R v Akkus

[2007] VSCA 287

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 240 of 2006

THE QUEEN

v

ORHAN AKKUS

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JUDGES:	CHERNOV, VINCENT and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2007
DATE OF JUDGMENT:	11 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 287	First revision – 11 December 2007

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Criminal Law – Conviction – Murder – Intentionally causing serious injury – Nightclub stabbing of two victims proximate in time – Whether applicant’s post event conduct amounted to a consciousness of guilt – Credibility of applicant’s version of events – Applicant’s failure to complain of his involvement – Consciousness of guilt in respect of two stabbings – Whether evidentiary basis existed to distinguish between stabbing of both victims – Incidents treated by prosecution and defence as two related events occurring moments apart – Application dismissed. 

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle, QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr G F Meredith	Theo Magazis & Associates

CHERNOV JA:

1. I consider that this application should be refused for the reasons given by Vincent JA.

VINCENT JA:

1. The applicant was, on 11 May 2006, found guilty by the jury empanelled on his trial of the murder of Mark Russo (count 4) and of intentionally causing serious injury to Carl Russo (count 2) at Moorabbin on 20 November 2004.[1]

   [1]After hearing a plea in mitigation of penalty, the sentencing judge, on 21 July 2006, imposed a term of imprisonment of 22 years in respect of which a non-parole period of 17 years was fixed.

1. He now seeks leave to appeal against these convictions.

The background[2]

[2]This summary has been prepared from the Crown’s summary of evidence, the trial transcript, and the judge’s charge.  It does not purport to represent the entirety of the evidence of any of the witnesses or to refer to that given by all of the witnesses at the trial.  Emphasis has been placed upon the descriptions given with respect to the circumstances close to and at the time knife wounds were sustained by Mark and Carl Russo.

1. Mark Russo (‘Mark’) and Carl Russo (‘Carl’) were a part of a group of friends who regularly attended the ‘Wax’ nightclub at Moorabbin on Friday nights and were there in the early hours of 20 November 2004.

1. The applicant was also present on that night, arriving after 2.00am.  He too met up with a group of friends, having previously attended with his wife and young daughter at a family party at a reception centre in the northern suburbs.

1. Shortly after 3.00am, the applicant and Tarek Dimachki walked through the nightclub and stood near a group which included Mark and Carl Russo.  It was common ground at the trial that when Carl went to move past the applicant, he bumped the applicant’s shoulder and words were exchanged.  The Crown contended that, in response, the applicant pushed Carl, causing him to step back, but

then he moved towards the applicant.  As he did so, the applicant pulled a large carving knife, which he had been carrying, from underneath his jacket and stabbed him in the stomach with sufficient force to cut the renal artery at the back of his body.  Mark,  who was unaware that the applicant was armed,  interposed himself between the applicant and Carl in an attempt to break up the scuffle and to calm the situation.  The applicant then stabbed him three times, on the third occasion with such force that the knife almost penetrated through his whole body and remained lodged in his torso

1. The nightclub security camera footage showed the applicant calmly walking away from the scene.  Before leaving the premises, he removed his jacket and handed it to Raed Dimachki (Raed), asking him to take it outside for him.  He had been wearing it throughout the night despite the fact that the other patrons only wore light shirts and there was a cloak room at which it could have been safely left.

1. Once outside, the applicant met up again with his friends and suggested moving on to another nightclub.  When that idea was rejected, he went with two of them to a fast food restaurant for a meal.  Whilst there, they received a call on a mobile telephone informing them that one of the two people the applicant had stabbed was dead. 

1. Later that day, the applicant visited friends and, with their assistance, booked a flight that evening to Turkey, via Dubai.  His intention to leave the country became known to police and the plane, which he had boarded at Melbourne, was diverted to Perth where he was arrested.

The Evidence

1. Carl Russo arrived at the nightclub at about 11.30pm, on 19 November 2004, with his friend John Sacco.  There he met his brother John Russo, his cousin Mark (the deceased), Mark’s girlfriend Cara Hawkhead, and John Russo’s girlfriend Sherrie Miles and her younger sister Julie Miles.  They gathered, as they usually did, just behind the DJ booth.  On that night, they were generally located between the booth and a small alcove lounge.

1. After he was in the night club for some time he was dancing in the area behind the DJ booth and bumped into or brushed with a man.  He was not sure whether he had a bottle or glass in his hand at the time but, if anything, it would have been a glass.  He described the ‘bump’ as being of light impact and likened it to accidentally coming into contact with someone as they were walking past each other in opposite directions.  He (Carl) turned and said ‘Hey’ and the other man responded ‘What are you doing’ or ‘Watch where you’re going.’  He replied with words to similar effect.  He then felt what he thought was a punch to the stomach from the person who brushed past him and he fell to his knees.  At that stage, his cousin, Mark, came from the left-hand side, saying ‘Relax, relax’ to the man who he thought had punched him.  Carl was on his knees just behind Mark and from what he could see Mark and the man were wrestling, ‘sort of tangled up a bit.’  He heard Mark screaming.  The tussle went on for about five or 10 seconds and he did not see what Mark was doing.  It appeared that the other man was punching Mark but he could not say with which hand and he did not see anything in the hand of the man at any stage.

1. After Mark screamed, Mark ran up the stairs towards the right-hand side of the bar.  He (Carl) then got up and tried to follow him.  When he got up from his knees, he noticed that he was bleeding from his abdomen.  He tried to follow Mark but could not see him and managed to make it to the top of stairs before he collapsed.

1. He was taken by ambulance to the Alfred Hospital where he spent about 50 days and underwent surgery six or seven times.  His right kidney and pancreas were removed.

1. He identified the man who stabbed Mark and himself on the security camera footage and claimed that when he had spoken to the man after brushing past him, he used a normal tone of voice.  He did not see Mark do anything to this person to cause him to act aggressively to Mark and no one else in his group did or said anything to him.

