R v Corowa
[2017] QCA 306
•15 December 2017
SUPREME COURT OF QUEENSLAND
CITATION:
R v Corowa [2017] QCA 306
PARTIES:
R
v
COROWA, Robert Kingsley
(appellant)FILE NO/S:
CA No 178 of 2016
SC No 583 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Conviction: 10 June 2016 (Byrne SJA)
DELIVERED ON:
15 December 2017
DELIVERED AT:
Brisbane
HEARING DATE:
27 July 2017
JUDGES:
Fraser and Gotterson JJA and Atkinson J
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where the appellant was convicted after trial of attempted murder – where the appellant submitted that the trial judge’s directions to the jury about drawing inferences were insufficient – where the complainant was shot and injured by a gunman carrying a gun loaded with birdshot – where the appellant submitted that on the evidence it was not possible to rationally exclude the hypothesis that the shots were fired with the intention to frighten or wound rather than to kill – whether the verdict was unreasonable or insupportable having regard to the evidence
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Francis[2017] QCA 182, citedCOUNSEL:
R Richter QC for the appellant
V A Loury QC for the respondentSOLICITORS:
Archbold Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I agree with the reasons for judgment of Atkinson J and the order proposed by her Honour.
GOTTERSON JA: I agree with the order proposed by Atkinson J and with the reasons given by her Honour.
ATKINSON J: On 10 June 2016 after a six day trial in the Supreme Court, the appellant, Robert Corowa, was convicted of the attempted murder of Marko Marjanovic. As a result of that conviction, no verdict was taken on the alternative count of malicious act with intent. The only ground of appeal was that the “verdict was unsafe and unsatisfactory”.
In his written outline of submissions, the appellant explained this ground of appeal as follows:
“Although no exceptions were taken to the learned trial judge’s summing up, his Honour directed the jury about drawing inferences without at any stage explaining to the jury that to draw an inference of intent to kill, all other reasonable inferences had to be excluded beyond reasonable doubt. The example which his Honour gave of drawing inferences was in some senses inapposite and incomplete. While no specific grounds of error have been taken in the notice, these observations have significance in explaining the verdict because on the evidence before the jury, it was not possible to rationally exclude the reasonable hypothesis that the intent with which the shots were fired were intended to wound rather than kill.”
The appellant’s submissions
The appellant submitted that in the present matter it was not possible rationally to exclude the reasonable possibility that the intent with which the gun was fired by the appellant was to wound rather than to kill. The appellant submitted that the specific intent to kill would rationally be capable of being inferred in the present matter, if, after hitting the victim, the appellant had continued to shoot at him. There was a sufficient evidentiary basis to allow for a reasonable hypothesis of an intent less than that of one to kill. It was not fanciful and it was one of the reasonable inferences open which could not be rationally rejected by the jury beyond reasonable doubt. As this was a case of attempted murder, nothing short of an intent to kill was sufficient to convict the appellant of attempted murder. In oral argument, the appellant submitted that his use of bird shot was consistent with an intention to frighten his victim rather than an intention to kill and accordingly the jury could not be satisfied beyond reasonable doubt that the appellant had an intent to kill the complainant.
The respondent’s submissions
The respondent submitted that the jury were directed by the learned trial judge that a conviction of attempted murder depended upon proof beyond reasonable doubt that in discharging the shotgun three times, the appellant intended to kill the complainant. They were further directed that nothing less than an intent to kill would suffice. The jury were also correctly directed of the elements of the offence of the alternative charge of malicious act with intent. They were left in no doubt as to the elements of the offences and as to the burden of proof that was necessary in relation to each of the elements of the offences. The respondent submitted that a direction that to draw an inference of an intent to kill, all other reasonable inferences had to be excluded beyond reasonable doubt is simply an elaboration of the requirement of the prosecution to prove the element of an intention to kill beyond reasonable doubt. The trial judge directed the jury that in drawing an inference as to the state of the appellant’s mind, proof beyond reasonable doubt of the requisite state of mind was necessary.
Discussion
The circumstances of this offence, as referred to by the learned trial judge when he sentenced the appellant, were that, overcome by jealousy, the appellant went to the home of a stranger who had taken up with his ex-girlfriend and fired at the complainant with a pump action shotgun and kept firing until the complainant was able to escape by getting inside the house. Although he intended to kill the complainant by his actions and could have carried that intention into effect, nevertheless he failed to kill the complainant and so was convicted of attempted murder.
It is useful to refer to the directions that were actually given by the learned trial judge, in particular as to the intent to kill which is an essential element of the offence of attempted murder. The jury was directed that they must be satisfied beyond reasonable doubt that the appellant had an intention to kill. In his summing up to the jury, the judge gave a conventional direction that evidence may consist of facts directly proved by the evidence and that, as well, the jury may draw inferences from facts they find established by the evidence. In his summing up, his Honour told the jury that he emphasised the question of the process of drawing inferences because the intent, if any, of the appellant was a central issue in relation to the offences charged by both the first count of attempted murder and the second count of malicious intention to wound. The judge told the jury that they had to examine the evidence and ask themselves on a consideration of the evidence whether it was proved beyond reasonable doubt that the appellant had the requisite state of mind to prove guilt beyond reasonable doubt.
With regard to the specific elements of the offence of attempted murder the jury was instructed: “In order for you to convict of attempted murder, it would not suffice that the accused expected that Marko Marjanovic may have been killed when he shot at him, if that is what he did. A conviction depends on proof beyond reasonable doubt that in discharging the shotgun the accused was intent on killing Mr Marjanovic, not merely harming him. Nothing less than an intent to kill suffices.”
The direction which had been given by his Honour had been given in writing to both counsel before the summing up was delivered to the jury. After the summing up defence counsel specifically said that there was no application for redirections.
On 24 August 2017 after oral argument in this appeal was heard, this court heard and determined ex tempore the matter of The Queen v Francis.[1] In that case the appellant had been convicted after a trial of attempted murder. An appeal was lodged on the ground that the learned trial judge failed adequately to direct the jury as to the drawing of inferences when determining whether an intent to kill had been proved beyond reasonable doubt. The directions in Francis on this point were similar to the directions given in this case. The directions were given by the same experienced trial judge.
