[1994] HCA 63
McKenzie v The Queen (1996) 190 CLR 348
(1994) 73 A Crim R 532
United Mexican States v Cabal (2001) 209 CLR 165
Source
Original judgment source is linked above.
Catchwords
[2015] HCA 29
M v The Queen (1994) 181 CLR 487[1994] HCA 63
McKenzie v The Queen (1996) 190 CLR 348(1994) 73 A Crim R 532
United Mexican States v Cabal (2001) 209 CLR 165
Judgment (2 paragraphs)
[1]
Judgment
On 12 February 2018 the respondent stood trial before Judge Pickering and a jury of 12 on 3 counts as follows:
Count 1 - Discharge firearm in a public place contrary to s 93G(1)(b) of the Crimes Act 1900 (NSW);
Count 2 - Discharge firearm in a public place contrary to s 93G(1)(b) of the Crimes Act 1900 (NSW);
Count 3 - Discharge firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act.
The s 93G offence has a maximum penalty of ten years imprisonment. The s 33A offence has a maximum penalty of 25 years imprisonment and there is a standard non-parole period of nine years.
On 12 March 2018 the respondent was convicted on counts 2 and 3 but acquitted on count 1.
After the respondent had been arrested he was remanded in custody from 2 July 2016 to 28 July 2016. On the latter date he was released on conditional bail.
After his conviction on 12 March 2018 he was remanded in custody but on 23 March 2018 he was released on bail by the trial judge, Judge Pickering SC. The release order was made on the same conditions that had previously applied. Neither party provided me with a copy of Judge Pickering's reasons for so doing. The Crown simply informed me that Judge Pickering was of the opinion that the appeal was most likely to succeed, principally because of the evidence of Brandan Randall.
The sentencing hearing took place on 18 June 2018. Judge Pickering has reserved his decision on sentence until 27 July 2018.
After the respondent's release on 23 March 2018, the Crown lodged a detention application on 29 March 2018, and I heard that application in the Bail List on 2 May 2018. By reason of the considerable amount of material put forward on the bail application and by reason of the failure of counsel for the respondent to file submissions and any other material with the Court prior to the hearing of the bail application, it became necessary for me to reserve my judgment in the matter. The parties were informed that I was to be absent on four weeks leave throughout May 2018.
The respondent has lodged a Notice of Intention to Appeal against his convictions to the Court of Criminal Appeal. Although a Notice of Appeal has not yet been filed, the potential grounds of appeal were said to be these:
(1) The jury's verdicts are inconsistent;
(2) Having regard to the evidence, the jury's verdicts are unreasonable and cannot be supported by the evidence;
(3) The trial judge should have discharged the jury after in-court identifications were made of the respondent.
Section 22(1) of the Bail Act 2013 (NSW) provides:
22 General limitation on court's power to release
(1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision:
(a) an offence for which an appeal is pending in the Court of Criminal Appeal against:
(i) a conviction on indictment, or
(ii) a sentence imposed on conviction on indictment,
(b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a).
Both the offences in respect of which the respondent has been convicted are show cause offences. However, s 22(2) provides that the requirement in the circumstances is for the convicted person to establish that special or exceptional circumstances exist that justify a decision to grant bail, rather than to show cause why his or her detention is not justified. The requirement to establish special and exceptional circumstances is at least as onerous as the requirement to show cause: El-Hilli and Melville v R [2015] NSWCCA 146 at [11].
In Petroulias v R [2010] NSWCCA 95, Barr AJ said of the test for establishing special or exceptional circumstances under s 30AA of the Bail Act 1978 (NSW) (which was in relevantly identical terms to s 22(1)), that an applicant has to show much more than that the grounds seem arguable. His Honour made reference at [34] to R v Wilson (1994) 34 NSWLR 1 in which Kirby P (Sheller JA agreeing) said at [6] that the applicant must appear "most likely to succeed".
In R v Antoun [2005] NSWCCA 270 the Court (Simpson, Johnson & Rothman JJ) said:
[14] It was argued on behalf of the applicants that the grant of special leave is an indicator that the appeal to the High Court "is most likely to succeed" and that "there is a real prospect that the conviction might be set aside". In our opinion this overstates the position. This Court has been reminded by the Crown that it has been said that bail pending appeal will be granted only where the ground of appeal is so strong that it is virtually "certain to succeed", and obviously so: R v Wilson (1994) 34 NSWLR 1. We do not accept that s30AA is so limited.
[15] The judgment which has frequently been cited was, in fact, a minority position in Wilson. In Wilson, Kirby P, with whom Sheller JA agreed, said:
"... it will require something more than an arguable point in the Court of Criminal Appeal to warrant the provision of bail upon the ground that the applicant for bail is likely to succeed."