1. Tarek Dimachki (‘Tarek’) went alone to the nightclub at about 12.30 am and met his two cousins Raed and Memo Dimachki (Memo), and another friend, Adam Chambers.  He and his friends would congregate in the right back corner from the entrance, close to the small bar.  

1. Prior to that night he had known the applicant for about four or five months and described him as a ‘friend.’  The applicant arrived wearing a white jacket with the number ‘4’ on the left breast.  He appeared distressed and the waiters noticed that he had a couple of scratches along his face and seemed upset about something.  

1. At some stage, the applicant and he went through to the dance-floor.  Whilst there he saw a couple of people pushing and shoving one of whom was the applicant.  He did not hear anything that was said between them and there was no one else present at that stage.  He (Tarek) was probably about two to five metres away from them.  It was dark as the nightclub usually was.

1. He noticed that a third person, who was trying to mediate, became involved in the altercation.  This person placed himself between the other two, saying loudly ‘Come on guys, stop.’  He (Tarek) moved closer and saw the third person grab the applicant to try to stop him.  By this stage, he (Tarek) was proximate to the others and it became a group of four.  He went to separate everyone and when they broke up he saw one man looking down at his stomach and he saw the other man with a knife handle protruding from him.

1. He did not see where the applicant went, but when he was leaving the club he saw the applicant sitting against a wall.  He did not know whether the applicant was still wearing his jacket.

1. He retrieved his own brown hooded jumper from his friend David Sheehan and put it on, in order to obscure his noticeable yellow shirt.  He decided to get it in order to disguise himself, although he knew that he had not done anything wrong.  He was worried that other people would misinterpret his conduct.  He left the nightclub about 15 or 20 minutes after the incident and he did not see the applicant again. 

1. Raed Robert Dimachki (‘Raed’) arrived at the nightclub in the early hours of 20 November 2004.  He had known the applicant since he was 16 or 17 years old and they were good friends.  The applicant arrived at about 1.30am or 2.00am.

1. He thought the applicant, who appeared to be a little drunk, seemed upset about something.  Raed described himself as drunk. 

1. At one stage, his cousin, Tarek, approached him and said that they should leave.  While he was looking for his younger brother Memo, to let him know that they were going, he saw the applicant sitting down, chatting to a girl, and said to him ‘look, everybody’s leaving, let’s go, something’s happened.’  The applicant who had his white jacket tied around his waist said ‘Listen, can you just take this and I’ll meet you outside.’  He untied the jacket, looked around and then gave it to the witness and left.  Raed remembered David Sheehan and Tarek changing clothes.

1. He took the applicant’s jacket with him when he left the nightclub and went to his car.  He was about to send a text message to his brother and cousin, when the applicant got in the passenger side.  He asked the applicant ‘What’s going on?’ and received the response ‘Nothing, let’s just go, let’s go to Chapel Street to Viper.’  He declined and the applicant then told him to take him to his car.  He drove the applicant to his car which was parked in the Safeway car park nearby.  The applicant left the witness’ car taking his jacket with him.  

1. Cara Hawkhead stated that she arrived at the nightclub at about 10.00pm on 19 November 2004 with two friends.  She met her boyfriend Mark Russo (who arrived at about 11.00pm) and other friends there.  She drank two ‘cowboy’ shots (Butterscotch Schnapps and Baileys Irish Cream) and three vodka lemon drinks.  She previously had two drinks at about 8.00pm before going there.

1. Carl bumped into two men behind him and she saw, rather than heard, words being exchanged.  They had angry looks on their faces and appeared to be yelling at each other.  Carl was pushed and lost his balance.  Mark was yelling at the other two men to calm down.   Carl regained his balance and also became involved.  

1. Carl moved back to the group of Mark and the two men and they faced each other, all exchanging words, then punches were thrown.  All four of them were throwing punches to the face and to the stomach.  She was about one metre away from the fight, which lasted for one or two minutes.  There were a lot of people around and they had come from all directions.  She did not know who they were.  She could see Carl inside the fight but could not see what he was doing.  She did not know who threw the first punch and she did not see any stabbing.  

1. Then Mark fell out of the circle and onto the floor.  He got up and when she looked at him she saw blood all over him.  He ran towards the bar and she followed him.  He leant on the wall of the bar and collapsed to the floor.  She then saw the knife handle protruding from his left side.  She turned and saw Carl at the top of the stairs.  He was lying on the floor and had blood all over his lower left abdomen.

1. About 15 to 20 seconds passed between the contact between Carl and the other person and the start of the fight.  In that time there was a conversation occurring between Carl and Mark and the two men.  

1. Megan Jade Carroll went to the nightclub with her friends Cara Hawkhead and Jennifer Olsen and was dancing next to the DJ booth with other members of her group.  She stated that two men walked past and as they did so one of them touched Cara ‘on the bottom,’ then they continued walking and stood near the wall.  She did not know these men.  She found Cara and she started walking towards the stairs.  She noticed that Carl started talking to these men and she and Cara continued up the stairs.  When she turned, she saw that Mark had a lot of blood on the front of him and the knife was sticking out of his body.  He was at the bottom of the stairs and there was blood everywhere.  He ran past them towards the bar.  She turned and saw Carl, who lifted up his shirt and had some of his organs hanging out.  She went to him and he collapsed on the stairs.

1. Sherrie Leanne Miles confirmed her presence at the nightclub, including an incident where a male walked behind Cara.  The male stared at the group, who were all together at this stage.  The man had on a light coloured zip-up long-sleeve jumper with the number ‘4’ on the right hand side of the breast.  Someone had been next to him when he had walked past the group, but she took no notice of the second person.

