Elias v R

LEGISLATION CITED: Crimes Act 1900 s418 Evidence Act 1995 s55(1), s56, s97, s101(2)

CASES CITED: R v Cakovski [2004] NSWCCA 280; 149 ACrimR 21 R v Katarzynski [2002] NSWSC 613

PARTIES: John Joseph Elias - Appellant Crown - Respondent

COUNSEL: C Smith - Appellant P Miller - Crown

SOLICITORS: L Randle - Appellant S Kavanagh - Crown

IN THE COURT OF CRIMINAL APPEAL 2006/1468

McCLELLAN CJ at CL SIMPSON J ROTHMAN J

Friday 24 November 2006 John Joseph ELIAS v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 SIMPSON J: On 20 January 2004 the appellant was arraigned on an indictment that charged him with a single count of malicious wounding with intent to do grievous bodily harm, and an alternative charge of malicious wounding. Following a jury trial, he was convicted on the principal count. He was sentenced to imprisonment with a non-parole period of four and a half years with a balance of term of eighteen months, making a total term of six years. He now appeals against the conviction, but makes no complaint about the sentence.

facts 3 The offence was committed on 7 June 2003, in rather unusual circumstances. Since there is relatively little dispute about the salient facts, they may be stated with brevity. 4 For many years the appellant was acquainted with Mr Raymond Younan, the victim of the offence. Mr Younan described himself as being in "the debt recovery business". He also conducted some kind of gambling operation involving betting on horse races. The appellant assisted him in this operation. In late May 2003 Mr Younan went to the Gold Coast for two weeks. He asked the appellant to look after his betting business. On his return he formed the view that the appellant had defrauded him of $35,000. He put that accusation to the appellant who denied it. Mr Younan did not accept the denial. He pursued the appellant, telephoning him frequently; his calls became increasingly aggressive. Each man made threats against the other. A meeting was arranged for late evening on Friday 6 June at Belmore Park. The appellant did not attend. A second meeting was arranged at a fast food restaurant for the morning of Saturday 7 June. The appellant did attend, as did Mr Younan, who was driven there by a friend, Gregory Pigott. When Messrs Younan and Pigott arrived the appellant was seated in the restaurant. On Mr Younan's account, he approached the appellant and said: "Come on, come out here, you grub." 5 The appellant gave evidence to similar effect. However, the appellant also gave evidence that, during the course of the preceding days, the threats made by Mr Younan included threats to kill him (the appellant) and he gave evidence (corroborated by his brother Joseph Elias) that Mr Younan had called at their mother's home, threatened to kill the appellant, and shown Joseph Elias a gun. This was denied by Mr Younan. 6 It was common ground that the appellant met Mr Younan at the restaurant, and that, when he did so, he was armed with some kind of handgun. When Mr Younan directed him to walk outside, he did so, and he produced the weapon. He said he did this: "… because as I was following Ray outside first, I thought first we were gunna talk, then I realised there was going to be no talking because he got me to the middle of that street. I knew then he, that Ray, that there was going to be no talking, and I was in the middle of that street and that I was the target for an ambush. I was in the open. … I also got the weapon because he kept looking around. That really scared me because I didn't know what he was looking for." He said he took out the weapon, but hid it behind his back so that Mr Younan could not see it.

7 He said that Mr Younan then demanded the money, to which he replied that he did not owe Mr Younan any money, and that Mr Younan said: "Grub, we're going to kill you now fuckin' tonight." 8 He said he thought he was going to die then, he was in danger, he was frightened, and he thought he was going to be killed. He therefore showed Mr Younan the gun. He did this for his own protection. 9 The appellant admitted that he then pointed the gun at Mr Younan, in the area of the stomach, told him to stay away from the Elias house, and then lowered the gun. He acknowledged that he then twice discharged the gun, for the purpose (he said) only of frightening Mr Younan. He claimed that the gun was never in such a position that the bullets could have struck any part of Mr Younan's body. He said that he then immediately left the area in his car, and that as he reversed the car, he could see Mr Younan in a standing position. 10 Notwithstanding this evidence of the appellant, the trial was conducted on the basis that the only issue for the jury was whether the Crown had negatived self-defence. It was tacitly accepted that the bullets fired by the appellant had in fact struck Mr Younan. Mr Younan suffered an injury to the left thigh, which was treated, but which was likely to result in long-term functional deficit. 11 It is the issue of self-defence, and the trial judge's rejection of evidence said to be relevant to this issue, that gives rise to the two grounds of appeal pleaded.

grounds of the appeal 12 Two grounds of appeal are pleaded. They are: "1. The trial judge erred in rejecting questions asked of Gregory Pigott and Norman Nicolas as to whether they had seen the victim in possession of, or with, a gun. 2. The trial judge erred in refusing to admit the evidence of Joanne Maestri." 13 The evidence the subject of the first ground was sought to be elicited in cross examination of Gregory Pigott, who gave evidence for the Crown, and in examination of a defence witness, Norman Nicolas. The question asked in each case was, in substance, identical. It was: "… in for example the six months before 7 June 2003, have you ever seen Mr Younan have possession of a handgun? / with a firearm?" On each occasion objection was taken by the Crown Prosecutor and, after hearing argument, the trial judge rejected the evidence. He did not give reasons, but to some extent, his reasoning process can be discerned from the exchanges during argument.

