’s mobile telephone at 7.59 pm on 1 May 2002, as follows:
I’ll meet you at the back of see roars leave in two min.
Police gave evidence that they were unable to locate any place known as ‘sea roars’ but that they had found two locations named ‘Sea Roads’. One was in Laverton North, off Fitzgerald Road, into which runs Glengala Road, and the other was in Docklands Road, Port Melbourne.
Telephone company record evidence established that Benvenuto telephoned Victor Peirce at 8.37 pm on 1 May 2002. At that point, both telephones were picked up by telephone transponder towers in St Kilda. At 9.12 pm Peirce called Benvenuto and Benvenuto immediately called back. At that point, both telephones were picked up by the telephone transponder tower in the Coles Supermarket building in Bay Street, Port Melbourne, within metres of the spot where Peirce was murdered at 9.15 pm.
Several eye witnesses gave evidence that they observed a light blue or silver Commodore of the VK or VL era[8] pull up beside Peirce’s car at approximately 9.15 pm. Two of those witnesses said that they had a recollection of the car’s registration plate, and they thought that it included the number 598. One of those witnesses said that his recollection was that he had clearly seen the numerals 5 and 9 together in that order on the front registration plate, and that he thought he saw the numerals 5, 9 and 8 together in that order on the rear plate as the vehicle went by. All witnesses saw that that the car had two occupants. Some witnesses believed that the gunman got out of the front seat of the car and others believed that he got out from the rear seat. Almost all witnesses thought that he was wearing a balaclava. Then he fired three .45 rounds (two of which went into Peirce, killing him, and the third of which lodged in the B pillar of Peirce’s car), stepped back into the Commodore and was driven away.
[8]Other evidence established that the VK and VL models of the Commodore were very similar in appearance.
The call between the applicant and Veniamin at 7.42 pm was the last call between them until midnight, except for the ‘sea roars’ text message at 7.59 pm. The applicant’s mobile telephone was then out of action until midnight and Venamin’s mobile telephone was out of action until 10.40 pm when it was picked up again by the Ardeer telephone transponder tower. The applicant’s mobile telephone was out of action until midnight.
At 11.40 pm on 1 May 2002, NUM 590 was found dumped and burning in a paddock in Taylor’s Road, St Albans. At 12.17 am on 2 May 2002, the applicant made a mobile telephone call which was transmitted via the Delahey telephone transponder tower, in close proximity to Taylor’s Road, and at 12.20 the applicant called Veniamin and arranged to meet.
Traglia gave evidence that on 2 May 2009 Veniamin called him and that he and later met Veniamin and the applicant in Coventry Street, South Melbourne and then went with them to Lorimer Street, Southbank, from where they walked along the river bank towards the casino. By then, news of the shooting had been reported on television. Traglia said that Veniamin told him that ‘it was us last night’, meaning that it was they who had murdered Peirce, and that Veniamin expressed concern that, because the get-away car had been fitted with an e-tag, they may have been photographed by a City Link tollway camera. Traglia said that he told Veniamin that he had nothing to worry about because the cameras only took pictures of the bottom half of registration plates and did not take pictures of the driver’s or passenger’s side of cars.
Subsequent investigations failed to find any record of NUM 590 having passed through a City Link camera point on the night of 1 May 2009, but there was evidence that there were several ways, albeit only a small chance, of the car travelling through without being photographed.
Traglia said that Veniamin told him that Victor Peirce had not shown up at the car park on top of Coles as planned, but that Veniamin and the applicant had later seen Peirce in Bay Street, parking his car, and they both decided to ‘get him’ on Bay Street instead of the top of the Coles. Traglia continued:
What actually Andrew said to me, he goes that he pulled up alongside, Faruk pulled up alongside of Victor Peirce, jumped out of the car, Andrew said something that I can’t recall, right, Andrew went to go and smash the driver’s side window, he smashed the driver’s side window, Andrew had a gun on him, went to go and shoot it, that jammed, he threw that back in the car and grabbed another gun and started shooting Victor. Then Andrew, after he finished shooting Victor Andrew jumped off in the car and Faruk Orman took of nice and easy, not to draw any attention to themselves.
Was Faruk present during this conversation? --- Yes. After we finished that conversation I said to Orman, ‘You blokes are crazy’ and he just shrugs his shoulders and said, ‘Oh well’.
Traglia said that some months later he had another conversation with the applicant alone, in which the applicant went into details about what had happened on the night of the killing. According to Traglia:
[The applicant] said to me that, ‘Victor was supposed to meet us on top of the car park at Coles’, he didn’t show up, they seen him in Bay Street. What actually happened is they decided to get him in Bay Street. Faruk pulled up alongside of Victor Peirce, Andrew jumped out and said, ‘Hello mate,’ to Victor Peirce, the first gun jammed, he threw the gun back in, Andrew used his elbow to smash the window but pushing the window on to Victor, and then started shooting him, and then Faruk said the he had to take off nice and easy so he didn’t attract any attention, because if you start doing burn-outs and that people then will turn around and have a look at your number plate.
Traglia also recalled another conversation which he had with Veniamin and the applicant sometime after the event. He was asked the following questions about that, to which he gave the following answers:
I asked you about burning a car. Was anything said about that? --- This is later on, that when they burnt the car it was some paddock, and they ran away from the scene, they left it at some paddock in Sunshine and ran away from scene. They did that to get rid of all the DNA.
…
Who was present for this conversation? --- It was Andrew and Faruk.
Where did this conversation take place? --- I am not sure.
Just say as well as you can, please, the best you can recall it, what was said? – What was said is that when, after the murder they went towards Sunshine, they dumped the car in some paddock and they ran across the paddock. They burnt it so they could get rid of all the DNA.
Traglia said that he also had a further conversation with the applicant alone, at Carlton in 2004, during which the applicant repeated in the same detail what had happened at the shooting.
The Crown went to the jury on the basis that, although Traglia gave evidence for the Crown under an indemnity, there was no advantage to him in falsely implicating an innocent person, that his testimony should, therefore, be believed, and that the telephone intercepts confirmed his testimony by illustrating in compelling detail that Veniamin and the applicant were engaged in the murder of Victor Peirce.
The defence case at trial
The applicant did not give evidence or call evidence and he made a no-comment record of interview. His defence was that the jury could not exclude as a reasonable possibility that someone other than he drove the get-away car, and that most probably it was Traglia.
Grounds of appeal
There are twelve grounds of appeal. We propose to deal with them in order.
Ground 1
Before the jury were empanelled, defence counsel applied for an order that the two accused be tried separately on the basis that the two cases were ‘entirely different’ and that there was a ‘very substantial body of evidence’ admissible against Benvenuto which was not admissible against the applicant. The judge refused the application.
The applicant contends that his Honour was in error to do so. Counsel for the applicant submitted in support of that contention that:
1) The cases were markedly different and there was insufficient evidence admissible against either accused which was cross-admissible against the other accused to permit joinder.
2) The motive alleged against one accused was different to the motive alleged against the other.
3) There was no risk of inconsistent verdicts.
4) Prima facie, there ought to have been separation – because there was no suggestion that the two accused acted in concert or joint enterprise.
5) The weaknesses inherent in the case against Benvenuto made it likely that a jury would compromise in favour of the prosecution against the applicant.
6) An order for separate trials would not have greatly lengthened proceedings.
The argument as thus formulated mirrors submissions made before the judge and rejected by his Honour for the reasons expressed in his Ruling No 2. In that ruling, his Honour accepted that there were significant differences between the two cases and he noted that it was not alleged that the two accused had acted in concert. But as the judge observed, while those differences were relevant considerations, they were not as important as that both accused were alleged to have been involved in the same killing with a common point of connection through Veniamin. We agree with the judge that, in the circumstances of this case, that was sufficient reason to present the two accused jointly.[9]
[9]See Crimes Act 1958, Schedule 6, Rule 2.
It is true, as the judge observed, that some of the evidence admissible against the applicant differed significantly from evidence admissible against Benvenuto. But as his Honour remarked, that is not an unusual circumstance in cases in which more than one accused are jointly presented. The court proceeds upon the assumption that, generally speaking, a jury will understand and obey a judge’s directions as to the evidence which is admissible against one accused but not against another.
It is also true, as counsel for the applicant contended, that Veniamin was a notorious killer and there was evidence that Veniamin’s motive for killing the victim had a ‘gangland’ provenance. But as the judge said, so far from that providing a compelling reason to order separate trials, Veniamin’s and the victim’s notoriety, and the absence of evidence of direct links between Benvenuto and the applicant before the killing, suggested that the jury would be less inclined to link the applicant with the murder than might otherwise be the case.