1. Carl came from the stairs area and brushed past the man in the area at the bottom of the stairs, slightly moving the man’s arm.  Carl turned his head back like he was saying something, then the male (the one with the number 4 on the breast of his jacket) pushed Carl in the chest area quite forcibly, so that Carl took a few steps back and was pushed into the girls.  She turned to see that the girls were alright, then looked at Carl.  Carl then got up to walk and it was then that she noticed Mark.  Carl moved towards the stairs.  From the corner of her eye she saw Mark come from behind where she was standing.  Carl went back towards the person who pushed him and she formed the impression that he was trying to get in to see what was happening.  The three of them were very close together.  She saw punching, shoving and pushing, by all three but she could not recall who did what to whom.

1. John Picone was present with his friend Jim Apostoleris (‘Jim’) when they were joined by Memo, Tarek and Raed, and probably a couple of others.  They were in their usual part of the nightclub.

1. The applicant who was also there, was wearing jeans and a white jacket. Jim and he decided to leave and went down to the car park.  Jim noticed the applicant and said to him ‘Where are we going?’ and the applicant responded ‘Another club called Viper.’  Jim said he could not be bothered.

1. They next saw the applicant outside Tarek Dimachki’s house at about 3.00am.  The applicant, Jim and he went to a McDonalds restaurant and had a meal.  While they were there, the witness received a call from a female who was still at the nightclub and who told him they were not letting people out because someone had been stabbed and had passed away.  He informed Jim of what he had learned and the applicant was sitting at the table when he did so.  Jim and he parted company from the applicant after they finished the meal.

1. Beaumont Perrin was at the nightclub with some friends.  At around 3.10am he saw what he thought was a fight and then someone lying on the ground bleeding.  He saw two people involved in the fight.  The first man, who ended up injured, was of thin build wearing a black T-shirt.  The second man was a bit bigger.  He initially thought that they were just joking around.  He said he saw the second man punch the first man to the stomach twice and then the first man fell to the floor and the second man ran off.  He was about a metre from them.  He stated in cross-examination that the first man, the one that was injured, was holding the other person by the head with both hands and it appeared that he had both hands around the ears of the other person.  At that point the second person was not doing anything to the first person, but he hit him immediately after.  At the time the second person was throwing punches, he was still being held by the first person.  The first person let go after the punches were thrown.  He did not see a knife being used.

1. The two blows were struck hard and the first man basically collapsed.  He stated that when the second man ran off, someone was either chasing him or running with him, but he was not sure.  They went up the stairs and he lost sight of them quickly.  He did not see the first man do anything to the second man.  After the incident, he thought he saw a knife in the first man’s back.

1. Abby Jessica Boyle  attended the nightclub with friends.  She did not drink because she was the designated driver for that evening.  She stated that at about 3.00am she became aware of something happening about five or six metres away from her.  She said that she saw about five or six people fighting, all males, and for about 10 seconds.  It was hard to discern who was fighting and who was not.  There was a large group of males and they were all just jumping on each other, pushing and shoving and ‘carrying on.’  There were people trying to stop the fight and get into the middle of it.  She saw a person with blood on his back trying to get out of the group and when he turned around she saw a knife protruding from his stomach.  She had not seen a knife before that.  

1. Luke Paul Dorrington was at the Wax nightclub with four friends, including Matthew Holmes.  At the time of the incident he was in the area of the DJ booth when he saw a man standing in the middle of the floor area with one of his friends.  Three men walked over and were standing next to two females and an altercation ensued. One of the men fell to the ground yelling.  He stated in cross-examination that the scuffle involved five males and that there was a lot of pushing and shoving.  Although their voices were raised, he could not hear any particular words.  He did not recall seeing punches thrown.  The altercation was over in about 30 seconds.  One of the men fell to the ground.  The two men then left the building, walking up the stairs near the DJ booth and towards the front door.

1. Matthew Joshua Holmes was there with Luke Dorrington and were in the vicinity of the DJ booth for most of the night.  He stated that it was quite dark and that he saw only two people involved in the altercation.  He said he was about ‘500 centimetres’ away from the struggle and that it went on for a couple of minutes and was over quite quickly.  He could not see whether weapons were involved.

1. Michael Sztyk was at the club from about 11.00pm and had consumed a considerable amount of alcohol.  He conceded in cross-examination that his level of consumption may have resulted in some impairment to his thinking processes and his ability to make observations.  He stated that he saw an incident which involved two people who he thought were play-fighting.  He said he thought nothing of it and looked away.  Soon after he looked back and one of those involved was stumbling around and the other person had gone.  He stated that when they were engaged in what he thought was a play-fight, one of them was bent over forward and the other one had one hand over the first man and with the other hand was punching him to the stomach.  The left arm was extended, bent at the elbow, in front of the chest and the right arm was the punching arm.  He could not say how many punches were thrown, nor what the person who was punching was wearing.  He did not see anybody else involved and he was about five to eight metres away from the men.  He stated that the DJ then said something loud over the speakers and the lights went on and everything stopped.  He said he saw the man who had been receiving the punches stumbling and holding his stomach, before he collapsed to the floor.  A couple of minutes later he saw another person on the floor near the toilets.  He had not seen this man earlier.

1. George Adrian Eichner was at the nightclub and had consumed a lot of alcohol both before and after he got there.  At about 2.30 to 2.45am he and his four friends were on the dance-floor and he saw, from the corner of his eye, a man push another man.  He said that one man, who appeared to be of Middle Eastern descent, had pushed another man, who went back on his back foot to stabilise himself and then went forward like he was going to push the Middle Eastern man back.  By that time, the witness stated that the other man looked like he punched him again in the chest area.  He said that the man who was punched looked like he was winded and bent over and faced the bar area.  He stated in cross-examination that he did not see him fall to the ground.

1. He stated that the time between the pushing and the punch was about five or 10 seconds.  He later saw two men lying on the floor.  He stated in cross-examination that he later found out, before he made his statement to police, that they were family friends.

The Applicant

1. The applicant, on 19 November 2004, attended a family circumcision ceremony at a reception centre in Sydney Road Coburg, arriving there at about 5.00pm.  He said that he drank a lot of whisky during the night and that there were three or four bottles on the table which he consumed with his brother and his cousin’s husband.  He said that when he left the function between midnight and 12.30am, there was only about half a bottle left.

