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[2018] VSCA 310
General information, not legal advice.
Court of Appeal (Vic)
2018-11-21
Mr J, Priest JA, Forrest JA, Ashley JA
Original judgment source is linked above.
[2017] VCC 1386 (Judge Mason)
CRIMINAL LAW - Application for leave to appeal - Conviction - Intentionally causing serious injury in circumstances of gross violence - Whether a substantial miscarriage of justice occurred - Whether trial judge erred in admitting DNA evidence - Whether trial judge erred in jury directions - Whether verdict unsafe and unsatisfactory - Timing of agreement, understanding or arrangement in commission of offence - Application for leave to appeal refused.
1 Nazih Farha pleaded not guilty in the County Court to an indictment alleging one count of armed robbery and two counts of intentionally causing serious injury in circumstances of gross violence ('ICSIGV'). After a lengthy trial, he was acquitted on the armed robbery charge but found guilty on the ICSIGV charges. He was sentenced as follows:
Intentionally causing serious injury in circumstances of gross violence [Crimes Act 1958 s 15A]
Intentionally causing serious injury in circumstances of gross violence [Crimes Act 1958 s 15A]
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
Pursuant to s 6A of the Sentencing Act 1991, sentenced as a Serious Violent Offender in relation to charge 3
2 The applicant seeks leave to appeal against conviction on the following grounds:
Ground 1: A substantial miscarriage of justice has occurred, in circumstances where the contents of a note from a juror were not adequately revealed to the applicant's counsel.
Ground 2: The learned trial judge erred in admitting the DNA evidence relating to the bottle cap found by police at 12 Basil Street, Fawkner.
Ground 3: The learned trial judge erred in directing the jury that the agreement, understanding or arrangement underpinning the commission of the offence of intentionally causing serious injury in circumstances of gross violence:
(a) need not have been formed far in advance of the commission of the offence; and
(b) may have been formed moments before the commission of the offence.
Ground 4: The guilty verdict on the charge of intentionally causing serious injury to Mazen Elmas in circumstances of gross violence is unsafe and unsatisfactory.
3 On 15 May 2015, Tufan Kiroglu was shot in the leg. Upon his release from hospital in early June 2015, he moved into a house at 12 Basil Street, Fawkner. That house was occupied by Hayssam Haidar.
4 On 5 June 2015, Kiroglu experienced complications arising from his gunshot injury. Ambulance personnel attended at the house on 12 Basil Street. They called the police who also attended at that house at 5:47 am on 5 June.
5 In the early morning of 6 June 2015, Haidar, Kiroglu and another man, Mazen Elmas, were all present at 12 Basil Street.
6 Two men entered 12 Basil Street at about 2:30 am. The prosecution alleged those men were the applicant, Nazih Farha, and his co-accused Adrian Stack. Stack was said to be in possession of a pack of Victoria Bitter stubbies. The prosecution alleged that a stubby each was given to Haidar and Elmas. The applicant and Stack are said to have also consumed a stubby each.
8 The prosecution alleged that Haidar was asked by one or other of the co-offenders whether there was money at the property, whether there was a meat cleaver there, who Kiroglu was and whether police had attended at the property the previous day.
9 The applicant is said to have produced a blue Stanley knife. One or other of the co-offenders is said to have slashed the cheeks of both Haidar and Elmas. They sustained deep facial lacerations. A firecracker was detonated on Kiroglu's leg. The co-offenders left the house.
10 The applicant was interviewed by police on 16 June 2015. He admitted an association with Stack but denied being involved in the offending or being present at 12 Basil Street at the relevant time.
11 At trial, a central fact in issue was whether the applicant was present during the offending. The prosecution alleged that the accused's DNA was found on a metal stubby cap found at 12 Basil Street. The expert evidence on this issue called by the prosecution was challenged and the defence called competing expert evidence.
12 We will refer more comprehensively to evidence as it relates to the individual grounds of appeal.
Ground 1 - A substantial miscarriage of justice has occurred, in circumstances where the contents of a note from a juror were not adequately revealed to the applicant's counsel
13 On 6 June 2017 at 10:27 am, his Honour advised counsel that he had received a lengthy note that morning from a juror. The juror had contacted the Juries Commissioner's Office to indicate that he wanted to communicate something individually to his Honour. The jury were empanelled on 22 May and retired to consider their verdict at 12:15 pm on 5 June. The juror wrote a note addressed to his Honour. Counsel in the appeal were provided with an unredacted copy of the note. Their submissions addressed the entire note, as does this judgment. We have concluded that it would be impractical to redact the note any more than we have. To do so would render the argument and our reasons incomprehensible.[1] The note read:
I cannot agree with ONE of complicity that Farha remained in existence when the offence was committed for the following reasons: (in order of weight (1 and 2 provide equal level of reasonable doubt in my mind)).
