Fazlilar v R

JUDGMENT

1. THE COURT: The applicant seeks leave to appeal against his conviction for the murder of Donovan Mileham at Sydney on 14 November 2015. His trial commenced before N Adams J on 7 May 2018. The jury returned their verdict of guilty on 29 May 2018. There is one ground of appeal, as follows: The applicant's conviction for murder is unreasonable. The ground involves a question of fact and leave is therefore required pursuant to s 5 of the Criminal Appeal Act 1912 (NSW). The application was filed out of time but the Crown does not submit that leave be refused on that basis without consideration of the merits.
2. The arguments of counsel on the application have confined the issues to aspects of the state of mind of the applicant at the time when he committed the act that resulted in the death of the deceased.
3. Death was caused by a single gunshot wound from a handgun, of either 9 MM or .357/.38 in calibre. Dr Irvine conducted an autopsy on the body of the deceased. She said that the entry wound from the gunshot projectile was on the posterior aspect of the left upper thigh. Dr Irvine explained and illustrated the wound track. Although the deceased was seated on a lounge when the shot was fired, the wound track may best be described as if the deceased were standing. Viewed from behind the projectile travelled upwards, to the right and towards the front of the deceased. It passed behind the femur at a level just below the head of that bone and then in front of the lower rim of the pelvic structure. The pelvic cavity contains the bladder, the rectum and the descending portion of the colon. The cavity also contains major blood vessels including the internal iliac vein. The projectile traversed the pelvic cavity, passing through the colon. It also passed through the internal iliac vein at the level of the base of the spine, where the spine joins the sacrum. The sacrum is a more or less triangular shaped bony structure connected to the posterior and medial surfaces of the iliac crests of the pelvis. At the end of its trajectory the projectile lodged in the vicinity of the base of the spine.
4. The rupture of the internal iliac vein caused massive internal bleeding. Approximately 1.6 L, or one third of the volume of the deceased's blood, was lost to his circulatory system through the ruptured vein and accumulated in the pelvic and peritoneal cavities. In Dr Irvine's opinion this internal bleeding was the primary mechanism of death, with possible contribution from positional restriction of the deceased's airway as a result of him having collapsed face down. Dr Irvine said that he would have died within minutes of the gunshot wound having been inflicted. Dr Irvine was not cross-examined.
5. The shooting took place in Room 3109 at the Fraser Suites on Kent Street, Sydney at about 4:00pm on Saturday, 14 November 2015. Present in the apartment at that time were the deceased, the applicant and an associate of both of them, Elias Dimarelis. The room had been booked the previous day for a short stay, by Ms King, with whom Mr Dimarelis was in a relationship.
6. It was open to the jury to accept evidence given by Mr Dimarelis to the following effect. During the very early hours of Friday 13 November the applicant had attended at a strip club and brothel in King's Cross known as "The Love Machine", with which both Mr Dimarelis and Ms King had business connections. On about four or five occasions prior to 13 November Mr Dimarelis had seen the applicant in possession of a revolver, which the applicant customarily had tucked into the waistband of his trousers, either at the front of the back. During the early part of the Friday morning Mr Dimarelis saw the revolver secured in the front waistband of the applicant's trousers. At about 8:30 am, while the applicant was still at the club premises, Mr Dimarelis found the weapon on a bed in one of the bedrooms there. He returned it to the applicant at that time and the applicant placed it back in his front waistband. This was recorded through a security camera within the club and the footage was tendered.
7. Mr Dimarelis said that from about 10:00 pm on the Friday evening the deceased, the applicant and Ms King socialised together at the club. They all remained there until sometime between 5:00 am and 6:00 am on Saturday 14 November. During the night both the deceased and the applicant smoked methyl amphetamine. When they left the club early on Saturday morning all of them went to Room 3109 at the Fraser suites. Ms King left that location after about half an hour. A Mr Anthony was there until shortly before 1:00 pm.
8. Mr Dimarelis said that at about 11:30 am on the Saturday he saw the applicant remove his handgun from a safe located in the suite. Mr Dimarelis went to sleep in the bedroom of the suite at some time between 12:00 midday and 1:00 pm. Up until he retired he had observed the deceased and the applicant in the lounge room drinking Chivas Regal whiskey, snorting cocaine and smoking methyl amphetamine. When Mr Dimarelis awoke after a few hours he walked from the bedroom into the lounge room and said he was leaving. As he did so, the applicant approached him and thrust the deceased's mobile phone towards his face. The screen displayed the words "police crime". Subsequent analysis of the phone showed that the applicant had the number for "Crime Stoppers", the News South Wales Police community notification service, saved on his phone under the title "police crime". Mr Dimarelis said that the applicant said to him words to the effect, "What do you think of this?".