1. After the reception he drove his wife and daughter home and then went to the Wax nightclub, arriving there at about 2.00pm.

1. He said that whilst in the nightclub he consumed about two or three double Scotches, in the space of about 10 to 15 minutes and admitted that he was the person who touched Cara Hawkhead on the bottom.  He said that she was standing in front of him and she smiled at him.  He said he was dancing towards her and just tapped her on the bottom and smiled and she smiled back at him.  He stated in cross-examination that he was wearing his white jacket at the time and that it could have been a little open at the neck.  Tarek was dancing near him.

1. A couple of minutes later, he had his back turned to the dance floor and was talking to Tarek about tapping the girl on the backside when a man bumped him from behind.  He stated that it felt sharp, like an elbow.  The applicant stated that he had a glass in his hand at the time.  The contents of it spilled and he dropped the glass to the floor.  He said that he lost his balance but did not fall to the ground.  He turned  and saw a man who was a bit bigger than him, with dark hair and wearing a dark top.  The applicant said ‘Watch where you’re going, mate’ and the other man started to walk towards him.  He said that the other man was very aggressive and that he (the applicant) put his hands up to push him away.  Then the other man grabbed him and pulled him towards him and the applicant yelled out in a loud voice, ‘help, help.’  He stated that they had a scuffle and that the other man said ‘Don’t fuck with me.’  The applicant did not want any trouble and he did not understand why the man was attacking him.  He stated that it was dark and that his vision was impaired because there were flashing lights behind the stage.  He could not see the other man’s face properly.

1. There were other people around, right beside the applicant and he thought they were going to beat him up.  One person, he said, became five people and they were pulling and pushing and punching him and trying to kick him.  He felt scared and was trying to push them away.  His back was to the wall and they were pushing him against it.  He heard someone say ‘Look, you’re fucked’ or ‘Don’t fuck with me or I’ll kill you.’  He said he feared for his life because he thought from his tone that the man meant it.  The applicant said ‘I don’t want a part of this, I just want to get out, get away from here.’

1. He said that he was trying to push his way out but there were too many of them.  He stated that Tarek was behind him and he was also being grabbed, pulled and punched.  Tarek was trying to pull him out from the group and the applicant saw someone pulling Tarek.  At this stage, there were about five or six people involved, including Tarek.  The applicant was punched, he thought, by two or three people, to the head, the sides, around the shoulder area, on his arms and hands.  They grabbed a hold of his jacket and tried to pull it over his head.  

1. He had his head down and he saw a knife in someone’s hand.  He was being pushed and shoved around and when he saw the knife he thought that they were going to kill him.  He started yelling ‘Let go.  Let me go.  I don’t want a part of this’ and they were saying to him ‘You’re fucked, you’re gone.’  He kept pushing in an attempt to get away and as he was doing this he saw the knife fall to the floor.  He picked it up because he believed that if one of his assailants got possession of the knife he would be stabbed and killed.  He tried to hold it behind him.  He continued to push his attackers away using the hand that held the knife and forgetting he still had it and could not remember whether he used a punch-type action.  He heard people yelling and screaming and he was scared.  He said that there was a man on his left-hand side trying to grab him by the head.  The applicant pushed him away and then another man ran up to him, bumping into him.  He thought that he dropped the knife.  He saw an opening amongst the people and was able to escape.

1. He moved to the area of the club, where he had met his friends when he first arrived.  He did not see them at that stage but later saw Tarek Dimachki and David Sheehan swapping clothes, a jumper or something.  He had taken off his jacket to see whether he had been stabbed.  He  said that he was wet with spilt alcohol and did not know if it was blood.  He then tied the jacket around his waist.  He saw Tarek changing jumpers and heard him say, ‘They’re coming’.  He assumed that Tarek meant that the men with whom he had scuffled were coming to look for him.  The applicant then said to Raed, who was in front of him, ‘Take my jacket.’  Tarek had said they were looking for ‘a guy with a white top’.  He said ‘I’ve got to get out of here’ and Raed took his jacket and walked out of the club and the applicant followed.  He stated in cross-examination that he could not remember doing anything else between taking his jacket off, tying it around his waist and leaving the club.  He did not sit down and talk to a girl.  He was surprised when he heard his counsel put to Raed in cross-examination that after the incident he saw the applicant sitting down and chatting to a girl.  He could not remember that.  He stated that he just stood there, waiting to get out of the club.  He did not say anything to any of the group he was with because he could not work out in his mind what had happened.

1. He stated that it was a shocking incident and that he was scared.  He did not think of going to the security personnel and informing them of what had occurred to him and he did not tell any of his friends what had happened.  He was not sure of the length of his jacket but it was not bulky. He did not check his jacket into the cloakroom as he always kept it with him.

1. He stated in cross-examination that when he left the nightclub he was wearing a short-sleeved dark coloured T-shirt and conceded that he looked different to how he appeared when he entered.  He went to the corner and waited for Raed.  He was walking about five or six metres in front of Raed, who was walking behind him, holding his jacket, as shown in the DVD.  The applicant went with Raed to the car and then Raed drove him to his own car.  He was in a state of shock and could not talk.  He could not remember whether he said anything to Raed about what happened in the nightclub during that drive, nor was he sure whether there was a conversation about going to Viper nightclub.  Jim Apostoleris did ask him in the car park ‘Where are the boys going’ and he did say they were going to Viper.  He did not know whether Jim was mistaken in his evidence that the suggestion that the group go to Viper came from him.  He did not say anything in the car park about what had occurred.