It is to be noted that, in that passage, Kirby P and Sheller JA seem to envisage that there may be grounds other than the merits of the appeal which would satisfy the s30AA test. Where the application is based only on the ground of the merits of the appeal, the passage has application but these remain open to the possibility that there are potentially other circumstances that might merit the grant of bail.
In El-Hilli, Hamill J (Simpson and Davies JJ agreeing) said of these cases:
[24] …However, I should make it clear that I do not accept the suggestion that an applicant must establish that their appeal will either "inevitably succeed" or that success is "virtually inevitable". Neither the statutory language, nor the case law, supports such a strict test. It was rejected by the Court (Simpson, Johnson and Rothman JJ) in R v Antoun.
[25] The comment made by the single Judge may have been based on a misunderstanding of a submission made in the Crown's bail chronology in which the observations made by Hunt CJ at CL in R v Wilson were set out. As the Court pointed out in R v Antoun, those observations did not reflect the majority position. Kirby P (with whom Sheller JA agreed) in R v Wilson did not adopt the proposition that the appeals success must be "virtually inevitable". His Honour referred to the need for there to be "something more than an arguable point" and suggested that the appeal "must be most likely to succeed".
[26] In a case where the applicant relies exclusively on the strength of the appeal, the observations of Barr AJ in Petroulious v R and Kirby P in R v Wilson may apply and it may be necessary to establish that the appeal is "most likely" to succeed. When the merit of the appeal is relevant as part of a combination of factors, the preponderance of authorities suggest that the question is whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success: see Peters v The Queen at 310-311; Marotta v The Queen at 266; R v Velovski at [24]-[25].
The following summary of the facts is taken from the Crown's written submissions on the bail application:
9. The offences arose from animosity between the respondent and Matthew Cooper, a friend of the victim, Jordan Langley. After a dispute between the respondent and Matthew Cooper's partner, Laura Cox at McDonalds, Matthew Cooper and Greg Ryan found the respondent and his girlfriend, Ms Voce. Greg Ryan smashed a window of Ms Voce's car. The respondent sent abusive messages to Matthew Cooper about the window and the incident at McDonalds and in calls threatened to come for him and his kids. Matthew Cooper lived in Emu Drive [San Remo] opposite Greg Ryan. The conduct in count 1 occurred when the respondent was in a car that drove past the Ryan house and a shot was fired. The respondent sent a text to Matthew Cooper in (sic) challenging him to come see him.
10. The victim, Jordan Langley, went with Matthew Cooper, Samuel Heterick and Myles Taueli to Tirriki Close [Buff Point] where the respondent lived. When Jordan Langley and Samuel Heterick got out of the car, the respondent who was on the road way fired a shot into the rear window of Jordan Langley's car. Matthew Cooper and Myles Taueli were in the back seats at the time. Matthew Cooper called 000 at 6.44 pm. Jordan Langley got a short handled axe from his car and threw it into the window of a car in the respondent's driveway. The window smashed and the axe landed on the back seat. [This car belonged to Brandan Randall.] The respondent fired at Jordan Langley and Samuel Heterick who were near the top of the driveway hitting Jordan Langley in the chest. Jordan Langley was driven to hospital by Matthew Cooper and his friends. A police message about the shooting of Jordan Langley was broadcast at 6.51 pm.
11. When police arrived at 7.28 pm, the respondent told police in a recorded conversation that the victim had the gun and that he wrestled with him and at some point the gun discharged.
12. At trial the respondent alleged his friend, Brandan Randall, fired the gun in relation to each count on the indictment and that the Crown could not prove beyond reasonable doubt that the respondent was the shooter.
The respondent's submissions were directed to potential grounds (1) and (2) and to the strength of the appeal based on those grounds. Although the written submissions of the respondent said,
It is further submitted the respondent does not pose an unacceptable risk to the community and should be released subject to conditions (as per oral submissions),
no such oral submissions were made. Further, it was not suggested that the test in s 22 was met other than by the strength of the appeal grounds. In those circumstances, the respondent must establish that the appeal is "most likely" to succeed: Wilson at [15]; El-Hili at [26].
Counsel for each of the parties addressed various aspects of the evidence.
The Crown submitted that the ground of inconsistency was not a strong one and did not have a high likelihood of success on appeal. Count 1 involved the discharge of a firearm out of a moving vehicle in front of Greg Ryan's house. Counts 2 and 3 involved a shooting about an hour later in Tirriki Close where the respondent lived. Proof of count 1 relied substantially upon the recognition evidence of Matthew Cooper, and there was evidence that the person holding the gun was not visible. Proof of counts 2 and 3 relied on additional evidence and was not dependent on Matthew Cooper's evidence.
