McCall v R

PARTIES: Jason Clive McCall (applicant) The Crown

COUNSEL: M Thangaraj/S Brogan (applicant) N Noman (Crown)

SOLICITORS: Kiki Kyriacou Lawyers (applicant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/4302

McCLELLAN CJ at CL HISLOP J LATHAM J

MONDAY 9 AUGUST 2010 McCALL, Jason Clive v R Judgment 1 McCLELLAN CJ at CL: The applicant was convicted of the murder of Robert Ljubic. He was sentenced to 29 years and 4 months imprisonment with a non-parole period of 22 years. 2 The appeal is out of time. 3 The jury verdict was returned on 17 September 2007 and the appellant was sentenced on 16 November 2007. The time for filing of the Notice of Intention to Appeal was originally extended by the Registrar to 10 June 2008 but a Notice was not filed. Subsequently a Notice of Application for Extension of Time to appeal was filed on 23 December 2009. No extension has been granted by the Registrar who left the matter for determination by this Court. The Crown submitted that both because of the delay and the lack of merit in the appeal leave to appeal should be refused. 4 The explanation for the delay was said to be a difficulty in obtaining advice from counsel and the settling of submissions in support of the appeal. An affidavit from a solicitor was read which relates a history of inattention to the matter. Given that counsel who appeared for the applicant at trial also appeared on the appeal I am not persuaded that any reasonable explanation has been given for the delay. 5 In R v Lawrence (1980) 1 NSWLR 122 this Court made plain that it should not be assumed that a delay in filing notices of appeal or applications for appeal will be automatically excused. Exceptional circumstances must be demonstrated. At page 148 the Court said (per Nagle CJ at CL and Yeldham J): "Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed." 6 In R v Gregory [2002] NSWCCA 199 at [41] this Court emphasised that when considering the interest of justice in relation to an application for leave to appeal the interests of the Crown, representing the community, and the administration of the law generally must be considered. The court said (per Hodgson JA, Levine and Simpson JJ agreeing): "There are many factors relevant to those matters, including the powerful considerations supporting the finality of judicial decision." 7 As I make plain below in the absence of any satisfactory explanation for the delay and the lack of merit in the ground of appeal sought to be advanced, notwithstanding that the applicant had been convicted of murder, I am not persuaded that the applicant has demonstrated that there are exceptional circumstances justifying a grant of leave. 8 The applicant sought to advance only one ground of appeal against conviction being:

