Rapovski v The Queen
[2017] VSCA 175
•30 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0122
| DENIS RAPOVSKI | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | ASHLEY and PRIEST JJA, and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 May 2017 |
| DATE OF JUDGMENT: | 30 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 175 |
| RULING APPEALED FROM: | R v Rapovski (Unreported, Supreme Court of Victoria, Justice Beale, 11 May 2015) |
---
CRIMINAL LAW — Conviction — Attempted murder — Application for extension of time — Application for leave to appeal — Whether verdict unreasonable or cannot be supported having regard to the evidence — Victim shot — Defence hypothesis that principal prosecution witness fired the gun — ‘No case’ submission rejected — Prasad direction given — Extension of time granted — Leave to appeal granted — Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Stephen Andrianakis & Associates |
| For the Respondent | Ms K E Judd QC | Mr J Cain, Solicitor for Public Prosecutions |
ASHLEY JA:
I have had the considerable advantage of reading in draft the reasons for judgment of Priest JA and Croucher AJA. I agree with their Honours’ ultimate conclusion that the applicant’s conviction was not unsafe and unsatisfactory. I would grant leave to extend time, grant leave to appeal, but dismiss the appeal.
The question to be decided, on independent review of the evidence, but recognising that an appellate court is removed from the immediacy of a trial, with all its advantages in the assessment of witnesses by the jury, is whether the jury must, not might, have had a reasonable doubt as to the prisoner’s guilt.
In the present case, as the comprehensive reasons of both Priest JA and Croucher AJA demonstrate in their different ways, the jury might have had a reasonable doubt about the applicant’s guilt. A plausible argument was able to be advanced that Sazdanovski, not the applicant, had fired the weapon and thus injured the victim. But in my view, for all that the evidence of the principal witnesses diverged in detail, or was affected in one case by alleged, but transient, memory loss, the evidence in its totality left it well open to the jury to find the applicant guilty. That is, it could not be said that the jury must have acquitted the applicant.
As the reasons of Priest JA and Croucher AJA disclose, there was both direct evidence (not only the evidence of Sazdanovski) that the applicant had fired the weapon, and also a body of circumstantial evidence drawn from the accounts of other persons who were at the scene at the time — such persons having no apparent axe to grind in identifying who it was who had fired the shot — which stood against the applicant. To conclude that the prosecution must, not might, have failed to exclude a reasonable inference consistent with the applicant’s innocence is not a conclusion which I could reach. In any event, the prosecution case did not rise or fall on inferential reasoning.
PRIEST JA:
Introduction
During the evening of Saturday, 1 February 2014, Evan Tepelis (‘Tepelis’) was shot in the left side of his neck. The bullet entered his spinal cord. He is now paraplegic, the medical evidence being that it is ‘overwhelmingly likely’ that he will not regain movement and sensation in the lower limbs.
The applicant was charged with Tepelis’ attempted murder.[1] His defence at trial was that another individual, Philip Sazdanovski (‘Sazdanovski’), was the shooter. On 11 May 2015, however, a jury in the Supreme Court found the applicant guilty.[2] The trial judge sentenced him to be imprisoned for 12 years, and fixed a non-parole period of nine years.[3]
[1]Common law and s 321M of the Crimes Act 1958.
[2]Charges 2 and 3 on the indictment respectively were intentionally causing serious injury and recklessly causing serious injury. Since they were alternatives, it was unnecessary to take a verdict on either of those charges.
[3]See R v Rapovski [2015] VSC 359. By virtue of s 321P of the Crimes Act 1958, the maximum sentence for attempted murder is 25 years’ imprisonment.
There are now two applications before this Court, both of which are opposed by the respondent. First, the applicant seeks an extension of time within which to seek leave to appeal against conviction; and, secondly, if an extension of time is granted, he seeks leave to appeal against conviction, claiming that his conviction is unsafe and unsatisfactory.
The single ground of appeal is expressed as follows:
The verdict is unreasonable or cannot be supported having regard to the evidence.
Particulars: The prosecution could not exclude a reasonable hypothesis consistent with innocence; that Philip Sazdanovski was the shooter.
For the reasons that follow, I would grant the extension of time but would refuse leave to appeal against conviction.
Overview
So that the issues raised in this Court might be better understood, it is expedient at this point to provide a brief overview of the case at trial.
On the night of 1 February 2014, the applicant drove his former friend, Sazdanovski, to Dalton Road, Thomastown, where Sazdanovski had arranged to meet Tepelis so the two could fight. Sazdanovski apparently had sought to challenge Tepelis over Tepelis’ treatment of a young woman, Natasha Talevski (‘Talevski’); and, as a result of a number of text messages and telephone calls during the course of that day — initiated by Sazdanovski — a considerable degree of antipathy had arisen between them.
Talevski, it seems, had once been in a relationship with Tepelis, but their relationship had soured. She later complained to Sazdanovski that Tepelis had ‘hassled’ and threatened her, and she gave Tepelis’ mobile phone number to Sazdanovski. Thereafter, Sazdanovski promptly contacted Tepelis. Over the following couple of hours, the two exchanged texts and telephone calls which became increasingly heated, culminating in them arranging to meet that night in Thomastown, close to Tepelis’ residence.
At that time, Sazdanovski was residing at the applicant’s place. Sazdanovski did not have a driver’s licence, and he asked the applicant to drive him to the meeting. The applicant’s girlfriend, Kristie-Anne Nicolaidis (‘Nicolaidis’), accompanied them. She sat in the front passenger seat of the applicant’s vehicle, and Sazdanovski sat in the back.
The applicant pulled up on the corner of Dalton Road and Rochester Drive, Thomastown, where Tepelis and two of his friends, Dejan Kupresak (‘Kupresak’) and Jeton Krasniqi (‘Krasniqi’), were waiting. Tepelis had a machete and the other two were armed with golf clubs.
Krasniqi picked up a glass bottle and threw it at the applicant’s car.[4] It struck the partly-open front passenger window. The bottle also struck Nicolaidis, cutting her face and dislodging a tooth. Nicolaidis was left bloodied and was screaming.
[4]It is of no great moment, but there was some controversy at trial as to whether one or two bottles were thrown.
The prosecution case was that the applicant, armed with a hand gun, and Sazdanovski, holding a wooden mallet (or mallet handle), both jumped out of the car. The applicant moved around the rear of the car. He took aim and fired one shot at Tepelis who was standing on the footpath or nature strip, not more than ten metres away. The shot hit Tepelis in the neck and he fell to the ground. Sazdanovski and the applicant then jumped back into the car and drove off. Later that evening, the applicant took Nicolaidis — who had suffered a broken jaw — to hospital for treatment for her injuries.
As I have said, the applicant’s defence at trial was that Sazdanovski — who was the principal witness for the prosecution — was the real shooter, not him. Self-evidently, the jury rejected the notion that Sazdanovski fired the shot. Further, the jury’s verdict necessarily means that they were satisfied that, when he shot Tepelis, the applicant did so with the intention to kill him.[5]
[5]Knight v The Queen (1992) 175 CLR 495; Cutter v The Queen (1997) 71 ALJR 638.
The application for extension of time
By an application dated 27 June 2016, the applicant seeks an extension of time to file a notice of application for leave to appeal against conviction.[6] That application was left for determination by the Court (rather than by the Registrar).[7] As I have said, I would grant the extension of time.
[6]See Criminal Procedure Act 2009, s 313. See also Supreme Court (Criminal Procedure) Rules 2008, r 2.22.
[7]The parties were advised by the Registry in correspondence dated 21 September 2016 that ‘this matter will proceed to hearing before a bench of 3 judges who will determine the applicant’s application for extension of time, the application for leave to appeal, and if leave is granted, the appeal itself’.
The application is supported by an affidavit sworn on 27 June 2016 by the applicant’s current solicitor, he having received instructions to act on or about 15 March 2016. He deposed to the fact that he received the applicant’s file from his former solicitors on or about 28 March 2016, but did not receive the entirety of the relevant material. The applicant’s junior trial counsel held a complete brief, and after discussions with her, the applicant’s current solicitor was able to deliver a complete brief to other counsel to advise on the merits of an appeal on or about 9 May 2016. Counsel advised that an appeal enjoyed some prospects of success, and, upon receiving instructions to do so, prepared a written case, which was delivered to the solicitor on 20 June 2016.
Based on instructions, the applicant’s current solicitor also deposed that:
· on the day the jury returned its verdict the applicant instructed his then acting legal representatives that he wished to appeal against his conviction;
· after the sentencing hearing, the applicant confirmed those instructions;
· the applicant was under the impression that his former legal representatives would then act on a pro bono basis;
· it was only after he contacted the representatives to check on the status of the appeal that the applicant was told that he needed to deposit a specified sum into trust so that counsel could be briefed to prepare the written case;
· the applicant then tried to obtain the required fees from family, relatives and friends without success; and
· once the current solicitor was engaged, the terms of the engagement required payment of counsel’s fees (to be paid at a reduced rate).
In the amended written case a list of factors that are ‘germane to the exercise of that discretion’ to extend time are set out, including that the applicant had always maintained his innocence; that the appeal has a very good prospect of success; and that the delay ‘is not attributable in any way to the action of the applicant’.
Citing Derwish,[8] the respondent submitted that the interests of justice do not warrant the grant of an extension of time.