14 The evidence the subject of the second ground was tendered in the defence case. Its content is to be found in an email dated 13 January 2004, addressed from Ms Joanne Maestri to counsel for the appellant, attaching a copy of another email dated 27 November 2003, addressed to the then state Opposition spokesman for police. The attachment is a lengthy, closely typed document. Its substance appears to be a complaint about the handling by police of a matter Ms Maestri had reported, and contains a narrative setting out Ms Maestri's alleged dealings with, and financial exploitation by, a variety of individuals, including Mr Younan. She attributed to Mr Younan death threats made against her, and a reference by Mr Younan to "guns and making people disappear". 15 Further evidence sought to be adduced from Ms Maestri was contained in a statement made by her to police on 23 January 2004, headed "Threats made by Ray Younan". Ms Maestri alleged that, on 20 January 2004, at a coffee shop on the ground floor of the Downing Centre Court complex, Mr Younan again made a death threat against her. Counsel for the appellant told the judge that he wished to adduce this evidence and to supplement it by evidence from Ms Maestri that Mr Younan in early 2003 had indicated that he had possession of, and was willing to use, a gun. 16 The judge also rejected this evidence. For the purposes of this appeal it is unnecessary to distinguish between the two categories of evidence: essentially it was evidence that prior to June 2003, Mr Younan had, or had access to, a firearm or firearms. 17 Unless the evidence was relevant, it was not admissible: Evidence Act 1995, s56. Evidence is relevant where, if it is accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: Evidence Act s55(1). 18 To resolve the issue raised on the appeal it is necessary to identify the fact in issue the probability of the existence of which it is said could rationally be affected by the evidence that, within six months prior to the events in question, Mr Younan had been seen, or had been known to be, in possession of a firearm: that is, that he had, or had access to, a firearm or firearms. 19 The factual issues in dispute in the trial were confined to those raised by the appellant's contention that his act in shooting Mr Younan was an act carried out in self-defence. There was no issue about whether or not, on 7 June, Mr Younan was in possession of a firearm: that question simply did not arise. If it had, evidence that, on previous occasions he had carried, or had suggested that he had access to, firearms, may, if it met the tests imposed by ss97(1) and 101(2) of the Evidence Act, have been admitted as tendency evidence. The Crown submitted that it was only by that route that the evidence could have become admissible, that that was expressly disclaimed by trial counsel, and that the prerequisites to its admission had not been met. 20 In my opinion, the question of the admission of the evidence as tendency evidence is a false issue. Any tendency on the part of Mr Younan to possess or use firearms did not ever emerge as an issue in the trial. 21 All of the rejected evidence was said (on behalf of the appellant) to go to the questions raised by the issue of self-defence. A "defence" of self-defence is provided for by s418 of the Crimes Act 1900, which is in the following terms: "418 Self-defence - when available

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them." (It is strictly incorrect to refer to self-defence as a "defence": by s419, where self-defence is raised, the onus lies upon the Crown to prove that the conduct giving rise to the charge(s) was not carried out in self-defence.)