The suggestion that the strength of the two cases was so dissimilar as to warrant separate trials is also unconvincing. As the judge said:
Mr Richter’s submission regarding the weakness of the case against Benvenuto, as against the presumably greater strength of the case against [the applicant], I found was intriguing but ultimately not persuasive. I note that Mr Dane, on behalf of Benvenuto, has not submitted that his client’s trial should be stayed as an abuse of process. Nor has he otherwise suggested that the case against his client is ‘clearly foredoomed to fail’. I should add that there is significantly more to the case against Benvenuto than Mr Richter’s submission has identified. Even if there were not, the fact that a case against one accused may be seen as weaker than the case against the other does not, of itself, provide any justification for ordering separate trials.
As the judge observed, the principles which govern applications for separate trial are well settled. The question is whether the applicant has shown that there was a real risk of positive injustice to him if tried jointly with Benvenuto.[10] In this case, the judge was entitled to conclude that there was not.
[10]R v Alexander and Mackenzie (2002) 6 VR 53, 67 [31] (Winneke P), citing R v Patsalis and Spathis (1999) 107 A Crim R 432, 436–7.
It follows that we reject Ground 1.
Ground 2 – Jury discharge (Traglia’s evidence concerning Veniamin’s reputation)
Traglia’s evidence was vital to the Crown’s case. Arguably, the most important aspects of it were that Traglia had known Veniamin for some time before the victim’s death and was in the habit of taking Veniamin with him when Traglia went out to do drug deals; Veniamin was known to be a hitman and thus Veniamin’s presence encouraged people to pay up; and Traglia met the applicant through Veniamin, when the applicant was driving for Veniamin, and had a number of conversations with Veniamin and the applicant before and after the victim was killed. It will be recalled that those conversations were said to have included one, some weeks before the killing, in which Veniamin told Traglia in the presence of the applicant that Veniamin was anxious to locate the victim and ‘get him’ before the victim got Veniamin; and another, on the day after the killing, in which Veniamin told Traglia in the presence of the applicant that he and the applicant had killed the victim the previous evening and Veniamin explained how he and the applicant had driven to the scene of the crime, that Veniamin then got out and shot Peirce in his car, and that Veniamin then got back into the car driven by the applicant and together they drove away.
During the course of his evidence in chief, Traglia was asked the following questions to which he gave the following answers:
You have been saying something about Veniamin and your acquaintanceship with him and that you’d speak to him at least every day? - - - At least.
Did you see him frequently? - - - Yes.
And in what circumstances? - - - All depends, if he was just normal, talk in general, or he was looking for somebody, it all depends what mood Andrew was in.
Was he in the drug business with you? - - - No.
Did he sometimes, perhaps often, go with you when you were trafficking drugs, delivering or picking up drugs? - - - Sometimes I’d go to see certain blokes that owed me a large amount of money. By bringing Andrew with me, the knew, once they seen Andrew they knew that Andrew was a hired, that Andrew was a professional hitman and they knew that if I asked a question you know, ‘When are you paying me?’ they usually said to me they would pay me straight away as soon as they seen Andrew, they knew what Andrew’s reputation was, of a hired killer.
…
How did you meet and when did you meet Faruk Orman? --- I met Faruk Orman through Andrew Veniamin. Faruk Orman used to work with Andrew and used to drive Andrew as well, use to drive him around and do jobs together.
What sort of vehicle was that in? --- I’ve seen them in a silver Porsche and sometimes Andrew Veniamin’s brother’s car, Steve, silver hatch-back, two door.
When was it that you got to know Faruk Orman? --- When Andrew Veniamin was arrested, went to gaol, sorry, for seven weeks Faruk Orman – I’d met him previously before at Dino’s funeral.
Yes? - - - He was with Andrew at the time and I met him when Andrew used to come and see me and then I seen him, I really got to know Faruk Orman on his own when Andrew Veniamin was in gaol for seven weeks.
A short time later, counsel for the applicant applied in the absence of the jury for the jury to be discharged, on the basis of what Traglia had just said:
about Andrew having a reputation for being a hired killer, that is number one. He then links Faruk with that reputation as being involved with this work. This is not the proofs in this case and it is inadmissible.
In his initial response to the application, the judge acknowledged that some of the answers which Traglia had given were unresponsive, and his Honour said that he would caution Traglia again, as he had before Traglia began to give evidence, to restrict himself to giving responsive answers to questions. But his Honour concluded:
I do not regard this application for a discharge of the jury based on what I have heard as one that can properly be taken seriously.[11]
[11]T.871.23-.26.
After lunch, which followed immediately after the ruling, defence counsel renewed the application for discharge, as follows:
I’ve had the opportunity of reading the transcript. Your Honour will realise I shot from the hip when I made the application because of the way I was struck. I don’t want to traverse your Honour’s ruling but I just wanted to make sure your Honour understood my application. It was not based on the notion that everybody in the community and this jury know what Veniamin’s reputation is. That’s not the point I was basing it on. I was basing it on the fact that this witness’s evidence, as appears from 864 at line 16, and then at 867 at line 13, taken together, he is talking about ‘everybody knew at the time’. The reputation the community has and that the jury has is something that arose after the trial of Mr Gatto [in 2004] and the whole gangland thing exploded publicly and Veniamin’s name was trundled around.[12]
[12]T.873.6-.19.
The judge responded:
I frankly doubt that that subtlety would be something that would strike the jury, Mr Richter.
Defence counsel again pressed his point, thus:
That’s why it’s so dangerous, because, for example, if your Honour takes this issue, if Veniamin was here alive, would this witness be able to give evidence that Veniamin at the time of these killing had the reputation of a hired killer? He would not. In my trial he can’t give evidence of the reputation unless - -
The judge rejected it:
We’ve had evidence, ample evidence already, I think Mrs Peirce spoke about Veniamin in those terms or similar terms. As I say, there isn’t the slightest doubt in my mind that every member of this jury will be thoroughly acquainted with the name Veniamin, thoroughly acquainted with his reputation, thoroughly acquainted with the fact that he had the reputation of being a hired killer. They would not differentiate between the later period and the earlier period.[13]
[13]T.873.28-874.5.
Defence counsel pressed the point yet again:
But they must in order to give my client a fair trial. They must appreciate, because what he [Traglia] says is he [Veniamin] had the reputation at that time, we’re going back to 2002, and he then adds, he then adds, which is the second portion, ‘I met Faruk Orman through Andrew Veniamin … (reads) … and do jobs together.
The judge then ruled as follows:
Yes, I understand the force of the ‘and do jobs together’ …
I don’t believe the jury would treat that in the sinister [manner] which you see a possibility of their doing. They will be given the clearest possible and strongest possible directions about prejudice at the end of this trial. One answer will hardly impact upon them. I don’t see any high degree of necessity. I did understand your point before lunch, I didn’t mean to be offensive when I said it was not a serious application.[14]
[14]T.876.12-.22.
In a later revised ruling,[15] the judge further explained his reasons for rejecting the application for discharge, in this way:
I rejected Mr Richter’s application for a discharge of the jury, and stated my reasons briefly at transcript 871. However, Mr Richter renewed his application at transcript 873. He submitted that Veniamin’s reputation as a hitman had only emerged after the trial of Mick Gatto for Veniamin’s murder, some years later, when ‘the whole gangland thing exploded publicly and Veniamin’s name was trundled around’. He submitted that there was no evidence that, at the time of Peirce’s murder in 2002, Veniamin had any such reputation. Yet, his client, Orman, through his close friendship with Veniamin, had been unfairly tarred with the brush of being associated with a well known gangland killer.
I responded by saying that I thought the subtlety of Mr Richter’s timing point might be somewhat lost upon the jury. In any event, there was already ample evidence before the jury that Veniamin was widely known as a professional killer, at least as far back as 2000. Wendy Peirce had, by that stage, given evidence that Veniamin was generally understood, and certainly believed by Victor Peirce, to have murdered Frank Benvenuto in May of that year, in what was plainly an underworld execution.
As for the expression, ‘and do jobs together’, I said that, in my opinion, the jury would regard it as little more than a throw-away line, if they remembered it at all. I did not think that it was likely that they would interpret it in the somewhat sinister manner foreshadowed by Mr Richter. The expression could have been referring to anything. Traglia had already shown himself to be somewhat careless with his use of language. In any event, the entire case against Orman depended upon Traglia’s credibility. If the jury rejected his account, it would hardly matter what Traglia had said on the subject of Veniamin and Orman doing ‘jobs together’. If they accepted his account, and found that Orman had confessed to the murder of Peirce, they would certainly convict. It would make no difference what they made of that oblique reference.
[15]Ruling No 3.
