R v Yasso [2007] VSCA 306

**1 On 8 May 2001, the applicant stabbed his estranged wife (EH) to death. She was then 32 and he was 44. He is now 50 years of age.

2 On 11 September 2002, the applicant was convicted of murder by a Supreme Court jury. He was sentenced to 20 years' imprisonment with a minimum of 15 years. That conviction was set aside on appeal.[1] The re-trial commenced on 7 February 2005. The applicant again pleaded not guilty to murder. He did not give evidence, but called one witness. On 2 March 2005, the jury returned a verdict of guilty. On 21 March 2005, the trial judge sentenced the applicant to 20 years' imprisonment with a non-parole period of 15 years. The applicant seeks leave to appeal against conviction and sentence.

3 The applicant was represented at each of the trials but was unrepresented on the hearing of the appeal. He was very considerably assisted by a friend, Mr John Walsh, in the preparation of his appeal grounds and in the presentation of his written argument. Mr Walsh deserves the highest commendation for his efforts over a long period on the applicant's behalf.

4 As the applicant has little English, he was assisted by an interpreter when the hearing of the appeal commenced on 19 February 2007. At the end of the morning's argument, a cousin of the applicant informed the Court that, in his opinion, the interpreter who had been assisting the applicant was not interpreting accurately. Upon the resumption, the applicant's cousin gave the Court a number of examples of what he considered to be inaccurate or incomplete translation.

5 It is, of course, an elementary requirement of natural justice that a defendant in criminal proceedings be able to participate fully, to present argument and answer questions, and to understand everything that is said by the bench and by opposing counsel. For a non-English speaking defendant, accurate interpreting is vitally important.[2] In view of the serious matters raised by the applicant's cousin, the Court adjourned the further hearing of the appeal and directed a transcription of the morning's proceedings and that arrangements be made for a new interpreter, acceptable to the applicant and his cousin, to be retained and to translate the transcript for the applicant. Once that had occurred, the applicant was to advise the Registrar of the Court of Appeal in writing of any matters which he wished to raise, either about the accuracy of the transcript or by way of reply to the Crown's submissions.

6 The Registrar attended on the applicant with the new interpreter when the appeal transcript was translated for the applicant, a process which took approximately four hours. The Registrar then informed the applicant that the Court had asked for his written responses. The applicant informed the Registrar that he was unable to respond in writing. On the Registrar's recommendation, the appeal was re-listed before the same court on 28 May 2007 and the appeal hearing was started afresh. I wish to record the Court's appreciation of the Registrar's diligence in this matter, which ensured that the applicant was - on the second occasion - given a full and fair hearing of his applications.

7 On this occasion the applicant requested that Mr Walsh, who was present, advance oral submissions on his behalf. Leave was granted to Mr Walsh who then ably made extensive submissions supplementing the written submissions. The applicant was assisted throughout this hearing by an interpreter of his choice. No complaint is made under the grounds of appeal as to the adequacy of the interpreting during his trial.

8 The killing occurred outside the Meadow Heights Shopping Centre in Melbourne's northern suburbs. The applicant fled the scene but was arrested shortly afterwards in a reserve several blocks away.

9 The applicant gave the following account in his police interview. He admitted that he had stabbed EH. He had gone to meet her and his brother-in-law, and was seeking the return of his British passport and a gold necklace. They spoke normally, and she had agreed to met him the next day to give him these things. But when she refused to give him her mobile telephone and then spat on him,[4] he had drawn a kitchen knife, which he carried for protection from his brother-in-law, and had stabbed her. He did not know how many times. He had not meant to kill her.

10 The scene of the killing was an undeveloped paddock beside the shopping centre. EH had recently commenced English language classes in a 'learning shop' at the centre. The applicant and EH were observed arguing beside the wall, and the applicant was seen blocking his wife's way. She was observed to appear scared and he was seen to be angry. At some later point other witnesses heard a woman's scream. They then saw from a distance the applicant apparently punching EH repeatedly. One witness stated that it was a frenzied attack. Various witnesses described her falling to the ground, where the applicant knelt beside her and continued punching her to the chest. As the witnesses drew closer, some calling for the offender to desist, they saw that he had a kitchen knife in his hand and he was in fact stabbing her in the chest. He looked up, acknowledging the interveners, stabbed EH two further times, and then hurried away to the rear of the shopping centre. He was then observed running through the centre. No witness saw EH spit on the applicant or act aggressively towards him.

11 Post-mortem examination of the deceased revealed that she had been stabbed 20 times, including six wounds that entered the chest cavity, causing six defects to the lungs and one defect to the heart. There were also eight defensive injuries to the upper limbs. The lung injuries had resulted in a collapsed left lung. The injury to the heart, aggravated by those to the lung, had caused major bleeding inside the chest. It was that bleeding which had ultimately caused death.