The trial judge permitted the Crown to cross-examine the uncharged accomplice without notice. This was an error which resulted in a substantial miscarriage of justice. 9 At the hearing of the appeal leave was granted to delete the words "without notice" from the ground of appeal. It was the Crown case that the applicant, together with Mr "X" and Mr Petrou kidnapped the deceased from premises at Wollstonecraft. It was alleged that Mr Petrou assisted the other two in restraining the deceased at a residential flat building. The Crown alleged that Mr Petrou then ceased his involvement in the escapade and Mr "X" and the applicant, having bound the deceased, took him to the Gap where ultimately the applicant threw the deceased into the ocean. Mr "X", who was originally a suspect for the murder was granted a full indemnity for this and other crimes and gave evidence in which he described the involvement of Mr Petrou and the accused in a manner consistent with the Crown case. 10 Mr Petrou was a reluctant witness. He did not respond to a subpoena and came to court after the trial judge had issued a bench warrant for his arrest. Because he had not made a statement a "Basha" inquiry was necessary and this took place during the trial. The Crown put various questions to Mr Petrou. A reading of the transcript, both in the Basha inquiry and, ultimately of his evidence in chief before the jury makes plain that he was not a credible witness. His denial of a memory of any relevant event, proclaimed lack of knowledge of the geography of the North Shore, his obfuscation and contradictions render his evidence entirely unbelievable. 11 Although invited to do so defence counsel did not cross-examine Mr Petrou during the Basha enquiry. At the conclusion of the inquiry defence counsel submitted that if the Crown called Mr Petrou to give evidence he should do so before calling Mr "X". That submission was rejected by the trial judge who said that the order of prosecution witnesses was a matter for the Crown Prosecutor. The Crown called Mr Petrou after Mr "X". His evidence in chief was generally consistent with the evidence he had given in the Basha inquiry. At the conclusion of his evidence in chief the Crown sought leave to cross-examine him pursuant to s 38 of the Evidence Act 1995. Although defence counsel objected to leave being granted his Honour acceded to the application. However, his Honour made plain that at the conclusion of Mr Petrou's evidence if defence counsel wished to ask further questions of Mr "X" an application could be made for his recall. 12 In the course of his formal reasons for granting the application the trial judge said: "Objection is taken to my granting leave to the Crown to cross-examine Mr Petrou by putting to him questions enquiring whether or suggesting that he was paid one ounce of amphetamines for services rendered to Mr "X" or the accused, that he was present at the premises on the lower north shore in Sydney during the evening of 23 March 2005 when Mr "X" has said that he, the accused and Petrou kidnapped the deceased and that he assisted in the abduction of the deceased. Mr Petrou gave evidence on the voir dire in this court last week and has given evidence in the presence of the jury this morning. I do not intend to refer in detail to the evidence. I am satisfied that Mr Petrou affects not to remember things which it is highly probable that he does remember. I find it incredible that he is unable to say anything about the telephone conversations which it is demonstrated must have taken place between somebody using his phone and somebody using the accused's phone. I am satisfied that he is not making a genuine attempt to give evidence. I am satisfied that he is unfavourable to the crown that has called him. I reject Mr Thangaraj's submission that in order to arrive at either of those conclusions I am bound to be satisfied beyond reasonable doubt of the truth of what Mr "X" says. The Evidence Act requires me to take certain things into account when granting leave. I do not think a grant of leave would be likely to add unduly to the length of the hearing. I do not think that to do so would be unfair to the defence, notwithstanding the submission of Mr Thangaraj that the defence did not know until this morning of the crown's intention to apply for the leave now sought. There is no suggestion that there has been any change of position or particular reliance by the defence on an assumption that the crown would not cross-examine Mr Petrou. Mr Thangaraj has been unable to point otherwise to any disadvantage that could flow to the defence from a grant of leave now sought. This is a kidnap and a murder trial and a very serious matter. The crown says that Petrou was a party to the kidnapping of the deceased at a time not long before the murder. There would be no point in adjourning the matter in order to require further things to be done, for example for notice to be given. Accordingly, I grant leave to the crown to cross-examine." 13 The prosecutor cross-examined Mr Petrou and put to him that he had been present when the deceased was kidnapped. Mr Petrou denied this suggestion. The prosecutor also asked a number of other questions relating to matters concerning the events which the Crown alleged had occurred. Mr Petrou continued to give answers pleading ignorance or merely denying the prosecutor's propositions. The applicant's counsel accepts and it is plain from the transcript that by the end of the prosecutor's cross-examination Mr Petrou was entirely discredited. 14 Defence counsel asked 3 questions in cross-examination from which he established that Mr Petrou had not been charged with anything to do with Mr Ljubic's murder or kidnapping. He also established that Mr "X" had approached Mr Petrou and offered him $250,000 to make up a story against the accused. He said he rejected the offer. The evidence of the offer was of course of assistance to the applicant who argued at the trial that Mr "X" and not the applicant was responsible for the death of the deceased. 15 After Mr Petrou's evidence had been completed the trial judge again offered defence counsel an opportunity to ask for Mr "X" to be recalled. Defence counsel took time to consider the matter but ultimately indicated to his Honour that he did not wish to ask Mr "X" any further questions. 16 A reading of the transcript of evidence given by Mr Petrou in chief adequately confirms that the Crown Prosecutor was justified in seeking leave to cross-examine him. Section 38 of the Evidence Act 1995 provides as follows "(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

