R v Zoef

Case [2005] NSWCCA 268

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Zoef [2005]  NSWCCA 268

FILE NUMBER(S):
2004/2730

HEARING DATE(S):               23 March 2005

JUDGMENT DATE: 03/08/2005

PARTIES:
Regina
Tony Zoef

JUDGMENT OF:       McColl JA Barr J Johnson J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          02/11/0321

LOWER COURT JUDICIAL OFFICER:     His Honour Judge Berman SC

COUNSEL:
Mr P Byrne SC/Ms G A Bashir (Appellant)
Ms E Wilkins (Crown)

SOLICITORS:
Murphy's Lawyers Inc (Appellant)
Mr S Kavanagh (Crown)

CATCHWORDS:
CRIMINAL LAW  - appellant shot victim who broke into appellant's premises - EVIDENCE - whether trial judge erred in admitting evidence of silencer not proved to have been used in the commission of the offence  - SUMMING-UP - whether trial judge's directions concerning self-defence were capable of causing a miscarriage of justice - SELF-DEFENCE - whether jury's verdict was unreasonable - SENTENCING - whether sentence manifestly unreasonable.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Appeal Rules
Evidence Act 1995
Firearms Act 1996
Weapons Prohibition Act 1998

DECISION:
(1) Appeal against conviction dismissed (2) Leave to appeal against sentence granted, but appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2730

McCOLL JA
BARR J
JOHNSON J

Wednesday, 3 August 2005

Regina v Tony ZOEF

Judgment

  1. McCOLL JA: Tony Zoef appeals against his conviction on 16 October 2003 after a trial in the Sydney District Court before his Honour Judge Berman SC and a jury on one count of maliciously inflict grievous bodily harm with intent to do grievous bodily harm: s 33 of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for twenty–five years.

  2. The appellant shot a Mr Carberry (the “victim”) using a sawn off rifle. The victim sustained a gunshot wound which damaged his spinal cord, rendering him a paraplegic. The victim had entered the appellant’s house at approximately 2 am on 25 November 2001. At the trial the appellant admitted shooting the victim, but claimed he had done so in self-defence: s 418 Crimes Act 1900. On his appeal against conviction he challenges the admission of evidence of a silencer which was found at his home after the shooting, the trial judge’s directions concerning self-defence and also asserts that the jury’s verdict was unreasonable: s 6 Criminal Appeal Act 1912.

  3. The appellant was sentenced on 19 December 2003 in respect of his conviction and in respect of two related offences to which he had pleaded guilty on a separate indictment.  These offences were the unauthorised possession of a shortened firearm (s 62(1)(b) of the Firearms Act 1996 – maximum penalty imprisonment for ten years) and the unauthorised possession of a prohibited weapon, the silencer to which I have already referred (s 7(1) of the Weapons Prohibition Act 1998 – maximum penalty imprisonment for fourteen years).

  4. The appellant also seeks leave to appeal against his sentence in respect of the offence under s 33 Crimes Act 1900 – the ground of appeal with respect to…

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Details
AGLC
R v Zoef [2005] NSWCCA 268
Case
[2005] NSWCCA 268
Decision Date

CaseChat Overview and Summary

In the matter of R v Zoef, the appellant was convicted of various offences including maliciously inflicting grievous bodily harm with intent, possession of a shortened firearm, and possession of a silencer. The appeal centred around the trial judge's decision to allow certain evidence and instructions to the jury, as well as the reasonableness of the jury's verdict and the sentence imposed. The appellant argued that the trial judge erred in admitting evidence of the silencer, which was not proved to have been used in the commission of the offence, and in the instructions given to the jury concerning self-defence.

The court examined whether the trial judge erred in admitting the evidence of the silencer, which was relevant to the appellant's intent and planning to shoot the victim. The court held that the evidence was relevant and probative, and did not unfairly prejudice the appellant. The court also assessed whether the trial judge's directions concerning self-defence were capable of causing a miscarriage of justice. The court found that the jury's verdict was not unreasonable, and the trial judge's directions were appropriate.