[1][2017] QCA 182.
In Francis his Honour had said that a conclusion of guilt in respect of attempted murder depended upon proof to the jury’s satisfaction beyond reasonable doubt that in attacking the victim as he did the accused was intending to kill him. Nothing less than an intent to cause the death of the victim could suffice to prove attempted murder. This direction was criticised on the basis that it did not follow the particular form of direction contained in the bench book. But as the President observed in that case, “the bench book is merely a guide for judges to use in formulating the content of submissions in appropriate terms to fit the case actually being heard. It is not a set of commands to a judge about precise words that must be used for a summing up to be adequate.” The direction was held to be adequate and the appeal dismissed.
Further submissions were sought from the parties in light of this court’s judgment in Francis. The appellant submitted that the decision had no impact upon his submissions in this case submitting that the learned trial judge’s “formulaic invocation” and direction of the requirement to find an intent to kill highlighted the need to direct, and indeed to conclude, it was submitted, that the alternative hypothesis of an intent to frighten or injure needed to be, and in the present case could not be, rationally excluded on the evidence without resort to a speculative leap rather than a process of drawing an inference as the only one reasonably open.
The respondent submitted that the adequacy of the summing up will depend on the nature of the case and the summing up as a whole. The respondent referred to the judge’s emphasising the need for the jury to be satisfied beyond reasonable doubt of an intent to kill before they could reach a verdict of guilty of attempted murder and that nothing less than an intent to kill would suffice. The respondent also referred to the judge’s direction to the jury as to the drawing of inferences which he emphasised to them because intent, as he told the jury, was a central issue.
As this court held in Francis, it is necessary to look at the evidence in the particular case to determine whether or not the directions as given in this case were adequate. That is part and parcel of the court’s task in determining the particular ground of appeal which was raised in this case that is that the conviction was, to use the words of the appellant, “unsafe and unsatisfactory”.
Consideration of the appellant’s ground of appeal requires this court to make an independent assessment of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt: see MFA v The Queen.[2] I have independently assessed the evidence and consider that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant’s intention was to kill the complainant and that he was therefore guilty of attempted murder.
[2](2002) 213 CLR 606, see also M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400.
The evidence led at trial
The events the subject of the trial occurred on 26 November 2011 at a house at 59 Cedarwood Crescent, Robina. A number of witnesses gave evidence of events leading up to the shooting of Mr Marjanovic and its aftermath. They included those present in the house where the shooting occurred, Marko Marjanovic, his mother, Snezana Marjanovic and his sister, Sladjana Marjanovic, and his girlfriend, Louise Ray; those who had dealings with the appellant leading up to and on the night of the shooting, Donald Graham, Tessa Orr, Nathan Hart and Dean Merrell; neighbours at 59 Cedarwood Crescent, Jason Kitts, Donna Hageman, Tina Sifatu, Ronald Ferguson, Janet Hooper and Kerrie Kirk; police and paramedics who attended the scene, Timothy Hayes, Blair Casey, Rodney Seaman, Chad Davis and Jacquelyn Knowles; and forensic, ballistic and medical witnesses and experts, Gary Asmussen, Shane Everist, Ian Bruce, Robyn Williams, Catherine Brown and Dr Jeffrey Hooper. In addition a number of phone records of communications from a phone used by the appellant, a mobile telephone number registered to Donald Graham, a mobile telephone used by Louise Ray and a pay phone at the Robina Town Centre were tendered.
Evidence from the appellant’s ex-girlfriend, Louise Ray, was that she met the appellant when she was about 15 or 16 years’ of age. She was in a relationship with him which ended at the end of 2010. After Ms Ray and the appellant broke up, they continued to speak on the phone and communicate via text messages. Relevant text messages were tendered in evidence. At 1.18 am on 18 May 2011, Louise Ray, received a text message on her mobile phone as follows:
“I will slit your throat if another man touches your body or you strip.”
Ms Ray commenced a relationship with Marko Marjanovic in around September 2011. The relationship ended not long after the incident the subject of the trial.
Mr Marjanovic gave evidence that in September 2011, he posted one or two photos on Facebook of Ms Ray and himself together. That month Mr Marjanovic received some text messages and a phone call from a person who identified himself as “Robby C”. Robby C told him to “stay away from Louise” and said he was her ex-boyfriend.
Phone records showed that Mr Marjanovic received four messages sent to his mobile phone from mobile phone number 0458 336 026. The first was at 1.35 pm on 13 September 2011. It read “Fukn gronk. I’LL catch you on the street!!!” The second was sent at 1.35 pm on 13 September 2011. It read “Let’s catch up”. The third was at 1.40 pm on 13 September 2011 and it read “And delete that fukn foto off F-B you putrid lookn cunt.” The last message was sent at 2.39 pm on 13 September 2011 and read “Run and hide, cunt”.
Donald Graham gave evidence as to his involvement in the events of 26 November 2011. In November 2011 Mr Graham was living with his partner, Tessa Orr, at their home in Cabarita. He described the appellant as an acquaintance; he said they did not spend much time together socially but saw each other frequently at the gym. In October 2011, there was an occasion where Mr Graham offered the appellant a lift. The appellant had a sports bag with him which he placed in the back seat when he got into the car. The appellant said to Mr Graham “I’m leaving some stuff with you. Keep it until I want it.” He did not indicate what he was talking about and he left the bag on the back seat of Mr Graham’s car.
Mr Graham drove home. He was alone in the car. When he got home he had a look inside the bag and found white Nike shoes, a shotgun and cartridges. He described the shotgun as being dark and just under a metre in length and said it did not have a stock on it and the barrel had been shortened. There was ammunition in the bag that was “about battery size, red, with, like, brass on the end.” He said there were about three to four of those. Mr Graham sketched this weapon for police on 17 February 2012. The prosecution submitted that this image matched a shortened pump action shotgun.
After finding these items, Mr Graham said he called the appellant and told him that he did not want the gun in his possession. The appellant told Mr Graham that he would call him when he wanted it. Mr Graham said he put the ammunition and the gun in a red metal toolbox and buried it in a compost heap in his backyard at his home in Cabarita. Mr Graham said that his girlfriend, Ms Orr, did not see the weapon he had been given.
