Pisey Prasoeur v The Queen
[2014] VSCA 354
•22 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0026
| PISEY PRASOEUR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and WEINBERG JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 15 July 2014 | |
| DATE OF JUDGMENT: | 22 December 2014 | |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 354 | 1st Revision 25 September 2015 — [39] |
| JUDGMENT APPEALED FROM: | [2006] VSC 41 (Bell J) | |
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CRIMINAL LAW - Appeal – Conviction – Murder – Extension of time application – Refusal by Deputy Registrar to extend time - Election against refusal – Delay of 8 years in filing application – Applicant encouraged by fellow prisoner – No satisfactory explanation for delay - Whether verdict unsafe and unsatisfactory – Reasonable jury not bound to doubt applicant’s guilt – Application refused – R v Darby (Unreported, Supreme Court, Court of Criminal Report, Gowans, Lush and Crockett JJ, 2 May 1975); Efandis v The Queen [2014] VSCA 42; M v The Queen (1994) 181 CLR 487; Patel v The Queen (2012) 247 CLR 531 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant In person | ||
| For the Respondent | Mr D Trapnell QC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
WEINBERG JA:
Summary
In September 2005, the applicant was convicted of murder. In February 2006, he was sentenced to 20 years’ imprisonment, with a non-parole of 15 years.
In February this year, some eight years after he was sentenced for murder, the applicant applied for an extension of time within which to seek leave to appeal against his conviction. The applicant was represented at his trial by experienced counsel, but is now representing himself. As will appear, he has acted on the advice and guidance of other prisoners.
For reasons which follow, the application for an extension of time must be refused. First, there is no satisfactory explanation for what is, on any view, a quite extraordinary delay. Secondly, and in any event, we have examined the proposed grounds of appeal and have concluded that they are without merit.
It is perhaps not surprising that a person in the applicant’s position, serving a lengthy term of imprisonment, would be receptive to advice and encouragement from fellow prisoners about the possibility of an appeal. But the outcome of the present application demonstrates just how unreliable such advice can be, and how likely it is to create false hope of success.
The application for an extension of time
The applicant was convicted of murdering Aneta Pochopien. The applicant had worked with Ms Pochopien at the same factory, and they had had a sexual relationship.
The applicant was distressed when Ms Pochopien brought the relationship to an end. She had become pregnant to him but terminated the pregnancy.
In seeking to explain his failure to seek leave to appeal in 2006 following the sentence, the applicant said that he had been ‘mentally incapable of constructing an appeal’. The murder of a person he loved had left him ‘in a confused and distraught state of mind’, which was made worse when he was ‘unexpectedly and wrongly convicted’. Moreover, the applicant contended, he was bankrupt and was concerned that he could not fund an appeal against conviction. He was then in his 20s and ‘unworldly’ as regards the options available to him.
In his affidavit in support, the applicant notes that after his relocation to a different prison in 2009 he developed a friendship with Christopher Phillip Koch, who encouraged him to appeal. He asked both Mr Koch, and another prisoner, Mr Wayne Charters, to assist in the preparation of his matter.
On 4 March 2014, the Deputy Registrar refused the application for an extension. On 21 March 2014, Mr Praseour elected to have his application determined by the Court of Appeal.
The Crown opposes the application for an extension of time. According to its submissions:
[T]he material filed by the applicant in support of this application is entirely inadequate to explain the delay or justify an extension of time. The applicant’s affidavit in support of this application affirmed by him on 11 February 2014 provides no sufficient explanation for the failure to file the Application for Leave to Appeal against Conviction within time. At the time he was sentenced, the applicant was represented by an experienced criminal defence barrister and criminal law specialist solicitors. Undoubtedly, his rights of appeal would have been explained to him at that time. However, it appears that he has launched the present application at the behest of a fellow prisoner. The eight years’ delay remains totally unexplained.
The authorities dealing with an application for an extension of time to file leave to appeal demonstrate that compliance with the statutory time limit is a serious matter.[1] For a court to grant an extension, the applicant must satisfy it that there
were ‘special and substantial reasons’ to explain his or her delay.[2] The longer the delay, the greater the need for a satisfactory explanation, and for ‘strong prospects’ of an appeal succeeding.[3]
[1]Efandis v The Queen [2014] VSCA 42, [37].