Under Ground 2, counsel for the applicant argued that the judge erred in refusing to discharge the jury. In his submission, the evidence of Veniamin’s reputation was inadmissible and prejudicial, and the timing point was far from subtle; it was devastating. As counsel would have it, Wendy Peirce’s evidence did not establish that Veniamin had a reputation as a hitman in 2000 or 2002 – at most it established that between 2000 and 2002 the deceased believed that Veniamin had killed Frank Benvenuto – and the phrase ‘do jobs together’ was pregnant with the meaning that Orman and Veniamin had done killing jobs together at or around the time of the deceased’s killing in 2002. It followed, in counsel’s submission, that so far from being of little significance when compared to whether the jury accepted Traglia’s evidence of the applicant’s admissions, the alleged association between the applicant and Veniamin (at a time when Veniamin was said to be a notorious hitman) added inestimably to the credit of Traglia’s evidence concerning the applicant’s admissions, and rendered the jury very much more likely to accept Traglia’s evidence concerning the applicant’s admissions. So, it was said, there was a high degree of need for the jury to be discharged.
Counsel for the Crown submitted to the contrary, that the judge was plainly right to refuse the application for discharge for the reasons which his Honour gave. Alternatively, the Crown contended, the application for discharge was misconceived because, even assuming the evidence of Veniamin’s reputation as a hitman would have been inadmissible against Veniamin if Veniamin had stood trial, there was nothing in principle or authority which rendered the evidence of his reputation inadmissible against the applicant in a trial to which Veniamin was not party. Further and in any event, the Crown argued, the evidence of Veniamin’s reputation as a hitman and the fact that the applicant did jobs with Veniamin was admissible against the applicant – and the judge ultimately treated it as such in his Honour’s final directions to the jury, without exception being taken[16] – because this was a case ‘about violent men’ and because that circumstance ‘was bound to come out’ as something which was ‘inherent in the background to the facts the case’ as opposed to being offered by the Crown as proof of Veniamin’s or the applicant’s disposition or tendency.[17]
[16]T.2600.1-.26.
[17]Heydon, Cross on Evidence, Aust Ed, [21040].
It is convenient to deal first with the judge’s reasons for ruling; then with the question of whether the evidence of Veniamin’s reputation as a hitman and of the fact that the applicant did jobs with Veniamin was admissible against the applicant as inherent in the background to the facts of the case; and, finally, with the question of whether, assuming the evidence would have been inadmissible against Veniamin in a trial of Veniamin, it would follow that it was inadmissible against the applicant in a trial to which Veniamin was not party.
(i) The judge’s reasoning
As may be seen from the extracts of the judge’s rulings set out above, there were effectively two strands to his Honour’s reasoning. The first was that Veniamin was so well known as a hitman that every member of the jury would be thoroughly acquainted with his reputation as such and, therefore, that Traglia’s statement that Veniamin was reputed to be a hitman could not possibly have made any difference.[18] With respect, we agree with that in part. The pre-trial publicity of Veniamin’s death and, more generally, of the so-called gangland wars of which his death was part, was undoubtedly so widespread as to have had a deep-reaching effect on members of the jury.
[18]T.873.28-874.5.
But there are two qualifications. The first is dictated by the High Court’s recent affirmation of the common law assumption that unfair consequences of prejudice or prejudgment arising out of extensive adverse pre-trial publicity is capable of being relieved against by a trial judge in the conduct of a trial by thorough and appropriate directions to the jury.[19] Consequently, whatever one may suppose to be the effect of pre-trial publicity, it must be assumed as a matter of law that juries are capable of putting it out of their minds in accordance with proper directions. It follows, it must be assumed, that the judge’s directions to the jury in this case to put pre-trial publicity out of their minds caused them to do just that. In those circumstances, it is open to infer that what Traglia said about Veniamin’s reputation as a hitman could have made a difference – because the jury would have considered that, unlike the pre-trial publicity, it was permissible to take the evidence into account.
[19]Dupas v The Queen (2010) 267 ALR 1; [2010] HCA 20, [38].
The other qualification is that, apart from the legal assumption that juries are able to put the effect of pre-trial publicity out of their minds, it is reasonably possible that one or more jurors may not have been significantly affected by the pre-trial publicity, either because they chose not to read it or view it or were of a mindset which was immune to the effects of it. In the case of those jurors, the judge’s directions to ignore pre-trial publicity are in fact likely to have been effective. So, other things being equal, Traglia’s evidence as to Veniamin being a hitman could have made a difference, for the same reason as explained above.
The second basis of the judge’s reasoning was that Mrs Peirce had already given evidence about Veniamin’s reputation, and that what Traglia said about Veniamin’s reputation as a hitman effectively added nothing to it. With respect, we entirely agree with what his Honour said about that.
In chief, Wendy Peirce deposed to a post-it note which she said she had found sometime after the deceased’s death when going through his personal effects. The note had written on it, in a hand which Mrs Peirce did not recognise, both Veniamin’s address (albeit incorrectly spelt) and the car registration number ESG 165 (which police later established to have belonged to a car owned by Veniamin’s father at the time of the killing but disposed of by him in 2004).[20]
[20]T.2200.
Defence counsel then cross-examined Mrs Peirce, in a manner evidently calculated to throw doubt on the authenticity of the post-it note, with questions which suggested that Mrs Peirce had fabricated the note in 2007 after she learned that police believed Veniamin to be the killer, but were unable to establish a tangible connection between Veniamin and the killing. Among other aspects of the cross-examination directed to that end, the following are relevant:
When did you first think that the note had anything to do with anything connected with your husband’s death? - - - It just came to me because with the things written on there I thought my husband was up to something sinister because of the bank robberies, he always used to write things down, so, to my knowledge, to my knowledge, and as I know my husband, somebody has written that down and given it to my husband.[21]
[21]T.700.5-.11.
…
And you thought this was for a bank robbery, correct? - - - No, I didn’t think it was for a bank robbery, I did not say that.
What did you think it was for? - - - I thought it was something sinister that my husband was going to do.
Why? - - - From past experience. So to me I had a gut feeling there was something not right here.[22]
[22]T.701.22-.28.
It wasn’t written by your son or someone you know, was it? - - - My son, no, definitely not.
…
Are you sure it wasn’t written by you? - - - Do you want my handwriting?
No, I don’t because that can be varied? - - - I am a left hander, that is not my handwriting.[23]
[23]T.712.11-.12. -.14.
…
You didn’t hand it to the police until five years after you got it back? - - - Yes, because I didn’t think anything of it. I did not think of anything until I went right through every article, every property [sic] of my husband’s.
By the time that you thought something sinister of it, you had been, from time to time, keeping in touch with police and with reports of the investigations in relation to your husband’s death? - - - Correct.
And you realised that they had no connection, established connection between Veniamin and - - -
[There was then an objection and the question was withdrawn]
Did you understand that there was no tactile connection, documentary connection between your late husband and Mr Veniamin? - - - That was - - -
In terms of the evidence? - - - That was in the early stages.
Yes? - - - Early stages Homicide Squad until Purana took over and then started to – Andrew Veniamin murdered my husband.
So you had learnt prior to this document being handed over to police that Purana thought Andrew Veniamin had murdered your husband? - - - No, I didn’t say they thought he murdered my husband. It is common knowledge that he murdered my husband. It is common knowledge.[24]
[24]T.703.10-704.1.
Good. Let’s do it a different way. You believed before handing over this note that Andrew Veniamin had murdered your husband, correct? - - - Correct, because my husband met him at a park to talk about why did, why did Benji [Veniamin] kill Frank [Benvenuto], my husband wanted to know that.
I see? - - - So that’s why Benji killed my husband.
I see, at the park, straight away? - - - What do you mean straight away?
When was this supposed meeting at a park? - - - This happened just after Frank Benvenuto’s murder, after his funeral, sorry. He met him in a park.
I see, back in 2000? - - - Correct.
So from the year 2000 on, according to you, your husband believes that Benji Veniamin had murdered Benvenuto; is that it? - - - My husband believed that, yes.
Was he going to murder Veniamin? - - - He was, he was on, he had his guard up because he knew that - - -
Was he going to murder Veniamin? - - - My husband, yes.
In revenge? - - - Yes, but unfortunately Benji got in first.
…
Your husband was very well connected in the underworld, wasn’t he? --- Yes.
…
He never told you that he was looking for Veniamin? - - - He didn’t actually come out and say, ‘I’m looking for Benji’, but he said basically in the words, ‘Well, I’m going to get back at him for killing my best friend’.
Yes. And as time went on, I mean, did your husband have a belief that revenge was a dish best eaten cold or was he hot blooded enough to go and try and kill the man straight away? - - - No, my husband was smart enough to just wait for his guard to drop, but unfortunately Benji and these two other people got in first and left my children fatherless.
…
In 2002 when you discovered this sinister piece of paper it didn’t occur to you to ring the police? --- As I said, earlier, at the time, I didn’t think anything of it when I first looked through the booklet until something came upon me thinking why did my husband meet Benji at a park after Frank Benvenuto’s murder, who Benji killed, and that’s when I started to put two and two together, then I rang the police and said this paper must have something to do with this. (Emphasis added).