The court concluded that the trial judge's decision to admit the evidence of the silencer and to give the jury directions concerning self-defence was correct. The court found that the jury's verdict was not unreasonable, and the sentence imposed was not manifestly unreasonable. The appeal was dismissed, and the convictions and sentences were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant was sentenced to concurrent terms of imprisonment in respect of the three offences. In respect of the offence of maliciously inflicting grievous bodily harm with intent, he was sentenced to imprisonment for ten years commencing on 16 September 2003 with a non-parole period of seven and a half years, expiring on 15 March 2011. For the offence of possession of the shortened firearm he was sentenced to imprisonment for three years commencing on 16 September 2003 and for the offence of possession of the silencer he was sentenced to imprisonment for one year commencing on 16 September 2003.The evidence The following account of the evidence is taken from the Crown’s submissions which the appellant did not controvert. The victim was the former de facto partner of the appellant’s girlfriend, Ms Rachael Kolster. They had two young children. They had been together for about seven years until Ms Kolster left the victim in October 2001 taking the two children with her. The appellant met Ms Kolster in October 2001, shortly before she left the victim. The appellant did not give evidence at the trial but in his record of interview with police, the transcript of which became Ex “X”, he said that he had been told by Ms Kolster that the victim had threatened to kill her, the appellant and the children on more than one occasion. He was also aware that the victim had a history of violence. The appellant said in his interview with police that he had never spoken to the victim about the break up of the victim’s relationship and that he had tried to avoid him. There had been one previous incident two to three weeks before the shooting where Ms Kolster had left the house where she was living with the appellant after the victim had visited. The victim returned looking for Ms Kolster and made some unspecified threats about what he would do if she was in the house. The situation resolved itself without violence when the appellant and the victim went in separate cars to look for her. The victim left saying “I’ll see you real soon” but made no direct threat of violence at that time. The appellant was aware that the victim had thrown a brick through the back window of the appellant’s house the week before the shooting. The victim admitted in his evidence at trial that he had done this. On the night of the shooting, the victim went to the appellant’s house at midnight. Earlier that night, the appellant had parked his car a couple of streets away from his house “to calm the situation down” because he thought the victim may drive past the house and see it. The purpose of the victim’s visit on the night of the shooting was, in effect, to establish whether or not the appellant and Ms Kolster were in a sexual relationship. He did not believe Ms Kolster’s denials of any such relationship. The victim waited for a couple of hours outside the house but did not see anyone. He then drove around the block looking for the appellant’s car, which he located two or three streets away. He returned to the house and telephoned Ms Kolster on her mobile phone while he was at the front of the appellant’s house. He got no answer. He then went to the back of the house, pushed a board on the broken window and called for Ms Kolster. She came to the window. There was a brief conversation, after which Ms Kolster fainted. The victim said he then called out to the appellant saying that Rachael had fainted, that he knew the appellant was in the house and asking the appellant to turn the light on.

Decision

Reasons for decision

The Crown also submitted that the appellant had not, in any event, demonstrated that the danger of unfair prejudice outweighed the probative value of the evidence of the silencer: R v Polkinghorne (1999) 108 A Crim R 189 at 197 – 8 per Levine J. Conclusion: grounds one and two In my view the trial judge’s decision to allow the case to go to the jury on the issue of planning and to admit the evidence of the silencer was correct. It should be pointed out that counsel for the appellant did not ask the trial judge to withdraw the issue of planning from the jury, nor, as I have observed, did he complain about any aspect of the Crown’s address or the summing-up when dealing with the matter. Accordingly, although the Crown did not advert to this, rule 4 applies to ground two. Furthermore, ground two deals with the issue of a plan between the appellant and Ms Kolster. It does not complain of the case the Crown advanced that possession of the silencer was evidence of planning by the appellant alone. Once Mr Byrne acknowledged the alternative basis upon which the Crown case had been put, the debate about the planning issue was subsumed by the debate about the admissibility of the silencer. I shall deal with these two grounds of appeal, therefore, on this basis. The evidence of possession of the silencer, in my view, was relevant to the jury’s determination of the question whether or not the appellant had acted in self-defence. The appellant’s possession of the silencer tended to support the proposition that he had planned to shoot the victim at some stage and that, when he did so, he intended that the sound the rifle made when fired could not be heard. I agree with the trial judge that the jury could use the presence of the silencer as tending to suggest that there was a plan to shoot the victim other than in self-defence. The jury could use the possession of the silencer, as it could the possession of the rifle, as evidence that the appellant had determined to shoot the victim prior to the night of the offence. I would not allow the appellant to complain about the trial judge not excluding the evidence pursuant to s 137. The appellant was represented by competent counsel, who clearly did not believe by the third day of the trial that he could advance any argument against the admissibility of the silencer other than relevance. Nor, in any event, am I of the view that admission of the evidence concerning the silencer would be “an irregularity … which is such a departure from the essential requirements of the law that it goes to the root of the proceedings” so as to attract a grant of leave for the purposes of rule 4: see Tripodina & Morabito v R (1998) 35 A Crim R 183 at 195; see also R v Abusafiah (1991) 24 NSWLR 531 at 536 per Hunt J (with whom Gleeson CJ agreed and with whose reasons Mahoney JA generally agreed). I do not accept that, even if it was open to the appellant to complain about the trial judge’s failure to consider s 137 that would have led to the evidence being excluded. In order to attract an exercise of the s 137 discretion it would have been necessary for the appellant to persuade the trial judge that admission of the evidence concerning the silencer would have led to “prejudice which [was] unfair because there [was] a real risk that the evidence [would] be misused by the jury in some unfair way”: R v BD (1997) 94 A Crim R 131 at 139. As McHugh J said in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [91]:“[E]vidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted.”

Ratio Decidendi

Legal Principle Established

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