[2]R v Darby (Unreported, Supreme Court, Court of Criminal Report, Gowans, Lush and Crockett JJ, 2 May 1975) 2 (‘Darby’) citing R v Varney [1964] VR 163.
[3]Darby (Unreported, Supreme Court, Court of Criminal Report, Gowans, Lush and Crockett JJ, 2 May 1975) 2; Scott v R [2013] VSCA 347, [14] (Coghlan JA).
The applicant’s materials do not provide any satisfactory explanation for the delay. We do not doubt that he was adversely affected by a finding of guilt and the imposition of a substantial term of imprisonment, but this does not explain why no action was taken. The Court was given no information about what steps, if any, were taken immediately after the conviction.
In Efandis v The Queen,[4] a case dealing with a five year delay in an application for an extension of time, Weinberg JA said:
Even if the reasons for the delay were adequately explained, it would have to be shown, in a case such as this, that not merely are the merits of the proposed appeal arguable, but that, if time were extended and leave to appeal were granted, then appeal itself would ‘probably succeed’.[5]
[4][2014] VSCA 42.
[5]Ibid [41], quoting Darby (Unreported, Supreme Court, Court of Criminal Report, Gowans, Lush and Crockett JJ, 2 May 1975), 2.
We turn to consider the merits of the proposed appeal.
The proposed grounds of appeal
The application for extension set out 12 ‘grounds’, complaining variously about directions of the trial judge, the conduct of the prosecution and alleged shortcomings of the police investigation. In summary, the applicant’s contentions were as follows:
(a) ‘new and fresh evidence’ had emerged that was probative of his innocence;
(b) the informant had not sought DNA evidence which could have been significant in proving his innocence relating to other suspects which was ‘evidentially supported’ by statements available to the informant;
(c) the informant had withheld information which should have been presented at his trial;
(d) police had failed to investigate ‘several legitimate suspects … with equal if not greater motives for murdering the victim’;
(e) investigating authorities had failed to request (and thus failed to analyse) a ‘critical document’ concerning the abortion performed on the victim, which was said to be relevant to the issue of paternity relating to other suspects;
(f) the trial judge had erred in not discharging the jury when, following their deliberations, the jury requested clarification of the meaning of ‘beyond reasonable doubt’;
(g) the trial judge had erred in not directing the prosecution to put to the jury that the police investigation was ‘forensically incomplete’ and had failed to examine ‘other persons of interest’;
(h) the trial judge had erred in charging the jury that the accused had pleaded ‘guilty’ when he had pleaded ‘not guilty’ and this ‘catastrophic error’ had not been corrected;
(i) the prosecution had withheld evidence detrimental to its case against him;
(j) the informant’s investigation was ‘slipshod’ and overlooked other suspects with ‘more significant motives to murder the victim’;
(k) at least three other suspects had provided alibis to the police but no statement of their whereabouts had been sought; and
(l) a juror had fallen asleep during the trial, which necessitated ‘an extra break for one juror’. The trial judge should have discharged this juror to ensure that the rest of the jury could effectively deliberate.
When the matter came on for hearing, the applicant sought to rely on additional written material in support of his application. This necessitated an adjournment of the hearing, to enable the prosecution to consider and respond to the new material. The respondent subsequently filed a supplementary submission, addressing:
(m) the elements of the Crown’s circumstantial case as presented at the applicant’s trial;
(n) the forensic decision taken by the defence at the trial to implicate another person — Rohan Munasinghe, one of the applicant’s co-workers — as the murderer; and
(o) the applicant’s additional material.
The respondent’s submissions
The Crown submits that the material which the applicant says is ‘fresh evidence’ comprises trial transcripts and exhibits which were available to him and his counsel at trial. As we have said, he was represented at trial by experienced counsel.
In response to the applicant’s complaint that other individuals with a motive were not properly investigated, the Crown points out that the defence did not require the individuals in question to be called at the trial. They included a co-worker of Ms Pochopien, with whom she had had problems at work and who was dismissed in 2002 for inappropriate conduct towards her. Nor, according to the Crown, did the defence subpoena any of the documentation which the applicant now asserts should have formed part of the evidence at trial.