1. After he was dropped off at his car, he went to Tarek’s house to talk about what had happened.  However he did not meet up with Tarek but Jim and John Picone were there when he arrived.  At that stage he did not know that someone had been stabbed at the nightclub and remembered that there had been a fight.  He had a flat tyre and needed to get to a service station and he was not sure about his state of intoxication at that time.  He changed the flat tyre in the car park, but he struggled to do all the necessary things and it took him a while.  He attended a service station next to McDonalds in Elsternwick.  Then he went to the McDonalds store and had a meal.

1. At McDonalds, he was sitting at a table with John Picone and Jim Aposteleris, when John received a telephone call and he heard that someone had passed away.  He understood that to mean that someone had died.He thought that the person he might have stabbed had died. 

The grounds of the application

1. Reliance has been placed upon a single ground which contains three related propositions.  It reads –

The learned trial judge erred in his directions concerning post offence conduct:

1.In failing to direct the jury that they could not use the failure of the accused to complain about his involvement in the events of the night in question as conduct which might found a consciousness of guilt or be used adversely to the applicant.

2.In leaving to the jury as conduct capable of amounting to a consciousness of guilt:

(a)The evidence of the applicant taking his jacket off, and

(b)The evidence of the applicant seeking to travel to Dubai

3.Or in the alternative, in failing to direct the jury that before they could use such evidence as demonstrating a consciousness of guilt they had to be satisfied that it related to the particular actus reus of the offences they were considering.

1. The incident which resulted in the death of Mark Russo and the sustaining of serious injury by his cousin, Carl Russo, took place in the early hours of the morning of 20 November 2004 in a nightclub in which it appears that a large number of people were gathered.  Unsurprisingly, given the time and location, and as the summary indicates, there were different versions of what occurred that could be seen to reflect the perspectives, opportunities for observation and state of sobriety of the various witnesses.

1. Shortly put, the Crown contended that, almost immediately after being ‘bumped’ by Carl, and in response the applicant stabbed him.  When Mark intervened within a matter of seconds ‘in the role of peacemaker,’ he too was stabbed, causing his death. 

1. The defence argued that the evidence of the various witnesses was confused, in some cases quite partisan and was clearly insufficient to support the Crown case beyond reasonable doubt and, specifically, to exclude the reasonable possibility that the applicant may, as he claimed to have acted in lawful self defence or, in any event, under provocation as that term is understood by the law.

1. It is within that general context that the grounds of the application fall to be considered.

1. Although, as I have indicated, there was substantial dispute concerning the genesis of the incident in which the two men received knife wounds and what took place at the time, no submission was advanced before us that it was not open to the jury to find the applicant guilty of both of the offences of which he was convicted, but it was contended that they may well have been influenced in reaching their conclusions of fact by the claimed errors of the trial judge.

1. First, it was argued that the trial judge should have directed the jury that the failure of the applicant to complain about or inform any of those with whom he was closely associated in the period immediately following the incident in the nightclub and specifically, his later assertion that he was attacked by a group of men, could not be used as indicative of any consciousness of guilt on his part.

1. The prosecutor introduced the Crown contentions in relation to the post event conduct of the applicant in the following passage –

I want to deal with the post-offence conduct of the accused.  This conduct falls into two categories, conduct which the Crown relies upon as demonstrating that the accused was conscious of his guilt of the unlawful killing of Mark Russo and the very serious stabbing of Carl Russo.

The other category of post-offence conduct of the accused is conduct of the accused which the Crown says is totally inconsistent with his version of events and therefore would cause you to disbelieve him when he tells you that he was attacked in the nightclub by five men, one armed with a knife who threatened to kill him and in the ensuing melee he picked up the knife and somehow accidentally stabbed Carl Russo once and Mark Russo three times.

1. He then addressed a number of matters which he included in the second category; that is, evidence that he submitted was relevant to the jury’s assessment of the credibility of the applicant’s version. 

I will deal with this latter aspect of post-offence conduct first.

Immediately after the incident on the DVD we see the accused walking up the stairs, turning around to look back and marching off.  It is a comment of mine but he does not look like a person who has just been seriously assaulted in the manner he has described.  He does not look dishevelled; he does not looked [sic] injured or roughed up or even breathless.  He said in evidence before you that before he got to the stairs, about a metre away from the stairs, “He could have straightened himself out”.  Really?  Is that believable that a person in his predicament, who thinks he is being pursued by this violent mob, is going to stop and straighten his clothing at the bottom of the stairs?  Then within 27 seconds of walking up the stairs he goes over to the area near the tables at the top of the entry stairs to the nightclub and takes his distinctive white jacket off and ties it around his waist.  I will come back to that aspect of the matter later when I deal with consciousness of guilt.  He says he was in fear for his life at this stage, that he thought the people that had attacked him might be coming after him, and yet he doesn’t seek any assistance, not from the numerous security men, not from the bar staff, the DJ or even his friends, and we know there were quite a number of his friends present in the nightclub.  He said to you he just wanted to get out of the club as soon as possible.  So what does he do?  Does he run down the stairs that are to the left of the screen in the camera angle where he is taking his jacket off?  You will recall that camera angle.  The stairs are to the left.  Where does he go?  Off to the right.  He goes off to the right away from the stairs towards the top right-hand corner bar area and he sits down and talks to a girl.  Mr Raed Dimachki gave evidence that after security had gone over to the other side of the nightclub from their position, that is from the group’s position in photograph 34, and the lights had come on, he saw the accused sitting down to the left-hand side of the stairs chatting to a girl..  In fact, this was what was put to Mr Dimachki in cross-examination by the accused’s own barrister that this is what occurred, and Mr Dimachki agreed with that proposition, chatting to a girl.  Hardly consistent behaviour one would expect for a person who is in fear for his life and wants to leave the nightclub as soon as possible.  The accused says he was waiting for the others to leave because he was so scared.  Is that consistent with a person wanting to get out of the nightclub as soon as possible?  He gives his jacket to Mr Raed Dimachki to take with him and says, “I’ll meet you outside”.  I will come back to that also later.  Mr Raed Dimachki leaves the nightclub with the jacket, we see that on the DVD.  The accused leaves the nightclub without the jacket.  He passes Phil, the security man, on the way out, doesn’t stop to tell him what has occurred.  We see in the DVD the accused with his hands on his hips walking along nonchalantly as if anything has happened.  He doesn’t look in fear of his life on the DVD.  The accused meets up with Raed Dimachki.  He tells you in his evidence that at this stage he is so shocked he couldn’t talk.  He meets up with Raed Dimachki in the underground carpark and jumps into his car.  Raed Dimachki asks the accused, “What’s going on?”  The accused is so shocked he couldn’t talk, says, “Nothing, let’s just go.  Let’s just go to Chapel Street to Viper”, another nightclub.  I mean, really, it is an insult to your individual and collective intelligence that a person who has just had all his happen to them in one nightclub would be heading off to the next one.  He gets in the car as if nothing has happened and says, “Let’s go to Viper”.  It wasn’t suggested in cross-examination by my learned friend to Mr Dimachki that he was wrong about that.