Those answers having been given, it must have been clear to the jury that Veniamin was a violent man, who was believed to have killed Frank Benvenuto in 2000, and it was common knowledge that Veniamin killed Peirce. Against that background, Traglia’s evidence that Veniamin had a reputation as a hitman effectively added nothing to the prejudice.
In so saying, we do not overlook counsel’s submission that there is a distinction between what Peirce believed about Veniamin in 2000 and 2002 and the fact of Veniamin acquiring a reputation as a hitman as a result of events which did not occur until 2004, and between Traglia’s statement that Veniamin was reputed to be a hitman in 2002 and Mrs Peirce’s evidence that Veniamin killed Frank Benvenuto in 2000 and was generally known to have killed Victor Peirce in 2002. But they are semantic distinctions; and the question for the judge was not so much one of semantics as of whether such distinctions were likely to be perceived by the jury as productive of a substantial difference. In short, was it reasonably possible[25] that the content of Traglia’s statement (that Veniamin had a reputation as a hitman) would be regarded by the jury as so much more prejudicial to the applicant than Mrs Peirce’s evidence (that Veniamin murdered Frank Benvenuto in 2000 and was a dangerous man and was generally known to have murdered Victor Peirce in 2002) that it was necessary to discharge the jury. In our view, it was well open to his Honour to conclude that it was not.
[25]See and compare the reasoning of McHugh and Gummow JJ, in an analogous context, in Dhahnoa v The Queen (2003) 217 CLR 1,18 [60]–[61].
In addition, it appears to us that the application for discharge was liable to be rejected in any event, because it was based on the false premise that it was only due to Traglia’s evidence in chief that the jury learned that Veniamin was reputed to be a hitman in 2002. In truth, it was one of the central tenets of the defence case that Veniamin was at all relevant times Traglia’s ‘gunman/security’, ‘protection’ and ‘enforcer’ in the drug trade, whom Traglia was in the habit of driving around,[26] and the defence was at pains to put that before the jury.
[26]And, therefore, that Traglia was more likely than the applicant to have been the driver of the Peirce murder get-away car.
Thus, in identifying the issues for the jury at the outset of the trial, long before Traglia gave evidence in chief, defence counsel told the jury that:
Issue number nine: was Traglia in fact in the habit of driving Veniamin around as his gunman/security and his enforcer in the drug trade? That’s going to be an important issue because it will make some difference to you if you knew, for example, that Mr Traglia is driving around with Mr Veniamin once or twice a week on drug deals and that Mr Veniamin is there as protection. That’s going to be an issue about their relationship.[27] (Emphasis added).
[27]Statement of defence case: T391.2-.9.
Then, in an attempt to ground that defence in fact, defence counsel repeatedly put to Traglia in cross-examination that Veniamin was ‘a hit man’, that Traglia drove Veniamin and ‘had him along as a hitman’[28] and that, when Traglia wanted someone who was ‘handy with a gun’, he would send for Veniamin.[29]
[28]T.955.
[29]T.956-7.
It follows that, whether or not the evidence that Veniamin was a hitman who was handy with a gun would have been admissible against the applicant in other circumstances, the applicant has no cause for complaint about its admission in this case. To adopt and adapt the reasoning of McHugh J in Suresh v R:[30]
Having regard to the way in which the case was conducted, it is impossible to conclude that the admission of the [impugned] evidence constituted a miscarriage of justice. The evidence was admitted without objection because it was perceived to be highly supportive of the defence theory of the case. Other counsel may have elected to fight the case on a different basis from that selected by the appellant's counsel, but no one could reasonably say that a competent counsel would not have run the case in the way that defence counsel ran it at the trial.
The appellant wanted the [impugned evidence] to be admitted because its admission was perceived as giving the appellant a better chance of acquittal than if the tender of the evidence had been rejected. The admission of the [impugned evidence] therefore did not deny the accused a fair trial or result in a miscarriage of justice. On the contrary, by not objecting to the admission of the [the impugned evidence] and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal.
[30](1998 ) 153 ALR 151 [22] and [23], see also 148 [12]–[13] (Gaudron and Gummow JJ); R v Munro [2005] VSCA 260, [44]–[46]; R v Jansz [2010] VSCA 137, [27].
Of course, there remains the point as to whether Traglia’s statement that the applicant ‘used to work with Veniamin’ and ‘used to drive him around and do jobs together’ would be taken by the jury to mean that the applicant used to do ‘hit’ jobs with the applicant and so amount to evidence of the applicant’s prior offences. Unlike the judge, we do not exclude the possibility of the jury wondering what were the ‘jobs’ to which Traglia referred. We nevertheless agree with the judge that Traglia’s reference to ‘jobs’ was not a sufficient reason to warrant the discharge of the jury.
As has been noted, it was an important part of the Crown case that the applicant was a constant companion and driver for Veniamin and became involved in the killing of Victor Peirce in that way. Hence, in opening the Crown case to the jury, the prosecutor told them that the applicant ‘was a very close associate at the time with Andrew Veniamin;[31] that he ‘was constantly in his company’;[32] and that ‘Faruk Orman, the accused, was a constant companion and driver for Andrew Veniamin’.[33] Then, in order to prove that part of the case, the Crown relied on Traglia’s testimony that the applicant ‘used to work with Veniamin’ and ‘used to drive him around and do jobs together’.
[31]T.298.1-.2.
[32]T.298.2-.4.
[33]Crown opening : T. 302.22-.23.
In our view, the Crown was entitled to do so. Contrary to defence counsel’s submissions before the judge, and to submissions repeated on behalf of the applicant before this court, evidence that the applicant used to drive Veniamin around and did jobs with him was not evidence of bad character, or at least it was not offered as such. It was evidence of the fact that the applicant was customarily Veniamin’s companion and driver, who used to do jobs with him (whatever jobs they might have been) and so was the more likely to have been Veniamin’s driver on the night of the murder. As McHugh J explained in Harriman v The Queen,[34] that sort of evidence is admissible, even though it may reveal other criminal or prejudicial conduct, because it tends to prove how or why the conduct the subject of the charge arose or because it makes it more probable than not that the conduct occurred at the time or place in the way alleged. In the circumstances of this case, such if any prejudice as it may have caused was thus far outweighed by its probative value.
[34](1989) 167 CLR 590, 630; see also R v Hartwick, Hartwick and Clayton (2005) 14 VR 125, 154 [67] and the cases there cited; Heydon, Cross on Evidence, Aust Ed, [21050].
(ii) Did the evidence of Veniamin’s bad character breach the general exclusionary rule
The general exclusionary rule which applies to evidence of misconduct on other occasions was stated by Lord Herschell LC in Makin v AG for New South Wales,[35] as follows:
It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury; and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. (Emphasis added).
[35][1894] AC 57, 65 (PC).
It is to be observed, however, that proof of accident and the rebuttal of a defence are not the only circumstances in which evidence tending to show bad character may be admissible. As the relevant conceptions are summarised in Cross on Evidence, such evidence is admissible if it is ‘sufficiently highly probative of a fact in issue to outweigh the prejudice it may cause’; and one way in which it may be so probative is where it is ‘inherent in the background to the facts of the case’.[36]
[36]Heydon, Cross on Evidence, Aust Ed, [21010]
In this case, the Crown contends that the fact that Veniamin was a hitman or, put another way, a violent man who associated with hitmen and drug traffickers, and the fact that the applicant was his constant companion who drove and did jobs with him, were ‘inherent in the background to the facts the case’ and thus probative of the facts in issue, as opposed to being offered by the Crown as proof of Veniamin’s or the applicant’s disposition or tendency.[37] We think that contention to be well founded.
[37]Ibid [21040].
To begin with, Veniamin’s reputation as a hitman was probative of Veniamin’s motive for killing Peirce. The Crown contended that his motive was that he feared that Peirce would kill him. To assess the likelihood of that as a motive, it was important for the jury to know why Peirce might wish to kill Veniamin and why Veniamin might fear that Peirce intended to do so. The fact that Veniamin had a reputation as a hitman was relevant to whether Peirce sufficiently feared Veniamin to want to kill him.[38] In turn, that was relevant to whether Veniamin believed that Peirce so wanted to kill him that Veniamin would seek to get in first. More compendiously, both pieces of evidence were probative of a relationship of hostility between Peirce and Veniamin which rendered it more likely that Veniamin killed Peirce.[39]
[38]Re Knowles [1984] VR 751, 768; cf R v Ellem (No 1) [1995] 2 Qd R 542, 544–5.
[39]See Crown’s closing address: T.2196.1-2199.6; Plomp v The Queen (1963) 110 CLR 234, 251; Wilson v The Queen (1970) 123 CLR 334; R v Vollmer [1996] 1 VR 25, 132; Eastman v R (1997) 76 FCR 9, 25–6; Heydon, Cross on Evidence, Aust Ed, [21050].