[page 2] CONTINUED
in my mind about how the lack of a weapon can or cannot place Farha at the scene by remaining in existence.
_____________________________________________________________________
I would also like to point out that being in this situation puts considerable stress and anxiety on myself. I called the counselling hotline last night. I have also been told by other jury members that it is my responsibility to convince the other members of the jury why I have reasonable doubt (I hope I have given reasons but there is no way I can prove any of my concerns). Is this correct of me and of the jury members?
Other points of concern are: (for me)
14 This note was not provided to counsel. Instead, his Honour paraphrased its contents as follows:
It falls into two parts. Without going through all the detail, for myself it wasn't even necessary, but I won't disclose, that the jury first expresses a view of that juror's determination on some issues and disclosure that's in conflict in analysis of the issues with other jurors.
The second part, perhaps more importantly, expresses that juror's feelings of stress and anxiety. So much so that the juror called the counselling hotline for assistance in those emotional circumstances last night. I believe that occurred after he had spoken to one of the Juries Commissioner staff who then provided the counselling service number.
15 His Honour went on to advise counsel that on this morning, the juror preferred not to come in with the rest of the jury but to remain in the Jury Commissioner's Office. He said, '[t]herefore, we have 11 jurors in the jury room right now, as I understand it.' His Honour said that he had asked the Juries Commissioner officer whether she would ask the juror whether he could sit and whether he was capable of continuing to act as a juror. The reported response was that he was not sure, he did not want to go back into the room this morning until this matter was considered and he was concerned that he might feel bullied.
16 His Honour then directed counsel to his power to discharge a juror if the juror becomes incapable of continuing to act,[2] or if for any other reason the juror should not continue to act as a juror.[3] He invited submissions. The prosecutor submitted that the possibility of the juror rejoining the jury could only be assessed by inviting the relevant juror into the court 'and speaking to that juror'. He said, '... on the face of the note, there's indications this juror is ... incapable of continuing to act as a juror.' What the prosecutor meant of course is 'on what he'd been told about the note', as he had not seen the note itself.
17 Defence counsel submitted that his Honour would need to determine whether the juror was capable or incapable 'to move forward'.
18 His Honour asked the Commissioner to bring the juror to Court. A few minutes later, Court reassembled. The juror was present. The 11 other jurors remained in the jury room. The transcript reads:
HIS HONOUR: Thank you. I have assembled the court because of a concern of one of the jurors. Sir, could you come forward if you would and do you mind sitting in the - just in the Foreman's chair of the jury box just so that this material can be recorded as it ordinarily occurs.
Now, I'm grateful you are prepared to come up and speak to me. I just want to just caution you about a couple of things. I have read the letter that you've given. I've read your concerns, I understand you express concerns and I have considered those and there's various aspects about this that I can consider and make a determination about but first of all can I ask you this: My concern is simply to ask you whether you feel you're capable of continuing as a jury (sic) in the circumstances? I don't want you to discuss anything about the nature of your concerns on any analysis of the evidence or the jury deliberations or anything about that, that's a matter between everybody on the jury so I don't need to know anything about that.
My concern is that your feelings of anxiety and concern, the fact that, as I understand it, and I've explained to the parties that you felt enough concern yesterday afternoon to call the counselling helpline last night and you have expressed your concern this morning that you would have preferred not to go into the jury room this morning with the other jurors and to remain in the Jury Commissioner's Office.
So, I understand all that so my real concern is whether you feel you're incapable of continuing to analyse the evidence and discuss your views and the other juror's views still in a calm and rational way that you would otherwise be doing. That's really the issue. Can I say this? That the process of jury deliberations is not always an easy one because people do have different views and they have strong opinions and other experience is with jurors that we see distress, not infrequently, there is frustration, there can be a build-up of disagreement to the point where it feels there's some hostility.
I can speak to the jury about these matters but effectively it's a robust process where people get frustrated with other people's points of view and they can express their own opinions strongly and their views about another juror's opinion strongly. So it is an experience which needs some robustness.