9. At that time the deceased was sitting on a couch in the lounge room watching television. The applicant thrust the mobile phone into his face. He mumbled some words to the deceased in a low, guttural intimidating tone and then called the deceased a "dog". The applicant seized the deceased's shirt collar with his left hand and commenced slapping his face with his right. Then the applicant used his right hand to draw his pistol from the waistband of his trousers. He tapped the muzzle of it against the deceased's left temple two or three times while still holding the deceased with his left hand. The deceased tried to inch along the couch away from the applicant's grasp. Mr Dimarelis gave the following description of what occurred next: [The deceased] was just whimpering at that stage and [the applicant] was mumbling but I couldn't make out what it was, I wasn't close enough. I heard "dog" a few times. That is probably the only thing I could make out before he lowered the pistol from [the deceased's] head and then started pointing it towards his leg. [The deceased] was seated in a foetal position but he was trying to get away … he was still in [the applicant's] grip … in that split-second [the applicant] lowered the gun to around the leg area and then he fired.
10. Mr Dimarelis said that when the pistol was fired it was partly obscured from his own line of vision because the applicant was standing between Mr Dimarelis and the deceased, with his back to Mr Dimarelis. The deceased had drawn his legs up to assume what Mr Dimarelis described as "a foetal position". That is consistent with the trajectory of the gunshot wound as described by Dr Irvine. If the deceased was sitting on the lounge facing the applicant, with his knees up towards his chest, the rear of his upper left thigh would be exposed towards the applicant who ,on Mr Dimarelis' account, was standing in front of the lounge.
11. Mr Dimarelis heard the deceased scream and saw him jump violently to his right. The deceased then rocked back and forth on the couch in obvious pain. Mr Dimarelis said that the deceased moved from the middle of the lounge, where he had been seated when shot, to an adjacent piece of furniture that Mr Dimarelis referred to as "the chaise". The applicant moved to a position standing in front of the chaise, with his revolver in his right hand. As described by Mr Dimarelis, "he was just standing there silent looking at me with a pistol". The applicant did not say anything to Mr Dimarelis. The deceased said, "Louie, he shot me". Mr Dimarelis described the deceased as "writhing in agony". Mr Dimarelis left almost immediately. A security camera recorded his departure from the Fraser Suites at 3:58 pm.
12. The applicant exited the building at 4:06 pm. A witness named Giatsos, who said he had known the applicant for about three years and described him as "a pretty close friend", spoke with him briefly outside the Fraser Suites. Mr Giatsos was there by chance. He said that in their brief conversation he found the applicant "very hard to understand". Mr Giatsos could not fully comprehend what he said.
13. Mr Dimarelis did not report the shooting to police or do anything to get medical assistance for the deceased. He said that he left Room 3109 hurriedly because he was afraid. He took a taxi straight to the club where he told Ms King what had occurred. She tried to phone both the deceased and the applicant but neither of them answered. Mr Dimarelis also told the part owner of the club, Mr Bill Bayeh, what had occurred. The Crown tendered an enhanced audio recording of their conversation at 6:15 pm on Saturday 14 November. Mr Dimarelis gave Mr Bayeh an account substantially to the effect of that which he gave the jury. It included Mr Dimarelis saying the following: Ah Huss [the applicant], he shot Donovan [the deceased] … in the leg … in the hotel … like an hour ago or so. A few hours. … They were partying for the last two days, all of a sudden found a number in his phone or something that said police, crime or something. Went crazy. Shot him in the leg. … I just got the fuck out of there. … I fell asleep in, the room. I fell asleep and he woke me up and yeah. … Yeah he [the applicant] was there when I left yeah. I got out of there in two seconds after it happened. I grabbed my stuff and got out.
14. On Sunday, 15 November 2015 Mr Dimarelis said that he and Ms King visited the applicant at his residential unit. They arrived before lunchtime. Both of them asked the applicant about the deceased's well-being. The applicant said words the effect: "It's okay, it was just in the leg, he'll be fine. He's stupid not to get out of there".
15. Mr Dimarelis said that he understood from Ms King that she went to Room 3109 very early on 16 November 2015 and that, upon looking in from the doorway, she saw a person lying still on the floor. Believing that to be the deceased, she informed Mr Dimarelis and they arranged to meet the applicant. Upon doing so they told the applicant what Ms King saw in the room and Mr Dimarelis said he was going to call an ambulance. The applicant said, "No, I said no fucking ambulances" and he demanded to be given the key to the room. Following this, at 6:14 am on 16 November Mr Dimarelis made a triple zero call by which an ambulance was summoned to the Fraser Suites.