[8]Derwish v The Queen [2016] VSCA 72, [55]–[57] (Weinberg AP, Redlich and Kyrou JJA).
The respondent drew attention to the fact that the applicant was convicted on 11 May 2015 and sentenced on 24 July 2015, but the application for extension of time was not made until almost a year after the sentence, on 27 June 2016. It was argued that the applicant’s suggestion that he ‘was under the impression that his former legal representative’s attendance would be on a pro bono basis’ does not correlate completely with his attempts to find funding. Further, it was submitted that it is not in the interests of justice to put the victim in a position where he cannot get on with his life because of continuing proceedings.
In my view, the affidavit in support of the application is unsatisfactory in a number of respects. By way of example, the deponent attested that he was instructed that the applicant told his former legal representatives that he wished to appeal, yet there is no reference to any supporting material — whether in the form of a file note on the former solicitor’s file or in the form of any oral confirmation from the former solicitor or counsel — verifying the applicant’s instructions. Additionally, the affidavit is silent as to why the applicant entertained the opinion that his former solicitor would act pro bono, or when it was that he was disabused of that view. The affidavit is also silent — except in a very general sense — on the efforts supposedly made to secure funding for an appeal. Certainly the affidavit says nothing of any approach to Victoria Legal Aid.
Notwithstanding the unsatisfactory nature of the supporting material, however, I am of the view that it is proper to grant the extension of time. The Court is invested with a wide discretion whether to grant an extension of time, the exercise of that discretion being informed by what the interests of justice require in the particular circumstances of the case.[9] The length of the delay (and the reasons for it),[10] and the prospects of success should the extension be granted,[11] are relevant but not necessarily decisive.
[9]Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).
[10]Ibid 614 [31].
[11]Ibid 614 [33].
In the present case the delay between sentence and the filing of the application is less than a year, in circumstances where it has not been suggested that there is any particular prejudice — apart from the mere fact of delay — flowing to the respondent as a result.[12] I do not ignore the respondent’s submission that it is not in the interests of justice to put the victim in a position where he cannot ‘get on with his life’ because of continuing proceedings. But I fail to see that the victim will be impeded in getting on with his life if an extension of time is granted and the putative appeal dealt with on its merits in a timely manner.[13]
[12]Ibid 613 [29].
[13]Ibid 614 [32].
The trial
Resolution of the applicant’s ground of appeal requires a moderately detailed consideration of the evidence.
As I have mentioned, Tepelis was shot on the night of Saturday, 1 February 2014, after the applicant drove Sazdanovski to Dalton Road, Thomastown. In essence, the prosecution case was that Sazdanovski ‘recruited’ the applicant, and the two of them went together to Thomastown so that Sazdanovski could confront Tepelis. In the course of that confrontation, the applicant shot Tepelis. His motive for doing so may have been that he believed that it was Tepelis who threw the bottle which injured Nicolaidis. Importantly, however, the prosecution eschewed reliance upon any form of complicity between the applicant and Sazdanovski. Thus, the trial was conducted on an ‘all or nothing’ basis. If the prosecution failed to disprove the hypothesis that Sazdanovski pulled the trigger, it was accepted that the applicant’s acquittal must follow. Any analysis of the evidence given at trial must therefore be conducted against the backdrop of the pivotal defence contention that it was Sazdanovski who had fired the shot that wounded Tepelis, not the applicant.
As will become clear, the prosecution case relied on a combination of direct and circumstantial evidence from Sazdanovski, Kupresak and Krasniqi — all of whom had received undertakings from the Director of Public Prosecutions[14] — to establish that fact.
[14]The undertakings, each dated 1 April 2015, were given pursuant to s 22(1)(cb) and s 22(1A) of the Public Prosecutions Act 1994, and were to the effect that any answer given, or statement or disclosure made, by Sazdanovski, Kupresak or Krasniqi in the applicant’s trial would not be used in evidence against them in any criminal proceeding, other than a proceeding in respect of the falsity of evidence given by them.
Turning to the critical evidence bearing on the central issue in the case, the evidence of the crucial witnesses may conveniently be considered in three main groups: first, Televski, who provides the background to the antagonism that developed between Sazdanovski and Tepelis; secondly, Tepelis and his associates, Kupresak and Krasniqi, who described what happened at the scene of the shooting; and, thirdly, the applicant’s companions, Nicolaidis and, more importantly, Sazdanovski, who also gave evidence as to the events surrounding the shooting.
Tepelis’ former female friend
Natasha Televski was an unemployed 21 year old. Tepelis, she said, was her ‘ex-partner’. They had an ‘unhappy’ break up in October or November 2013, and Tepelis ‘tried to have a revenge [sic] on [her] for some reason’. About ten days before ‘everything happened’ Tepelis chased her with a crowbar and tried to hit her and her friend. At about midday on Saturday, 1 February 2014, Tepelis telephoned her and said he wanted to get back together, but she told him ‘I don’t want to know you’. He then messaged her at about 8.00 pm calling her a ‘slut’ and saying that he was going to shoot her. Televski was scared and called a family friend, Sazdanovski, asking for help. She wanted Sazdanovski to tell Tepelis not to contact her. Televski thus gave Tepelis’ telephone number to Sazdanovski, who said he would ‘tell him where to go’.
Tepelis and his associates
Evan Tepelis had been given an undertaking with respect to his evidence by the Director of Public Prosecutions.[15] He gave evidence that he had spent time with Televski for ‘a few months’ in 2013, but she was ‘never [his] girlfriend’. Tepelis denied that he had chased Televski with a crowbar or that he had sent texts of ‘an unpleasant nature’ to her on 1 February 2014. He said that on 1 February 2014 he had a few missed calls from an unfamiliar number, and that he then got a text from the number saying, ‘You little cunt, can you call me’. Having received that message he called back. Tepelis said that he then started getting ‘abusive stuff over the phone’. He did not know the voice of the male he spoke to, but the male said that Tepelis had been ‘getting smart to girls and all this stuff’ and he mentioned Televski’s name. Tepelis also got telephone calls that made him ‘fired up’ and he ‘was pretty angry in the text too’. He also sent text messages to Televski calling her ‘You dog’ and asking her why she was starting trouble. During one telephone call with the male, Tepelis was told if he did not come back to Thomastown the male would do a ‘run through’ of his house (a euphemism for an aggravated burglary). Tepelis then agreed to meet the male at the KFC in Dalton Road, Thomastown.
[15]The undertaking was similar to that given to Sazdanovski, Kupresak and Krasniqi. See footnote 14 above.
Tepelis armed himself with a machete, and he, Krasniqi and Kupresak drove to a short distance from the KFC. They parked in a side street and walked another short distance to Dalton Road. Tepelis had the machete, and the other two had golf clubs. Tepelis said that he got an abusive telephone call. He said he was in Dalton Road and was told, ‘wait there cunt’. Tepelis then saw a silver Holden drive out of the KFC, do a U turn and then come towards him and his associates. When asked in evidence-in-chief what next happened, he said:
I remember the car coming past and then went [sic] in the side street and then I was walking towards … like a fence and see one person coming around with something in their hand and then the next person comes around and then the other guys were like ‘shoot the cunt, shoot the cunt’. Lines the gun up and shot me. I remember seeing the smoke come out the barrel, yeah.
In other evidence, Tepelis said he saw two people get out of the car. One man had ‘a small axe or something’. The other man shot him from a distance of probably ten metres. He was not able to describe the person holding the gun who shot him.[16]
[16]In a statement read to the jury, Dr Thomas Rechnitzer, of the Royal Melbourne Hospital, said that Tepelis arrived at the hospital at 11.28 pm on 1 February 2014. He had a gunshot entry wound to the left side of his neck. In surgery, the bullet was found in the right side of his spinal cord and removed. Further, Dr Richard Clements, from the Austin Health Victorian Spinal Cord Service said that: ‘The overwhelmingly likely outcome however is that [Tepelis] will not regain movement and sensation in the lower limbs to a degree that will allow him to stand and walk’.
Under cross-examination, Tepelis agreed that he made two statements to police, the first on 15 February 2014, and the second on 28 March 2014. Tepelis agreed that in the first statement he said, ‘the guy that shot me, … I think he may have gotten out of the back of the car on the side closest to where I was standing’. In his second statement, which he made because he wanted to make changes to his first statement, Tepelis stated that he was ‘a hundred per cent certain the guy on the right had the gun’.
Dejan Kupresak, an apprentice electrician, had been given an undertaking from the prosecution in relation to his evidence concerning the incidents of 1 February 2014. He gave evidence that he had known Tepelis for three or four years and they were ‘good friends’. On Saturday, 1 February 2014, Tepelis picked him up from his residence and they went to another friend’s house. Krasniqi was there. Kupresak heard Tepelis have some ‘unfriendly’ telephone calls. He was also ‘texting’. He, Tepelis and Krasniqi then left to go to Thomastown ‘for a fight’. Kupresak had a golf club, as did one of the others. When they got to Dalton Road, Thomastown, opposite the KFC, he also saw a machete. He, Tepelis and Krasniqi were out of their car near a bus shelter when he saw a silver Holden pull up. Kupresak said that he could not see into the car to see how many people were in it. He heard ‘yelling’ but did not know who was yelling. Tepelis ‘was running towards the car and there was a guy who came out with a baseball bat’. That guy was ‘maybe around 170 centimetres tall’ and wore a black cap and black jumper. The guy with the baseball bat got out on the left hand (passenger) side.