Mr Graham’s girlfriend, Tessa Orr, said that in October 2011, Mr Graham showed her a toolbox that was in his possession and she knew that he had a gun in the toolbox. In examination in chief, Ms Orr said that she never saw the gun. In cross-examination she agreed that she had seen Mr Graham with the gun at one point before he hid it. She said he hid it in a toolbox, originally at her mother’s house when they lived there, and that when they moved to Cabarita, he moved it. She said they did not have a compost heap at their home in Cabarita, but there was one at her mother’s house. Ms Orr said that Mr Graham told her he wanted to make sure his fingerprints were erased from the gun. She said she got him a towel or sheet for the purpose of erasing his fingerprints.
On 23 and 24 November 2011, Ms Ray received a number of text messages from the appellant, expressing his love and desire for her.
Then on 25 November 2011, his messaging started with the following, “R u gunna act like a stuck up cunt again 2day or we gunna put that behind us???” His messages became more threatening as the day went on. At 10.30 am he sent the following threat by text message:
“Have u got sim 1 to protect u have u I’ll fuckn kill them if u wanna act like a fukwit dnt start me up.”
At 11.01 am, after a number of other aggressive messages, he asked if he and Ms Ray could do something together over the weekend. He then sent a text saying:
“Ur full ov shit uv got sum 1 haven’t u???”
At 11.48 am, the appellant sent Ms Ray a text saying:
“Tell me is that wog cunt gunna b there”
In examination-in-chief Ms Ray said that she assumed the appellant was referring to Mr Marjanovic.
At 1.19 pm the appellant sent Ms Ray a text saying:
“U dnt no how it feels when u kiss guys or even hang out in clubs with guys my stomach turns it hurts me to death I really do go mad.”
He continued with jealous and abusive messages and again sought to meet up with Ms Ray over the weekend. At 4.47 pm he sent a text saying:
“What I’m not a fuckwit if I find out ur with sum 1 I’ll lose it I asked u if there’s sum 1 tell me and I’m gone but if ur being sneaky and tryn 2 play me 4 a fool I’ll really lose it.”
On Saturday 26 November 2011, Ms Ray, who worked in real estate as a property manager, spent the day driving around to different properties that were under her supervision. Ms Ray owned a black BMW. Ms Ray worked between 8.30 am and 3.30 pm and then she returned home.
At 6.14 pm the appellant sent a message to Ms Ray saying “Well r u with a guy jus fuckn tell me il walk but jus dnt bullshit me??” He sent messages trying to find out if she was visiting her grandfather, as she had told him, or going out clubbing or seeing another man. In examination in chief, Ms Ray said she had told the appellant she was going to visit her grandfather because she didn’t want him to know her business and that she was going to pick up Mr Marjanovic.
At 6.54 pm the appellant sent Ms Ray the following text:
“I’m not a fuckwit sum cunt is proberly servicing ur cunt tell them enjoy coz I did I’m ova u it proberly stinks now.”
That was immediately followed up with:
“If ur with ur family fuckn say u fuckwit.”
That night, Ms Ray drove to Toowoomba to pick up Mr Marjanovic when he arrived home from work. She drove them back to his mother’s home in Robina. When they returned home, Ms Ray parked her car in the driveway, facing the house.
Evidence from those present at 59 Cedarwood Crescent, Robina
Ms Ray gave evidence that she and Mr Marjanovic went upstairs to his room. Ms Ray showered and watched television in bed. At one point, Mr Marjanovic left the room. Ms Ray did not hear anything at first and then she heard two or three gunshots. Ms Ray went downstairs after she heard the gunshots and heard Mr Marjanovic slam the front door and saw him running down the hallway. He showed her a wound on his shoulder.
Marko Marjanovic’s evidence was that in November 2011, he lived at 59 Cedarwood Crescent, Robina, with his mother, Snezana, and his sister, Sladjana, and her six year old son. At that time, Mr Marjanovic had been in a relationship with Ms Ray for about three or four months. Mr Marjanovic did not know the appellant.
Mr Marjanovic was a fly in fly out worker. On 26 November 2011, he returned early from working and arranged for Ms Ray to pick him up from Toowoomba. At about 8.00 pm, Ms Ray picked him up in her black BMW and they travelled together to 59 Cedarwood Crescent, Robina. While they were driving, Mr Marjanovic noticed a four wheel car was tailing them.
They arrived home at about 10 o’clock that evening. Mr Marjanovic recalled that his car, a maroon Commodore, was parked out the front on the street in front of the house, half on the road and half in the yard. Ms Ray parked her car in the driveway near the letterbox. The front light to the house was on when they arrived. Mr Marjanovic’s mother, sister and nephew were home. Mr Marjanovic and Ms Ray both went up to his bedroom to go to bed. Just before going to bed, Mr Marjanovic heard someone at the front door talking to his mother, he put on a pair of shorts and went to have a look.
Mr Marjanovic asked his mother who was at the door and she said that someone said they were stealing the tyres from Mr Marjanovic’s car. He went outside and had a look at his car on the driver’s side and could not see anything wrong with his tyres. Mr Marjanovic then saw a dark shadow to his right and could see a gun pointing at him. He said the gun was held with two arms out at chest height and it was “like a shotgun type of thing” and was short. Mr Marjanovic did not recognise the person holding the gun. Mr Marjanovic’s mother was still at the front door.
A shot was fired and Mr Marjanovic ducked and ran alongside the car. He said he ran to Ms Ray’s car and another shot was fired. He hid behind her car and could see a shadow or a chest through the windows. Mr Marjanovic then ran towards the front of the house. As he ran to the front door he heard another shot and felt a “burning” on the back of his right shoulder and what felt like “a little push in the back”.
Mr Marjanovic went back inside and locked the front door. His mother and sister were screaming and then he saw blood on his right shoulder and realised he was bleeding. He dropped to his knees in the hallway and his mother called the ambulance. It took a while for the ambulance to arrive, so Mr Marjanovic’s sister drove him to the hospital. She drove the car down Cedarwood Crescent until they reached a wall of police officers. He was eventually taken to hospital where surgery was conducted to remove some of the pellets that were lodged in his shoulder.