Now, that's the general picture. However, it doesn't have to get to the point where it breaks down someone to the point where they really feel such anxiety and concern that they just don't feel like they're in a position that they're able to manage the process but I would have to be satisfied that it got to that level before I could, in fact, discharge you from the jury and I can do that and the trial can continue. It can continue under the law with 11 jurors if that is the case.
The question is do you feel like you can continue this process or do you really think it is emotionally beyond you? That is the issue.
Now, I understand that you have already given some thought to that and the response that I received from, through the Juries Commissioner from you was that you were unsure whether you could continue.
Now having - I've said quite a bit to you at this stage and there's a little bit more for you to think about and you should feel no pressure about this. The fact is, you've just got to sit back now and think well, is it something I can continue with? Or, am I not really in a position where I'm going to be able to feel I can give a balanced thought and discussion and analysis to this matter? And that's an enquiry only you can ask yourself about.
What I propose to do is having given you this - or my views about it and some information about how the jury process does work, whether you feel you can do that. So, if you would like to take some time just to think about that before you respond that's fine or if you feel that you're strong enough to express your opinion at this stage then I can hear you now.
JUROR: What I don't understand is what my position is after I've told you that I have some um concerns.
HIS HONOUR: It's not really a matter about having concerns about your analysis of the - - -
JUROR: Right.
HIS HONOUR: - - - of the evidence. We find that jurors have different views and that's what I don't want to know. But it's perfectly normal for people to have different concerns. Ultimately you've got to act according to your own oath and your own conscience and your own intellectual analysis of the issues.
If your opinion differs to other jurors and with other jurors or on your own against other jurors, it is your opinion and your view. So, you must always reach your own decision according to your own view of the evidence and if, after calmly considering the evidence and listening to the opinions of other jurors you can't honestly agree with their conclusions you shouldn't change your mind simply to reach a unanimous verdict. In fact, you mustn't agree to a verdict if you did not honestly and genuinely think that it's a correct one.
JUROR: I think I'm at that stage.
HIS HONOUR: All right. Well, the difficulty about that is that you might be at that stage now but do you think you can continue to discuss those views with other members of the jury?
JUROR: It depends how robust it gets.
HIS HONOUR: That's right. Well, when you say it depends how robust it gets, do you mean about how, strongly the other views might be expressed against you as to your views?
JUROR: Exactly.
HIS HONOUR: All right.
JUROR: But it's a bit difficult to predict, although I can already partly predict that now.
HIS HONOUR: Based on what happened yesterday?
JUROR: Yeah.
HIS HONOUR: All right, so look, I don't think you need to say anything more at this stage. If you would like to return with the Juries Commissioner please and at this stage, just outside court.
JUROR: All right.
19 His Honour observed that the juror's capacity to act seemed to depend on the reaction of other jurors to his firm views. Defence counsel saw two issues:
One is his capacity and ability to continue, but then there may be a greater issue about what's actually going on and ... whether there's some bullying and something of that nature that's going on within the jury ... which may raise an issue in terms of the jury as a whole, whether the jury should be discharged.
The prosecution adhered to its earlier expressed position.
HIS HONOUR: Well, I can assure you that there's no expression and nothing in the material that I got in the way of letter that has articulated particular bullying. The expression was that his differences and his analysis has put considerable stress and anxiety on him and he sought counselling in relation to that.
So it's, it's a process depending on how much it affects someone but that many jurors have to go through and usually with some further directions as to applying themselves to calm analytical thought and considering other people's views they move through it. I mean, you see it developing, you see people coming out and they've been wringing their hair and they form into groups and the people looking at other people saying, 'Yeah, look I told you so when they get another direction.' This is part of the system. As long as someone feels they can continue just because they've got a different view at this stage after three and three quarter hours, I think they should continue.
... If you could ask the Jury Commissioner and the juror to come in please? Just in the body of the court.
Come in again please? [Juror returned to court.]
Sir, if you could come up again. I'm sorry to inconvenience you.
JUROR: That's okay.
HIS HONOUR: I'm just going to ask you if you feel that you can go back in with the jury for a bit longer?
JUROR: Yeah, I can.
