Vlahos v the Queen
[2016] VSCA 275
•18 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0084
| VLAHOS |
| v |
| THE QUEEN |
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| JUDGES: | REDLICH JA and FERGUSON JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | No oral hearing |
| DATE OF JUDGMENT: | 18 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 275 |
| JUDGMENT APPEALED FROM: | [2013] VSC 171 (Lasry J) |
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CRIMINAL LAW – Application for extension of time to lodge appeal against conviction – Applicant found guilty of murder, arson and threat to kill – Total effective sentence of 26 years imprisonment – Applicant sought extension of time over three years after conviction – Applicant claimed he was advised by trial counsel that appeal had no merit – Applicant subsequently received advice that he could appeal on the basis of negligence of trial counsel – Alleged negligence was failure to call expert evidence about mental impairment and failure to raise manslaughter as an alternative to murder – Applicant gave evidence at trial that he was not present at the time of offences – No evidence available on which verdict of manslaughter could have been supported – Evidence of applicant’s mental health not relevant – Appeal dismissed – Criminal Procedure Act 2009 s 313 – Kentwell v The Queen (2012) 252 CLR 601.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
REDLICH JA
FERGUSON JA:
Introduction
On 19 March 2013, a jury found the applicant guilty of the murder of Jacqueline Camilleri, arson and threatening to kill Ms Camilleri’s son.[1] On 12 April 2013, the applicant was sentenced to a total effective sentence of 26 years of imprisonment. Over three years later, he seeks an extension of time in order to apply for leave to appeal against his conviction. The reasons the applicant gives for not applying within time are that he was advised that an appeal had no merit; he accepted that advice; he was not familiar with court proceedings and left it all in the hands of his lawyers; the next three years in custody he spent withdrawing from his drug addiction; he is now ‘stabilized’ and ‘as normal’ as he can be; and he has a second opinion that an appeal could be brought based on the alleged negligence of his trial counsel which he says has resulted in a miscarriage of justice. In respect of this last point, the applicant alleges that trial counsel failed to call expert evidence regarding what he now says was his mental impairment at the time of the offence and trial counsel failed to raise manslaughter as an alternative to murder.
[1]The applicant pleaded guilty to two additional charges – attempted theft of a motor vehicle and theft of a motor vehicle.
For the reasons which follow, the application for an extension of time should be refused. Of prime (although not sole) importance is that at trial, the applicant gave evidence consistent with his case that he was not present when the offences were committed and he was not involved in them. At least on his account, manslaughter was not open on the evidence. Neither of the matters which the applicant says his counsel failed to raise were relevant to determining the issue of whether he was present and involved when Ms Camilleri was killed. We are not persuaded that in those circumstances, the proposed application for leave has a realistic prospect of success.
Legal principles
Section 313 of the Criminal Procedure Act 2009 provides that this Court may extend the time within which notice of application for leave to appeal may be filed. In Kentwell v The Queen,[2] the High Court considered an analogous provision in the New South Wales legislation. In that case, the matter for consideration was whether an application for an extension of time in which to appeal against sentence (rather than, as here, conviction) should have been granted. The High Court made observations relevant to the present case:
[2](2014) 252 CLR 601.
(a) the discretion to extend time is to be exercised by consideration of what the interests of justice require in the particular case;[3]
[3]Ibid 613 [30], [49]. What is in the interests of justice may require consideration of any adverse effects on the victim or the community generally: Ibid 614 [32], [49].
(b) review of an old conviction may require consideration of whether a trial which is fair to both sides may be conducted;[4]
[4]Ibid 613 [29], [49].
(c) re-opening a conviction for a violent offence may cause acute stress to the victim, including the prospect of being required to give evidence again;[5]
[5]Ibid.
(d) the length of the delay is a consideration when determining whether to grant an extension of time;[6]
[6]Ibid 614 [31], [49].
(e) the reason for the delay is also relevant;[7] and
(f) the prospects of success of the appeal if time is extended may affect whether an extension should be granted.[8]
Circumstances of the offending[9] and the case at trial
[7]Ibid.
[8]Ibid 614 [33], [49].
[9]The circumstances of the offending have been based on the judge’s reasons for sentencing: R v Vlahos [2013] VSC 171.