John Picone gave evidence about the Viper conversation.  He said that he and Jim Apostoleris were in the bottom carpark when Jim noticed the accused and said to him, “Where are we going?” or, “Where are the boys going?”, and the accused said, “Another nightclub called Viper”.  John and Jim couldn’t be bothered with that so they went back upstairs to Wax.  Mr Apostoleris gave evidence about this.  He confirms there was a conversation with the accused in which the accused was asked, where was everyone going and the accused said to Viper.  Once again, completely consistent with Mr Raed Dimachki’s uncontradicted evidence.  Not the conduct you would expect of a person who has just been seriously assaulted, whose life has been threatened and who is so shocked they couldn’t even talk.

After he was dropped off at his car, he changes a flat tyre, drives to Tarek’s house, meets up with John Picone and Jim Apostoleris, goes to a garage and puts air in his flat tyre, goes to McDonald’s, orders a meal, pays for the meal, eats the meal, and it is there that he finds out that someone from the incident he was involved in in the nightclub has died.  It was when he got home, after being at McDonald’s, that he decides to flee to Turkey.  I will come back to that aspect when I deal with consciousness of guilt. (My emphasis)

He then leaves the house before his wife awakes and goes to Andreas Alexopoulos’ house.  Angelo Russo was there and Ferhat Bayram was there and at that time the accused puts his escape plan into effect, which I will deal with when I deal with consciousness of guilt. (My emphasis)

1. He then turned to the two pieces of evidence that he submitted demonstrated consciousness of guilt, again drawing attention to the distinction–

That, ladies and gentlemen of the jury, brings me to the second aspect of the accused’s post-offence conduct, conduct which the Crown says demonstrates his guilt.

His Honour will give you directions regarding post-offence conduct which the Crown relies upon as demonstrating that the accused was aware of his guilt in relation to the unlawful killing of Mark Russo and the serious stabbing of Carl Russo.

1. The distinction, to which the prosecutor referred, and the consequent inferences that can be drawn from the deliberate making of a false statement or the engagement in arguably incriminating post event conduct, has been the subject of consideration in a remarkably large number of authorities over recent years.  In Edwards v R,[3] the contributors to the joint judgment stated –

Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it.  A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt.  In this way the telling of a lie may constitute evidence. … When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to “convert what would otherwise have been insufficient into sufficient evidence of guilt” or as corroborative evidence.

But not every lie told by an accused provides evidence probative of guilt.  It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. ...  In other words, in telling the lie the accused must be acting as if he were guilty.  It must be a lie which an innocent person would not tell.  That is why the lie must be deliberate.  Telling an untruth inadvertently cannot be indicative of guilt.  And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged.  It must be for that reason that he tells the lie.  To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing.  It is to say that the accused must be lying because he is conscious that “if he tells the truth, the truth will convict him”… .[4]

[3](1993) 178 CLR 193.

[4]Ibid 208, 209 (Deane, Dawson and Gaudron JJ)

1. McHugh and Gummow JJ pointed out in Dhanhoa v R,[5] that a judge is not required to give a direction concerning lies as evidence of guilt simply because a prosecutor suggests directly or indirectly that an accused’s out of court statement was a deliberate falsehood.  However, it must be done where there is a realistic possibility that the jury may reason to guilt on this basis;  that is, infer that the accused must be guilty because he lied.  It is recognised, as the Court made clear in Edwards, that there may be many reasons for deliberately making an untrue statement and, before the jury could reason to guilt in this way, they would need to be satisfied beyond reasonable doubt that the motivation for uttering the deliberate falsehood was his belief that he was guilty. 

   [5](2003) 217 CLR 1.

1. Although its application can often present substantial difficulty, the concept is relatively straightforward.  Before the jury can use what they accept was a lie as evidence of consciousness or belief of guilt, they must be satisfied that the only reasonable explanation for telling it was the acceptance of the accused that the truth would expose his guilt.  By making the choice to lie in that situation the accused by implication admits that he considers himself to be guilty.  The too ready drawing of the inference can be seen to give rise to a serious risk of a miscarriage of justice and, accordingly, the instructions to be given to the jury by trial judges when addressing this possible reasoning process have been the subject of considerable attention in the authorities.  The position is no different where the evidence relates to post event conduct.  In each situation, the judge will need to consider whether the conduct is capable of simply casting doubt upon the credibility of the accused’s version of events or subsequent contentions concerning his or her actions or intentions at the time on the one hand, or, on the other, whether the post event conduct is sufficient to support the inference that by engaging in it the accused has made an implied admission of belief of guilt.  The jury must then be instructed accordingly.