The juror said to his Honour 'I'm just trying to follow your instruction.' He asked for a copy of his note. His Honour said 'No ... I want to keep that confidential. I haven't released it to the parties. At this stage, it's between you and me.' His Honour went on to say:
I've just given a short summary of the main issue to counsel. I haven't discussed with them anything that you revealed about the ... jury discussions. I don't think that's appropriate and I don't think the rest of the jury really should know of it at this stage. So it ... will be kept on file ... .
21 His Honour then gave the jury a perseverance direction but with additional emphasis on calmness and rational responses during the process of analysis. After some questions unrelated to this ground of appeal, the jury returned its verdicts at approximately 11:30 am the next morning.
22 In short compass, the applicant now contends that the contents of the jury note were not adequately revealed to his trial counsel.[4] He argues that the entirety of the note ought to have been disclosed, save for any information that could have revealed voting patterns. Only then, the applicant contends, could his counsel have a true appreciation of the juror's stresses and anxiety, its cause and severity. The applicant argued to this Court that denying him this information caused a denial of procedural fairness such as to cause the trial to miscarry. Trial counsel was denied the opportunity to make informed decisions about whether to apply for a discharge of the single juror,[5] or indeed, the entire jury.[6]
23 The respondent contended that his Honour should not have read any of the note to the court, as to do so would have disclosed voting patterns. The respondent argued that perhaps his Honour could have said a little more about the question posed on the second page of the note relating to a perceived obligation to convince other jurors as to his reasonable doubt, but would have needed to be extremely careful. Senior counsel for the respondent argued that the real point of the juror's note was to convey that he felt under pressure to agree with other jurors, and his Honour adequately conveyed that. There was no procedural irregularity and no serious miscarriage of justice.
24 The following relevant principles are well established:
1. Generally, a trial judge must disclose questions asked by a jury.[7]
2. If the communication raises something irrelevant to the trial, it can simply be dealt with without reference to counsel.[8]
3. In almost every case, a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful to do so, seek the assistance of counsel.[9]
4. Exceptionally, if the communication from the jury contains information which the jury need not, and indeed should not, have inspected, then so far as possible, the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.[10]
5. Jury deliberations should, so far as possible, remain confidential. This is a principle of the highest significance in the criminal justice system.[11]
6. Information about the jury's voting numbers or voting patterns should also remain confidential.[12]
25 The above principles are usually stated as applicable to the jury as a single entity. There is no reason why they should not apply to communications from single jurors.
26 In our view, the first part of the juror's note (up until the words '...remaining in existence') conveys no more than the juror's doubt, at the stage that he wrote the note, about various aspects of the prosecution case. It conveys his reservations about the evidence and inferences urged upon him by the prosecution. This information should not have been imparted and the trial judge acted in accordance with principle by declining to disclose it.
27 The second part of the note commencing, 'I would also like to point out ...' contains the juror's expressions of stress and anxiety and the level they had reached. We consider his Honour was correct to advise counsel about this aspect of the note. His Honour in fact went beyond the content of the note on this aspect. As we have observed, he advised counsel that the juror preferred to remain separate from the jury and to remain in the Juries Commissioner's Office. He also advised counsel that either the juror, or someone from the Juries Commissioner's Office, was concerned that the juror might feel bullied. In our view, by the time trial defence counsel had heard all this, and seen and heard the juror respond to the questions posed by the judge, she had a good deal more information on this aspect of the juror's stress than is contained in the juror's note.
28 The applicant submitted that the juror's assertion that other jury members called upon him to justify his reasonable doubt, is information that should have been provided to him and that the failure to do so meant that he could not make an informed decision on whether to ask for the discharge of the whole jury. We are not attracted to this argument. First, this is another example, in our view, of jury deliberations and his Honour was obliged, so far as possible, to retain its confidentiality. Second, it provides a strong suggestion or indication of the jury voting numbers. Third, the question asked '... is this correct of me and of the jury members?' was comprehensively answered in his Honour's modified perseverance direction.
29 The applicant submitted that the questions numbered 1, 2 and 3 towards the end of the note are further examples of information within the note that illustrate the juror's extreme level of stress and would have been directly relevant to whether counsel would make an application for the jury to be discharged. These are not questions from the juror about the law, evidence or the application of the law to the evidence. They are ruminations about the jury deliberations and this particular juror's role in them. It is unarguable that they are indicative of a level of stress or anxiety felt by the juror. We are of the view, however, that his Honour's approach to this issue conformed both with principle and the practical exigencies of the situation that arose. As we have said, in our view, by the time the juror had been brought to court and questioned, both counsel had more information about his levels of anxiety and stress than is contained in the jury note. At the same time, his Honour preserved the confidentiality that attached to both voting numbers and the jury deliberations themselves. With respect, we consider that his Honour handled a difficult issue with great fairness and clarity whilst adhering to fundamental legal principle.