Secondly, neither piece of evidence was offered to prove that Veniamin had a criminal disposition, as opposed to proving that Peirce feared that Veniamin was of a criminal disposition and Veniamin feared that Peirce would kill him because of it. That can be tested, in the manner suggested by Cross,[40] by supposing that Veniamin had a reputation which was in no way discreditable or, therefore, indicative of an evil disposition. For example, if Veniamin had a reputation as a rich man, rather than as a hitman, and Peirce were known to be inclined to kill him for financial benefit, and that fact were known to Veniamin, the evidence of both circumstances would be admissible as making it more likely that Veniamin sufficiently feared that Peirce would kill him that Veniamin killed Peirce first.[41]
[40]Ibid [21040].
[41]R v Mackie (1973) 57 Cr App R 453; R v Palaga (2001) 80 SASR 19, 32 [50]–[53]; Heydon, ibid.
Thirdly, it is to be borne in mind that a significant part of the Crown case was based on the covertly recorded telephone conversations between Veniamin and Traglia. In interpreting those conversations, particularly those where reference to ‘the sheila’ who lived at No 38 was said to be code for a .38 weapon, and ‘breaking up with the moll’ was said to be code for killing Peirce, it was relevant to know that Veniamin was a hitman who was handy with a gun. Ex facie, the language of the conversations presented as designedly Delphic. For example, the use of the neuter ‘it’ in conjunction with the feminine ‘sheila’ implied that they were not talking about a woman, still less one who lived at number 38. The jury were entitled to know the nature of the man whose choice of language they had under consideration.[42]
[42]See Crown’s closing address: T.2208.19-.26.
Fourthly, so far as the applicant was concerned, the fact that Veniamin had a reputation as a hitman, and that the applicant used to drive him around and do jobs with him, was relevant in attributing meaning to the covertly recorded telephone conversations between Veniamin and the applicant: for example, what Veniamin meant by saying that he had been tipped off that he was going to be ‘knocked’, and what the applicant meant by saying that Veniamin had more ‘hits’ than Elvis, and by asking Veniamin whether the had to go out to see some ‘sheila’ on 1 May 2002.
Fifthly, the fact of Veniamin’s reputation as a hitman and the fact that the applicant was in the habit of driving Veniamin around and doing jobs with him was relevant to their relationship, and thus to whether the applicant acted in concert or common purpose with Veniamin; which is to say, whether the applicant was to be taken as having entered into an agreement, express or tacit, with Veniamin that he drive Veniamin to the meeting place so that Veniamin could kill Pearce.[43] For the jury accurately to assess the likelihood that, by driving Veniamin, the applicant agreed that Veniamin should commit the murder; or that, in driving Veniamin, the applicant was acting pursuant to such an agreement, it was necessary for the jury to know that the applicant was driving a man who was reputed to be a hitman and, therefore, who the applicant was likely to believe was a hitman.
[43]McAuliffe v The Queen (1995) 183 CLR 108, 232.
Counsel for the applicant argued that so to reason would be to treat the case as one of extended concert or extended common purpose, which the Crown did not allege. We do not accept that argument. It is not a matter of having regard to Veniamin’s reputation as a hitman in order to determine whether the applicant foresaw the possibility that Veniamin would kill Peirce, but rather of whether it was to be inferred that the applicant agreed with Veniamin that Veniamin should kill Peirce. As the jury were correctly directed, the existence of that agreement was to be inferred from all the circumstances and, on the Crown’s case, those circumstances included that the applicant knew that he was going to meet Peirce, at night at a pre-arranged meeting in an obscure location, with a man who was reputed to be hitman. The validity of that proposition may be tested by supposing how much less likely it would be that the applicant impliedly agreed with Veniamin that Veniamin should kill Peirce if, instead of being ‘a hitman’ who was ‘handy with a gun’, Veniamin had been a priest.
We conclude that evidence of Veniamin’s reputation as a hitman and of the fact that the applicant drove for him and did jobs with him did not breach the general exclusionary rule which applies to evidence of bad character of an accused.
(iii) Was the evidence that Veniamin was a hitman inadmissible against the applicant?
That leaves the question of whether, assuming that evidence of Veniamin being a hit man would not have been admissible against him if he had stood trial, it would follow that evidence would not have been admissible against the applicant in a trial to which Veniamin was not party.
Given what we have said about the rectitude of the judge’s refusal to discharge the jury, and about the contextual significance of Veniamin’s reputation as a hitman, the question is academic. But in case we are wrong about that, and since the matter was argued at some length, we note the following.
Logically, a propensity to misconduct evidenced by misconduct on other occasions may be probative of a later offence. In earlier editions of the Australian Edition of Cross, the point was made by reference to the late Professor Brett’s axiom, that:
If a man enters a room carrying in his pocket a wallet, and after a short while finds that it is missing, and also knows that the only two men who have been with him during that period are a bishop and a reputed thief, he will suspect the thief and not the bishop of stealing it.[44]
[44]Brett, ‘Abnormal Propensity or Plain Bad Character’ (1954) 6 Res Judicata 471, 472.
In that sense, evidence that Veniamin was a hitman was relevant to the issue of whether he killed the deceased, because evidence that he was a hitman disclosed that he had a propensity to kill and, logically, that made it more likely that he killed the deceased. In turn, that made it more likely that the applicant was guilty of acting in concert with him.
Logic alone, however, is not a sufficient guide. The general rule as to the exclusion of bad character evidence is not based on considerations of relevance[45] but rather upon reasons of ‘policy and humanity’.[46] The concern is that ‘although by admitting [evidence of misconduct on other occasions] you might arrive at justice in one case out of a hundred … you would probably do injustice in the other ninety nine’.[47] The risk of injustice is said to be that ‘an inference may all too readily be drawn from the fact that someone has a particular disposition to the fact that he acted in accordance with it’.[48]
[45]R v Lowery (No 3) [1972] VR 939, 945.
[46]Attwood v The Queen (1960) 102 CLR 353, 359–360.
[47]R v Rowton (1865) Le & Ca 520, 541; 169 ER 1496, 1506, Willes J (in diss).
[48]Attwood v The Queen, ibid.
As in Makin, the general exclusionary rule is ordinarily expressed in terms of excluding evidence of bad character of the accused. In Martin v Osborne[49] Dixon J spoke in more general terms of the inadmissibility of the ‘moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations’.[50] But his Honour was speaking there in the context of an accused’s reputation and associations and it is not at all certain that he intended any wider application.
[49](1936) 55 CLR 367, 375.
[50]See also R v Riley (1887) 481, 484 (Lord Coleridge CJ).
In point of principle, it might be thought that, where proof of the guilt of one co-offender is dependent upon proof of the guilt of another, the reasons of ‘policy and humanity’ which support the exclusion of evidence of an accused’s bad character also imply a need to prevent the Crown from attempting to prove the guilt of one co-offender with evidence of bad character of another. But senior counsel for the Crown submitted to the contrary. He argued that, inasmuch as the general exclusionary rule does not apply as between co-accuseds, parity of reasoning implies that it should not apply as between the Crown and a co-accused.
There is some force of the Crown’s contention. It is permissible for an accused to adduce evidence of the bad character of a co-accused – a good example is a ‘cut throat defence’ where one accused seeks to establish that his or her co-accused was the only offender – and although the evidence of the co-accused’s bad character is admissible only in the Crown’s case against the accused, and a jury should be directed to disregard it for the purposes of the Crown’s case against the co-accused, the utility of the direction is problematical and, for that reason, in England has been held to be inessential.[51] If so, why then should not the Crown be permitted to rely on evidence of the bad character of a co-offender in the trial of an offender to which the co-offender is not party?
[51]R v Robson [2006] 1 Cr App R 480, 494 [35].
On the other hand, one possible answer to that question is that, in a trial of two or more co-accuseds, the risk that the Crown might benefit from the tender of bad character evidence by one co-accused against another is justified on the basis that to exclude the tender ‘could operate to convict the innocent’[52] co-accused. By contrast, in a trial between the Crown and only one co-offender, there is no risk that exclusion of evidence of bad character of the other co-offender could lead to a conviction of the innocent and, therefore, no reason to tolerate the risk which arises between co-accused.
[52]R v Lowery (No 3) [1972] VR 939, 945.
There does not appear to be a great deal of authority on the point. Counsel were unable to locate any case in which it has been held that the general exclusionary rule applies to a co-offender in circumstances of this kind. Counsel for the applicant suggested that may be because the point is so obvious as to go without saying.
A possible indication to that effect is that in R v Brown, Smith and Flanagan,[53] to which counsel did not refer, it was held to be sufficient reason to quash the conviction of Brown that the Crown had tendered inadmissible evidence of bad character against Smith. Edmund-Davies J, who delivered the judgement of the English Court of Criminal Appeal, explained that the reason for quashing Brown’s conviction was because: ‘The jury in all probability in this case convicted because of the association of Brown with the accused Smith’. We are inclined to think, however, that a more likely explanation of why there is so little authority on the point is that ordinarily when evidence of bad character of one co-offender is adduced in the trial of another, it is adduced and is admissible because it has contextual or other probative value apart from mere propensity.