1. The judge, in the present case, was clearly conscious of and maintained the distinction in his charge.  First the trial judge pointed to post offence conduct which bore upon the applicant’s credibility –

Counsel submitted that the post offence conduct of the accused in not seeking any assistance from the numerous security men, the bar staff, the DJ, or even his friends, but sitting down and talking to a girl was hardly consistent behaviour from a person who was in fear of his life and wanted to leave the nightclub as soon as possible.  He suggested going to another nightclub.  This was confirmed by Raed Dimachki, John Picone, and Jim Apostoleris

and then to the prosecution’s reliance upon two specifically identified pieces of evidence as indicative of consciousness of guilt.  He said, for example, when summarising the Crown arguments -

Counsel then referred to the accused’s post offence conduct which the Crown said demonstrated his guilt.  The first piece of conduct was that the accused, within 27 seconds of the stabbing, removed his jacket and tied it around his waist.  The Crown said this was clearly done to disguise his identity as the stabber.  He later gave his jacket to Raed Dimachki to take out of the nightclub for him and retrieved it from Raed outside the nightclub after the accused had passed through security.  This was clearly done by the accused to avoid detection and being stopped by security.  The Crown said he did this because at that early stage he knew that he had acted deliberately.  If the stabbing had been accidental you would not expect him to act in this way.  He knew that the stabbing had no lawful justification;  in other words that he was not acting in self-defence at the time.

Counsel said the accused acted too soon after the fatal stabbing to not be acting purposely for his own purposes of avoiding detection.  Tarek Dimachki might have retrieved his brown jumper from David Sheehan because he was concerned about guilt by association, but this did not assist you in considering what the accused did.

The second piece of conduct the Crown relied upon as demonstrating the accused’s consciousness of guilt of the unlawful killing of Mark Russo and the near fatal stabbing of Carl Russo was his attempt to flee Australia for Turkey.  He admitted that in his evidence.  The return flight was booked for 16 February 2005, but that could have been extended.  Importantly, on his outgoing passenger card the accused indicated that the intended length of his stay overseas was six months.  The Crown said you could readily draw the inference that at the time the accused put his escape plan into effect he knew that one of the people he stabbed had died.  He admitted this.  There was the conversation at McDonald’s.  The Crown said the flight to Turkey was done by the accused out of a consciousness of guilt for the unlawful killing of Mark Russo and the unlawful serious stabbing of Carl Russo. 

1. His Honour provided the jury with appropriate and full directions expressed in conventional form concerning each of these pieces of evidence, identifying the contentions of the parties with respect to them. 

1. However, he did not instruct the jury that the matters in the other, or credit, category were not to be used in this way.  The question then arises – did the absence of any such direction, realistically viewed, give rise to the possibility that a miscarriage of justice may have occurred?  The answer, in my opinion, must be – no. 

1. The adequacy of a judge’s charge in a criminal trial must be assessed against the background of the evidence, issues, and the submissions made on behalf of the respective parties in the proceeding.  After all, it is the parties who, for the most part, identify the areas of controversy.  The judge, of course, has the primary and fundamentally important task of ensuing that a fair trial is conducted and often this will necessitate instructing the jury on matters not addressed by the parties.  It is of particular importance that the trial judge provide appropriate instructions where there is a perceived risk that the jury may engage in impermissible reasoning towards the guilt of the accused, if miscarriages of justice are not to occur.  Shortly put, the objective to be attained by the trial judge through the provision of instructions is to ensure that the jury is equipped to perform their task, properly applying the relevant principles of law to the issues and evidence with which they must deal.  However, it is important to bear in mind that the instructions are given in the context of the trial that is actually being conducted.  The whole process is constructed on the premise that members of the jury are regarded as possessing reasonable powers of comprehension and common sense and that they will then comply with properly formulated instructions given to then.  Attributing the possession of those qualities to the jury in the present case, I think that the risk that they may have engaged in some form of impermissible reasoning towards guilt based upon the prosecution submissions concerning the matters said to impact upon the applicant’s credibility, can be rejected.

1. The distinction between the two categories of evidence had been emphasised by the prosecutor and was maintained in his Honour’s instructions.  There is no reason to suppose that the jury may have misunderstood the directions that they were given and having been told that they could use two clearly identified items of evidence as the foundation for the inference of consciousness of guilt, the reasonable possibility that they regarded themselves as entitled to use other pieces upon which the prosecutor explicitly indicated that he did not rely for that purpose, can, I think, be discounted. 

1. The second argument which was presented was to the effect that the failure of an individual to complain could never be used to found a consciousness of guilt inference.  Whether or not this assertion was well based, and I have grave doubts that it is, need not be addressed as there is no adequate basis for suspecting that that may have occurred.

1. Thirdly, the submission was advanced that neither of the two pieces of evidence upon which the Crown did rely as evidencing consciousness of guilt, the applicant’s removal of his distinctive jacket immediately after the stabbing and his departure for Dubai within 24 hours, was capable of supporting the inference.

1. It was submitted that as two persons had sustained knife wounds and as there may well have been a significant difference in the perception and intention of the applicant when performing the separate actions which caused or contributed to them, it was necessary, before the inference of consciousness of guilt could be drawn from post event conduct, that the jury be able to link the conduct relied upon with that constituting the basis of the specific count under consideration.  In a case where the jury had to direct attention to two separate allegations of stabbing, and in which distinctions could be made between them, it was not possible to determine of which offence the applicant believed he was guilty, the argument proceeded.  Accordingly no inference of his consciousness of guilt could be drawn, it was said.

1. Accepting that cases could well arise in which a distinction of this kind would be meaningful, the present matter gives rise to no such difficulty.

1. In his charge, the judge instructed the jury that –

In this trial, the Crown has relied upon two pieces of post-offence conduct on the part of the accused as demonstrating that he was aware of his guilt in relation to the unlawful killing of Mark Russo and the serious injury of Carl Russo.

I need to give you some directions about the way in which you can use this evidence.  Evidence of acts performed after an offence has been committed are capable of being used as an unspoken or implied admission by an accused person that they are responsible for a particular offence.  You may be able to use an act in this way if you can reason that the accused performed certain acts after an offence was committed and the only reasonable explanation for the accused doing those acts was that he believed he had committed the offence and believed that unless he acted in that way he would be implicated in the offence.  So by performing those acts the accused has admitted his responsibility for the offence.