Ground 2 - The learned trial judge erred in admitting the DNA evidence relating to the bottle cap found by police at 12 Basil Street, Fawkner
31 We have observed earlier in these reasons that a central fact in issue in the trial was whether the applicant was present during the offending. A metal cap from a beer stubby was found by a crime scene examiner at 12 Basil Street. It is not in dispute on this appeal that the DNA profile extracted from it contained at least three contributors, one of whom was the applicant. In a pre-trial argument, the applicant contended that there was a significant prospect that DNA from the applicant had been transferred to the metal cap at a location other than 12 Basil Street and thus was of either no or very slight probative value. The evidence therefore should have been excluded from the jury's consideration as irrelevant,[13] or as unfairly prejudicial to the applicant.[14]
32 In our view, there is no merit to this ground. The relevant fact in issue was whether the applicant was present at 12 Basil Street at the time of the offending. The argument put to the trial judge and to this Court was predicated on the following:
33 The applicant argued to his Honour and to this Court:
35 The applicant emphasised that the trial judge accepted there was a rational basis (beyond conjecture) for a jury to accept that the applicant's DNA was present on the bottle cap as a result of innocent transfer through Stack. Thus, it was argued, there was no scientific or rational basis to prefer an inculpatory explanation as to the DNA on the bottle cap, as opposed to an exculpatory explanation.[15]
36 The applicant argued that it followed that the evidence could have no probative value.
37 In a comprehensive and careful ruling, his Honour reviewed the relevant evidence. He observed that there was direct evidence from Haidar that the applicant and Stack were the men present at 12 Basil Street and that each of himself, Elmas, Stack and the applicant had a stubby (or some part of it) whilst seated or standing near the kitchen table. The relevant stubby cap was found on the floor under a table. There was evidence from the applicant's interview as to his close association with Stack, and their association shortly before the impugned events, and evidence of the association of Stack's vehicle in close vicinity with the applicant's motorcycle on the Tullamarine Freeway[16] at 1:33 am on 6 June. Superimposed on this direct and circumstantial matrix is the further impugned circumstantial DNA evidence. His Honour reviewed a scientific dispute between experts as to the reliability of the results obtained from the DNA profiles. That is irrelevant to this ground of appeal. He observed that both experts conceded the possibility of secondary DNA transfer. His Honour then considered the principles of law that governed this admissibility argument. He set out s 55(1) of the Evidence Act 2008 ('Evidence Act') and correctly, in our view, stated that the relevance of contested evidence 'must not be looked at in isolation'. As part of a case involving both direct and circumstantial evidence, it is necessary to view the impugned items with the other circumstantial evidence which might make it more likely that the accused was present at the crime scene. His Honour observed that before a strand of circumstantial evidence could be considered with other strands, 'it must have some capacity rationally to affect the assessment of a fact in issue. If it does not have that capacity, it is irrelevant'. His Honour then correctly set out the evaluative judgments required by s 137 and s 135 of the Evidence Act. After reviewing each party's submissions, his Honour relevantly concluded as follows:[17]
38 We can discern no error in his Honour's approach. As a piece of circumstantial evidence, the relevant DNA evidence and any inferences available from it were not required to be proved beyond reasonable doubt.[18] If the jury concluded it was merely likely that the DNA was deposited by the applicant at the crime scene, then that would be sufficient for it to have a proper place in the prosecution case, and, in our view, it was patently open for the jury to reach this conclusion. A jury finding that it was likely that the DNA was deposited by the applicant at the crime scene does not rely on the prosecution excluding all competing possibilities and it is erroneous to suggest that a burden to this effect rested on the prosecution.
39 This argument is without merit. Leave to appeal on this ground is refused.
Ground 3 - The learned trial judge erred in directing the jury that the agreement, understanding or arrangement underpinning the commission of the offence of intentionally causing serious injury in circumstances of gross violence:
40 We have concluded that his Honour did not direct the jury in the manner asserted by this ground and the applicant has failed to make out this ground. Our reasons for this conclusion are as follows.