The applicant and Victor Georgiadis were friends. Mr Georgiadis was in a relationship with Ms Camilleri. On 7 October 2011, Mr Georgiadis moved out of the home that he and Ms Camilleri had been sharing. Mr Georgiadis met the applicant in the street and went with him to the applicant’s home. The applicant and Mr Georgiadis used cocaine. Later that night, Ms Camilleri arrived with her son who was 11 years old at the time. The boy went into another room to watch television and the adults began to use cocaine.
At some stage the applicant came to the conclusion that Ms Camilleri had stolen some of his cocaine. He became extremely excitable, making accusations of theft, particularly against Ms Camilleri. The applicant was mistaken as Ms Camilleri did not have any drugs. Both Ms Camilleri and Mr Georgiadis removed some of their clothes so that the applicant could see that they had not stolen the drugs. The applicant poured some hot water on Ms Camilleri and on Mr Georgiadis. He then obtained a knife from the kitchen and, despite the efforts of Mr Georgiadis to intervene, the applicant proceeded to stab Ms Camilleri in the torso. During that part of the incident, the applicant also went up to Ms Camilleri’s son and put the knife to his neck threatening to kill him unless the drugs the applicant thought had been stolen were produced. Mr Georgiadis intervened to try to stop the applicant from threatening the boy. The applicant then went to Ms Camilleri and stabbed her about five times. After he had done that, he picked up the couch with her on it and threw her to the floor. She was on her back and still in her underwear. The applicant then jumped on her head and stabbed her again.
By this stage, Ms Camilleri’s son had left the premises after his mother had urged him to do so. Mr Georgiadis knelt down to see whether there was any life in the body of Ms Camilleri. There was none. Ms Camilleri died as a result of the stab wounds. After Ms Camilleri was dead, the applicant lit a fire near her body. After the fire had started, Mr Georgiadis checked that the boy had left the building. The applicant and Mr Georgiadis then also left the building.
The applicant was charged with Ms Camilleri’s murder, with threatening to kill her son and with arson.
The applicant’s case at trial was that on the night in question, he was threatened by Ms Camilleri with a knife, that he then left the premises through the kitchen window and was not present when she died and was not involved in her death. The applicant gave evidence to that effect. He testified that Ms Camilleri, Mr Georgiadis and he had used cocaine, that Ms Camilleri had asked for more and he refused her request. Relevant extracts from his evidence include the following:
Then what happened?---She kept going. She’s standing there near the couch, I was standing near the kitchen table, in the kitchen table and the kitchen bench there, and she’s pulled out a knife. She goes, ‘I want the fucking coke.’…
What was she doing with the knife at that time?---She started thrusting the knife at me.
What did you say?---I was frightened for me life. I didn’t have much to say. I put me hands up, trying to protect myself, and in doing so, I’ve just reached over - I was right next to the kettle on the kitchen bench and I grabbed the kettle and started deflecting the knife.
When you say started deflecting it, can you tell us precisely what was Jackie doing with the knife?---Jackie was thrusting the knife at me.
When you say at you, what part of you?---My upper body….
Did the knife come into contact with you at any time?---Yes, the knife hit me in the hands and maybe at the top, you know, me upper body.
The applicant then gave evidence about Ms Camilleri’s son coming into the room and then leaving, so that only the adults remained. The applicant’s evidence continued:
What did you do?---Jackie’s there and she said to Victor, ‘Where's the cocaine? I want some more.’ She’s - I don’t know - she just turned to me and just thrusted the knife and hit me straight in the chest (demonstrating).
What did you do?---Victor’s gone to grab her by the arm, twists around and I’ve just – what’s it called - I put one foot on the couch and jumped straight through the window.
When you say you jumped straight through the window, where does jumping straight through the window have you landing?---It takes you to the porch or balcony.
The applicant testified that at the time he left the building Ms Camilleri had not been injured, there had been no threat to her son and no-one had lit a fire. The applicant also gave evidence that he had never instructed any legal practitioner that he had caused Ms Camilleri’s death or that he had acted in self-defence. Quite clearly, any such instructions would have been inconsistent with his case that he was not present when Ms Camilleri was killed.