16. Mr Dimarelis made a statement to police on 26 November 2015, upon which he was cross-examined extensively at the trial. In that statement he did not tell police that he saw the applicant with a gun on 13 and 14 November or that he saw the applicant shoot the deceased. He told the jury that he withheld that information because, amongst other things, he was afraid of the applicant. Mr Dimarelis agreed in cross-examination that in his statement of 26 November 2015 he falsely told police that there was someone, he could not say whom, in the bathroom of Room 3109 when he woke up late on the Saturday afternoon. He agreed that he had falsely told police that he saw only the deceased in the loungeroom of the suite prior to leaving and that the deceased was then alive and well. Mr Dimarelis agreed that he had not mentioned in his statement that he and Ms King met with the applicant at his unit before lunchtime on the Sunday. He agreed he had falsely told police that the occupancy of the room had been extended beyond the Saturday to enable himself and Ms King to spend some time there. He agreed that he had lied to police about being worried, sometime after 14 November, that the deceased was not out partying, whereas the real reason for his concern was that Ms King had seen a person whom she believed to be the deceased on the floor of the room early on 16 November.
17. Mr Dimarelis took part in a recorded interview with police in March 2016, which was concerned only with the alleged offence of having handed the firearm to the applicant in the club on the morning of 14 November. In November 2017 Mr Dimarelis made an induced statement to police in which he gave an account that aligned with his evidence in the trial. Although Mr Dimarelis was cross-examined extensively on differences between his evidence before the jury and information that he had previously supplied to police, particularly in the statement of 26 November 2015, this attack on his credit was not accompanied by putting to him any detail of a version of what took place in Room 3109 different from that given by Mr Dimarelis in chief.
18. The sum total of what was put by way of a competing version of events comprised the following questions at pp 322 and 331 of the trial transcript: Q I suggest to you that you in fact where the individual who shot the deceased, what do you say to that? A That is incorrect. Completely incorrect. (T 322) Q You see, I suggest to you that [at the meeting with Mr Bayeh at the club had about 6:15 pm on 14 November 2015] you didn't want Mr Bayeh to believe that you were a person who had lost self-control so much that you shot someone in that room? A No, that is incorrect. (T 331)
19. This scenario, starkly opposed to the Crown case, was not explored in any further questioning of Mr Dimarelis. The Crown tendered an electronically recorded interview of the applicant by investigating police, conducted on 28 November 2015. The applicant said he knew nothing about the death of the deceased. He answered "No comment" to questions whether he knew the Fraser Suites, or had ever been there, or what he had been doing on 13, 14 and 15 November, or whether he had ever been to the club, or knew any people who "hang around" there. He denied knowing Mr Dimarelis or Ms King, or ever having carried a gun, or ever having used a gun or shot any person. He denied all knowledge of an access card issued by the Fraser Suites that had been found during the execution of a search warrant at his unit.
20. The Crown led evidence from a ballistics officer, Mr Timothy Berry, who had examined particles of propellant on the deceased's shorts where the projectile had penetrated. He said that the particles indicated that "the muzzle of the firearm [was] in very close proximity to the shorts" when the weapon was discharged; the muzzle would have been "a couple or a few metres at absolute maximum" away from the shorts. The weapon had not been recovered. Mr Berry said that if he had it, he would have been able to carry out tests to provide a more accurate estimate of the distance of the muzzle from the surface of the shorts when the gun was fired. He said: [Not] having the firearm, I think it would be unfair to give an actual, you know, distance, in centimetres or millimetres. That is why I've just left the result [in his report] to be "discharge was contact or near contact". Just indicating that the muzzle of the firearm was in very close proximity to the purple shorts.
21. Mr Berry also gave evidence about the measure of force on the trigger of the weapon that may have been required to discharge a round. He said that most revolvers require approximately 3.5 kg force and that a "hair trigger", requiring in the order of 1 kg force, would mostly be associated with a firearm used for professional shooting.
22. There was no direct, scientific evidence of the degree of intoxication of the applicant when he was in Room 3109 late on the afternoon of 14 November. Toxicological evidence concerning the deceased, from post-mortem analysis, provided some basis for inference of what may have been the levels of intoxicating substances in the blood of the applicant, on the basis that the two of them had been drinking and consuming illicit substances in comparable amounts over a comparable period, as described by Mr Dimarelis. Dr Irvine gave evidence that the deceased's blood collected at autopsy showed the following: 0.32 mg/L of methylenedioxyamphetamine ("MDMA" or ecstasy). That level is low in the toxic range. Alcohol: not detected. .07 mg/L amphetamine, a metabolite of methyl amphetamine ("ice"). That level is in the non-toxic range. Methyl amphetamine at a level within the toxic to lethal range.
23. The applicant did not give evidence and he called no witnesses.