41 At the outset of the trial, the prosecution case was that the applicant had slashed the faces of both victims. No reliance therefore, at that stage, was placed on the complicity provisions of the Crimes Act 1958 ('Crimes Act').[19] As a consequence of the witness Haidar recanting certain evidence about the identity of the person who actually slashed his victims, but adhering to his account that the applicant and Stack were the other men in the room when he and Elmas were slashed, the prosecution case against the applicant changed and reliance was placed on the Crimes Act complicity provisions.
42 In his charge, his Honour directed the jury on complicity in orthodox terms. In part, that direction reads:
So the prosecution must prove the following four elements in addition to the specific elements required for the individual offence, and I will be giving you the specific elements required for each of the offences shortly, but for the complicity the elements are these: (1) the accused agreed with Stack to commit the offence; (2) that Mr Farha acted to support this agreement; (3) that a party to the agreement committed the offence; and (4) that when Mr Farha agreed to commit the offence he intended to commit that offence or that that offence will be committed.
As to complicity element 1 above, his Honour went on to direct the jury that the prosecution must prove that the applicant agreed with Stack to commit the offence and the agreement remained in existence when the offence was committed. He directed the jury that the agreement need not be expressed, it may be an arrangement or understanding and it may be inferred from surrounding circumstances. His Honour then directed the jury as follows:
So the agreement arrangement or understanding need not have been formed far in advance of the offences. It may have been formed moments before the offence was committed ...
43 No exception was taken to this direction, nor could one have been made out. This is part of an impeccable direction on the ingredients of complicity.
44 Later in the charge, his Honour directed the jury on the elements of ICSIGV. There is no dispute as to elements 1, 2 and 3. As to element 4, his Honour directed the jury as follows:
And the fourth element that the prosecution must prove is that the accused caused the serious injury in circumstances of gross violence. The phrase 'circumstances of gross violence' has a special legal meaning. To prove this element the prosecution must show that the accused planned in advance to attend at 12 Basil Street, and at the time of the planning he intended that the conduct would cause a serious injury, or that the accused planned in advance to attend at 12 Basil Street, and to have with him, and use, an offensive weapon, and in fact used the offensive weapon to cause the serious injury.
Again, this direction was unexceptionable. Up until this stage, the distinction was clearly drawn by his Honour as between the preconcert required for complicity and the advance planning said to be required for the 'gross violence' element of intentionally causing serious injury. No complaint is made about it.
45 The complaint made by the applicant arises from a question asked by the jury some hours into their deliberation. His Honour clarified with the jury that their question concerned element 4 of the ICSIGV charge. His Honour set out the questions as follows:
Now the questions are clarification on intent and planning and does planning have to be verbal and as to planning, the second question I have got here, can it happen at the crime scene i.e. around the place of the alleged crime event or must it be considered planning before entering 12 Basil Street.
His Honour answered, inter alia, '... it has to be a planned event, it can't be spontaneous'. Shortly thereafter, his Honour stated:
[I]n order to find that the circumstances of gross violence are proven ... you have to be satisfied beyond reasonable doubt either that the accused planned in advance to attend 12 Basil Street and at the time of the planning, he intended would cause (sic) serious injury. So it's planning in advance to commit a particular offence, or the accused planned in advance to attend 12 Basil Street ... and to have with him and use, that's the intent at the time of the planning, an offensive weapon.
46 A little further on, his Honour said in reference to both alternative proofs of 'gross violence' that '... clearly the planning has to be before attending at Basil Street. So he's planning in advance ... '.
47 Up until this part of the trial judge's answer, the directions as to planning in advance could not have been clearer both in the judge's charge and as repeated in his answer to the jury question.
48 After reviewing the relevant evidence in a comprehensive answer to the jury question, his Honour then recapped:
All right. Well that concludes, I think, what I can give you to assist you with that issue about the planning and whether it needs to be verbal and whether it needs to be in advance if it does, and I've done that as distinct from any directions of complicity, because that's another aspect which - you're looking at planning separately now. The complicity is about, really, what you can determine about the fact that there's no specific evidence of what act is done by which man. But if you accept that they're acting together as part of an understanding agreement or arrangement, that understanding can be at any time. It doesn't have to be - it could be moments before the actual act is committed. It doesn't have to be planned in advance before going to 12 Basil Street. All right. I'll let you go and consider your verdicts, thanks.