Prospects of success of application for leave to appeal
Although the applicant would seek leave to appeal against his convictions for murder, making a threat to kill and arson, as drafted, his proposed ground of appeal is solely directed to his conviction for murder. The proposed ground is that his trial counsel was incompetent and this has led to a miscarriage of justice. The asserted incompetence falls into two categories: first, that counsel failed to raise manslaughter as an alternative to murder; second that counsel failed to lead evidence of the applicant’s mental impairment and depression at the time of the offence. In respect of the second matter, the applicant complains that his trial counsel did not raise any of the matters considered in R v Verdins.[10]The applicant also contends that evidence should have been called from his psychiatrist (Dr Wahr) and Dr Ciara Mary Earley, who was the doctor who attended him to determine his fitness for interview by police after his arrest. Dr Earley was called by the prosecution to give evidence and was cross examined by the applicant’s counsel. Her evidence principally went to whether the applicant had physical injuries on his body when she examined him the morning after Ms Camilleri died. Dr Earley did not give evidence about the applicant’s mental state, nor did she give evidence that he smelled of alcohol when she undertook her assessment of whether he was fit to be interviewed by police.
[10](2007) 16 VR 269 (‘Verdins’).
When considered in isolation, the evidence of the applicant plainly did not support a finding of manslaughter. On his account he was not there when Ms Camilleri was killed. Once his evidence was rejected (as it must have been by the jury), the remaining evidence (both lay and expert) overwhelmingly supported a finding that the applicant intended to kill Ms Camilleri. There was simply no evidence upon which a verdict of manslaughter could have been open. Counsel was not required to raise it as a possibility; indeed it would have been contrary to the applicant’s defence and own evidence. Nor was the judge required to direct the jury to consider an alternative verdict of manslaughter.[11]
[11]R v Williamson (2000) 1 VR 58. The trial began on 8 March 2013 before the commencement of the Jury Directions Act 2013. See also The Queen v Baden-Clay [2016] HCA 35.
Similarly, given the way that the applicant defended the charges and, more notably, his evidence that he was not there, any evidence about his mental state was not relevant. Evidence of that nature could not rationally have affected the jury’s assessment as to whether (a) the applicant was or was not there when Ms Camilleri was killed or (b) was not involved in her death.
The applicant submitted that he had mentioned to his counsel before the trial began that for over 10 years before the offence, he had been under psychiatric monitoring and treatment for his condition. In addition he submitted that he had instructed counsel to introduce at trial his mental impairment, documentary evidence about it and to call Dr Wahr. Notwithstanding those submissions, he cannot have maintained those instructions having regard to the way that he participated in the trial. Plainly the applicant could not have given instructions that he was there when Ms Camilleri was killed because counsel could not have conducted the trial in the way that he did. The applicant did not give evidence, or it appears provide instructions, that he could not remember what happened or was so intoxicated as to be unable to recall the events. If he had, then evidence about whether he was mentally impaired might have been relevant and admissible. Had there been such evidence, it may have been necessary to direct the jury to consider the lesser charge of manslaughter. But that is all hypothetical, for the applicant gave no such evidence and he did not pursue that type of defence and gave no known instructions to that effect.
His complaint that the principles in Verdins were not raised has no substance. The material which he has filed in support of his extension of time application, does not go far enough to show that his mental state at the time of the offending and/or at the time of sentence was such that it needed to be taken into account by the sentencing judge. The applicant has produced what is described as a ‘patient history prescribed medication for 10 months prior to the offence by psychiatrist Dr Wahr,’ a Medicare report of scripts and a pharmacy patient history. Each contains a long list of medications together with the date on which they were prescribed. That material does not establish, and it is not open to infer from it, that at the time of offending or at the time of sentencing the applicant was mentally impaired in any way. There is no evidence from any medical expert nor from any treating doctor. We could not act on the basis of what the applicant has now put before us.
In summary, the applicant has not established that his appeal would have any realistic prospect of success if time were extended so that he may file an application for leave to appeal against conviction. Consequently, it would be futile to grant his application for an extension of time. It follows that it would not be in the interests of justice to accede to his application.
Other matters
Given the conclusion reached above, it is not necessary to consider other matters that might otherwise be relevant to consideration of whether to grant an extension of time. Nevertheless, we would mention that we would not have refused leave simply because of the length of the delay and the reasons he has given for it. On the other hand, another matter that would have weighed against granting an extension of time is the effect that re-opening the conviction may have had on Ms Camilleri’s son, including that it may have been necessary for him to give evidence for a third time.[12]
[12]He gave evidence at the committal and at the trial.
Conclusion
The applicant has not established that there is a realistic prospect that his application for leave to appeal would succeed. In those circumstances, there would be no point in granting the extension of time that he seeks to file that application. His application for an extension of time should be refused.
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