Kupresak gave evidence that ‘a couple of seconds later a guy from the driver’s seat came out towards the back bit on the corner and that’s when he pulled the trigger’. He said the ‘driver came to the corner of the boot on his side’. Kupresak said he ‘saw him lift his hand up’ and he ‘heard a shot go off’. Tepelis was ‘a bit closer than two metres’ from the gunman. The relevant passage of Kupresak’s evidence-in-chief is as follows:[17]
[17]Emphasis added.
[PROSECUTOR]: So once the car stopped can you tell us what you observed please. Can you just take it slowly as to what observations you made. Who did what and what occurred please, Mr Kupresak?---All I remember was [Tepelis] was running towards the car and there was a guy who came out with a baseball bat, had a hat on, black cap, black jumper, maybe around 170 centimetres tall.
Just take it slowly. [Tepelis] ran to the car; did you say?---Yep. Towards the car.
A guy came out with a baseball bat wearing a cap?---Yep.
What else did you say?---And after that – after that, a couple of seconds later a guy from the driver’s seat came out towards the back bit on the corner and that’s when he pulled the trigger.
Anything else?---That’s it.
The guy that got out with the baseball bat wearing a cap did you see which seat he got out from?---No.
Which side of the car he got out from?---His side, towards us, left hand side.
So you’ve got the driver’s side on the right hand side of a car and you’ve got the passenger side on the left hand side of the car. Which side did the guy with the baseball bat get out of?---On the left hand side.
Front or rear?---I can’t remember.
You said two seconds later a guy got out from the driver’s seat and moved towards the back of the – or the boot of the car you said?---Yep.
What position did he, that is the driver, move to?---The driver came to the corner of the boot on his side, right hand side and all I remember is just – it happened too quick.
What, if anything, did you see him do?---I saw him lift his hand up and that’s about it and I heard a shot fire. I heard a shot go off.
Are you able to illustrate how he put his hands when you heard that? Can you show us?---I can’t remember which hand it was. He just had his hands up like that, on the corner of the boot.
…
Yes, yes. So just for the purposes of the transcript you’ve raised your right arm at about chest height?---Chest height, yep.
With an extended arm and you’ve cupped your hand to mimic the barrel of an item; is that right?---Yep.
Where was [Tepelis] at that point?---He was in front of me. Maybe two metres in front of me.
How far from the gunman?---Two metres, a bit closer than two metres.
After the shot, Kupresak saw Tepelis lying on the ground. The two men then jumped in their car and drove off. He saw that Tepelis had been shot in the neck. Before police arrived, Krasniqi hid the golf clubs and machete.
During cross-examination directed to his credit, Kupresak’s evidence of his observations of the driver and passenger of the other car was described as ‘nonsense’ and he was accused of being a ‘liar’. In the course of vigorous questioning, allegedly prior inconsistent statements were put to him, and the quality of his eyesight and the circumstances in which he received the undertaking from the prosecution were explored.
Jeton Krasniqi, aged 21 years and unemployed, gave evidence. He too had received an undertaking from the prosecution. On 1 February 2014 he was with Tepelis and Kupresak. He heard Tepelis arguing on the telephone with a male and he saw text messages indicating that the sender wanted to fight Tepelis in Thomastown. Krasniqi said that he, Tepelis and Kupresak went to a bus stop in Dalton Road. In a telephone call, Tepelis indicated that they were across the road from the KFC. Krasniqi saw a silver VY Holden Commodore come out of the KFC car park. He grabbed a small empty beer bottle from the bus stop. Tepelis, he said, had a machete, and he and Kupresak had golf clubs. Krasniqi said that he threw the beer bottle as the car was ‘going slowly … like rolling’, and, although he did not see it hit the car, he ‘heard the bottle smash’. He said:
I didn’t mean to get no-one, I thought I was gunna get the car, but, anyway, and then after that, someone came from the back, from the back of the car, um, and then straight after that, someone came from the – the driver came out, running around his car, and that’s when I heard the gunshot.
Krasniqi said he did not see who fired the gunshot, because he was looking ‘at the guy from the back’ who was holding what looked like a baseball bat. He did not see a gun at ‘any stage’. Although Krasniqi did not claim to see the firing of the shot — since he said that he was watching the passenger with the baseball bat at the time the shot was fired — the clear implication of his evidence was that it was the driver (that is, the applicant) who fired the shot. After he heard the gunshot, Krasniqi saw Tepelis on the ground. The driver then got back into the driver’s seat, the ‘passenger with the baseball bat’ got ‘in the same seat where he was, at the back’, and they ‘drove off’.
On 20 February 2014, the informant showed Krasniqi a photoboard containing 12 photographs. He selected a photograph, in what was described by the trial judge as both a ‘positive’ and ‘negative’ identification. Significantly, Krasniqi selected the applicant’s photograph as being the ‘other male’ involved in the relevant incident, ‘not the shooter’.
The applicant’s associates
Kristie-Anne Nicolaidis, aged 20 years, was a student studying community service. She and the applicant had known each other for two years and were ‘really good friends’. Sazdanovski was ‘just an associate’, someone whom she knew from school. At ‘roughly about 7.30’ on 1 February 2014, she, the applicant and Sazdanovski, went out in the applicant’s silver Commodore motor car, Sazdanovski having said that he needed a lift somewhere. The applicant drove, Nicolaidis was the front passenger and Sazdanovski was in the back. They drove to the ‘KFC’ in Dalton Road, Thomastown. She said that she saw a ‘group of boys’ around the bus stop. The applicant did a ‘U’ turn and pulled up. Her window was down about ten centimetres.
Nicolaidis said that while it was slowing, three boys were heading towards the car. They were at the bus stop when the car first stopped, and ‘as soon as the car stopped the boys were walking towards the car’. Sazdanovski got out of the car whilst it was still moving, and that was when one of the boys threw a bottle. The bottle hit Nicolaidis’ window and smashed. Straight after that, another object — probably a bottle — hit her in the face. Nicolaidis said that she ‘kind of blacked out for a bit’ and her ‘head was down’. She looked at her hands and saw blood and a missing tooth. Nicolaidis said that she felt faint and put her head down onto the applicant’s lap. After she got hit in the face she did not see the applicant get out of the car ‘at any time’. Her memory is not good, but she did hear ‘a loud bang’ outside the car. She does not remember much after she got hit, her next recollection being at the Austin Hospital. Nicolaidis suffered a fractured jaw, a deep cut to her face and a lost tooth.[18]
[18]Dr Felix Sim gave evidence that he examined Nicolaidis on 2 February 2014. She had a laceration on her chin, a canine tooth had been knocked out and her jaw was fractured. Nicolaidis told him that she sustained the injuries when she was pushed by children and fell and struck a metal fence.
Philip Sazdanovski was, as I have indicated, the principal prosecution witness. As earlier mentioned, he had been given an undertaking by the Director of Public Prosecutions. When called to give evidence by the prosecution, in the early stages of his evidence-in-chief Sazdanovski claimed that he could not remember relevant events. Hence he claimed that he could not remember whether Talevski contacted him about Tepelis; whether he had any contact with Tepelis; whether he was living with the applicant in early 2014; or whether he went to Dalton Road on the evening of 1 February 2014.
Unsurprisingly, Sazdanovski’s asserted amnesia led the prosecutor to make an application pursuant to s 38 of the Evidence Act 2008 to treat him as an unfavourable witness. In the course of the application, Sazdanovski on voir dire maintained that he had no memory of the matters earlier referred to. At the conclusion of the voir dire, the trial judge ruled that the prosecution could cross-examine Sazdanovski under s 38 of the Act.
When Sazdanovski resumed giving evidence before the jury, after agreeing with the prosecutor that he had participated in a record of interview about the events in question, that he had made a police statement in accord with the answers given in his record of interview and that at the committal he had confirmed that his police statement was true and correct, Sazdanovski indicated that he could in fact recall the relevant events. At that point, the prosecutor resumed examination-in-chief in the normal manner — that is, through non-leading questions — and Sazdanovski gave an account largely consistent with his police statement, alleging that the applicant was the shooter.
Sazdanovski gave evidence that as the applicant drove along Dalton Road they saw ‘three people standing on the side of the road with bandanas’. The three people had ‘poles’ and, he thought, ‘knives’ in their hands. His evidence continued:[19]
[19]Emphasis added.
[PROSECUTOR]: So what, if anything, did [the applicant] do?---He pulled over and asked him [sic] who they were and then they threw the bottle.
Sorry he asked what?---He asked them who they were and then one of them threw a bottle at the car and hit his girlfriend in the face.
… In order for him to ask who they were how did he do that?---He pulled over on the side of the road and the footpath was on the left and he asked through the window.
Which window?---The passenger because it was down halfway.
So he pulls the car over to the side of the road?---Yes.
Which road?---Dalton Road.
So in Dalton or ---?---On Dalton.
…
Okay so he put the window down?---Yep.
Did it go all the way down or did it---?---No, halfway.
Halfway?---Yep.
He asked that question?---Yep.
Where are you seated at this point?---Behind him.