[53](1963) 47 Cr App R 204, 211.
You would not draw an inference adverse to Faruk Orman linking him with the theft of either vehicle, and then, assuming involvement in the theft of the second vehicle, thereby linking him to the murder of Victor Peirce, unless you were satisfied that no other rational hypothesis could be drawn. That is because this is an example of circumstantial evidence. In this case the defence says to you there are many rational hypothesis. Faruk Orman may not have been in possession of his mobile phone at the time it came off the particular tower. He may not have been in close proximity to either tower because the defence says it is a possibility that the signal linked to the tower came from outside the dominant service area …[or] Faruk Orman may have been in the Delahey area, so says Mr Richter, for a purpose unconnected with the theft of NUM 590…
The issue is joined between the parties on the relevance or otherwise of the two cars which were stolen. The defence points to a different modus operandi in the theft of the two vehicles. The prosecution points to the tapes of conversations between Faruk Orman and Andrew Veniamin … and invites you to draw an inference adverse to Faruk Orman in that regard. These are issues for you, ladies and gentlemen, classic jury questions. The only direction that I can give you is that you do not draw any inference adverse to Faruk Orman unless you are satisfied that is the only inference reasonably open, and that there is no rational hypothesis consistent with innocence. (Emphasis added).
Arguably, those directions were unduly favourable to the applicant, in that the emphasised passages might be taken to apply to all inferences, as opposed to inferences as to an element of the offence or guilt of the offence which was charged.[70] As was earlier observed, in a circumstantial case the probative force of a mass of evidence may be such as to make it pointless to consider the degree of probability of each item of evidence separately and a jury may quite properly infer an element of the offence or guilt beyond reasonable doubt, having regard to the whole of the evidence, even though an individual piece of evidence, whether direct or inferential, is not of itself proved beyond reasonable doubt. It was open to the jury to take that view of the evidence in this case.
[70]Peacock v The King (1911) 13 CLR 619, 634; Shepherd v The Queen (1990) 170 CLR 573, 578.
Needless to say, however, no exception was taken to any unduly favourable aspect of his Honour’s directions and the applicant has no cause for complaint about it now. But at trial, and again before this court under cover of Ground 7, counsel for the applicant argued that the judge was bound to add to his directions an instruction that:
In this case, the sort of circumstances [meaning, all the circumstances relied upon by the Crown as part of its circumstantial case] are not capable of bolstering the Crown case unless Traglia is believed.
With respect, the judge was right to decline to give that instruction. The very point of the Crown’s circumstantial case was that it was open to the jury to consider the evidence as a whole and not disregard any one item of evidence, such as Traglia’s testimony, simply because, when considered alone, it might not support a reasonable inference. In particular, the jury were entitled to treat circumstances relied upon by the Crown as resolving doubts which they might otherwise have had about Traglia’s evidence and thus, upon taking into account all of the evidence, be certain of critical aspects of Traglia’s story even though that might not be reasonable if his evidence were considered separately.[71]
[71]The Queen v Hillier (2007) 228 CLR 618, 637 [46]–[48] (Gummow, Hayne and Crennan JJ).
It follows that Ground 7 is rejected.
Ground 8 – Short Service of Subpoena
On 14 September 2009, after the trial had been running for almost a month, the applicant’s counsel sought an order for short service on the Chief Commissioner of Police of a subpoena duces tecum to produce a list of all cars stolen or recovered in a range of suburbs, which counsel described as ‘basically the northwest’, between 23 April 2002 and 2 May 2002. The judge rejected the application, observing that the subpoena could have been served much earlier if the documents were required and that he regarded the point of the exercise as not just fishing but trawling.
The nub of Ground 7 is that leave to short serve the subpoena should have been granted and that the judge’s refusal of leave caused the trial to miscarry. In the course of argument, however, that contention was abandoned and, in our view, rightly so.
Perforce of Rule 1.12 of the Supreme Court (Criminal Procedure) Rules 2008, Order 42 of Supreme Court (General Civil Procedure) Rules 2005 applies mutatis mutandis to subpoenas issued for the purposes of criminal proceedings. Rule 42.04 of the latter rules empowers the court to set aside a subpoena of its own motion if it is oppressive or an abuse of process, as it may be if the documents sought are not sufficiently relevant to the matters in issue.[72] That invokes the test in National Employer’s Mutual General Insurance Association Ltd v Waind,[73] with which in the large part the putative subpoena did not comply. On any proper analysis, it was far too wide and, for that reason alone, the judge was correct to reject it.
[72]Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 574; Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, 927.
[73][1978] 1 NSWLR 372.
Ground 9 – Admission of evidence of theft of PQL 565
It will be recalled that it was part of the Crown case that Veniamin and the applicant twice set out to kill the deceased: the first time on 24 April 2002, in the stolen VL Holden Commodore PQL 565 which police later found near Veniamin’s home on 26 April 2002; and, the second time, on 1 May 2002, in the stolen VL Holden Commodore NUM 590 which was later abandoned and found burned in Taylor’s Road, St Albans. At trial, counsel for the applicant objected to the evidence concerning PQL 565 as irrelevant on the basis, he submitted, that there was nothing to connect PQL 565 to the applicant or to Veniamin. The judge rejected the objection, principally on the basis that, because PQL 565 was found by police in close proximity to Veniamin’s home, there was a sufficient connection with Veniamin in the context of the Crown’s circumstantial case to render the evidence admissible.
Under Ground 9, the applicant contends that the judge was in error to admit the evidence. We think his Honour was correct.
There is some authority for the proposition that logically relevant evidence of a fact may be inadmissible where the logical connection between the fact and the issue is too remote.[74] But that does not apply here. The fact that PQL 565 was found in close proximity to Veniamin’s home, combined with the evidence that the vehicle had been stolen on 24 April 2002, and with the telephone conversations between the applicant and Veniamin in the period between 24 April and 1 May 2002, provided a firm logical connection with Veniamin and the applicant, and a fair inference that Veniamin and the applicant stole PQL 565 on 24 April 2002 and maintained the intention to use it until it was found by police on 26 April 2002.
[74]R v Stephenson [1976] VR 376, 380–381, and the cases there cited.
Ground 10 – Ahern and reasonable independent evidence
Reference was earlier made to the covertly recorded telephone conversation between Veniamin and Traglia on 23 April 2002 in which Veniamin said to Traglia: ‘Have you got that sheila’s address’, and Traglia replied: ‘Yes, she lives at 38’ and ‘I’ll get it to Baby’. As was earlier noted, Traglia deposed that the conversation was in code which, when translated, meant that Veniamin was asking whether Traglia had procured the weapon that Veniamin was seeking and Traglia’s answer amounted to saying that he had, it was a .38 calibre weapon, and he would give it to Baby (who, other evidence disclosed, was a mutual associate who could be relied upon to deliver the weapon to Veniamin).
During the course of pre-trial argument, counsel for the applicant took objection to that evidence on the basis that there was no reasonable evidence of a combination between Veniamin and the applicant to kill Peirce and, even if there were, it was not independent evidence. The judge ruled that:
I think in this particular matter there is a reasonable basis for the jury to find that there was an element of pre-concert sufficient to allow the co-conspirator’s rule so-called to operate and to enable the Crown at least to open the matter that it desires to open.[75]
[75]T. 253.1-.6.
Thereafter, the Crown opened and adduced the evidence and there was no further objection to it. Now, however, it is contended on behalf of the applicant that the judge was in error and that the evidence should have been excluded.
The ‘co-conspirator’s rule so-called’ as the judge described it is the common law rule of evidence that:
The acts (including declarations) of one conspirator or other participant in a common design are receivable against the other if they are done in pursuance of the original concerted plan with reference to the common object, irrespective of whether the accused against whom the acts or declarations are tendered is proved to have been concerned in that particular action.[76]
[76]Heydon, Cross on Evidence, Aust Ed, [33565].
The rule applies where there is reasonable independent evidence of pre-concert. As Young CJ said in R v Minuzzo & Williams:[77]
Evidence in category (c), which is sometimes described as evidence in furtherance of the conspiracy, may only be used against an accused whose case is being considered once there is some evidence that that accused is connected with the conspiracy. But it is not necessary that the jury should be satisfied of the guilt of the accused before they can use evidence of category (c). Satisfaction of guilt of course requires satisfaction beyond reasonable doubt. But evidence falling into category (c) can be used against an accused once prima facie proof of the accused’s connection with the conspiracy has been given … Whether there is sufficient evidence directly admissible against an accused connecting him with the conspiracy to make evidence in category (c) available to be used against him is a question for the jury.
[77][1984] VR 417,431.