In cross-examination Mr Marjanovic said that he thought three shots had been fired but agreed that in his statement to police he said there were five shots. He also agreed he was not sure what the firearm looked like, he did not see anything come out of it, and he was unable to describe the man who shot him. Mr Marjanovic said that only Ms Ray and his family knew that he was coming back from work on the night of the incident.
Marko Marjanovic’s mother, Snezana Marjanovic, gave evidence that on 26 November 2011 at about 9.00 pm, Marko arrived home from work with Ms Ray. She said she talked to him briefly before he went to his bedroom with Ms Ray. After they went to bed, Mrs Marjanovic heard a neighbour’s dog barking. About 10 or 15 minutes later she heard a knock at the door. She went to the door and through the stained glass window she could see a man on the other side of the door. She said he was New Zealand/Islander in appearance but was quite fair. He had dark hair and was wearing black, long, baggy pants and a white t-shirt with a greyish print on it. She said the man said something about someone messing with her tyres. She said he appeared anxious. She said that the man then walked off to the left side of the house in the direction of 57 Cedarwood Crescent. There is a path between 55 and 57 Cedarwood Crescent.
Mrs Marjanovic said that on that evening the light near the front entrance was on and that she always left the front light on. She said that the night of the incident was a very bright night.
Mrs Marjanovic went outside the front of her house and had a look around and could not see anything wrong with the car and could not see anyone else nearby. She went back inside and closed the door. She said that Marko came downstairs and asked what was happening, he went and put on shorts and then they both went outside. She said they both walked down to the street and had a look at the car. Mrs Marjanovic started walking back to the house and stopped at the mailbox, on the path between the driveway and the front entrance to the house, and said “come on, let’s go in” to her son, Marko. He was still standing on the street near the car.
Mrs Marjanovic said that in the corner of her eye, on the left, she saw a man on the side of the neighbour’s house. She said the man had long legs, was wearing shorts and was skinny. She said he was very tall and was wearing a dark top that looked like a hoody that was covering his hair. She said that this was not the same man who came to her front door earlier that evening. She said that this man was a completely different build. She noticed that the man was holding something that looked like a gun at waist height. She said it looked like a cut-off shotgun. Mrs Marjanovic explained her experience with guns and said she had used a shotgun before.
She heard the first shot and saw her son Marko running alongside his car and then down Cedarwood Crescent. Mrs Marjanovic grabbed her grandson’s scooter and turned around and saw the man standing about three or four metres away pointing the gun at her. The man turned around again and fired another shot in Marko’s direction as Marko was trying to run away. Marko was shot, he then turned around and ran in the direction of Ms Ray’s car. Mrs Marjanovic opened the front door and screamed to Marko “get in, get in, get inside”. She heard Marko get shot again. Marko went inside the house and Mrs Marjanovic shut and locked the door and Marko said “he shot me”. She said that everything happened quickly, there was no more than a couple of minutes between the first shot being fired and Marko coming into the house. In cross examination she said she heard four or five shots and it was not continuous firing.
On the morning of 27 November 2011, Mrs Marjanovic was shown a photo board by police containing photographs of 12 similar looking people. Ms Marjanovic did not recognise anyone on the photo board. On that morning, Ms Marjanovic assisted police officers in forming a digital image of the person she described as having knocked on her front door. This image was tendered as an exhibit during the trial. She estimated that the person was between 25 and 30 years of age, was approximately five foot nine inches in height, of proportional build, with dark brown hair and a tan complexion. When she initially spoke to police Mrs Marjanovic said that the person who came to her door was the same person who later shot Marko.
A few days later, on 1 December 2011, Mrs Marjanovic was shown another photo board. On this occasion, she identified a person who looked like the man who came to her front door.
On 15 January 2012, Mrs Marjanovic had a conversation with her ex-husband and as a result of that conversation, Marko showed her a photograph from Facebook. The person in the photograph looked like the person who came to her front door.
In cross examination, it was put to Mrs Marjanovic that she had given different versions of the events of 26 November 2011. Mrs Marjanovic initially told police that the gunman was the same person who came to her front door earlier in the night. She explained that she had been in shock and the more she thought about it in the following days she realised that it was not the same person. Mrs Marjanovic agreed she told police she was certain it was the same man.
In cross-examination, Mrs Marjanovic said she did not hear a clicking sound when the gun was close to her and she did not see a plume of smoke coming from the gun. Mrs Marjanovic was shown the digital image she assisted police to create. She said it was Mr Graham. She said that he was the man who came to her door. She agreed that initially she identified Mr Graham as being the man who shot her son. Mrs Marjanovic said that that there was a lot going on at the time and there were a lot of emotions and it took her a few days until she realised that the man who shot her son was not the same man who came to her door.
Marko’s sister, Sladjana, also lived at 59 Cedarwood Crescent. On the evening of 26 November 2011, Sladjana went to bed around 9.30 pm. As she was retiring, she heard the neighbour’s dog barking repeatedly. She went to sleep and later heard bangs coming from the front of the house. She could feel the windows shaking from the sounds. She said she heard three gunshots after waking up and said there was a couple of seconds between each shot. Sladjana went downstairs and saw her mother and brother coming into the house.
Sladjana said she could see blood coming out of Marko’s shoulder and she applied pressure to his injury with towels. Sladjana told her mother to call the ambulance. It did not arrive, so Sladjana decided to drive her brother to the hospital. As they were driving down the street, Sladjana was intercepted by police and the police and ambulance officers then assisted in taking Marko onto a stretcher and into the ambulance. Sladjana said she did not see Ms Ray anywhere nearby at this point.
Evidence of people with the appellant on the night of 26 November 2011
Mr Graham’s evidence was that on the evening of 26 November 2011, he and Ms Orr were at home in Cabarita. During the course of the evening Mr Graham received calls and text messages from the appellant. The appellant said that he needed his “clothes” and told Mr Graham to make sure he answered his phone. Mr Graham said he interpreted the reference to “clothes” as meaning the ammunition and the gun. The appellant’s phone records showed that he sent a message to Mr Graham on 26 November 2011 at 8.26 pm saying “Hey keep ur fone on I need them clothes I’ll call u in an hr lad make sure you answer”.