22 The questions for determination raised by s418 were stated by Howie J in R v Katarzynski [2002] NSWSC 613 as follows: "(i) is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself? and (ii) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them?" 23 Each of the questions raised involves an assessment of the state of mind of the person accused. In the first case, the question goes directly to the belief of that person; in the second it goes to the reasonableness of the conduct in the light of the circumstances as that person perceived them to be. The s418 issues do not involve a determination of the reasonableness of any belief held by the person accused; the first question is entirely subjective. The second question does pose a test which is, in one respect, an objective test - the reasonableness of the accused's response - but that is to be determined by reference to his or her perception of the relevant circumstances. 24 As I have mentioned, the only facts truly in issue in the trial were those raised by the application of s418. Those facts were: · the appellant's belief (or otherwise) that, in order to defend himself, it was necessary that he produce and fire the gun; · the reasonableness of his conduct (in producing and firing the gun) in the light of the circumstances as he perceived them. 25 The fact (if it could be established) that Mr Younan had, in the past, carried, used, threatened to use, or had possession of a firearm or firearms could not rationally affect the probability of the existence of either of these facts, unless it were proposed also to prove that the appellant was aware of that fact or those facts. That was not proposed. 26 Counsel who appeared for the appellant on the appeal contended that the rejected evidence was relevant and admissible because it was capable of rationally affecting the probability that the appellant believed that Mr Younan had a gun at the time of the shooting. That could possibly be so if there were any evidence that, prior to the events in question, the appellant had been made aware of the facts sought to be asserted by the evidence in question. But there was no such assertion. Thus, the evidence could not affect the probability that the appellant held such a belief; at best, it could go to the accuracy or reasonableness of any such belief. That is irrelevant to the application of s418. Nor could it shed any light on the second question, of the reasonableness of the appellant's conduct in the light of the circumstances as he perceived them. That is sufficient to dispose of the appeal. 27 Counsel for the appellant placed heavy reliance upon the decision of this Court in R v Cakovski [2004] NSWCCA 280; 149 A Crim R 21. That case involved a charge of murder. The issue was self-defence. At trial the appellant sought to adduce evidence that, twenty-two and a half years earlier, the deceased had murdered three people and killed a dog. The appellant had not been aware of that at the time of the death of the deceased. The trial judge rejected the evidence, as too remote to the events the subject of the trial. The appellant also sought to adduce evidence from another witness to the effect that, on the evening of his death, the deceased had violently assaulted him (the witness), and that, in the course of that altercation, the deceased had threatened to kill the witness, and had expressly acknowledged that he had previously killed three others. The trial judge also rejected this evidence. It appears that this evidence was tendered under s97 of the Evidence Act on the basis that it was capable of establishing in the deceased a tendency to violence even amounting to murder. 28 On appeal, this Court held that the evidence ought to have been admitted. 29 Hodgson JA held that the evidence was not tendency evidence, but was admissible as proof: "… that the deceased was a person who was not subject to very strong inhibitions against killing and contemplation of killing in the same way as are the great majority of people" or of the probability or otherwise of the deceased killing or making a serious threat to kill again, and to the likelihood that he did so on the occasion of the events immediately preceding his death.

Hulme J agreed that the evidence of the murder of the three people (but not the killing of the dog) was admissible on the basis that: "… it rendered less improbable the appellant's account that the deceased had threatened to kill him. Killing, and thoughts, and threats of killing another human being are sufficiently extreme or unusual that the fact that the deceased had killed people in the past was relevant because it rendered more probable, or perhaps more accurately, less improbable, that the deceased uttered the threats the appellant attributed to him." 30 Hidden J took a different view. His Honour regarded the evidence as tendency evidence and considered that it ought to have been admitted on that basis. 31 For myself, I am quite unable to perceive the evidence, particularly as expressed by Hodgson JA and Hulme J, as other than tendency evidence. However, it is not for this Court as presently constituted to examine the reasoning of another bench of the Court. There is, in Cakovski, no binding or persuasive statement of principle, nor, indeed, any statement of principle on this issue. The decision is one made on its own facts and does not, in my opinion, guide this Court to a like result in the present case. 32 I would dismiss the appeal against conviction. 33 ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of her Honour Simpson J. I agree with the reasons of her Honour and the orders that she proposes. 34 I make the following additional comments, not to derogate from those reasons, nor as qualification of my agreement with the reasons published by her Honour, but as additional comments relating to the relevance of the evidence. 35 If, as is alleged, evidence from Gregory Pigott and Norman Nicholas (or others) could properly be admitted as tendency evidence it would prove only a tendency for the victim to be in possession of a gun. Whether the victim was in possession of a gun at the time that the offence occurred is not a relevant consideration. 36 The defence at trial was that the conduct which amounted to an offence was carried out in self defence; whether the victim had a gun is, unless it were known to the appellant, irrelevant. 37 All of the above is dealt with fully by her Honour Simpson J. However, there may be circumstances where an accused gives evidence of the belief that the victim was carrying a gun based upon the reputation of the victim. In those circumstances it may well be relevant for evidence of the reputation of the victim to be adduced, which evidence may include the knowledge of other persons concerning the fact that the victim carries a gun. This is not a question that falls for decision in this matter. 38 Ultimately, the belief of the appellant is the determining factor, not whether as a fact a gun is being carried by the victim or is in his possession. If the knowledge of others has been imparted to the appellant, either in relation to the possession of firearms while looking for the appellant, or that a gun is carried always, usually, or generally, that fact or those facts could be relevant to the belief of the appellant and would, on that basis, be relevant evidence in the proceedings and, subject to compliance with the other provisions of the Act, admissible. 39 I join in the orders of Simpson J.

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