In Ahern v The Queen,[78] the High Court substantially approved of what Young CJ had said in Minuzzo & Williams but qualified it to the extent of adding that the words ‘reasonable evidence’ were to be preferred to ‘prima facie evidence’,[79] and by holding that it is for the judge and not the jury to determine whether there is independent evidence of the participation of the accused in the illegal combination sufficient to let in against him evidence of the acts and declarations of the other participants in further proof of that participation.[80]
[78](1988) 165 CLR 87, 98.
[79]Ibid 100.
[80]Ibid 105; see also R v Chai (1992) 27 NSWLR 153, 187 (Badgery–Parker J).
Under Ground 10, counsel for the applicant contended that the judge erred in the application of the rule, by holding that there was reasonable independent evidence of pre-concert sufficient to let in, against the applicant, the acts and declarations of Veniamin.
That contention faces difficulties at two levels. The first is that this was a case, of a type to which the High Court referred in Ahern v the Queen,[81] where it was appropriate for the judge to give a preliminary ruling upon the depositions and then wait until the whole of the evidence was in before being asked to make final ruling to the contrary. Understandably, the judge adopted that course. His Honour’s ruling was in terms confined to the opening and so left it to counsel for the applicant to renew his objection at a later stage if they chose to do so. The objection not having been renewed at a later stage, the opportunity to do so may be taken as waived.[82]
[81](1988) 165 CLR 87, 104.
[82]R v Radford (1993) 66 A Crim R 210, 232–3; R v Clark (2005) 13 VR 75, 83 [61]–[64]; Jansz v R [2010] VSCA 137, [34]; Scetrine v R [2010] VSCA 194, [36].
Secondly, as the prosecutor submitted before the judge, there were at least three pieces of independent evidence which when taken together were reasonable evidence of pre-concert between the applicant and Veniamin to locate and kill Peirce. The first was Traglia’s testimony that, four to six weeks before the killing, Veniamin told him, in the presence of the applicant, that if Veniamin did not get Peirce, Peirce was going to get Veniamin:
All right. Did you arrange a place? - - - I caught up with him somewhere along Beach Road.
Can you remember where? - - - No.
Who was present at that meeting? - - - Faruk Orman.
Yes. Anyone else? - - - And Andrew Veniamin.
What was that meeting about? - - - Andrew asked, he goes, ‘Have you found anything about Victor? - - - I said no.
HIS HONOUR: Mr Traglia, it’s a little difficult to follow, could you just say that again a little more slowly? - - - When I seen Andrew, we said hello. Then Andrew said to me ‘Have you found out where Victor lives?’ I said no. Then I said to Andrew, ‘What’s the problem between you and Victor?’
Yes? - - - Right. And Andrew said, ‘If I don’t get Victor first, Victor’ll get me’.
As to this meeting, did you arrive first? - - - Yes.
Did you see Veniamin arrive? - - - Yes.
Did he arrive with Orman? - - - Yes.
Did they arrive in a vehicle? - - - That’s right, yes.
What sort of vehicle? - - - Silver Boxster Porsche.
Can you say who was the driver of it? - - - Faruk Orman.
On the first occasion when they met who was the driver? - - - Faruk Orman.
All right. So you’ve had that conversation and he said in effect, ‘If I don’t get him he’ll get me’? - - - That’s right.
Was there anything else said at that stage? - - - If I could find out where Victor Peirce was, he was just worried about his own safety.[83]
[83]T.879.5-T.880.1.
The second was evidence given by Traglia of a further meeting with Veniamin and the applicant at a convenience store in Port Melbourne some time before 23 April 2002, in which Veniamin castigated the applicant for failing to locate Peirce:
Would you tell the court about – this is a convenience store where? - - - Next door to Rex Hunt, Beach Road.
Sorry there’s a convenience store next door to Rex Hunt in Beach Road? - - - Yeah, fish and chip shop.
Beach Road what, Port Melbourne? - - - Yes.
A convenience store there, tell us about the significance of that? - - - I was with Andrew one day and Faruk rang Andrew and Andrew said we were there having coffee. Faruk lobbed up and Andrew turned round and said to Faruk, ‘Have you found out where Victor Peirce lives? - - - and Faruk said, ‘I can’t find any information on him’. Andrew went off his head at him, called him an idiot. Was upset with him because Faruk was doing the surveillance on him and come back with nothing. Andrew was upset. After about five, ten minutes he calmed down because he realised Victor was hard to find.[84]
[84]T.881.5-.19.
The applicant’s submission that such evidence was not independent evidence of pre-concert is misplaced. Although it is evidence of what Veniamin said, it was said in the presence of the applicant.
The third was the evidence concerning PQL 565, including the telephone conversations between the applicant and Veniamin in which inquiries were made as to whether the car was still available and fuelled ready to be used. As the prosecutor submitted before the judge, it pointed to the applicant having stolen PQL 565 for the purpose for which NUM 590 was ultimately used on 1 May 2002, and thus implied that the applicant was at relevant times a participant with Veniamin in a plan to kill the deceased.
It follows that we reject Ground 10.
Ground 11 –Aggregate of errors
Under Ground 11 it was contended that the verdict is unsafe and unsatisfactory by reason of the aggregate of errors alleged in Grounds 1 to 10. For the reasons already given, Ground 11 is rejected.
Ground 12 – Unsafe and unsatisfactory
Finally, as Ground 12, it was contended that the verdict was unsafe and unsatisfactory on the basis that the jury could not have convicted the applicant unless they accepted critical aspects of Traglia’s testimony, and that no jury acting reasonably should have been prepared to accept Traglia’s testimony.[85]
[85]Whitehorn v The Queen (1983) 152 CLR 657, 687; Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 534, 602–603, 606–607.
The matters relied upon in support of that contention were as follows:
Traglia‘s concessions in cross-examination, that:
(a) Traglia often drove around in the company of Veniamin – a man who Traglia believed was a hit-man;
(b) Traglia was a drug-trafficker who for years had dealt in large commercial quantities of drugs;
(c) Traglia had for years supplied weapons to others, at times knowing that these weapons would be used to commit murder, at other times not caring whether the weapons would be used to commit murder or other offences;
(d) It was ‘possible’, by dint of CCR telephone records, that Traglia was at the scene of the murder at its commission;
(e) Traglia gave a false alibi for the night of the murder. It was established by a Certificate of Occupancy that 50 Lorimer St – the place where Traglia said he was on the night of the murder was unoccupied for months after the murder of the deceased. This called into question Traglia’s whereabouts on the night of the murder and the circumstances of the later confession that Traglia said was made to him by Veniamin;
(f) Traglia, two weeks before the deceased was killed went to see Michael Laverde and asked him whether it would be permissible to kill the deceased;
(g) Traglia, by his own admission, moved in circles that would likely have brought him into contact with the deceased;
(h) Traglia was a murderer. He killed Jason Moran and Pasquale Barbaro. He murdered Nick Radev. Veniamin was complicit in the murders of Moran, Barbaro and Radev. Traglia trafficked in large volumes of drugs. For his testimony in this case, Traglia received a substantial benefit in sentence for the killing of Moran. Further, he was not being prosecuted for the killing of Barbaro, for the killing of Radev and for trafficking in large quantities of drugs;
(i) Traglia was an admitted perjurer, having committed perjury at the Australian Crime Commission;
(j) If Traglia’s version of events were to be accepted, then, objectively, he had counselled Veniamin to kill the deceased;
(k) Traglia, by his own admission, had a professional interest in knowing how to drive a get-away car from a murder;
(1) Traglia had knowledge of the whereabouts of an apparent first attempt upon the life of the deceased, knowledge that he was not prepared to impart to authorities when he made his statements to police;
(m) In circumstances where the objective evidence (the telephone intercept evidence) was such as to establish at least some involvement by Traglia in the murder, Traglia admitted that if he was the driver of the car in Bay St Port Melbourne, he would lie in order to make the case stronger against the applicant;
(n) The order of sequence of events of the gun jamming, the car window being smashed and then three shots fired, contained within the alleged confessions made to Traglia, was scientifically impossible. Thus the confessor cannot have been guilty (as was implicitly conceded by counsel for the Crown in his final address: T at 2190- 2191) or the confession was never made;[86]
(o) The impossibility of the order of sequence contained within the confessions as described by two different people on two different occasions meant, by operation of the laws of logic and probability, that the confessions must have been ‘put into the mouths’ of the so-called confessors by Traglia;
(p) The circumstances of the confession said by Traglia to have been made to him by the applicant in Carlton on 8 January 2004 make the occurrence of this confession impossible: first, the impossible sequence of events is again said to have been relayed by the applicant, and secondly, the meeting between the applicant and Traglia cannot have taken place by virtue of its failure to be observed by police witnesses;
(q) Traglia stood perhaps to benefit by receipt of a reward of $100,000.00 if he was instrumental in convicting the applicant;
(r) The raison d’être for the making of the first ‘confession’ by Veniamin is improbable as was the location where it was said to have been made.