After receiving the appellant’s calls and text messages, Mr Graham went outside and dug up the toolbox from the garden. He then emptied the contents in the back seat of his car. Mr Graham said that Ms Orr was inside the house while he was doing this. He wrapped the shotgun and the ammunition in a sheet in the back of his car and left it behind the passenger seat on the floor of the car. Mr Graham said that Ms Orr did not see the gun.
Mr Graham and Ms Orr travelled in his car up the coast. Mr Graham communicated with the appellant through calls and text messages and they arranged to meet at the Red Rooster car park at Robina Town Centre. The appellant’s phone records showed that at 9.10 pm, the appellant sent a text message to Mr Graham saying “Leave now il meet u @ robina twn center”. He sent another text message at 9.12 pm saying “& bring my clothes cheerz lad”. It was about a 20 to 40 minute drive from Mr Graham’s home to the Red Rooster car park.
Mr Graham and Ms Orr arrived at the Red Rooster car park and the appellant pulled up in a black Jeep moments later. The appellant got out of the passenger side of the vehicle and walked towards Mr Graham’s vehicle. The jeep then drove away. The appellant walked to the passenger window of Mr Graham’s car, where Ms Orr was sitting, and told Ms Orr to get out of the car and to wait, which she did. The appellant got in the car and told Mr Graham to drive and directed him down the road. A couple of kilometres down the road, Mr Graham pulled up to the side of the road.
During the drive, the appellant asked Mr Graham where the weapon was. Mr Graham told him it was behind him and the appellant reached around and grabbed it and loaded it with the ammunition. Mr Graham said that then the appellant cocked the gun, by sliding a piece of metal up and down it to engage, and then the gun discharged and shot out the front left passenger side window. He said the noise was deafening. Mr Graham asked the appellant “what the fuck you doing?” The appellant told Mr Graham to “shut the fuck up and drive”.
The appellant directed Mr Graham to park the car and the appellant got out. He was holding the weapon. Mr Graham stayed in the car, tried to call Ms Orr and start the car. Phone records showed that Mr Graham made two unanswered calls to Ms Orr at 10.11 pm and 10.12 pm. The appellant told Mr Graham to turn his phone off and get out. Mr Graham turned off the car and got out and followed the appellant down an easement behind 61, 59 and 57 Cedarwood Crescent until they reached a break in the houses where there was a footpath between them. There was a footpath between the houses at 55 and 57 Cedarwood Crescent.
The appellant and Mr Graham walked down to the street and the appellant pointed at a house and told Mr Graham to knock on the front door to get “him” out of the house. Mr Graham said he had never been to the home before and did not know who lived there. Mr Graham said he knocked and spoke to a woman who came to the door and “just thought on [his] feet” and “just blurted out someone was messing with their car at the front”. He said he had seen a car in their yard and it was a dark coloured Commodore.
At this time, the appellant was hiding outside the other house closest to the pathway. Mr Graham said that after speaking to the woman he ran as fast as he could back up the path. Mr Graham did not look to see whether the appellant had the shotgun with him but said he carried it with him when they walked up towards the houses.
While Mr Graham was running he heard three loud bangs. Mr Graham was already in his car when he heard the second and third bangs. Mr Graham started the ignition and tried to call Ms Orr. The appellant returned to the car and got in the back seat and lay down and told Mr Graham to drive. Mr Graham drove back to the Red Rooster car park.
When they arrived at the car park, Ms Orr was at a payphone waiting for a taxi. Mr Graham told her to get in the car and she got in the front-left passenger seat which was wet with glass on it. Ms Orr asked “what did you do” and asked why the glass was broken. The appellant told Mr Graham to drive so Mr Graham drove back towards their home in New South Wales. When they passed the New South Wales border, the appellant told Mr Graham to pull off at an exit at West Tweed Heads. Mr Graham drove until he pulled up at a fish and chip shop near the Tweed River. The appellant got out of the car and told Mr Graham to wait, he was gone for at least a minute and then he got back in the car. Mr Graham then dropped the appellant at his house in Chinderah before returning with Ms Orr to Cabarita.
Ms Orr’s evidence about that night was that she was at home with Mr Graham when he received a text message from the appellant. Mr Graham told Ms Orr that the appellant wanted him to go for a drive and that she was going to go with him. She took her dog in the car. Before they left the home, Ms Orr saw that Mr Graham “grabbed the gun and wrapped it up into a sheet” and put it in the back seat of his car. Ms Orr thought that she was driving, and said that she and Mr Graham drove to a car park outside Red Rooster at Robina. She said that Mr Graham told her to pull over to that car park.
Ms Orr recalled that while she was in the car the appellant was dropped off in a Jeep in the car park. The appellant approached their car and Mr Graham said that he and the appellant were going for a drive. Ms Orr got out of the car. It was raining.
She said that she thought Mr Graham was driving and that the appellant sat in the front passenger seat. When they left, Ms Orr went to a payphone and tried to call Mr Graham. She still had the dog with her at this time. She tried to call Mr Graham once or twice and asked him where he was, he said “I can’t talk now”. Ms Orr tried to call a taxi but later Mr Graham returned in the car and told her to jump in. The appellant was in the back seat of the car. Ms Orr noticed that the front passenger window of the car was smashed and there was glass on the seat.
Ms Orr said she got in the car into the front passenger seat and they drove home. They stopped at Tweed Heads near a fish and chip shop, close to the river. The appellant got out of the car and then returned five or ten minutes later. Ms Orr said she did not notice whether the appellant had anything with him when he got out of the car. Ms Orr said she could not recall where they dropped off the appellant. Ms Orr and Mr Graham returned to their home at Cabarita.