What happened?---Um, they three [scil, threw] a glass bottle and hit the window and the window shattered and hit his girlfriend in the face.
What effect on the girlfriend did that have?---Ah, it cut her cheek open.
Cut her cheek and---?---Her cheek open and I think her gums, ‘cause there was teeth [sic] on the centre console – centre console.
You saw that, did you?---Yep.
Was the car moving or stationary when---?---Stationary.
---when the bottle was thrown?---Stationary.
So if you could just tell us from that point on, Mr Sazdanovski, what happened. Tell us your observations, please. Just take it slowly?---Once that happened, [the applicant] jumped out of the car, out of the front. He reached in the front foot bay, the passenger foot bay, and pulled out a gun and he jumped out of the front, ah, driver’s door and I jumped out of the back passenger driver’s door. I went around the back, he went around the front. And then that’s when he shot [Tepelis].
He shot who?---[Tepelis].
What distance would [the applicant] have been when he shot [Tepelis]? What distance away from [Tepelis] was he?---Probably from me to you.
HIS HONOUR: You’d estimate that distance at---?---Five – five metres, if that.
[PROSECUTOR]: I’d estimate it five to six metres, Your Honour, yes. (To witness) What effect on the person he shot – what effect on [Tepelis] did that have?---He just fell.
In which way?---Backwards.
When the girlfriend was hit in the face, did she say anything?---Yeah, she was screaming.
You told us of the – you seeing her cut cheek and teeth on the console; did you see anything else?---No, I didn’t, except for blood everywhere.
… When was it that you first saw the bag from which the gun was taken by [the applicant]?---Just before he jumped out.
When was it that you first saw the gun?---When he pulled it out.
Why was it that you jumped out of the car?---I jumped out just in case anything happened.
I beg your pardon?---I jumped out just in case anything happened, ‘cause there was three of them and one of him.
What do you mean, ‘In case anything happened’? Can you explain that?---Well, in case anything – like, anything bad happened and before I could even do anything to prevent it.
Are you able to describe [the applicant’s] position when he fired the gun?---What do you mean?
In relation to either Dalton Road, the side street or anywhere - footpath, nature strip, anywhere – are you able to describe his position?---He was … pretty much in front of the front left-hand side of the car.
…
Where was the car when the shot was fired?---The car was stationary on the side of Dalton Road just pretty much next to the side street.
Where were the other two fellows in relation to [Tepelis] when [Tepelis] was shot?---I don’t remember.
When you hopped out of the car, did you take anything with you?---Yeah, I had a um handle from a mallet.
Where did you get that from?---From the – uh on the floor in the back seat.
Had you brought that from [the applicant’s] when you went to meet the fellows at KFC?---No, it was in the car.
It was in the car?---Yeah.
How many shots were there?---One.
Following that, what next happened?---We jumped in the car and drove off down the side street.
Are you able to describe the gun for us please?---Um---
What type, size?---It was – I don’t know, it was about that big (witness demonstrates.)
So you’re indicating about – can you just do that again, so that’s 40 cm is it?---Yeah, about that. It had a brown handle, that's all I remember.
Was that about 45 cm, a foot and a half?---Yeah.
What sort of gun was it?---I don’t – I don’t remember properly. It looked – it looked like a 22 or something.
What about the barrel? Anything about it?---I know it was cut off.
It’s colour?---Brown.
Any other colour or is that it?---It was brown and like grey. The barrel was grey.
Where did you head then, where did you, [the applicant] and Nicolaidis then go?---Uh, back to [the applicant’s]. I got dropped off and they went to the hospital.
So you got dropped off?---Yep.
And they went to the hospital?---Yes.
From the above passage, it will be appreciated that Sazdanovski gave direct evidence that the applicant had shot Tepelis with a gun that the applicant had taken from a bag located in the front foot bay of his car. Self-evidently, were the jury capable of accepting Sazdanovski’s evidence to the criminal standard, Sazdanovski’s evidence alone was capable of establishing the prosecution’s case against the applicant.
Cross-examined by the applicant’s senior counsel, Sazdanovski acknowledged that, despite seeing a man shot, he had ‘evaded’ the police. He agreed that, when confronted by police from the Special Operations Group in a car park on 17 February 2014, he drove his Fiat motor car through two fences to avoid them. (He denied, however, that he had rammed the police vehicle, claiming that they ‘rammed into’ his vehicle.) Sazdanovski conceded that he then jumped out of his car and ran away, until he was arrested in the backyard of a home. When it was put to him by that he disposed of drugs and a gun whilst getting over two fences, Sazdanovski replied, ‘I'm not sure, I don’t remember’.
Sazdanovski agreed that in January and February 2014 he had an ‘ice’ habit that ‘ran to approximately $2000 a week’, financed by money given to him by his grandmother. He denied, however, that he had ever shared drugs with Televski.
When Sazdanovski was further cross-examined about the text messages that passed between him and Tepelis — most (if not all) of which were gravely insulting and threatening — senior counsel put to Sazdanovski that he ‘had planned an attack’ on Tepelis, prompting the reply: ‘Nah like obviously yeah, he got me angry but I didn’t plan an attack on him. I was just meant to go see him’.
Sazdanovski was also cross-examined about other text messages that he sent at around the time he was messaging Tepelis. One of those messages read, ‘Bring that Samsung phone, I need a phone’. Sazdanovski denied the suggestion, however, that the ‘Samsung phone’ referred to was ‘obviously a gun’, claiming — somewhat implausibly, in light of the fact that he messaged before and after the ‘Samsung phone’ message — ‘I didn’t have a phone, I broke it’.[20]
[20]In other evidence he said that the screen on his iPhone had broken when he was punching it in anger, so that he took the SIM card out of the iPhone and put it into a Nokia. He then sent the message (to ‘Rebecca’) asking for a ‘Samsung phone’. ‘Rebecca’ then brought him the Samsung.
At one point in the cross-examination, it was put to Sazdanovski that Televski was pleading with him ‘not to become involved’ with Tepelis. He said, ‘I don’t remember that at all’. The cross-examination then continued:[21]
[21]Emphasis added.
I want to put to you that it wouldn’t matter what she said. You had your private war with [Tepelis] by that time and it was going to be fought out; wasn’t it?---No.
What do you mean no?---If she told me not to do anything, I obviously wouldn’t have wasted my time.
So you're saying that you never received a request by her to stop. Is that what your evidence is?---No, I don’t remember her saying that.
What I’m suggesting to you is that it didn’t matter what she said. All you wanted to do was have a fight with this man?---You’re probably right. I was under the influence and whatnot so once someone says something it doesn’t really matter when you’re in a different mind frame. When you’re on drugs and whatnot.
Look, in the cold light of the free air of Monday morning looking back on that incident you’d have to concede that your memory of it is quite unreliable?---Yep.
You agree with that?---Yeah.
The reason for that is that at the time you’re on ice?---Yes, correct.
Anything could have happened at that stage?---I suppose, yeah.
So it would be quite unfair to [the applicant] for a jury to make a serious decision based on your recollection of this event?---Well yes and no because I do remember but – just ‘cause I was on drugs doesn’t mean – do you know what I’m trying to say. Just ‘cause I'm drugs doesn’t mean what I say isn’t reliable.
What I’m suggesting to you is that you might be able to have a reconstruction of it in your head, but in reality, it’s quite unreliable?---Yeah, I guess so, once you put it like that.
…
So we end up in a trial where you’re a witness, your mate’s on trial, you have to do the best you can, is that right?---Yes.
And the best you can is in reality, if you really tell the truth to the jury is, I haven’t got such a good memory of it. It’s a bit unreliable. That’s fair, isn’t it?---That’s fair to say, yeah, (indistinct).
Later, the following emerged during cross-examination on Sazdanovski’s statement to police:
... In your statement … you say, ‘But so [the applicant] did a U-turn and drove towards them. We pulled up and braked slowly beside them on the footpath. [Nicolaidis] had her window half down. She was on the side of the car closest to the three males. One of them threw a glass bottle’?---Yeah.
There’s no mention about [the applicant] asking them any questions?---Yeah.
You just thought of that; have you?---No I remember now clearly.
Go on. What’s the next thing after he spoke to them?---They threw the bottle and hit the window. Obviously the window broke and they hit [Nicolaidis] and that’s when he jumped out, grabbed the gun – grabbed the gun and jumped out and I jumped out after him.
I see, so let’s get this sequence right. The bottle comes?---M’mm.
And strikes her, is that right?---Yeah.
He gets a gun?---Yep.
He jumps out?---Yep.
You’re still in the car?---Yeah, I jumped out straight after him.
Straight after him. So we know from your evidence that he’s out first?---Yep.
Is that right?---Yes.
Where does he go?---Around the front of the car and I went
Right, just a moment. You get out second?---Yep.
Where you do you go?---Around the back of the car.
So he’s first and to the front?---Yep.
And you’re second and to the back?---Yep.
Is that right?---Yes.
And you say he then shoots?---Yep.
Is that right?---Yes.
You were at the back, correct?---Yeah, the back of the car.
And you were out second?---Yeah.
Sazdanovski also admitted under cross-examination that he had a number of prior convictions, including for recklessly causing serious injury on 4 June 2014 and for reckless conduct endangering serious injury on 19 November 2014 and 19 January 2015; and also for burglary, theft, driving and bail offences.