More fundamentally, this ‘ground’ was rendered ‘otiose’ when the applicant’s defence at trial became that Mr Munasinghe was responsible for the killing. The applicant gave sworn evidence that Mr Munasinghe — a co-worker who was also sexually intimate with the deceased — had confessed to him that he had committed the murder. Mr Munasinghe denied this.
As to the alleged ‘catastrophic error’ in the charge, the Court of Appeal Registry had informed the applicant that this was merely a typographical error. A check of the sound recording of the charge confirmed that the trial judge did not say to the jury that the applicant had pleaded ‘guilty’. Since the transcript of the charge was not given to the jury, they were unaware of the typographical error.
Nor, according to the Crown, had the jury sought clarification of the phrase ‘beyond reasonable doubt’. The judge finished his charge to the jury on 16 September 2005 at 1.00pm. The only request from the jury was to receive a copy of the transcript of certain witness evidence, and to view footage of the evidence. This occurred on the same day, at 3.43pm. The jury then returned their verdict of guilty on 17 September 2005 at 11.07am. The judge’s directions were ‘conventional’, with no exception taken by counsel, nor any request that the jury be discharged.
Nor was there any evidence that a juror had fallen asleep during the trial. It appeared from the transcript that a juror was not paying full attention — which had ‘occurred over the last couple of days’ — and that the judge had ‘rebuked’ the juror. A break was taken and the judge asked, upon resuming, whether the jury would like to adjourn for the remainder of the day. According to the Crown, the judge acted appropriately; neither side raised any issue with the trial judge’s approach, nor requested that the jury be discharged. Thus, ‘it is not reasonably arguable that anything occurred regarding this juror which caused a substantial miscarriage of justice’.
We have reviewed the trial transcript for ourselves. The Crown’s submissions must be accepted. These complaints are without substance.
The circumstantial case against the applicant
The prosecution case at trial comprised the following elements: motive, opportunity, method, implied admissions, planning and ‘change of clothing’. As to the first, the applicant’s motive was said to be his grievance at Ms Pochopien terminating the pregnancy, and the way he believed he had been treated after the procedure. The case put was that the applicant ‘was obsessed with the deceased, and the breakdown in their relationship greatly affected him’.
As to the opportunity to commit the crime, the prosecutor submitted to the jury that it was
clear from the alarm records and the evidence of witnesses that the accused had every opportunity to be absent from the … factory during the critical time of 4.30 to 5.40 a.m. Moreover, his version of his movements on that fateful day during the critical time is contradicted by all the other evidence in the case.
As to method, the prosecution argued that the applicant knew the location of the gun, the bolt and the cartridge cases. The bolt was found at a location at the factory, near where he was seen by other people at around 5:40am. The jury could therefore draw the inference that the applicant had disposed of the cartridge cases and plastic bag at the location where they were found.
The applicant had made implied admissions. For example, he said to police, ‘All I can see is …’, while imitating a gun by putting his fingers to his right temple (which was where the victim was shot). He had also refused to answer a psychiatrist’s question about his role in the offending without an assurance that she would not inform the police.
As to planning, forensic examination of his computer revealed a number of searches such as ‘Diary of a Hitman’, ‘Murder’, ‘Suicide’, ‘Til Death Us Do Part’, ‘Prisons’, ‘Crime Scene Research Guide’, ‘Police’ + ‘Clothing’, ‘Blood’ + ‘Splatters’. It was alleged that the applicant had also conducted searches of websites attempting to obtain a firearm.
Finally, the prosecution relied on the fact that the applicant had changed his clothes, and was seen wearing a different shirt from when he had begun his shift at the factory.
According to the Crown, the most damning evidence against the applicant consisted of mobile phone messages he had sent to a co-worker, Ms Margaret Esse, in which he revealed the location of the gun and of the bolt and cartridges (disposed of at two locations in the Silcraft factory). He also messaged Ms Esse, after a failed suicide attempt, asking her not to say anything to police.
Clearly, the applicant needed to provide some explanation of how he had come to know the location of those items. According to the Crown, this was why he alleged that Mr Munasinghe had confessed to killing Ms Pochopien and had told the applicant where the weapon and other items were located. This defence had the consequence that no one other than Mr Munasinghe could be implicated. As the Crown submitted:
[T]he only other possible suspects for the murder, other than the applicant and Mr Munasinghe, were a ‘young guy’ the deceased had allegedly met at an unnamed shopping centre and fallen pregnant to, Mr Emiddio ‘Eddie’ Campanella and his son Mr Eugene Campanella. There is no reference in defence counsel’s closing address to the ‘young guy’ … Messers Campanella both had alibis for the time of the murder. There were both listed on the presentment as potential witnesses and were available to be called by the Crown. However, the defence did not require them to be called as witnesses.