Note. The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding." 17 Although no formal notice was given by the prosecution as contemplated by s 38(6) defence counsel told the trial judge that this was not a matter of concern. However, he did say that having received no informal notice he was caught unawares by the prosecution's application. He also submitted and the submission was repeated with emphasis in this Court that he believed the prosecutor was departing from an undertaking he had given that he would not ask Mr Petrou any question which he had not asked him during the Basha inquiry. 18 There was more than one basis upon which the application could be granted. Mr Petrou's evidence was plainly unfavourable to the Crown. Furthermore, the answers which he gave adequately demonstrate he was not making a genuine attempt to give evidence. Apart from any other matter the relevant telephone records indicate that he was in telephone contact with the accused on the relevant evening and was present on the "north shore." This evidence is to be contrasted with his denial of any recollection of any contact with the accused relevant to that evening. Notwithstanding Mr Petrou's evidence even the applicant accepts that he was in the vicinity of Wollstonecraft at the relevant time. His Honour also gave appropriate consideration to the matters in s 192 of the Act. 19 It is important to appreciate the nature of the argument presented by the defence at the trial. The applicant did not give evidence. As I have indicated the Crown asserted that Mr Petrou was present when the deceased was kidnapped but did not otherwise participate in the killing and did not accompany the accused, Mr "X" and the deceased to the Gap and accordingly, could not give evidence about those events. The defence case was that Mr "X" alone took the deceased to the Gap and threw him into the ocean. The submission made to the jury by his counsel was that Mr "X" had intimidated the deceased, taken him in the applicant's car to the Gap and thrown him over. 20 In these circumstances so far as both the prosecution and defence were concerned there was nothing in the evidence which Mr Petrou could give which was relevant to the events associated with Mr Ljubic's death. Although because the Crown alleged he was a party to the kidnapping it was necessary for the Crown to call him as a witness, as defence counsel must have recognised during the trial his evidence did not assist the Crown case. 21 The applicant submitted on the appeal that the evidence of Mr Petrou, which of course was inconsistent with Mr "X"'s account of the persons who were present at Wollstonecraft, had the potential to cause the jury to conclude that Mr "X" may not have been telling the truth. It was submitted that a doubt about Mr "X"'s credibility in relation to who was present at Wollstonecraft could extend to a doubt about his account of the events at the Gap, causing the jury to have a doubt as to whether it was the applicant or Mr "X" who was responsible for Mr Ljubic's death. It was submitted that by allowing the Crown to cross-examine Mr Petrou, with the potential to damage his credibility, the Crown was able to impermissibly bolster the credit of Mr "X" to the disadvantage of the applicant: see R v Espito (1998) 105 A Crim R 27 at 40.5. 22 The trial judge said of Mr Petrou's evidence when summing-up to the jury: "I want to say something now about the evidence of Petrou. It is the Crown case that he also was involved in the criminal activity that took place on 23 March, 2005 at Wollstonecraft. The Crown does not suggest that he had anything to do with the death of the deceased. I did not give you the warning about the evidence of Petrou that I have given you about the evidence of "X". That is simply because his evidence does not appear to assist the Crown. He does not appear to have been charged with the kidnap and there is no suggestion of any indemnity applying to him. The Crown submits to you that his evidence is incredible and I shall deal, in due course, with those criticisms when I am reviewing the submissions and the evidence. The only thing I wish to say for now is this. If you reject the evidence of Petrou as worthy of belief, as the Crown says you should, you must be careful about how you use that rejection. There is direct conflict between the evidence of Mr "X" and that of Mr Petrou as to the part played by Petrou. Mr "X" says that Petrou was one of three men taking part in the kidnap. Petrou says he knows nothing of such things. I do not express any view of my own about the evidence of Petrou, but it seems possible that you may accept the Crown's submission that his denials of participation and any knowledge of the telephone calls and the like are false. You should understand that if a witness denies something, and you think that the witness is lying in that denial, that is no proof of that fact which it is sought to prove. It simply leaves you without evidence about that fact from that witness. The result of this is that if you think that Petrou is lying when he denies that he took part in the kidnap, you cannot use his false denial as evidence that he did take part. You are simply left with no reliable evidence from Petrou on the question of whether he took part. Of course, your conclusion will have the result that Petrou's evidence does not damage "X's" evidence. But, that is as far as your reasoning can take you. It does not support or strengthen "X's" evidence. You must look elsewhere for support for "X's" evidence." 23 As I have already indicated a reading of Mr Petrou's evidence in chief adequately confirms that he was not a credible witness. Cross-examination by the Crown did not significantly add to the answers which had been given in chief and which were plainly unbelievable. Furthermore, the cross-examination was not for the purpose or had the effect identified by Wood CJ at CL in Espito. This was not a case where the Crown sought to cross-examine so as to lead potentially unreliable evidence to bolster the credibility of a prosecution witness. It was the opposite. The Crown sought to challenge the apparently unreliable evidence of Mr Petrou for the purpose, as his Honour told the jury of having the jury disregard his evidence. And that was the position taken by the prosecutor in his address to the jury. 24 With respect to the undertaking allegedly given by the prosecutor the submission for the applicant mistakes the position. When at the conclusion of the Basha inquiry the issue was discussed the prosecutor said: "CROWN PROSECUTOR: Yes, your Honour. As I am currently instructed I don't envisage asking him anything beyond what I have asked him today and if something does arise -- HIS HONOUR: If you get a different answer to any question of course-- CROWN PROSECUTOR: Different considerations will apply then. HIS HONOUR: I think that's what I meant by you take your chances, Mr Thangaraj. You both do. You have heard what the Crown says. THANGARAJ: Yes, I appreciate that. HIS HONOUR: That's probably sufficient, I think, for your purposes. Ask Mr Petrou to come in." 25 It is plain that the prosecutor did not bind himself to not making an application pursuant to s 38. Furthermore he expressly reserved the position should his instructions change which it must be presumed they did. 26 In so far as the applicant's counsel says being caught by surprise he was disadvantaged I am not persuaded the argument has merit. Every opportunity was offered to counsel to address any problem which had arisen. However, no application was made to have Mr "X" recalled and counsel was able to cross-examine Mr Petrou. 27 Accordingly I am satisfied that the trial judge was correct in granting the prosecutor leave to cross-examine Mr Petrou and in the circumstances no injustice was occasioned to the applicant. 28 Both because the applicant has not established exceptional circumstances and the ground advanced is so lacking in merit in my view the application for leave to appeal out of time should be refused.