Senior counsel completed his cross-examination of Sazdanovski by asking him about the evidence he gave on voir dire in the course of the application under s 38 of the Evidence Act 2008 referred to above:[22]
[22]Emphasis added.
You were called before this jury on the 23rd of the month; is that correct?---Yes.
You gave some evidence, is that right?---Yes.
And then the jury were asked to leave the court room; is that correct?---Correct.
Then you were asked some more questions in the absence of the jury; do you recall that?---Yes.
In the evidence before the jury, you insisted that you couldn’t remember?---Correct.
When I cross-examined you in the absence of the jury, I said to you …: ‘All right, you’re actually saying you don’t remember, not because of any intimidation, not because you’ve received any injury, it’s because you know you’re guilty of firing the gun that caused this injury to this man, and you don’t want to admit your guilt to it; that’s right, isn’t it?’ Answer: ‘I don’t remember.’ Were you asked that question and did you give that answer?---Yes.
And I said to you: ‘Sorry?’ and you said, ‘I don’t remember. I’m not---’ ‘You don’t remember?’ ‘Yeah, I’m not guilty of that.’ Did you say that?---Yep.
‘So … if you were giving evidence in front of the jury and I put that proposition to you, you were the shooter, you’d say ‘I don’t remember’ is that correct’?---That’s correct, that was ‘cause I---
Answer: ‘Yep.’ Is that what you said?---What?
Sorry?---What was the question again.
So if you were giving evidence – this is a hypothetical?---Yeah.
‘If you were giving evidence in front of the jury, and I put that proposition to you - you were the shooter – you’d say ‘I don’t remember’ is that correct’?---Yes.
Answer: ‘Yep.’ Were you asked that question and did you give that answer?---No, I said I don’t remember.
Say again?---I said I don’t remember.
Yes, that’s right, but the hypothetical answer was posed for you, namely, I don’t remember and you adopted it by saying ‘Yep’. Is that the truth?---No.
Sorry?---No.
Were you telling a lie to His Honour?---No.
Sorry?---I’m not the shooter. I’m saying I don’t’ remember.
Question ‘Does that mean that there’s a chance that you were the shooter, sorry?’ and you go ‘I don’t remember’. Were you asked that question and did you give that answer?---Yes.
‘Yes I know that but if you can’t remember, it means that there’s an even chance that you were. It may well be the case that you were the shooter. Do you agree with that?’ ‘Nah’. ‘You don’t? … What, can you remember not shooting?’ ‘No, I never owned a gun’. ‘Say again?’ ‘[Bec]ause I never owned a gun’. ‘Ownership doesn’t really play part on it [sic] and it’s who fired the gun. I’m suggesting you fired the gun. What do you say?’ and His Honour said ‘You’ll have to answer’. ‘I don’t remember. I didn’t fire it.’ ‘Well, if you can’t remember it may well have been you but you just can’t remember firing it. Do you understand that I’m saying there?’ ‘Yeah’. ‘What do you say to that proposition? It may well have been you’. ‘I’ve got nothing to say to’. ‘Sorry?’ ‘I’ve got nothing to say’. Were those questions asked of you?---Yes.
And those answers given?---Yes.
Were they true?---What do you mean? As in---
Is it true? Were you telling lies or were you telling the truth to the judge?---No, I was under a lot of pressure and I was anxious. That’s why I wasn’t---
… Back on the page you’re actually saying you don’t remember not because of any intimidation, not because you’ve received any injury, it’s because you know you’re guilty of firing the gun?---No.
Do you want me to complete that?---No.
Because we’ve dealt with the intimidation and injury. Are you now saying you were intimidated?---Yes.
So you were quite prepared to lie about intimidation?---No, yeah, I was under a lot of pressure. That’s why I said what I said to him.
You’re quite prepared to [lie to] a Supreme Court judge, is that what you’re telling us?---No, I was just saying I don’t remember.
That was a mechanism for you to avoid telling the truth; wasn’t it?---No.
Summary of the evidence concerning the shooter
It was not disputed that, shortly before Tepelis was shot, the applicant was driving his silver Holden Commodore, with Nicolaidis and Sazdanovski respectively as front and rear passengers.
Apart from that of Nicolaidis, the evidence of all of the witnesses present in the immediate vicinity at the time of the shooting coincided on at least two matters: first, before the shot was fired, both males in the silver Holden Commodore alighted from it; and, secondly, the non-shooter was holding a baseball bat or axe.[23]
[23]Sarah Michell was approximately 30 metres away. She was about to start work at the KFC. Ms Michell gave evidence that she was to start work at 10.30 pm, but that she was ‘running a little late’ and had arrived at 10.29 pm. Her car was in the KFC car park. She was changing into her work boots at the back driver’s side door of her car when she noticed a silver Holden ‘parked abnormally’ across Dalton Road at the entrance to Rochester Drive. Ms Michell said that it was ‘very dark’. She gave evidence that she saw ‘two men already outside of the car’, one ‘standing near the driver’s door’, and the other ‘standing on the passenger side’, moving around the rear toward the driver’s side of the car. After she noticed the car she saw three men walking from the bus stop. Ms Michell said ‘the two groups of men were walking towards each other and at that point [she] went into work’. When she last saw them, the two groups of men were separated by two metres. She did not notice anybody holding weapons.
One construction of Nicolaidis’ evidence was that, after she got hit with the bottle, the applicant did not get out of the car. Hence, it will be remembered that Nicolaidis said that she felt faint and put her head down onto the applicant’s lap, and she did not see the applicant get out of the car ‘at any time’. And although her memory is not good, she said she heard ‘a loud bang’ outside the car. Nicolaidis acknowledged, however, that she does not remember much after she got hit, and that her next recollection was of being at the Austin Hospital. Obviously, Nicolaidis’ evidence must be assessed in light of the fact that she had suffered moderately serious head injury, which she conceded affected her memory and her state of consciousness. Certainly, any suggestion — express or implied — that the applicant did not exit the car at any time, or that the applicant was still in the car when the shot was fired, is inconsistent with the preponderance of the other evidence.
The effect of Tepelis’ evidence was that the man with the ‘axe’ did not shoot him, so that, if it be accepted that Sazdanovski had the axe (or baseball bat), Tepelis’ evidence lends support for the proposition that it was the ‘other man’ — that is, the applicant — who fired the shot.
Krasniqi claimed not to have seen the shot fired because he was looking at the man with the baseball bat, who got out of the passenger side. The other male — who must have fired the shot — got out of the driver’s side of the silver Holden. Significantly for the defence hypothesis, however, Krasniqi picked the applicant’s photograph from a photographic line-up as the ‘other male’, not the shooter.
Kupresak’s evidence was that the man with the baseball bat got out of the passenger side of the car, and the man who got out of the driver’s side fired the shot.
Finally, Sazdanovski gave direct evidence that he got out of the rear of the applicant’s car holding a mallet handle, and that the applicant shot Tepelis with a gun that he had taken from a bag located in the front foot bay of his car.
With that evidence in mind, it is necessary to turn to the submissions of the parties.
The applicant’s submissions that the verdict is unsafe and unsatisfactory
At the outset of his oral submissions in this Court, counsel for the applicant sought to make ‘two points’. First, he sought to draw comfort from the fact that the trial judge, who is very experienced in criminal law, was sufficiently concerned about the state of the evidence, that he extended a Prasad[24] invitation to the jury. Secondly, counsel sought to contend that, up to the point when the Prasad direction was given, the jury had laboured under a fundamental misapprehension of where the onus of proof lay; since, shortly after the Prasad direction was given, the jury gave the judge a note which read: ‘The jury is not satisfied of the accused being not guilty and would like to hear more’. As the judge observed after receiving the note, ‘It clearly does invert the burden of proof’.
[24]R v Prasad (1979) 23 SASR 161.
Counsel for the applicant also adopted the submissions in the written case, in which it was submitted that the fundamental issue for the jury was the identity of the person who shot Tepelis. There were only two possibilities: the applicant or Sazdanovski. Importantly, because the prosecution case had been run on the basis that the applicant had acted alone, and there was no case of joint criminal enterprise (or any suggestion of any form of complicity), the principal issue for the jury was the identity of the shooter. Thus, it was submitted, if the prosecution could not exclude that Sazdanovski was the shooter — a reasonable hypothesis consistent with innocence — then the applicant had to be acquitted.
The case against the applicant, so it was submitted, relied heavily upon the jury accepting the reliability and credibility of Sazdanovski’s account of how Tepelis came to be shot. But there were a dozen reasons, it was argued, why Sazdanovski’s evidence could not have been accepted by the jury:
· first, it was Sazdanovski who had been recruited by Talevski to intercede on her behalf with Tepelis and to deal with his aggressive behaviour towards her;
· secondly, the texts and telephone calls in the hours leading up to the shooting showed an escalation in threats by Sazdanovski towards Tepelis, ‘retaliatory’ texts from Tepelis, and an agreement to meet in Thomastown;
· thirdly, the nature of some of the threats made by Sazdanovski to Tepelis reveal an intention to shoot and cause serious injury to him;
· fourthly, Sazdanovski had a clear and explicable motive to take a firearm to the scene;
· fifthly, there was evidence strongly pointing towards Sazdanovski accessing a firearm on the evening of the shooting;[25]
[25]As I have mentioned, it was argued that he sent a coded message at 9.05 pm: ‘Bring that Samsung. I need a phone’.