49 The applicant complains that in saying these concluding words, his Honour conflated the preplanning required for complicity with that required for the ICSIGV charge:
[I]n the final part of the re-direction, the learned Trial Judge again spoke of the fact that the agreement, understanding or arrangement involved in gross violence offences, could have occurred moments before the 'actual act is committed' and didn't have to occur prior to going to 12 Basil Street.
50 It is sufficient to say that in our view, his Honour, in this ultimate passage of his redirection, simply did not say what the ground attributes to him. His Honour took pains in this final passage to emphasise that when considering complicity (as opposed to ICSIGV) that the understanding or arrangement can be at any time - it could be moments before the actual act is committed.[20] His Honour did not conflate these two concepts. This ground, in our view, misunderstands what his Honour actually said, and ignores the comprehensive and clear directions that preceded this ultimate passage. Leave to appeal on this ground is refused.
51 It has been unnecessary to consider the precise meaning of the phrase 'planned in advance' as used in s 15A of the Crimes Act. One might ask, 'is there any other type of planning?' His Honour's directions on this offence were clear, detailed and accompanied by a written handout. They may also have been favourable to the accused depending on what 'in advance' actually means.
Ground 4 - The guilty verdict on the charge of intentionally causing serious injury to Mazan Elmas in circumstances of gross violence is unsafe and unsatisfactory
52 This argument proceeded on the basis that there was no evidence that the applicant would have known in advance that Mazan Elmas would be present at 12 Basil Street on 6 June 2015. It followed, so the argument went, that there could not have been any advance planning to cause serious injury to Mazen Elmas.
53 The prosecution invited the jury to conclude that the advance planning involved an agreement to deliver 'a lesson' by assaulting a person or persons in that house. Elmas was an incidental victim but he was part of the advanced planning to assault a person or persons in that house, intended to cause serious injury, and the knife was brought to the house with the intention of using it. His Honour expressed this as an agreement to assault violently whoever was in the house.
54 The applicant contended that there was no evidence from which such an agreement could be inferred.
55 In our view, it was well open to the jury to conclude that this was an attack that involved preplanning to carry out the agreement alleged by the prosecution. So much follows from the evidence of Haidar as to what occurred, the production of the knife itself and the evidence of Elmas. Once the jury found that it was the applicant who attended with Stack at the house, it could conclude from the events thereafter that their attendance was no accident and their combined actions bespoke a well thought out plan executed with some precision. At any event, the ICSIGV charge was put against the applicant on an alternative basis that there was preplanning between the applicant and Stack to have and use an offensive weapon. In our view, the jury could have reasoned as follows:
[1] Section 78 of the Juries Act 2000 ('Juries Act') applies to a person, not a Court. In a different statutory context, see Heath (A Pseudonym) v The Queen [2014] VSCA 319; (2014) 45 VR 154, 164 [34]; Kizon v Palmer (1997) 72 FCR 409, 430.
[2] Juries Act s 43(b); see Najibi v The Queen (2016) 260 A Crim R 491; Platt v The Queen [2018] VSCA 276.
[4] Trial counsel did not appear on this appeal.
[6] R v Boland [1974] VicRp 100; [1974] VR 849, 866.
[7] R v Black [2007] VSCA 61; (2007) 15 VR 551, 554 [14] ('Black').
[8] Black [2007] VSCA 61; (2007) 15 VR 551, 554 [14] citing with approval a passage from R v Gorman [1987] 1 WLR 545.
[9] Black [2007] VSCA 61; (2007) 15 VR 551, 554 [14].
[11] Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161, 171 [32] ('Smith'); Juries Act s 78.
[12] Smith [2015] HCA 27; (2015) 255 CLR 161, 171 [32].
[15] See DPP v Paulino [2017] VSCA 38; DPP v Wise [2016] VSCA 173. Compare Ramanos v The Queen [2018] VSCA 143 [447]-[467] (Priest, Kyrou and Ashley JJA).
[17] We have omitted those parts of this ruling which dealt with a separate argument concerning DNA found on a firearm.
[20] R v Lowery (No 2) [1972] VicRp 63; [1972] VR 560, 561; R v Jensen [1980] VR 196, 200; R v Tangye (1997) 92 A Crim R 545, 556; Guthridge v R (2010) 27 VR 542, 461 [100].
Farha
The Queen [2018] VSCA 310
(2007) 15 VR 551
(2015) 255 CLR 161
(2014) 45 VR 154
(1997) 72 FCR 409
(2010) 27 VR 542