In cross examination, Ms Orr agreed that after the shooting, Mr Graham was concerned that he had left his wallet behind and said to Ms Orr, “if I can’t find my wallet I’m done”. She also agreed that Mr Graham told her that the appellant pointed a gun at him and made him knock on a door. Ms Orr agreed that she had never seen the appellant with the gun. Ms Orr agreed that in earlier statements to police she lied about the events of 26 November 2011. She said she did this to protect Mr Graham and that he told her what to say. She initially told police she had no knowledge of the shooting at all. Ms Orr helped arrange for the window of Mr Graham’s car to be repaired by an apprentice the day after the shooting. Ms Orr said that when the apprentice asked what happened to the vehicle, she made up a story. She said that Mr Graham told her to lie to the apprentice.
Ms Orr agreed that she saw what appeared to be an image of Mr Graham in the Gold Coast Bulletin. The image looked so similar to Mr Graham that she called him and said words to the effect of “Donny, you’re fucked”. The article indicated that the person in the image was the gunman. Ms Orr agreed that Mr Graham told her to change her story to police.
Ms Orr agreed that she did not hold herself out as a reliable witness.
Mr Graham’s evidence was that the next day he cleaned out his car. He did not see the ammunition or the weapon. In cross examination Mr Graham said that when he cleaned the glass from his car the day after the shooting, he found a cartridge case in the car and threw it out. Graham did not tell police that he found this cartridge case. He also said that he found blood stains in his car and that the appellant had been cut on the glass from the broken window. Mr Graham cleaned the blood stains out of the backseat of his car and the left hand arm rest.
Mr Graham said he spoke to the appellant either by phone or text message at some time in the following days. Mr Graham said that someone had some money for the appellant and did not know how to get it to him and asked if Mr Graham did. Mr Graham called or sent a text message to the appellant telling him that he was using the money to have his car window repaired. Phone records showed that Mr Graham sent a text message to the appellant on 28 November 2011 saying “Dropped ya shit at luckys.n seen harleys family got 300 for ya but using that for my window”. The appellant replied “yep”.
Mr Graham spoke to police on 17 February 2012 in relation to this incident and was arrested.
In cross examination, Mr Graham agreed that in his police statement he said that the appellant got out of the car at Tweed Heads and took the gun to a single-storey house and came back to the car without the gun a short time later. Mr Graham said that he did not see the appellant remove the gun from the car but had assumed he had. He said they stopped near a takeaway shop and there were houses nearby. Mr Graham could not remember the name of the street.
Mr Graham was cross-examined about his criminal history. He has a history of serious violent offending, gang involvement and drug use. Mr Graham agreed he had lied to police in relation to a robbery and assault that he was involved in when he was 19 or 20. Graham agreed had been a member of a gang called “Dark Neo Soldiers”.
Mr Graham was cross examined about his knowledge of Mr Marjanovic, Marko Marjanovic’s father. Mr Graham was asked whether he knew that Mr Marjanovic Senior was a high ranking office-holder in the Bandidos bikie gang. Mr Graham said he was not aware of this until after he was convicted.
On 27 November 2011, the digital image identifying the shooter, created by the police with the assistance of Mrs Marjanovic, appeared in the Gold Coast Bulletin. Mr Graham agreed in cross-examination that the image looked remarkably like him. Ms Orr called Mr Graham about the image and said something like “it looks like you’re fucked”. Mr Graham said that numerous people called him about the image and said that he was very concerned because he was not the shooter.
In cross-examination, Mr Graham agreed that when he first spoke to police in respect of this matter, he lied to them and gave them a false alibi, he said that he did not want to be accused of being the shooter.
In cross examination, Mr Graham said the appellant was “easily a foot taller” than him. Photographs were exhibited showing that Mr Graham is 178.5cm tall and the appellant is between 180 and 181cm.
Because of the nature of Mr Graham’s involvement in the events, his evidence was subject to extensive warnings by the judge as to the care the jury should take before they could act on his evidence. There was no complaint about the directions given by the learned trial judge on this topic.
The appellant’s second cousin, Nathan Hart, gave evidence that on 26 November 2011, he received a phone call from the appellant asking Mr Hart to take the appellant for a drive. Mr Hart collected the appellant from his home at Banora in his Mazda ute. They drove around the Gold Coast in the Broadbeach area. Mr Hart said they were not going anywhere, they were just driving around. He did not recall stopping at any stage during the drive. Mr Hart said they drove for about 20 minutes and then he returned the appellant to his home at Banora.
Dean Merrell worked as a private investigator. On 26 November 2011, a man called Robby or Robert contacted Mr Merrell, asking whether he was available to do some surveillance work that afternoon. Mr Merrell said it was short notice and recommended that he find someone else to do it. Robby called him again once or twice that day trying to convince him to do the job. Mr Merrell said the job entailed surveillance on Robby’s girlfriend or ex-girlfriend who had told him that she was going to Brisbane that evening to visit her sick grandfather. The client wanted to make sure that’s what she was actually doing. Mr Merrell indicated that these conversations took place between 9.00 am and 11.00 am on 26 November 2011. Eventually, Mr Merrell agreed to take the job.
Mr Merrell made arrangements to meet the client at a McDonald’s somewhere on the Pacific Highway at around lunchtime. As Mr Merrell was travelling to meet Robby, Robby called him and told him that he was already following the girlfriend. Robby gave Mr Merrell directions to meet him in Broadbeach. When Mr Merrell arrived, Robby was in a white Ute with another man. Mr Merrell did not notice what the other man looked like but thought it was Robby’s cousin.
At that time, Mr Merrell was driving a dark blue Jeep. He agreed that at night the car may appear black.
Mr Merrell described Robby as being dark-skinned with very dark “sort of dreadlock-y hair” and tattoos on his arms. He said he was wearing dark sunglasses, shorts and a t-shirt.
Robby got into Mr Merrell’s car and told him that they were going to follow his girlfriend or ex-girlfriend who was driving a black BMW. Mr Merrell said that Robby insisted that he come with Mr Merrell. Although this was not policy, Mr Merrell said he was not in the mood to argue and that Robby was quite insistent.