· sixthly, there was evidence that Sazdanovski asked the applicant to drive him to the scene and drop him there;
· seventhly, Sazdanovski’s account of the applicant retrieving a firearm from the front passenger seat ‘foot bay’ was internally inconsistent and contradicted by other evidence;
· eighthly, Sazdanovski’s account of his own movements at the scene tended to suggest it was him, and not the applicant, who had fired the shot;
· ninthly, Sazdanovski’s use of ice on the day of the shooting affected his reliability;
· tenthly, Sazdanovski’s ‘flight’ on the night, and his attempts to elude police in the days and weeks after the shooting, pointed towards his guilt;
· eleventhly, Sazdanovski’s radically inconsistent evidence during the trial and the fact that he ‘likely perjured himself’ went to his reliability and credibility; and
· finally, Sazdanovski’s evidence at trial — that, in effect, he could not rule out the possibility that he was the shooter — supported the defence hypothesis.
Quite apart from his ‘utter unreliability’ as a witness, there was other evidence, so the applicant’s counsel submitted, that pointed towards Sazdanovski being the shooter, and pointed away from the applicant:
· first, the high level of animosity expressed by Sazdanovski towards Tepelis, which had nothing to do with the applicant;
· secondly, the reference to threats to ‘shoot’ by Sazdanovski in text messages;
· thirdly, the ‘negative identification’ of the applicant (that is, Krasniqi identified him as the ‘other man’, not the shooter);
· fourthly, the evidence of the movements of the ‘passenger’ from the back of the car once he alighted from the car positioned him as the shooter; and
· finally, the ‘weakness’ of the motive attributed to the applicant.
The respondent’s submissions on the conviction application
In her oral submissions in this Court, counsel for the respondent stressed that there is not one witness who puts the gun in the hands of the passenger of the silver Holden.
Counsel for the respondent also adopted her written submissions, in which she conceded that there were discrepancies in some of the witnesses’ accounts. She submitted that it was important, however, that there was consistency in the evidence of Kupresak and Krasniqi, whose evidence formed a basis upon which to convict the applicant. Counsel submitted that their evidence was also consistent with the most significant aspects, albeit not all, of Sazdanovski’s evidence; in particular that it was Sazdanovski who was holding a baseball bat or mallet handle and it was the applicant who was the shooter.
It was submitted that the hypothesis that Sazdanovski could have been the shooter ‘was based on little more than mere conjecture’. Although there was some confusion about the movement of Sazdanovski when he got out of the car, and there was some evidence that he had a motive and may have brought the gun to the scene, there was no evidence that Sazdanovski was ever holding a gun. The respondent submitted that the evidence was that Sazdanovski was holding a baseball bat (or a mallet handle). In those circumstances, so it was submitted, it was ‘perfectly reasonable for the jury to reject the possibility of Sazdanovski being the shooter’.
Discussion
Although the judge in this case did not uphold a ‘no case’ submission,[26] he took the step of giving the jury a Prasad invitation[27] (an invitation which ultimately the jury declined to act upon).
[26]R v Rapovski (Ruling No 4) [2015] VSC 357.
[27]R v Rapovski (Ruling No 3) [2015] VSC 356.
As I have indicated, counsel for the applicant sought to rely on the experienced trial judge’s analysis of the evidence apropos the Prasad invitation to lend support to the central contention that the verdict is unsafe and unsatisfactory. Remaining mindful of the fact that the essential task for this Court is to make its own independent assessment of the evidence — and is not bound by the views of the trial judge — it is appropriate to have regard to the judge’s reasons for giving the Prasad invitation insofar as those reasons reflect his analysis of the strength of the defence hypothesis that Sazdanovski was the gunman.[28] After all, the trial judge was imbued with the atmosphere of the trial, and had the advantage — not enjoyed by this Court — of seeing and hearing the witnesses give their evidence. In ruling that he would give a Prasad direction, the judge said:[29]
There is evidence that supports the defence case that Sazdanovski was the shooter. First, it was Sazdanovski who contacted Tepelis on the afternoon of 1 February 2014 and engaged in a series of abusive and threatening calls and texts. According to Kupresak’s evidence, initially at trial and also at the committal, in the course of those calls, Sazdanovski threatened to shoot Tepelis and shoot up his house. That evidence supports the possibility that Sazdanovski brought the gun. Second, Sazdanovski, on his own admission, had a $2,000 a week ice habit at the time and was under the influence of ice on 1 February 2014. This increases the chances that he armed himself and was the shooter. Third, Krasniqi participated in a photoboard identification on 20 February 2014. He correctly nominated the [applicant] as being one of the two men who turned up in the car but said ‘[h]e is not the shooter’. Fourth, Sazdanovski said the [applicant] got out of the car first, after Nicolaidis was struck by the bottle. Sazdanovski said that just before the [applicant] got out, he saw the [applicant] reach into a bag in the front passenger footwell and grab a gun. Kupresak and Krasniqi, on the other hand, say the passenger got out before the driver, which suggests Sazdanovski’s account of seeing the [applicant] reach for the gun is a lie. Sazdanovski also gave conflicting accounts at committal and the trial as to the colour of the bag from which the [applicant] supposedly grabbed the gun and, at one stage of the committal, stated the [applicant] grabbed the gun from his pocket just before alighting from the car. Fifth, Tepelis said in his first police statement that the shooter may have got out of the rear passenger door of the car. Sixth, Tepelis said that when the shot was fired, the shooter was to the right of the other man, from Tepelis’ perspective. Sazdanovski said that when he and the [applicant] got out of the car, the [applicant] went to the front of the car and he went to the rear. Given that the weight of the evidence favours the view that the car was stopped in, or with its nose in, Rochester Drive, Sazdanovski’s account of his movements and that of the [applicant] on getting out of the car tends to put him in the position of the shooter, as described by Tepelis. Seventh, Kupresak initially said at committal that when the driver got out of the car, he moved to the front of the car. This puts the [applicant] in the position of the non-shooter, having regard to Tepelis’ evidence as to the position of the two men when the shot was fired. Eighth, Kupresak drew a diagram in which initially he suggested the passenger was the shooter. Ninth, Sazdanovski lied when he initially claimed in examination-in-chief that he couldn’t remember relevant events. Whilst it may be that he lied because he didn’t want to implicate a former friend, another possible explanation is that he lied because he was the shooter. The fact that he was prepared to perjure himself when he commenced giving evidence casts a pall over his credibility. Further, when it was put to him in the voir dire that he was the shooter, he initially said, rather startlingly, ‘I don’t recall’. This part of his evidence on the voir dire was adduced in subsequent cross-examination of Sazdanovski before the jury. Tenth, his reliability was also questionable because, on his own admission, he was under the influence of ice at the time of the shooting and agreed that his recollection of the events was hazy.
It is true that, unlike Sazdanovski, neither Kupresak or Krasniqi appear to have had any reason to falsely suggest that the driver, as opposed to the passenger, was the shooter: both the driver and passenger were strangers to them. It is also true that there is a degree of consistency in the accounts given by Kupresak and Krasniqi. Both say the passenger got out first, with a baseball bat. Both ultimately say that when the driver got out shortly after the passenger, the driver moved to the rear of the car. Kupresak says he saw the driver raise his arm in a manner consistent with someone pointing a gun and then heard the shot. Whilst Krasniqi said he didn’t see the shot, he said he was looking at the passenger with the baseball bat when he heard the shot, thus implying it was the driver who fired the shot. And there is no dispute that the [applicant] was the driver.
Nevertheless, there are significant issues in respect of their credibility and reliability too. First, both made false statements to the police on the night of the incident. Second, both were criminally concerned in the events of that night, attending a public street armed with golf clubs, while the third member of their group, Tepelis, brought a machete. Krasniqi also threw a bottle which injured Nicolaidis. None of them have been charged over their conduct that night. They gave their evidence pursuant to undertakings from the Director of Public Prosecutions. Third, Kupresak has poor eyesight. The incident occurred at night, and was a fast moving affair. Although his eye condition may not have prevented him from seeing bodies moving about, as opposed to making out faces, it adds somewhat to the risk of mistake. Fourth, Kupresak’s descriptions of the movements of the passenger and driver have been variable. Fifth, whilst Krasniqi’s account implies that the driver was the shooter, it is contradicted by his photoboard identification in which he said that the [applicant] was not the shooter, even though he correctly picked him out as one of the men who arrived in the car.
[28]The judge declined to provide any comment in a report to this Court.
[29]R v Rapovski (Ruling No 3) [2015] VSC 356, [40]–[42].
Having carried out my own independent assessment of the evidence, I am of the view that it was open to the jury to convict the applicant.[30] Although the jury might have entertained a reasonable doubt as to the applicant’s guilt, the evidence was not such that they must have had such a doubt.[31] Axiomatically, the jury is the body entrusted with the primary responsibility of determining guilt or non-guilt. The jury had the advantage — as I have said, an advantage not enjoyed by this Court — of seeing and hearing the crucial witnesses give their evidence. That advantage is capable of resolving any doubts that I may otherwise have harboured with respect to the reliability and credibility of Sazdanovski’s, Krasniqi’s and Kupresak’s evidence.