In that situation the accused would not have explicitly admitted his responsibility for the offence.  You would be drawing an inference that he had admitted responsibility for the crime from his behaviour.  You will remember what I told you about inferences.

It is important to note that finding an accused’s acts show that he may have implicitly admitted responsibility for an offence is not the same as finding an accused guilty of that offence.  At the most, those acts provide no more than that an accused believed that he was guilty of an offence.  In other words, just because you find that the accused acted in that way because he believed that he would otherwise be implicated in the offence does not mean that you must necessarily find him guilty of the offence.  It may be the case, for example, that he was mistaken about having committed the offence.  Perhaps he committed the relevant acts but did not have the appropriate mental state of mind, or he may have some other legitimate defence.  The behaviour of the accused is just one piece of evidence that you can use in making your final decision about whether or not the prosecution has proven guilt beyond reasonable doubt.

The first piece of post-offence conduct relied on by the prosecution is that the accused, within seconds of the stabbings, removed his distinctive white jacket with the number 4 prominently displayed on it and tied it around his waist.

[The prosecutor] argued that this was clearly done to disguise his identity as the stabber.  The accused later gave this jacket to Raed Dimachki to take out of the nightclub for him and retrieved it from Raed outside the nightclub after the accused had passed through security.

The Crown submits that the accused did this because at that early stage he knew he had acted deliberately in stabbing Carl and Mark Russo and that the stabbing had no lawful justification.

The second piece of post-offence conduct the Crown relies upon as demonstrating the accused’s consciousness of his guilt of the unlawful killing of Mark Russo and serious injury to [Carl] Russo is the accused’s attempt to flee to Turkey.

The Crown submits that this flight to Turkey was done by the accused out of a consciousness of guilt of the unlawful killing of Mark Russo and the serious injury to Carl Russo and demonstrates that the accused knew the stabbing was a deliberate act on his part and not done in lawful self-defence.

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Thirdly, you must be satisfied that the accused’s acts related to some significant circumstance of event connected with the offence you are considering.  If the accused acted in that way due to some completely different matter, his behaviour cannot be used to show that the accused implicitly admitted responsibility for the offence you are considering.  Again, you have heard the evidence from the accused relating to these two pieces of post-offence conduct.

Fourthly, you must be satisfied that the reason why the accused acted in that way was because he believed that he had committed the offence you are considering, or some aspect of it, and he believed that he would be implicated in that crime if he did not act in that way.

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Finally, I direct you that if you are satisfied that the prosecution has proven each of these four matters, the post-offence conduct can only assist you when considering whether the Crown has proven beyond reasonable doubt that the accused knew that he had deliberately stabbed Carl Russo and Mark Russo and that those acts had not been done in lawful self-defence.  That is, the post-offence conduct goes only to the issue of lawful justification such as self-defence.  It cannot be relied upon by you in deciding whether or not the accused has acted with murderous intent, or whether he is guilty in the case of Mark Russo of manslaughter by unlawful and dangerous act.  The law says that that would be reading too much into the post-offence conduct.

No exception was taken to these directions.  Indeed, following the decision of the Court in R v Ciantar[6] and because they focus only on the issue of lawful justification and not the relevant intent of each offence, the directions can be properly viewed as overly favourable in the circumstances.

[6](2006) 16 VR 26.

1. At no stage, in his address to the jury, or by submission to the judge did counsel for the applicant suggest that any distinction of the kind asserted in this Court could be made.  Indeed, he was concerned to emphasise the speed with which events occurred and what he claimed was the confused and frightening position in which the applicant was placed.  At one stage, he submitted –

What you have to do is stand in the shoes of the accused and it’s happening fast, it’s quick.  You know, this is not a time where you’ve got time to make – contemplate judgments, take time out to think about it, it’s action;  it’s happening;  it’s evolving;  it’s escalating and it’s all happening and you’re right there and you can’t stand back and look at it calmly and say, “Well, you know, with the benefit of hindsight, this, that”, that’s not what goes on.  If you’ve ever been in a fight you know how quickly it happens.  You don’t get to stand back and say, “Oh, hang on”, it doesn’t happen that way.

You see, it’s great for lawyers to stand round and talk about it and analyse it

in the cold, you know, calm – it’s action;  it’s terrifying;  it’s frightening and you’re in it, you’re in the middle of it.  Your head’s down and you see a knife.  “I thought they were going to kill me.”  You’re up against the wall, you’ve got no where to go.  You see the knife on the floor, you pick it up.  You’re pushing them away.  Some guy has you around the head and he’s pulling you towards him.  You’re trying to push him away.  You’re also using the hand with the knife in it and it’s happening all very quickly.  It’s understandable;  it’s scary;  it’s terrifying;  it’s happening quickly and you don’t have time to reason.  That’s the shoes of the accused.  And they are the shoes you have to step into to properly analyse and properly judge this case.

1. Neither in his police interview nor in his evidence did the applicant claim that his reasoning at the time of or about the two incidents was different nor is there anything in the material that can be seen to give rise to the reasonable possibility that this was the case.  The stabbings were treated throughout by the prosecution and defence alike as two related events which occurred only moments apart and within a single incident.  It is certainly understandable, in view of the defence stance, that no attempt was made to separate them by reference to the reasoning of the applicant at the time nor to suggest that the instructions concerning consciousness of guilt should have incorporated any such possibility.  The claimed possible differences in the applicant’s reasoning processes with respect to the separate stabbings upon which reliance was placed by counsel in this Court were not only not advanced at the trial but were artificial in the extreme and without support in the evidence.  There was no evidentiary basis upon which to distinguish between the stabbing of one victim and the other, and whether they were done in self-defence.

1. There being no substance to any of the complaints made, I would refuse this application.

REDLICH JA:

1. For the reasons given by Vincent JA I would refuse the application for leave to appeal.

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