Mr Merrell said that there was a vacant black BMW parked nearby. A short time later, a female came out of a nearby house or unit and hopped in the car and drove off. Mr Merrell and Robby followed her to a number of different properties. Robby told Mr Merrell that the woman worked in real estate. Eventually, they followed the woman back to her real estate office. Robby and Mr Merrell waited in the car. Robby called his cousin and asked him to come and pick him up, he needed to go and pick up a silver Camry he had hired. Robby said he hired the Camry because he was going to follow his girlfriend but changed his mind. Robby was going to collect the car and come back. Mr Merrell told him to get a change of clothes.
Robby’s cousin picked him up in the white Ute and Mr Merrell continued to wait until the girlfriend left the real estate office. Mr Merrell followed the woman to her home near Tweed Heads and kept in contact with Robby. Later, Mr Merrell followed her to the gym at Robina Town Centre. While he was there, Robby arrived in the silver Camry and got into Mr Merrell’s car. Robby had a bag with him, he said he had brought a change of clothes as Mr Merrell suggested. This was at about 5 pm or 6 pm in the afternoon. After about 30 minutes to an hour, the woman left the gym and they followed her back to her home. It was getting close to dark when the woman left her house again. She drove along the Pacific Highway towards Brisbane and then towards Ipswich. Robby seemed confused when she started heading west.
Mr Merrell said that while they were following her Robby was continuously texting the woman asking her to confirm her love for him and asking whether she was really going to see her grandfather that night. Mr Merrell said Robby had shown him some of the texts.
They followed the woman all the way to Toowoomba. The woman stopped her car in an industrial area and a man approached her car, leant through the window and appeared to kiss her on the cheek. Then the man got in the passenger seat of her car and they started driving back to the Coast. Mr Merrell said Robby appeared to get agitated and upset at this time. He kept saying that he needed to confront “this bloke”. Mr Merrell said he tried to calm Robby down but it did not work and that Robby was adamant that he wanted to confront the man. They continued following the woman until she pulled into a house in the Robina area. The woman and the man got out of the black BMW and went inside.
After the woman and the man went inside, Robby called someone and told them he needed to be picked up. Mr Merrell drove Robby to the Red Rooster at Robina, which was where he had arranged to meet someone. Mr Merrell thought it was his cousin from earlier in the day. Mr Merrell said he dropped Robby off at the car park outside of Red Rooster at about 10 pm. Mr Merrell then travelled home.
After the shooting, Mr Merrell identified the appellant on a photo board as the man, Robby, who was in his car.
Evidence from the neighbours
Jason Kitts and Donna Hageman lived at 57 Cedarwood Crescent, Robina. Their home at number 57 was next door to 59 Cedarwood Crescent, separated by a bitumen pathway that led up to an open area park which was behind their home.
On the evening of Saturday 26 November 2011 at around 10.30 pm, Mr Kitts and Ms Hageman were watching television when they heard two gunshots, then some screaming and then a third gunshot. They heard a woman screaming and heard her say “get the fuck out of here”. After hearing the gunshots, Mr Kitts and Ms Hageman shut all the doors to their house. When closing the front door, Mr Kitts had a view of the pathway between number 57 and number 59. Mr Kitts said he saw a man run up their driveway, across the garden bed and down that side pathway. He said the man was about six foot tall, thin-ish build with about shoulder length hair and was wearing light board shorts and a light baggy t-shirt. He did not see whether that person was holding anything.
The following day, police found damage to the wall of their house and to the air conditioning ducting that was at the side of their home. There were perforations to the ducting and damage to the rendered wall.
Tina Sifatu lived at 61 Cedarwood Crescent, next door to 59 Cedarwood Crescent. On the evening of 26 November 2011 at approximately 10.00 pm, Ms Sifatu heard her dogs barking and then heard a loud noise that sounded like a gunshot. She then heard a woman screaming “no” and then “help”. Ms Sifatu then heard another two gunshots. Later that evening, Ms Sifatu went outside to inspect her car which was parked outside. It was a black Mitsubishi Pajero. Ms Sifatu saw a lot of bullet holes on the right side of the car.
Ronald Ferguson lived at 55 Cedarwood Crescent. At about 10.15 pm on 26 November 2011, Mr Ferguson was in bed when he heard a very loud bang and what sounded like two or three women screaming. He heard a second bang about five seconds later.
Janet Hooper lived at 36 Cedarwood Crescent, across the road from the homes at 61, 59, and 57. Ms Hooper was asleep when she woke up to the sound of a loud bang. She then heard a woman screaming and then two more very loud bangs. Some damage was caused to the wall of Ms Hooper’s garage. She said there were lots of little holes in it.
Kerrie Kirk lived at 15 Cedarwood Crescent. At about 10.00 pm on 26 November 2011, Ms Kirk was driving home. She passed a silver Commodore at 59 Cedarwood Crescent and then saw three people running up the path next to number 59 up towards the park. Ms Kirk said that one of those people was a girl in a denim skirt or shorts and a t-shirt with sandy blonde hair that was about shoulder length. She was not able to describe the appearance of the other two people. In her statement to police Ms Kirk said she saw two people running. Ms Kirk agreed in re-examination that she may have only seen two people, not three. In her statement she described the girl as Caucasian in appearance, about five foot five inches tall, with a thin build. Ms Kirk said she looked between 18 and 21 years of age.
Police, Medical and Forensic Evidence
Blair Casey was a police officer who arrived at Cedarwood Crescent. He intercepted a car that was driving down the street. Marko Marjanovic was in that vehicle. Mr Casey later interviewed Mrs Marjanovic. He confirmed that she only told him about seeing one man on their premises.
Jacquelyn Knowles was a paramedic who assessed the injury to Marko’s shoulder. She described how she could feel “palpitation”, she could feel pellets under the skin and she noticed that he was bleeding.
Mr Asmussen was a forensic scientist who analysed samples taken from Mr Graham’s car for the purpose of determining if gunshot residue was present. Mr Asmussen was not able to say definitively that particles detected in the samples were gunshot residue.
Shane Everist was a scientific officer employed by the Queensland Police in the ballistics unit. Mr Everist examined the area surrounding numbers 56, 57, 59 and 61 Cedarwood Crescent on the night of the shooting. When he arrived, two shotgun shells were located in the area in front of the home at 59 Cedarwood Crescent.