[30]M v The Queen (1994) 181 CLR 487, 492–3, 494–5; SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[13]; R v Baden-Clay (2016) 334 ALR 234, 246 [65]–[66]; R v Klamo (2008) 18 VR 644, 653-4 [38]–[40]; Greensill v R (2012) 37 VR 257, 276–7 [81]–[83].
[31]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J).
There seems little doubt that Televski enlisted Sazdanovski to intercede on her behalf with Tepelis; and that within a very short time of Sazdanovski contacting Tepelis the two men were engaged in vituperative, insulting and threatening communications one with the other, the ugly and aggressive tone of which increased as the evening of 1 February 2014 wore on. Indeed, it is plain that Sazdanovski graphically expressed a great deal of animosity for Tepelis, and threatened him using vile language and epithets, the end result being an assignation for the two of them to fight. Moreover, it is likely that the message ‘Bring that Samsung’ was a euphemistic allusion to the provision of a firearm.
Furthermore, there was a constellation of factors that bore on Sazdanovski’s reliability and credibility. A non-exhaustive list of those factors included his $2000 per week ice habit and his ice use earlier on the day of the shooting; his prior convictions (including for crimes of violence); his attempts to elude police in the days after the shooting; and several unsatisfactory aspects of his evidence at trial, such as his palpably false claims when he commenced his evidence-in-chief that his memory had failed him, and his remarkable reply, ‘I don’t remember’, when asked whether there was a chance that he was the ‘shooter’.
The fact that Sazdanovski had an apparent motive — and an expressed intent — to harm Tepelis, and the many factors that bore on Sazdanovski’s reliability and credibility, were, however, all fully exposed for the jury’s consideration. This is a case where perusal of the bare record of the trial is a poor substitute for the jury’s distinct advantage in having the capacity to assess Sazdanovski as a witness whilst watching and listening to him give evidence. The jury were in a better position than is this Court to make an effective assessment of Sazdanovski and his evidence.
One must, of course, put the advantage enjoyed by the jury into proper perspective. True it is that this Court must pay full regard to the consideration that ‘the jury is the body entrusted with the primary responsibility of determining guilt or innocence,[[32]] or the consideration that the jury has had the benefit of having seen and heard the witnesses’.[33] But ‘[i]f the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead [this Court] to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence’.[34]
[32]With respect, I would prefer ‘non-guilt’ rather than ‘innocence’.
[33]M v The Queen (1994) 181 CLR 487, 493.
[34]Ibid 494 (citation omitted).
That said, any doubts that I may have entertained on the central issue — that is, the identity of the shooter — as a result of Sazdanovski’s evidence are allayed by the other evidence in the case. Paying full regard to the fact that Krasniqi identified the applicant as the ‘other man’ (not the shooter), and being fully cognisant of the many factors having an adverse bearing on the reliability and credibility of Krasniqi’s and Kupresak’s evidence, consideration of the totality of the evidence paints a convincing picture of the applicant’s guilt.
The undisputed evidence was that there were only two men in the applicant’s silver Holden, the applicant and Sazdanovski. It was also undisputed that the applicant was the driver of the car (and got out of the front driver’s seat) and that Sazdanovski was a rear passenger (albeit there was some uncertainty as to whether or not he had been seated immediately behind the driver). Importantly, it was also undisputed that of the two mean who exited the applicant’s Holden, one had a baseball bat (or axe or mallet handle), and one — only one — had a gun.
As I earlier observed, the burden of Tepelis’ evidence was that the man with the ‘axe’ did not shoot him. Thus, self-evidently, if other evidence supported the inference that Sazdanovski was the man with the axe (or baseball bat or mallet handle), Tepelis’ evidence tends to establish that it was the ‘other man’ — the applicant — who shot him.
Krasniqi claimed not to have seen the shot fired because he was looking at the man with the baseball bat, who got out of the passenger side. If his evidence on this point is capable of acceptance — and in my opinion it is — then he was looking at Sazdanovski at the time that the other male — who exited the driver’s seat —fired the shot. Given that the applicant got out of the driver’s side of the silver Holden, Krasniqi’s evidence lends significant support to the inference that the applicant shot Tepelis.
Finally, Kupresak’s evidence was that the man with the baseball bat got out of the passenger side of the car, and the man who got out of the driver’s side fired the shot. Once more, if his evidence on this point (or these points) is capable of acceptance — and, once more, I think it is — Kupresak lends very great support to the inference that the applicant was the shooter.
Considering all of the evidence together, I do not entertain a reasonable doubt on the central issue in the trial, being a doubt that the jury ought to have had. More to the point, perhaps, notwithstanding the difficulties attending the prosecution case, in my opinion it was open to the jury to be satisfied beyond reasonable doubt that
the applicant was the shooter. Although the various matters identified in support of the contention that the verdict is unsafe and unsatisfactory might have permitted the jury to acquit the applicant, in my view the jury was not bound to do so.
Finally, I should indicate that I have not overlooked the submission that the jury’s apparent inversion of the onus of proof after the Prasad direction emphasises that the verdict is unsafe and unsatisfactory. There is, however, nothing in this argument. Immediately after the jury provided the judge with the relevant note, he gave emphatic directions instructing the jury on the onus of proof, and gave further correct and unequivocal directions on the onus and standard of proof in his charge. By the time that they came to deliberate, there is no possibility that the jury did not understand where the burden of proof lay.
The contention that the verdict is unsafe and unsatisfactory cannot be upheld.
Conclusion
For the foregoing reasons, the extension of time within which to make application for leave to appeal should be granted, but the application for leave to appeal against conviction should be refused.
CROUCHER AJA:
Overview
I have had the advantage of reading in draft the reasons for judgment of Priest JA.
While my assessment of the evidence leaves me with a doubt about the matter, nevertheless, I think it was open to the jury — who, unlike this Court, had the singular benefit of seeing and hearing the crucial witnesses give that evidence — to be satisfied beyond reasonable doubt that the applicant was the one who shot Mr
Tepelis. In those circumstances, the sole ground of appeal has not been made good and the proposed appeal must be dismissed.
My reasons follow.
A doubt that the applicant shot Mr Tepelis
I have a sense of unease about this verdict. After examining the record of the trial, the key parts of which are summarised in the reasons of Priest JA, I am left with a nagging doubt that the applicant shot Mr Tepelis. In particular, despite the direct and circumstantial evidence implicating the applicant as the shooter, upon the whole of the evidence, I am unable to exclude the reasonable possibility that it was Mr Sazdanovski who shot Mr Tepelis.
The factors which, in combination, cause me to have a doubt about the applicant’s guilt include those mentioned by the trial judge in his summary of the evidence supporting the hypothesis that Mr Sazdanovski was the shooter, which summary he gave in his reasons for extending a Prasad invitation to the jury.[35] Since that detailed summary is extracted in the reasons of Priest JA, there is no need to repeat it here. It will suffice if I emphasise just a few matters.
[35]R v Rapovski (Ruling No 3) [2015] VSC 356, [40]-[42].
First, while some aspects of the evidence given by the five main eye-witnesses, to a greater or lesser extent, implicated the applicant, there were aspects of their evidence that suggested Mr Sazdanovski was or may have been the shooter. For example, Mr Tepelis conceded that, in his first statement to police, he said that the person who shot him ‘may have gotten out of the back of the car on the side closest to where [he, Mr Tepelis] was standing’ (which, I interpolate, was to the left of the left side of the car). That person had to be Mr Sazdanovski, for he was the only one in the back of the car, whereas the applicant was in the driver’s seat. Mr Sazdanovski’s own version was that, after the applicant ‘jumped out of the front … driver’s door’, he (i.e. Mr Sazdanovski) ‘jumped out of the back passenger driver’s door [and] went around the back’, whereas the applicant ‘went around the front [which was] when he shot [Mr Tepelis]’. While Mr Kupresak had the shooter coming from the driver’s seat, he placed him near the corner of the boot (i.e. the rear) on the driver’s side of the car when the shot was fired — which, on Mr Sazdanovski’s account, seems to be about where he was placed, with the applicant at the front of the car, at the time of the shooting. While Mr Krasniqi did not see who fired the gunshot, his account implies that the driver was the shooter, and yet that implication is contradicted by his photoboard identification of the applicant as one who was there but was not the shooter. Finally, while Ms Nicolaidis was suffering the effects of an assault at the time, her evidence suggests that the shot was fired by someone else while the applicant was still in the driver’s seat of the car. Well, the only other candidate was Mr Sazdanovski.
Thus, apart from Mr Sazdanovski’s direct evidence that he did not shoot Mr Tepelis, and that the applicant did, I found the eye-witness evidence to be rather contradictory and as otherwise leaving open the possibility that Mr Sazdanovski was in fact the shooter.
The second category of evidence suggesting that Mr Sazdanovski was the shooter concerns his behaviour and motive leading up to and following the shooting. He was angry with Mr Tepelis for what he understood was his violence towards Ms Talevski. It is plain that he was the driving force behind the confrontation. There is evidence that he sourced the (only) gun used in the incident and then falsely denied that to the jury. He had made very threatening remarks to Mr Tepelis. Also, he fled when chased by police. When it was put to him that he disposed of drugs and a gun while fleeing over two fences, Mr Sazdanovski replied, ‘I’m not sure, I don’t remember.’ That was not much of a response.