[86]The prosecutor did not say that. His submission to the jury was that it showed that Traglia could not have been the driver.
Objective touchstones that undermine Traglia‘s evidence
(s) The provenance of the note presented to police by Wendy Peirce said to establish a connection between the deceased and Veniamin -was dubious in the extreme;
(t) It was likely that the modus operandi employed in the thefts of the two stolen vehicles was different;
(u) The information reports tendered by the defence suggested many others who might readily have had an involvement in the killing of the deceased;
(v) The telephone intercept evidence necessarily relied upon meanings to that evidence by Traglia.
Those criticisms of Traglia’s evidence repeat submissions which were put by defence counsel to the jury in final address. Evidently, the jury were not sufficiently persuaded by them to reject Traglia’s testimony. We are not persuaded that it was unreasonable for them to take that view.[87]
[87]Libke v The Queen (2007) 230 CLR 559, 596 [113]; R v Vjestica (2008) 182 A Crim R 350, 360 [59].
Some of the criticisms are exaggerated. For example, in relation to criticism (d), the evidence was not that it was ‘possible … that Traglia was at the scene of the murder at its commission’. It was that, although it was ‘remotely possible’ he could have been there, the locations of the mobile phone calls made it ‘highly unlikely’ that he was there at the time of the murder[88] and much more likely that he was at the Brighton end of Elwood,[89] in which area he lived at the time. Equally, in relation to criticism (e), it overstates the position to say that Traglia gave a false alibi for the night of the murder. His alibi was that he was at home. When he first gave it more than four years after the event, he recalled that at the time he was living at 50 Lorimer Street, Docklands. Later he remembered that he was then still living in Elwood and that it was not until after the killing that he moved to 50 Lorimer Street. Nor did that necessarily call into question that he had gone to 50 Lorimer Street with Veniamin and the applicant on 2 May 2002, because as he said, that was where he used to do his drug deals and it was a convenient location close to the end of the freeway for people living in the western suburbs. So, too, in relation to criticism (p), it does not follow from the fact that the police officers concerned did not observe Traglia that he was not where he said he was with the applicant in the park near the restaurant. He plainly was at the restaurant on that day, and his evidence about observing the departure of Gatto is consistent with the objective evidence.
[88]Wilson XXN, T. 2029.16-.18.
[89]Wilson, XXN T. 2024.6-.14.
Some other criticisms are of little consequence. For example, criticisms (j) and (l) are in effect debating points.
Some of the criticisms are double-edged. For example, in relation to criticism (n) – that the sequence of events of the gun jamming, the car window being smashed and then three shots fired was scientifically impossible – the fact that Traglia was recounting what he was told rather than what was thought to have occurred rather implied that he was not present at the killing, which was the point made by the prosecutor in the passage of his final address which is relied upon.
Criticism (o) is not necessarily logical. It does not follow from the fact that Traglia’s version of the shooting did not comply precisely with some scientific opinion evidence that Traglia put a confession into the mouths of Veniamin and Traglia. Their perception of what occurred may have been distorted given the urgency of the occasion. Traglia’s perception of what they said may have been distorted. Recollections fade. Nor is it plain that the scientific opinion evidence was necessarily complete as to the exact sequence of events
As to what are described as the ‘objective touchstones’, we do not accept that provenance of the post-it note found by Wendy Peirce was dubious in the extreme. To the contrary, we think it remarkable that it had written on it the registration ESG 165, when at the time of its production it was years since the car with that registration had been at the Veniamin household and there was no reason to suppose that Mrs Peirce ever knew anything of it. Nor do we ascribe to the information reports the significance for which the applicant contends. Police gave evidence that each of the information reports was followed up and discounted. Finally, as to criticism (v), we have already expressed our reasons for rejecting the contention that the interpretation of the telephone calls was entirely dependent on Traglia.
There is no doubt that Traglia was many of the things which defence counsel labelled him, including a convicted murderer, perjurer and gaol informer, and there is no doubt that they are very good reasons to have doubts about his credibility. But the jury were not bound to reject his testimony simply because of his character and antecedents[90] and, as we have endeavoured to show, the circumstantial evidence provided powerful support for significant aspects of his testimony. The prosecutor went through it all at length in the course of his final address[91] and it presents to us as a substantial circumstantial case of guilt. To that may be added that, when Traglia approached police and made his first statement, he did not know of any of the covertly recorded telephone conversations and so, as the prosecutor put in his final address to the jury, if he were lying he would have been taking a significant risk of being caught in the lie.
[90]R v Clough (1992) 28 NSWLR 396, 403.
[91]T2203 et seq.
For his part, defence counsel spent a large part of his final address to the jury criticising the worth of the covertly recorded telephone conversations between Veniamin and Traglia and between Veniamin and the applicant. He submitted that they were incapable of confirming or supporting Traglia’s evidence because, in order to ascribe to them the meanings for which the Crown contended, one had first to accept Traglia’s evidence that they were encoded and then accept his interpretation of the code. But, as has already been observed, that is not necessarily so. In our view, there was enough in the structure and timing of the conversations, coupled with the identity of the participants and the objectively ascertainable circumstances in which the conversations took place, to establish that they were at least to some degree encoded and in part to imply the nature of the code. To that extent, they provided endogenous support for the meanings which Traglia attributed to them.
In the end, as indeed defence counsel ultimately appears to have accepted in the course of his final address to the jury, it was open to the jury to conclude that Veniamin was the shooter.[92] The real issue was who was with Veniamin at the time of the killing. Counsel for the applicant contended that, on any analysis, there was a reasonable doubt as to whether it was the applicant. But the close association between Veniamin and the applicant, the objective evidence of communication between them at relevant times, not least the evidence relating to PQL 565 and NUM 590, and the telephone calls between them on the night of 1 May 2002, strongly implied that the applicant was with Veniamin and that Traglia was not.
[92]T.2364.30-T2365.13.
A graphic example of that is that, whereas the applicant’s mobile telephone was switched off between 7.59 pm on 1 May 2002 (when he sent the text message to Veniamin that he would meet him at ‘sea roars in two minutes’) and 12.17 am on 2 May 2002 (when he made the call which was transmitted via the Delahey telephone transponder tower, in close proximity to Taylor’s Road in the area where the burnt out NUM 590 was found), and Veniamin’s mobile telephone was off between 7.46 pm on 1 May 2002 and 10.40 pm that night, Traglia’s two mobiile telephones were switched on throughout the evening and picking up or making calls or text messages at 8.16 pm, 8.47 pm, 8.49 pm, 9.04 pm, 9.06 pm, 9.07 pm, 9.15 pm (at the exact moment of the murder) 9.16 pm, and 10.18 pm, all of which were picked up by telephone transponder towers which put him at the Elwood end of Brighton and none of which had anything to do with Peirce, Veniamin, the applicant or Benvenuto. As the prosecutor put to the jury in final address, while it could reasonably be inferred from the ‘sea roars’ text message, and the fact that the applicant’s and Veniamin’s telephones were switched off between about 7.59 pm and 10.40 pm, that the applicant and Veniamin were together during that period, Traglia’s telephone usage during the same period made it highly unlikely that he was driving the get-away car in Port Melbourne during that time or indeed at any other relevant time.
When the close association between Veniamin and the applicant, the objective evidence of communication between them at relevant times, particularly in relation to the two stolen cars, PQL 565 and NUM 590, and the telephone calls between them on the night of 1 May 2002 are coupled with the degree of correspondence between Traglia’s version of events and the contents of some of the covertly recorded telephone conversations, it appears to us that it was open to the jury to conclude that the applicant was with Veniamin when he killed the deceased.
It may be that, despite the strength of the circumstantial case, one still has reason to doubt some aspects of Traglia’s testimony. We note, therefore, as the majority of the High Court did in M v The Queen,[93] that if a court of criminal appeal experiences a reasonable doubt as to the guilt of the accused, it should ordinarily be treated as a doubt which the jury ought also to have experienced. But as the High Court went on to add, a court of criminal appeal must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that the jury has the benefit of seeing and hearing the witnesses give their evidence.[94] If, therefore, the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt, a court of criminal appeal may conclude that no miscarriage of justice has occurred.[95]
[93](1994) 181 CLR 487, 493–4.
[94]See also Chidiac v The Queen (1991) 171 CLR 432, 443–444, 453, 459.
[95]See also Jones v The Queen (1997) 191 CLR 439, 468; MFA v The Queen (2002) 213 CLR 606, 615 [26].
In this case, we think that to be so. Whatever doubts one might have about Traglia’s credibility, the jury saw him and heard him give his evidence in chief and be cross-examined literally for days on end. By virtue of that process, the jury were uniquely advantaged, compared to this court, in assessing the verity of his testimony. In our view, the fact that the jury had that advantage is sufficient in this case to resolve the doubt which might otherwise apply.
Conclusion or and orders
In the result, the application for leave to appeal will be dismissed.
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