R v Rapovski (Ruling No 5)
[2015] VSC 358
•1 May 2015
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0114
| THE QUEEN |
| v |
| DENIS RAPOVSKI |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 15 April to 11 May 2015 |
DATE OF RULING: | 1 May 2015 |
DATE OF REASONS: | 24 July 2015 |
CASE MAY BE CITED AS: | R v Rapovski (Ruling No 5) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 358 |
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CRIMINAL LAW – Attempted murder – Negative identification evidence adduced from prosecution witness by accused – Possibility of mistake by witness not raised by prosecution in re-examination – Whether prosecution could suggest in closing address that witness’s negative identification must have been mistaken – No prejudice to the accused
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson | Office of Public Prosecutions |
| For the Accused | Mr C Dane QC and Ms L Ristivojevic | Tricarico & Marcevski Lawyers |
HIS HONOUR:
Introduction
The accused is charged with attempted murder and, in the alternative, intentionally causing serious injury and recklessly causing serious injury regarding a shooting that occurred on 1 February 2014. During the trial, the defence submitted that the prosecution could not say in its closing address that a witness called by the prosecution had been mistaken when he gave a negative identification of the accused, as that proposition was not put to the witness during re-examination.
I ruled that the prosecution was permitted to assert that the witness must have been mistaken at the time of making the negative identification. I now provide my reasons.
Background
The factual background is fully described in my earlier Prasad ruling.[1] Suffice to say here that on 1 February 2014, Philip Sazdanovski and Evan Tepelis engaged in a series of aggressive phone calls and text messages. Later that night, the accused drove Sazdanovski to Dalton Road, Thomastown to meet, or rather, confront Tepelis, Also in the car, in the front passenger seat, was the accused’s friend, Kristy-Anne Nicolaidis. Tepelis attended the meeting place with his two friends Jeton Krasniqi and Dejan Kupresak.
[1]R v Rapovski (Ruling No 3) [2015] VSC 356.
On the prosecution case, as the car pulled up at the meeting place, a bottle, thrown by Krasniqi, struck Nicolaidis in the face, resulting in both the accused and Sazdanovski getting out of the car and the accused shooting Tepelis in the neck, wrongly believing he was the bottle thrower. The accused claims that Sazdanovski was the shooter. The key matter to be determined by the jury was whether the prosecution had proven beyond reasonable doubt that the accused, rather than Sazdanovski, was the shooter. There was no dispute that the accused was the driver of the car and Sazdanovski a passenger.
The prosecution case relied upon the eye witnesses, one of whom was Krasniqi. Krasniqi did not know either Sazdanovski or the accused. At trial Krasniqi said that the passenger exited the vehicle first on the passenger side of the car, holding a baseball bat.[2] He said the passenger ‘got out one step’[3] from the car and was about half a metre from it.[4] Krasniqi said the driver got out and went around the rear of the car, to beside the passenger, near what he called the headlights.[5] Krasniqi said he did not see who fired the gunshot as he was watching the passenger with the baseball bat at the time,[6] which would suggest that the accused (the driver) fired the shot.
[2]Trial transcript 319.
[3]Trial transcript 321.24.-.25.
[4]Trial transcript 321.22.
[5]Trial transcript 321.26 and 322.19-.20.
[6]Trial transcript 323.1-.4
During cross-examination of Krasniqi, the defence elicited that on 20 February 2014, Krasniqi pointed to a photograph of the accused (photo no. 1) on a police photoboard and said ‘[p]retty sure it is him, but this guy came out. He is not the shooter’[7] (‘the negative identification’). The prosecutor, Mr Gibson, did not adduce any evidence regarding the negative identification in examination-in-chief.
[7]Trial transcript 331.27 and Depositions 250-252.
Mr Gibson re-examined Krasniqi as follows:
After you identified photo no.1 were you asked, or did you indicate to the police officer where in the car that person had come from?---Can't remember.
Were you asked what role that person played?---Can't remember.[8]
[8]Trial transcript 333.14-.17.
The issue
Mr Dane QC submitted that the prosecutor was precluded from saying to the jury in his closing address that Krasniqi must have been mistaken when he identified the accused as ‘not the shooter’. He said there was no foundation for this assertion, as the prosecutor did not put the possibility of mistake to the witness during re-examination.[9] Mr Dane QC did not cite any authority in support of his contention.
[9]Trial transcript 541.29 and 542.4-.8.
Mr Gibson submitted that asking Krasniqi in re-examination whether he was mistaken would necessarily have entailed asking leading questions, which were impermissible.[10] Mr Gibson referred me to the second part of Krasniqi’s statement dated 20 February 2014 (‘the negative identification statement’):
[10]Trial transcript 544.7-.11.
She[11] said; “What role did No 1 [the accused] play?”
[11]The officer who showed Krasniqi the photoboard.
[Krasniqi] said; “Baseball bat, came out from the back”
She said; “Back of what?”
[Krasniqi] said; “Back of the car, left hand side”[12]
[12]Depositions 252.