The respondent submitted that Cooper's evidence in relation to seeing the respondent at the time the shot was fired outside Ryan's house was embellished. Further, the first time that Cooper saw the respondent in person was said to be at the time the respondent is supposed to have fired that shot. Previously, Cooper had only seen pictures of the respondent on Facebook. In his evidence Cooper was unable to describe the person he saw in those Facebook photographs and when he first saw the respondent outside Ryan's house he could not recall whether he was wearing a hood or not. The respondent submitted that the jury's verdict of an acquittal in relation to count 1 was entirely understandable having regard to the evidence given by Cooper of that incident.
The respondent argued that the embellishment and false evidence given by Cooper in relation to count 1 pointed to the fact that a guilty verdict in relation to count 2 was inconsistent with the not guilty verdict on count 1. The respondent submitted that there was no other evidence capable of satisfying a jury beyond reasonable doubt of the respondent's guilt with respect to count 2.
The principles to be applied when a ground of inconsistent verdicts is raised are set out in the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 366-368. Subsequently, in R v Bonat [2004] NSWCCA 240 in the Court of Criminal Appeal, Sperling J (with whom Sheller JA and Adams J agreed), said at [106]:
I would summarise the principles laid down by these authorities as follows:
(1) There is no hard and fast rule. It all depends on the circumstances of the case.
(2) A primary consideration, in a case of inconsistent verdicts, is whether there is an acceptable explanation for differentiation as a matter of logic and reasonableness.
(3) A likelihood that the jury has been satisfied of guilt in relation to the verdict or verdicts in question and has otherwise acquitted the accused because the verdict or verdicts of guilty were thought to be sufficient to serve the interests of justice should be excluded.
(4) In deciding whether to substitute a verdict or verdicts of acquittal rather than order a new trial, a likelihood that compromise provides a complete explanation for the inconsistency should be excluded.
(5) Where there are factors additional to the inconsistency between verdicts, tending to make the verdict or verdicts in question unreasonable, that weighs in favour of quashing the verdicts in question and in favour of substituting a verdict or verdicts of acquittal rather than ordering a new trial.
Proof of the matters in respect of counts 2 and 3 did not depend only on the evidence of Matthew Cooper. The Crown relied on the evidence of the neighbour, Ms Tracey Kent and the triple 0 call she made, the descriptions given by Myles Taueli, Jordan Langley and Samuel Hetrick, the admission made by the respondent to Jordan Langley and evidence in a number of exhibits which included Facebook posts by the respondent. From an application of the proper principles to apply in relation to inconsistent verdicts, especially sub-paragraph (2) in Sperling J's judgment at [106], the not guilty verdict in relation to count 1 was explicable because of the evidentiary differences concerning count 2.
I consider, based on the evidence from the trial provided to me, that this first ground has poor prospects of success.
It is necessary next to deal with the ground that the jury's verdicts are unreasonable and cannot be supported by the evidence. Such a ground involves questions of fact, and the respondent must obtain leave to bring such a ground. The test to be applied by the Court of Criminal Appeal is that laid down by the High Court in M v The Queen (1994) 181 CLR 487 at 492, 493 and 495. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 the High Court said at [12]:
Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. …
Whether a verdict is unreasonable is a matter to be determined by the Court of Criminal Appeal on a consideration of the whole of the evidence in the case. It is neither appropriate, nor the task of a judge hearing a bail application pending an appeal to the Court of Criminal Appeal, to engage in the same exercise as that of the Court of Criminal Appeal. As Hamill J said in El-Hilli at [35]:
The merit of this ground is impossible to assess without recourse to the full record of the trial.
I did not have the full record of the trial; extracts only were provided. In any event, as I have said, it would not be appropriate for me to assess all of that evidence to determine if the jury's verdict was unreasonable. In most cases where the question of bail is being considered pending an appeal based on an unreasonable verdict ground, the judge hearing the bail application will not be able to do other than to say that the appellant has an arguable case that the verdict was unreasonable. That is because, unless the evidence is all one way or there is no or insufficient evidence to support a finding, the bail judge will not have a sufficient grasp of the factual detail to consider whether the jury ought to have had the sort of doubt that would have resulted in a not guilty verdict: M at 494.
The respondent made a number of submissions about the weakness of the Crown's evidence in relation to counts 2 and 3. The respondent submitted that Cooper was not a witness of credit and that he embellished his evidence in a number of ways. The respondent submitted that the jury ought to have had a doubt about his evidence because they clearly did not accept it in relation to count 1. The respondent submitted that at the time he made the triple 0 call and said "they shot again", he was some distance away from the others at the end of the respondent's driveway. In that way he could not have known that the victim had actually been shot when the gun was discharged. The respondent submitted that Cooper's evidence concerning his recognition of the respondent showed that it could not be relied upon.
The respondent submitted that there were problems with the evidence from Tracie Kent. She wrongly identified the respondent as having had a crew cut when there was undoubted evidence that he had long, brown shoulder-length hair. He submitted that she was wrong in her evidence about the respondent getting out of the motor vehicle when the police arrived, and her evidence that she heard the respondent say "I think I shot one" was of low probative value when there was no evidence she had ever had a face to face conversation with him.