Sentence. 29 The applicant also seeks leave to appeal against his sentence. Notwithstanding the significant delay, having regard to the length of the term of imprisonment imposed by the trial judge I would not refuse leave to appeal his sentence merely because it is out of time. However, the ground advanced is so lacking in merit that in my view leave to appeal the sentence should be refused. 30 The ground sought to be advanced was:

The trial judge sentenced on the basis of the primary case presented by the Crown. This was not open on the evidence. His Honour ought to have sentenced on the alternate basis presented by the Crown. 31 The trial judge accepted the evidence of Mr "X". In short that evidence was that having arrived at the Gap the applicant became angry, took hold of the deceased with one hand behind his belt or his jeans and one hand on the back of his neck and threw him over the edge of the cliff. This was a possible sequence of events which was left to the jury and accordingly it was open to the trial judge to find that these events occurred. 32 Defence counsel attacked the evidence of Mr "X" during the trial and at the sentence hearing submitted that it should not be accepted. It was submitted that his Honour should sentence on the alternative basis, which was left with the jury, of a "joint criminal enterprise and reckless indifference." 33 His Honour gave careful consideration to this submission but, as he was entitled to do, rejected it. His Honour had the benefit of assessing Mr "X" as a witness and in the context of that evidence and the other evidence at the trial determined the facts upon which the applicant should be sentenced. His Honour was not required to make findings which were the most favourable findings for the applicant but was required to determine for himself the relevant facts to the appropriate standard (Chow v DPP (1992) 28 NSWLR 593 at 606). 34 His Honour found that the murder was very serious and above the mid range of objective seriousness. The offence of murder has a standard non-parole period of 20 years. To my mind the sentence which his Honour imposed was entirely appropriate. 35 In my opinion leave to appeal the conviction should be refused. Leave to appeal against the sentence should also be refused. 36 HISLOP J: I agree with McClellan CJ at CL 37 LATHAM J: I agree with McClellan CJ at CL.

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