This immediately followed the negative identification, but did not come out in Krasniqi’s evidence. Mr Gibson said that if this material had been before the jury, his submission that Krasniqi had made a mistake would have been more forceful. Notwithstanding this, Mr Gibson maintained that he could invite the jury to conclude that, given Krasniqi’s other evidence, he must have reversed the roles played by Sazdanovski and the accused and been mistaken in his negative identification of the accused.
In reply, Mr Dane QC noted that the prosecutor had failed to raise the negative identification with the witness during examination-in-chief. He then conceded that the prosecutor was able to say to the jury that Krasniqi may (as opposed to must) have made a mistake.[13]
[13]Trial transcript 546.1-.28.
Analysis
As to the defence suggestion that there is no foundation for the prosecutor suggesting that Krasniqi must have been mistaken when he made his negative identification , Krasniqi’s testimony (summarised above) is clearly inconsistent with his comment that the accused, the driver, was not the shooter. As he has contradicted himself, it must be clear to the jury that Krasniqi has made a mistake, either in his testimony, or in making the negative identification. There is therefore an evidentiary basis, based on Krasniqi’s evidence alone, for the prosecutor to assert that Krasniqi must have got it wrong when he identified the accused as ‘not the shooter’. Conversely the defence can assert that Krasniqi was mistaken in his testimony.
This is merely a case where the prosecutor is inviting the jury to draw an inference from the evidence and to reject some of Krasniqi’s evidence. According to Wheeler J in R v Gonclaves[14] (cited with approval in R v Macfie (No 2)[15]) ‘there is no rule prohibiting a party from submitting that the jury might disbelieve portions of the evidence which were not consistent with the guilt of the accused person.’[16]
[14]99 A Crim R 193, 216.
[15](2004) 11 VR 215; [2004] VSCA 209.
[16]Ibid [61].
On the question of unfairness to the defence, it must have been apparent to the defence from the outset that the prosecution would take this line. Not only is the negative identification inconsistent with the prosecution case, it is also inconsistent with Krasniqi’s accounts as reflected in Krasniqi’s testimony and the second part of the negative identification statement (which was not ultimately before the jury). In these circumstances, the defence cannot claim to have been taken by surprise.
Also the manner in which the evidence was ultimately adduced was advantageous to the defence. What came out in cross-examination was only a selective part of the negative identification statement, namely, that part which supported the defence case.
In these circumstances, there is no unfairness to the accused in allowing Mr Gibson to submit to the jury that Krasniqi must (as opposed to may) have been mistaken.
Accordingly I permitted the prosecutor, to submit to the jury in his closing address that Krasniqi must have been mistaken when on 20 February 2014 he identified the accused on a photoboard as ‘not the shooter’.
Further submissions by the defence
Once I made my ruling (and after Mr Gibson had already said in his closing that Krasniqi must have been mistaken[17]) the defence sought to make further submissions on the issue. Mr Dane QC took me to that part of the committal transcript where the prosecution had tendered the negative identification statement and photoboard. Mr Dane QC submitted that this suggested that the defence was not on notice that the prosecution’s position was that Krasniqi was mistaken. Mr Dane QC referred to the rule in Browne v Dunn and said it was insufficient to assert that the defence should have inferred that the prosecution would assert that Krasniqi must have been mistaken.[18] However, Mr Dane QC did not persist with this submission – he later said that the defence was not arguing that it was surprised by the prosecutor’s position that Krasniqi must have been mistaken.[19]
[17]Trial transcript 589.11-.12.
[18]Trial transcript 594.
[19]Trial transcript 595.16.
Mr Dane QC made further submissions, the gist of which was that Krasniqi was more likely to have made a mistake in his testimony, than at the time of identifying the accused as ‘not the shooter’.[20]
[20]Trial transcript 596-597.
He then raised concern that there was a risk that the jury would engage in erroneous reasoning, pursuant to which they might not only accept the prosecution’s assertion that Krasniqi was mistaken when he said the accused was ‘not the shooter’, but would go on to use Krasniqi’s negative identification as positive evidence that the accused was the shooter.[21]
[21]Trial transcript 597.
These submissions did not cause me to alter my ruling. Notwithstanding that the prosecution tendered the photoboard and Krasniqi’s negative identification statement at the committal, for the reasons outlined above, the defence was on notice that the prosecution would ultimately submit that Krasniqi must have been mistaken when he identified the accused as ‘not the shooter’.
Mr Dane QC is correct to say that, contrary to the prosecution’s suggestion, Krasniqi may have been mistaken in his testimony that the driver was the shooter. However, that does not bear upon the issues to be determined here. Rather this is an argument that the defence can advance before the jury if it wishes.
Finally as to the risk that the jury will misuse the identification evidence as positive evidence that the accused was the shooter, I do not consider that the negative identification can be used to say that the accused was the shooter. I am therefore prepared to direct the jury that if they do not accept Krasniqi’s negative identification, it does not mean that the opposite is true, and that this evidence can never be used to say that the accused was the shooter.
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