The applicant's argument on appeal

1. In his submissions on the application for leave to appeal the applicant expressly concedes that it was open to the jury to have accepted Mr Dimarelis' account of what took place in Room 3109. The submissions include the following: [It] is accepted that the jury must have accepted, at least largely, the evidence of Dimarelis as to the applicant's involvement in the death of the deceased. (Written submissions at [19]) … we're not challenging Mr Dimarelis' evidence, the question is what inference you can safely draw from it. (Oral submissions at T 2.20) … we're not engaging with any argument about adverse credibility finding - Beech-Jones CJ at CL: Or his reliability. Counsel: Or his - nothing to do with that. (Oral submissions at T 6.1-6.22)
2. Two of the matters upon which the jury had to be satisfied beyond reasonable doubt in order to find the applicant guilty of murder were as follows: 1. That the applicant's act of firing a gunshot into the deceased's thigh was deliberate, or willed, on his part. 2. That the applicant intended by that act to cause the deceased grievous bodily harm.
3. Both of those elements concern the applicant's state of mind and are dependent upon inference from the circumstances of the shooting, particularly the immediate circumstances described by Mr Dimarelis. The applicant's written submissions exhibit ambivalence as to whether it is contended that the Court should feel a reasonable doubt about the deliberateness of the shooting or about the intent to cause grievous bodily harm. That ambivalence is reflected in the third last paragraph of the written submissions, following a review of the evidence, where the following appears (emphasis added): 47 In summary, it is submitted that there was very little evidence that the applicant had deliberately fired at the deceased's leg. While the firearm may have been discharged in close proximity to the body of the deceased, the applicant was already in close proximity to the deceased. Moreover, there was a substantial body of evidence from which the jury ought to have inferred that the applicant was significantly intoxicated. In all of those circumstances, it is submitted that the Court should entertain a reasonable doubt that the applicant had the intention to cause grievous bodily harm, let alone kill. For the reasons given, this doubt is not affected by any advantage the jury may have had.
4. In oral submissions the ambivalence persisted, as may be seen in the following extract: BEECH-JONES CJ at CL: You say well possibility, reasonable possibility that he meant to scare him by shooting right next to his leg and hit him in the leg … -- GAME: That's what I'm saying, yeah. Or indifference to the questions. BEECH-JONES CJ at CL: Or indifference? So, it could affect that. GAME: Could be - yes. So, I'm saying could be indifferent about whether he's hitting him or not. So, it could be to frighten and intimidate either by hitting him or not but not without specific intent and that would not qualify. So again-- FAGAN J: So, the question that you're challenging is really whether there should have been a reasonable doubt about the deliberateness of the act of discharging the firearm into the man's body-- GAME: In a word, yes. FAGAN J: --rather than a question about what his intention may have been in respect to the consequences of doing so. GAME: No, no, it's all about intent, your Honour.
5. It appears necessary for the Court to consider whether the jury ought to have had a reasonable doubt about either or both of the elements (1) deliberateness in discharging the weapon into the deceased's thigh and (2) intention to cause grievous bodily harm to the deceased by so doing. The applicant submits that his ground of appeal would be upheld if this Court should feel reasonable doubt about either element. He submits that, because proof of both matters turned upon inference from primary facts and not upon the credibility or reliability of Mr Dimarelis or any other witness, the jury had no advantage over this Court in deciding whether the elements were proved to the requisite standard. The applicant submits that if this Court finds itself unable to exclude a reasonable hypothesis consistent with innocence and therefore cannot draw the necessary inferences beyond reasonable doubt, then the jury could not do so either.