The third category of evidence concerned Mr Sazdanovski’s rather extraordinary answers in other parts of his evidence. In addition to his initial feigned inability to remember crucial events, he admitted to the jury that, in their absence, he had been asked, ‘Does that mean that there’s a chance that you were the shooter, sorry?’ and that he answered, ‘I don’t remember.’ Again, this is hardly the response that might be expected from the one who did not fire the gun. Overall, I found Mr Sazdanovski’s evidence to be unconvincing. He, of course, had a very powerful motive to implicate the applicant. By reference to the record of the trial, which is what this Court is limited to in assessing witnesses, I am not satisfied beyond reasonable doubt about any of the crucial matters on which Mr Sazdanovski gave evidence.
It is true that, on the evidence at trial, the applicant also may have had a motive to be angry at Mr Tepelis, for he may have believed (mistakenly) that Mr Tepelis threw the missile that caused injury to Ms Nicolaidis. (But Mr Sazdanovski may also have been angry over that assault.) As I have said, it is also true that there was evidence — including not just Mr Sazdanovski’s direct evidence, but also inferences to be drawn from pieces of the circumstantial evidence provided by the testimony of Mr Kupresak and Mr Krasniqi — that the applicant was the shooter. But it is not a question simply of which hypothesis was the more compelling or that the innocent inference and the guilty inference had to be equally open in order that the verdict be found to be unsafe. Instead, as Mason CJ, Dawson and Toohey JJ said in their joint judgment in Knight v The Queen:[36]
[36]Knight v The Queen (1992) 175 CLR 495, 501-502 & 503.
… The appellant had argued that even if the evidence concerning his intention at the time the second shot was fired was consistent with an intention to kill, it was also consistent with an absence of that intention. There being competing hypotheses, neither of which could be excluded, he submitted that the jury were bound to have a reasonable doubt whether he fired the second shot with intent to kill. In rejecting this argument, Young CJ took the view that it could only succeed if the Court concluded that the two inferences, one consistent with guilt and the other consistent with innocence, were equally open. He concluded that the two inferences were not equally open. Nathan J held that the jury were entitled to conclude that there were no competing hypotheses and that the evidence led only to the conclusion that the second shot was fired with intent to kill. Crockett J, in dissent, accepted the appellant’s argument, holding that the evidence as to the appellant’s state of mind at the relevant time was equivocal and incapable of sustaining a finding that he fired with intent to kill. For this reason he concluded that the verdict was unsafe.
…
With respect, Young CJ was in error in the view which he expressed below that the appellant could only succeed in his argument if the two inferences said to be open – one consistent with innocence and the other consistent with guilt – were equally open. There are not, as Dixon CJ observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.
I hasten to add that the foregoing remarks were made in the context of determining whether it was open, on the criminal standard of proof, to draw an inference of an intention to kill in a circumstantial case where there was no dispute that the appellant shot the victim. But the point of principle may still be applied to this case. In particular, the inference that Mr Sazdanovski was the shooter, which in turn may be affected by the issue of competing motives and other prior and subsequent behaviour consistent with his being the shooter, need not be just as open as the inference that the applicant had a motive to shoot, and was the shooter, in order that the innocent inference might avail the applicant. Rather, it is enough, for the purposes of making good the applicant’s ground of appeal, that ‘a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence’.
So, having conducted my own independent assessment of the evidence, while I recognise that there are many other pieces of evidence — both direct and circumstantial — capable of supporting the verdict, nevertheless, in view of the foregoing matters, as well as the additional matters referred to by the trial judge in his ruling on the Prasad invitation, I think that on the whole of the evidence there is a reasonable possibility that Mr Sazdanovski was, and the applicant was not, the shooter.
I should add that, in so concluding, I do not mean to suggest that I am satisfied that Mr Sazdanovski was in fact the shooter. On the contrary, on the evidence at trial, I could not exclude the reasonable possibility — or the probability or even the high likelihood — that the applicant, not Mr Sazdanovski, shot Mr Tepelis. This, however, is the type of case in which, despite the certainty that one of two possible candidates fired the shot, on an examination of the record of the trial, I find myself unable to be satisfied beyond reasonable doubt as to which candidate was the shooter.
Jury best placed to resolve any doubt
But that is not the end of the matter. In M v The Queen,[37] Mason CJ, Deane, Dawson and Toohey JJ, in a joint judgment, said the following:
[37]M v The Queen (1994) 181 CLR 487, 494-495.
In most cases a doubt experienced by an appellate court will be a doubt which
a jury ought also to have experienced. It is only where a jury’s
advantage in seeing and hearing the evidence is capable of resolving a
doubt experienced by a court of criminal appeal that the court may
conclude that no miscarriage of justice occurred. That is to say,
where the evidence lacks credibility for reasons which are not
explained by the manner in which it was given, a reasonable doubt
experienced by the court is a doubt which a reasonable jury ought to
have experienced. If the evidence, upon the record itself, contains
discrepancies, displays inadequacies, is tainted or otherwise lacks
probative force in such a way as to lead the court of criminal appeal
to conclude that, even making full allowance for the advantages
enjoyed by the jury, there is a significant possibility that an
innocent person has been convicted, then the court is bound to act and
to set aside a verdict based upon that evidence. …
Consistently with those statements of principle, in my opinion, this is just the type of case in which the jury’s advantage in seeing and hearing the crucial witnesses in the flesh — an important advantage the jury had over this Court — is capable of resolving the doubt which I hold about the applicant’s guilt.
Mr Sazdanovski was a crucial witness. If the jury were able to be satisfied, beyond reasonable doubt, of the key aspects of his account, the verdict was plainly open. As I have said, however, Mr Sazdanovski had a powerful motive to shift blame onto the applicant. His evidence also suffered from other weaknesses, which have been mentioned by Priest JA or the trial judge in their respective sets of reasons. But, in the circumstances of this case, assessing the credibility and reliability of such a witness was very much a matter for the jury who saw and heard him give his evidence. The same applies to the other eye-witnesses.
While the precise positions differ, in every court, the jury box and the witness box are positioned so that the jury is in a prime position to observe the witnesses. There is nothing quite like looking witnesses in the eye or otherwise observing them as they give their evidence. The jury are especially well-placed to pick up witnesses’ expressions, intonations and demeanour, as well as nuances in the manner in which questions are answered or appear to be understood by witnesses. Usually, none of these things can be appreciated by a court of criminal appeal when considering merely the paper record. Yet they are matters that can impact on the assessment of witnesses by any trier of fact, including a jury. And it may well have been these considerations that moved the jury to act on the evidence of Mr Sazdanovski, particularly when coupled with other aspects of the eye-witness evidence that supported him.
I agree with Priest JA that it is appropriate for this Court to have regard to the judge’s analysis of the strength of the defence hypothesis that Mr Sazdanovski shot Mr Tepelis. After all, his Honour, like the jury but unlike this Court, had the advantage of seeing and hearing the witnesses give their evidence. Indeed, in conducting my assessment of the evidence, I have given great weight to the points the judge made in his ruling on whether to give a Prasad invitation, including his conclusion, which he expressed in the following terms:[38]
When the factors supporting the possibility that [Mr] Sazdanovski was the shooter are combined with the factors adversely affecting the credibility and reliability of [Messrs] Sazdanovski, Kupresak and Krasniqi, it is clear in my view that the threshold articulated by King CJ in R v Pahuja, namely that the evidence ‘although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty’, has been met. I reject the prosecution’s submission that these issues are within a normally expected range and I rule that a Prasad direction should be given to the jury.
[38]R v Rapovski (Ruling No 3) [2015] VSC 356, [43].
A conclusion that the evidence ‘is insufficiently cogent to justify a verdict of guilty’, from a trial judge with his Honour’s experience in the criminal law, is, in my respectful opinion, a powerful consideration and one that this Court should heed.
That said, his Honour’s conclusion, as well-informed as it is and as helpful as I have found it, cannot trump that of the jury. While a trial judge is in a much better position than this Court is to assess the witnesses, he or she is not usually in quite the same privileged position that a jury enjoys. This is because, unlike the jury, whose task it is to observe witnesses closely and critically, a judge’s approach is usually a little more detached and also involves concentration on matters of law, evidence and procedure as the witnesses give their evidence, rather than on whether the witnesses are to be accepted or not, albeit that he or she may well have an eye to that consideration as well.
In any event, on an application of this type, in answering the ultimate question that must be asked — namely, whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty — this Court ‘must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses’.[39]
[39]M v The Queen (1994) 181 CLR 487, 493.
Applying those principles to my own independent assessment of the record of the evidence at trial, despite my nagging doubt, despite my feeling of unease, I accept that it was open to the jury, having had the singular benefit of seeing and hearing the crucial witnesses in the flesh, to conclude, on the whole of the evidence, that they were satisfied beyond reasonable doubt that the applicant was the shooter, and that Mr Sazdanovski was not.
It follows that the verdict of guilty was open.
Conclusion and proposed orders
It is for these reasons that I am not satisfied that the verdict is unreasonable or that it cannot be supported having regard to the evidence.
I agree, for the reasons given by Priest JA, that the application for extension of time within which to make application for leave to appeal should be granted. I would grant the application for leave to appeal but dismiss the appeal.
----
5
14
0