Mr Everist described how information on those shells indicated the size of the pellets that were contained in the shot shells. The pellets inside these shells would likely have been just over three millimetres in diameter. Mr Everist described how ammunition of this type is commonly called “birdshot” and was originally intended was for use in hunting birds. Different sizes of pellets are suitable for hunting different types of game. The size of the pellets found indicated they were likely number 4 birdshot, which is commonly used for hunting rabbits, ducks or perhaps turkeys.
Mr Everist explained that with birdshot of this kind, you would usually expect each shot to contain between 180 and 200 pellets.
Mr Everist examined damage done to the Pajero which was parked at 61 Cedarwood Crescent. He gave the opinion that the damage to the Pajero was caused by one shot shell that had been discharged in the direction of the Pajero. Mr Everist counted approximately 175 pellet strikes to the car. This damage was consistent with the number of pellets typically contained in a shell shot of the size found in this case. Mr Everist also found a number of lead pellets on the ground near the Pajero.
Mr Everist measured the spread of the pellet damage on the Pajero and explained how ammunition of this kind is designed so that the pellets fan out and create a cone of pellets travelling through the air when discharged. The further the distance from the gun, the wider the spread of pellets. Mr Everist estimated that the spread of damage on the car would be consistent with a shot being fired from an unmodified gun from between 15 and 20 metres.
The type of gun and whether the gun has been modified can affect the spread of pellets. Mr Everist said that if a gun had been shortened it may affect the distance-to-spread analysis. Often if shotguns are shortened it will broaden the spread of pellets. This means that the gun may have been fired from a shorter distance to create a similar spread.
Mr Everist also observed pellet damage to a palm tree in the front yard of 59 Cedarwood Crescent and to the wall of the property at number 57. There is a retaining wall between number 57 and number 59 with a courtyard behind it in the property on number 57. Pellet damage was observed to that retaining wall and to the actual wall of the home behind it. The damage was consistent with the shot being fired from the area of number 59. Mr Everist estimated that approximate 136 pellets caused the damage to the tree and the two walls.
In relation to the damage caused to the palm frond and the two walls of number 57, Mr Everist estimated that the distance between the origin of the shot and the point of impact was approximately 15 to 20 metres with an unmodified shotgun. If the shotgun had been shortened, it is possible that the distance was less than that.
Mr Everist was shown photos of the injury to Mr Marjanovic’s shoulder. He observed approximately 50 lesions, indicating approximately 50 pellets. Mr Everist noted that “if it is assumed that the individual that was depicted in that photograph was injured by the same shot pattern that was discharged, then the 50 pellets would marry up quite neatly with the total pellet count on the wall at 57”. He said that it was quite possible that the shot that was fired from the area in front of number 59, which caused damage to the tree and the walls, was also responsible for the injury to Mr Marjanovic.
Damage was also observed to the home at 36 Cedarwood Crescent on the wall of the garage and part of the house itself. Mr Everist described the spread of pellets and said that he counted approximately 185 pellet strikes to number 36. This damage indicated that it was likely that a shot had been fired from the area in front of 59 Cedarwood Place.
Mr Everist said that in his opinion the number 4 shot used in this shooting would be capable of causing death or serious injury. He said that this is dependent on the distance of the shot. Mr Everist said:
“At quite short distances, the shotgun is quite a devastating weapon and it can cause quite catastrophic injures. And when I say short distance, I mean several metres from the muzzle. Once you start to move out from that distance, obviously, the pellets start to spread further apart… So at the distances involved at this crime scene, I think the maximum distance that I measured was approximately 25 metres. In my opinion, at those sort of distances, the individual pellets would still be capable of penetrating the skin and potentially damaging something significant.”
Mr Everist agreed that shots fired from these distance do have the potential to kill.
In cross examination, Mr Everist said he had been involved in cases where people have been killed with birdshot. He said he had not been involved in a case where someone was shot from around 20 metres with birdshot and died.
Mr Everist said that the forensic evidence indicated that it was likely the gunman moved between the shots. Two cartridge cases were found and three wads were found. This indicates that at least two, perhaps three shots were fired.
In cross examination, Mr Everist agreed that the potentiality of death would depend on where the person was shot in particular parts of the body, the angle of the shot and the distance of the shot.
Mr Everist gave evidence that the nominated effective range for killing big ducks or turkeys with number 4 shot is commonly quoted as 30 or 40 yards or perhaps even 50 yards.
Ian Bruce is a sergeant in the ballistics unit at the Queensland Police. On 2 December 2011, Mr Bruce received two fired shotgun shells from Mr Everist. Mr Bruce examined the two shells and determined that the same shotgun fired both shells. Further, by analysing the cycling marks and the breach face marks on the shell casings, Mr Bruce said it was likely that the type of shotgun that was used to discharge the two shells was either a pump action or a semiautomatic-action shotgun.
In cross examination, Mr Bruce agreed he could not say this with certainty, but that the markings on shells were consistent with them having been fired in a pump action or semiautomatic shotgun. Mr Bruce said that in all of the ballistics literature that he had observed he had never read of a 12 gauge pump action shotgun not emitting a plume of smoke out of the ejector port.
Robyn Williams was employed as a scientific officer with the Queensland Police. In February 2012, Ms Williams examined Mr Graham’s car and took samples. The testing method used detects both human and animal blood. Samples taken from three areas inside the car all gave a positive result to the tests.
The appellant formally admitted that his DNA was found in three of the samples taken by Ms Williams.
Conclusion
An analysis of the evidence led at the trial show that there were some inconsistencies in the evidence, all of which were thoroughly canvassed by experienced defence counsel. It was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence that the appellant’s intention at the time he fired the shotgun was to kill Mr Marjanovic. The directions given by the trial judge were adequate to ensure that the jury knew that in order to convict the appellant of attempted murder they had to be satisfied beyond reasonable doubt that his intention was to kill Mr Marjanovic and no other intention. As the judge told the jury, “Nothing less than an intent to kill suffices.” No further direction was sought and none was necessary in the circumstances of this case. The jury were left in no doubt by the trial judge through his use of simple and clear directions what their task was before they could convict the appellant of attempted murder.
The appeal should be dismissed.
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