Deliberate discharge of the weapon into the deceased's thigh

1. The immediate prelude to the shot being fired was that the applicant was angry with the deceased because he believed that a stored number on his phone revealed him to be a police informer or similar - in the applicant's terms, a "dog". When the shot was fired the applicant was standing in front of the deceased, who was sitting with his legs drawn up on the lounge, and the applicant had hold of the deceased's collar. As thus described by Mr Dimarelis, he was within arm's-length of the deceased. From when the applicant drew the weapon out from his waist band he was in control of it, at first tapping the muzzle against the deceased's temple. He quickly lowered the gun from the deceased's temple towards his leg before firing it, consistent with intending to fire a shot that would wound but not be fatal. When the shot had been fired the applicant did not express regret as might be expected if such a potentially lethal, or at least seriously injurious, event had occurred by accident. There was no evidence that in conversation with Mr Dimarelis or Ms King over subsequent days the applicant ever suggested that the weapon had discharged accidentally or that, although he had fired it, he had not intended to hit the deceased. There was no evidence of any such assertion from the applicant to any witness at any time.
2. From the combination of these circumstances we have no difficulty drawing an inference beyond reasonable doubt that the applicant discharged the weapon into the deceased's thigh deliberately. We do not find it reasonably possible that the applicant was merely indifferent about whether he fired the gunshot into the deceased's leg. There was nothing indifferent about his conduct. He was worked up. He was sufficiently deliberate about his actions that he did not shoot the deceased through the temple but directed his weapon lower before pulling the trigger, to harm but not to kill.
3. The applicant's submissions include that Mr Dimarelis "was unable to describe with precision how the applicant was holding the firearm or where he was pointing it". The location of the entry wound and the trajectory of the projectile as described by Dr Irvine were quite sufficient circumstances to establish that he was pointing it at the deceased's upper left thigh when the trigger was squeezed. The evidence did not suggest that the gun was being waved around in a random fashion immediately before firing. We find no basis for entertaining a reasonable possibility that the gun was not deliberately pointed at the deceased's leg or that it was not consciously pointed at anything in particular. Such a possibility would be purely speculative.
4. It is submitted that the firing of only one shot "diminishes the force of the suggestion that, in a drug-induced state of rage, the applicant exacted revenge because he believed the deceased was a 'dog'". We find no weight in that argument. The applicant abused the deceased as a dog contemporaneously with tapping the gun's muzzle against his temple, within seconds before firing the shot. Sudden hostility to the deceased, as a motive that would cause the applicant to do him harm, was a powerful circumstance by which the inference of deliberateness was supported. There appears to us no logic in the argument that the applicant's express hostility would not strongly indicate deliberate firing of the gun at the deceased unless it was fired twice or more.
5. The applicant submits that "the whole event took place 'in a split second', meaning that there was very little time, if any, for reflection". Time for "reflection" was not necessary to an inference that the shot was deliberately fired in the circumstances described by Mr Dimarelis.
6. The applicant further submits that "one might even infer that the applicant was taken aback by the discharge the weapon". As noted above, Mr Dimarelis said that the applicant stood staring at him, silent, after having fired the shot. That reaction would not be inconsistent with him having perpetrated the act deliberately. Having deliberately fired, in the heat of anger over discovering the police contact number on the deceased's phone, the applicant may have shocked himself by what he had done. If that is how his reaction may be interpreted, it does indicate that the firing of the round into the deceased may, as a reasonable possibility, have been other than deliberate.
7. It follows that the Court does not need to proceed with what counsel for the applicant termed "the second stage" of analysis of the unreasonable verdict ground; that is, whether any doubt that the Court may feel should also have been felt by the jury. The inference of deliberateness in the act of firing the round into the deceased's leg was overwhelming and inexorable. The circumstantial evidence left no reasonable doubt.