The respondent submitted that the Crown had not excluded beyond reasonable doubt that the shooter was Brandan Randell. The respondent pointed to a number of shortcomings in Randell's evidence. The respondent submitted that Randell had made threats to people in the respondent's social circle, and submitted that he had a motive to exact revenge on the victim because of the smashing of the window in his car. The respondent pointed to the fact that a video on Randell's phone had a recording of a gun in his motor vehicle a month prior to the offence.
The respondent said that evidence given by witnesses for the defence all confirmed that the respondent's girlfriend, Ms Voce, had screamed at the time that "Brandan Randall has a gun".
The respondent submitted that there was no gunshot residue testing of Randall, and the testing on the respondent returned a negative result.
Notwithstanding the criticisms the respondent makes of the Crown evidence, there was some strong evidence to support the jury's verdict. Ms Kent was the respondent's next door neighbour and might be expected to be able to recognise the respondent. The respondent had a crew cut at the time of the trial, which provided some explanation for her inconsistent description of him.
The respondent had a clear motive to have engaged in the behaviour charged from the time that Greg Ryan smashed a window of his girlfriend's car. The matters he posted on Facebook were some further support of motive, as was the admission made to the victim Jordan Langley in the toilets at the court during the trial, "At the end of the day I never wanted to shoot you". Further, the respondent had given an account to the police of wrestling with the victim who had a gun and that the victim had been shot in the course of that altercation. That explanation was abandoned during the trial.
It may be accepted that, as in many or most trials, all of the Crown evidence was not favourable to the Crown. What a consideration of all of the criticisms of the Crown evidence amounts to is that the respondent has an arguable case that the jury's verdict on counts 2 and 3 was unreasonable. These criticisms, however, cannot be said to demonstrate that the appeal is most likely to succeed. That could only be shown if I was persuaded that the jury must have entertained a doubt about the respondent's guilt.
As I earlier noted, since the determination of an unreasonable verdict involves a consideration of all of the evidence in the case, a judge hearing a bail application pending an appeal would ordinarily only be in a position to hold that an appeal was likely to succeed on that ground if it could be shown that there was no or insufficient evidence to support a finding of guilt or that the evidence was all one way. That is not the case in the present matter.
When I pointed out to the respondent's counsel during argument that a bail judge was scarcely in a position to evaluate the unreasonableness of a verdict, counsel pointed to what Buddin J (McClellan CJ at CL and Price J agreeing) said in DPP v SKA [2009] NSWCA 51 at [12]:
It is common ground that the current review is in the nature of a hearing de novo: R v Pakis (1981) 3 A Crim R 132. Nevertheless the court must exercise restraint given the trial judge's advantage in weighing the factors that supported the grant of bail: DPP v Louizos [2008] NSWCA 271 [at par 15].
Counsel submitted that the trial judge was in the best position to consider the matter and that I should give considerable weight to the matters raised before the trial judge on the release application.
Two things can be said about that submission. First, the respondent did not provide me with the trial judge's remarks when his Honour granted bail after the trial, so I have no way of assessing the matters his Honour considered. Secondly, notwithstanding Buddin J's urging of restraint in favour of the trial judge, his Honour then went on at [16] to assess in a broad-brush way, consistent with exercising a bail jurisdiction, the matters raised by the respondent in that case, and found at [18] that, although an arguable case was put forward, this was not sufficient to satisfy the equivalent test in s 30AA of the Bail Act 1978.
The respondent does not suggest any other basis for refusal of the detention application. It is not submitted that any sentence imposed for the offences is unlikely to result in a fulltime custodial sentence. Indeed, the limited information I have about his Honour the trial judge's thinking is a statement in the Crown submissions that his Honour made reference to the likelihood of a lengthy custodial sentence for count 3, and went on to say that it was not necessarily in the interests of justice to have someone who is successful in an appeal serve a significant sentence before an appeal is upheld.
In United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 the High Court (Gleeson CJ, McHugh and Gummow JJ) said at [39]:
[39] In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice. As Thomas J pointed out in Ex parte Maher, to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned:
• makes the conviction appear contingent until confirmed;
• places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail;
• encourages unmeritorious appeals;
• undermines respect for the judicial system in having a "recently sentenced man walking free";
• undermines the public interest in having convicted persons serve their sentences as soon as is practicable.
For the reasons I have given, the respondent fails to show that there are special or exceptional circumstances justifying the grant of bail.
I make the following orders:
1. The detention application is granted.
2. I revoke the bail granted by Judge Pickering SC on 23 March 2018.
3. The respondent is remanded in custody.
[2]
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Decision last updated: 29 June 2018