In response to the applicant’s new assertion that he did not know when the deceased was finishing work on the morning of her death, the Crown referred to the evidence of Mr Munasinghe that he had seen both the applicant and the deceased at the ‘clock off’ machine. Because the two did not speak to each other, he had asked the applicant whether their relationship had changed. According to the Crown, the deceased and her co-workers usually finished at 6.00am but on that morning they were told to leave at 4.30am.
The prosecution conceded that it could not account for the deceased’s movements between 4.30am and 5.30am on the day of the murder. But the case put to the jury was that the applicant was aware Ms Prochepon was leaving work early that morning and ‘either followed her or lay in wait for her to arrive at her home’. The Crown says that the evidence relating to the applicant’s movements was exposed before the jury and that the jury were entitled, on the whole of the evidence, to convict.
Conclusion
In our view, the jury’s verdict of guilty was clearly open on the whole of the evidence.[6] Certainly, there is nothing which shows that the jury ‘must’ (as distinct from ‘might’) have entertained a reasonable doubt about the applicant’s guilt.[7]
[6]M v The Queen (1994) 181 CLR 487, 493; SKA v The Queen (2011) 243 CLR 400, 405.
[7]R v Klamo (2008) 18 VR 644, 654 [39] quoting Libke v The Queen (2007) 230 CLR 559, 596-7.
The circumstantial case was a strong one, in our view. In particular, the text messages sent from the applicant’s phone to his co-worker were highly incriminating.
The first message sent on 15 April 2004 at 11.40pm was in three parts, with the first part overwritten, the second part relevantly stating:
The gun bolt is in Silcraft gutter near yellow bins and the bullets are in bushes near fire panel. Thanks. I love you. Goodbye. And my Will is in G.
Part three of the message of 15 April 2004 continued:
Glen Waverley, at Goddard Elliott, 110 Kingsway, Glen Waverley. Just please don't tell them any of this until you know I'm dead, OK. Do you understand?
The second message on 16 April 2004 at 7.04am stated:
I'm still here. Don't say anything yet.
The final message, on 16 April 2004 at 2.49pm, was sent by the applicant’s brother-in-law and stated:
Peter is in hospital. He said to forget what he said yesterday.
As noted, the applicant’s defence was that his co-worker, Mr Munasinghe, had confessed to killing Ms Pochopien. The applicant’s counsel put to Mr Munasinghe in cross-examination that he had told the applicant where he had disposed of the gun, and the bullets, and that he had threatened the applicant’s life if he told the police. Mr Munasinghe denied the allegations.
There was evidence that Mr Munasinghe had changed his police statement, later admitting in a further statement that he had engaged in oral sex with the deceased in her car on the morning she was killed. He said under cross-examination that, as he was married, he did not want to get into trouble with his wife and knew the police would test her car, which showed the presence of ejaculation. The deceased’s husband, Peter Pochopien, told police that he saw a man running away from the scene and driving off in a light coloured Magna. He said, under cross-examination, that he told police it was light, not white. The applicant owns a silver Lancer, while Mr Munasinghe owned a grey Magna. Under cross-examination, Mr Pochopien’s step-father mentioned a Lancer, but denied that he was mentioning this because he discovered that the applicant owned such a vehicle.
All of this evidence was before the jury for their consideration. They saw both the applicant and Mr Munasinghe give evidence and be cross-examined. In our view, it was well open to the jury on the whole of the evidence to reject the Munasinghe defence.
Finally, there is nothing in the point that lines of investigation relating to other suspects were not pursued, or that evidence implicating other people in the deceased’s killing was withheld by the prosecution. The defence case was that Mr Munasinghe was the murderer. This was a rational course for defence counsel to have taken in the circumstances, and the applicant is bound by it.[8] As we have already noted, once that course was adopted it rendered wholly irrelevant the possibility of other suspects.
[8]Patel v The Queen (2012) 247 CLR 531, 562.
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