Intent to cause grievous bodily harm

1. On Mr Dimarelis' evidence as to the relative positions of the applicant and the deceased when the shot was fired, it occurred from very close range with the gun within arm's-length of the deceased. We find it an inescapable conclusion that the deliberate firing of the gun at the deceased's leg, particularly from that close range, must have been accompanied by the specific intention to cause him at least grievous bodily harm. The applicant, in common with any person of even modest intelligence, would know that a gunshot wound inflicted from close quarters would cause really serious injury. From that it is a very short further step to infer beyond reasonable doubt that in pulling the trigger the applicant intended such injury.
2. The applicant submits that because he was likely, on the evidence, to have been significantly intoxicated, a reasonable doubt arises as to whether he acted with the requisite specific intent. We do not agree. The likely intoxication must be taken into account with all other circumstances but it is common experience that people who are affected by drugs or alcohol, even to a very high degree, may form the intent to harm others very seriously. In this case, the likelihood of intoxication is relatively insignificant against the compelling inference of intent that arises from the applicant having deliberately committed the act of shooting that by its nature was calculated to cause grievous bodily harm.
3. The following is submitted on the applicant's behalf: … the location/positioning of the entry wound does not suggest that the area had been deliberately targeted. ... The wound is in a position which is unlikely to be fixed upon by an offender who wishes to inflict grievous bodily harm, let alone to kill. There is no substance in this argument. The Court is only concerned with intent to cause grievous bodily harm, not death. The question is whether a conclusion by the jury that the applicant intended to cause that degree of harm was "unreasonable, or cannot be supported, having regard to the evidence". It is of no consequence whether the applicant intended that the bullet should strike the deceased precisely where it did. He clearly intended to shoot the deceased in in the left leg. That is where the bullet struck, fired from such close proximity and in such circumstances that the Court can be satisfied that that is where the gun was deliberately aimed. There is nothing about the left leg of a person that would diminish the expectation of a shooter that a gunshot wound to any part of that limb would cause really serious harm.
4. The applicant's counsel characterises the ballistics evidence concerning the likely range from which the shot was fired as suffering from "an imprecision". The following is submitted: Accordingly, the evidence did not establish that the firearm had been held against the deceased's shorts, from which an intention to cause grievous bodily harm may be more readily inferred. At best, the evidence showed that the firearm had been fired very close to the deceased's body. This argument has no persuasive effect on whether the Court should feel reasonable doubt about the element of intent. Applying common sense, as the jury were directed to do and as the Court must do, there is no material difference between pulling the trigger with the muzzle touching the deceased's clothing and pulling it with the gun an arm's length away. Either circumstance unequivocally bespeaks the requisite intent for murder.
5. The applicant's counsel relies upon the evidence of the ballistics officer that a handgun may have a hair trigger that requires only 1 kg force. As the applicant's weapon was not recovered, the Crown could not exclude the possibility that it may have had that characteristic. The following submission is made (emphasis added): Accordingly, the prosecution was unable to say that the firearm used required significant force in order for it to be discharged. Therefore, no particular degree of deliberation could be inferred from the act of discharging the firearm. We do not consider that there arises in the circumstances of this case any meaningful concept or issue of a "particular degree of deliberation". The firing of the weapon was either deliberate, or not. For reasons given above, we have no reasonable doubt that it was deliberate. Whether it required the applicant to apply 1 kg force or 3.5 kg force does not give rise to any reasonable doubt about anything. He deliberately applied whatever force was necessary.

Orders

1. The applicant has not persuaded the Court that it should feel a reasonable doubt about whether all elements of the charge of murder were established. There is not a significant possibility that a person innocent of murder has been convicted: M v The Queen (1994) 181 CLR 487; [1994] HCA 63. It was open to the jury to be satisfied beyond reasonable doubt and to return their verdict of guilty. The orders of the Court are as follows: 1. Extend time for filing the application for leave to appeal up to 16 December 2022. 2. Leave to appeal granted. 3. Appeal dismissed.

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