12 Hanna Kalandos was the sister of EH, and Gemi Hanna the husband of Kalandos. Both testified about the history of the family, and of the relationship between the applicant and the deceased. They had married in Iraq in 1990. In the late 1990s they went to Jordan, and from there the applicant, who had been born in England, returned to the United Kingdom. It was the intention that he would bring his wife with him, but he failed to do that. After two years in Jordan she returned to Iraq, and from there she was sponsored to Australia by her sister. She arrived in 1999, and began building a life, taking English and driving classes, and obtaining work as a hairdresser.

13 About a year later the applicant came to Australia on a visitor's visa. He moved in with his wife, who was living with her sister. After a period the couple moved out, and the relationship subsequently deteriorated. The applicant was controlling and had a gambling problem, and lost $12,000 his wife had borrowed to commence a hairdressing business. EH told her family members that the applicant had begun to engage in threatening behaviour.

14 She moved back in with her sister in March 2001 and from that point they received telephone calls from the applicant, in which he threatened EH and her family members. Hanna Kalandos, Gemi Hanna and their children, Susan and Mathew Kalandos, all described incidents where they witnessed the applicant threatening to kill EH. They also witnessed her fearful response to his presence.

15 In cross examination the adult witnesses also detailed the relationship of the deceased with the witness Nasir Haba. They testified that for a period of time EH would constantly telephone Haba. He was a friend from language classes and from her hairdressing job. The witnesses did not regard this as an improper relationship, but conceded that the applicant was angry about it. Nasir Haba gave evidence about his relationship with the deceased. He confirmed that she had called him persistently on the telephone to talk about her problems. He said that, after EH moved out with the applicant, their only contact was by telephone. He said that there was no romantic or otherwise improper relationship. He said that he had encouraged EH to be patient and to work out her problems with the applicant. He described the applicant's harassing behaviour towards him, and the applicant's threats to kill him. He also described EH's reports of the applicant's threats and threatening behaviour towards her.

16 On 13 March 2001, EH applied for and was granted an interim intervention order against the applicant. On 23 March 2001, following a contested hearing, the magistrate granted a final intervention order. A transcript of the first hearing and a tape of the final hearing were tendered in evidence. In her applications, EH described the applicant's threats to kill her and her family; an occasion when he had sharpened a knife in front of her; and other threatening behaviour. She also described his controlling and suspicious behaviour. The applicant denied the accusations and said that he loved his wife, although he did accuse her of theft of his credit card, and of other property.**

Grounds 1 and 2: Did the deceased spit at the applicant?

Wrong and misleading instruction to the jury by the judge.

The jury was clear in its questions to the judge.

• The judge refused to answer some of those questions, which went to the credibility of a major Crown witness.

The judge did though answer the following question for the jury.

The jury asked. Did the deceased spit at the applicant?

• In answering this question the judge stated:

'If you find that the applicant's wife did not spit at him then you must find him guilty of murder. You do not then go to provocation.'

It was this statement by the judge which gave the jury the "key" to finding the applicant guilty of murder as this answer, confused the evidence and gave reason for the jury to not consider provocation, in line with the evidence.

The judge gave the jury the "key" for a finding of guilt when he told it:

"If you find that the applicant's wife did not spit at him then you must find him guilty of murder. You do not then go to provocation."

This direction given by the judge was confusing as it went against the evidence as given to the court. That evidence was that the deceased DID spit at the applicant. There was no evidence to confirm otherwise. [This was a major point at the first trial to which the prosecution agreed with].

On the basis of the direction given by the judge the matter was left open, and so it went against the evidence, hence the "key" to the guilt finding. (Refer to ground 1).

The subject of whether the deceased did or didn't spit should never have been in contention as the evidence before the court was that the deceased did spit at the applicant.

The court heard from experts, that under the code of practice of the Christian Chaldean Church and the Iraqi Christian upbringing, there could be no more a belittling act for the applicant to endure than an act of spitting, either on him or at him.

It was that act by the deceased which enraged the applicant and provoked the applicant into losing self-control.

19 It was a central part of the applicant's case before the jury that EH had spat at him and that this had triggered the stabbing. The following extract from defence counsel's final address illustrates how the case was put:

What caused my client to start stabbing at [EH]? It revolved around the mobile phone. Why would she not give it to him? Well, the answer is a simple one, that mobile phone represented her new life, he didn't realise the significance of it. But it symbolised to her the relationship and the only contact she had then with Nasir Haba. It had that symbolism to her and he had no clue.

When he asked for the mobile phone she refused and she spat at him. She had contempt for him and would give away nothing of the prospect of her new life with Nasir Haba, that explains it. It came out of the blue to Mr Yasso and she did it because she had no real fear of Mr Yasso because he was not the abusive husband that that family would have it. He was the calm person and she had her new life. Did Mr Yasso expect her to react in that way, no.

I will read you some passages through his record of interview [that] clearly indicate that he had no idea that this was about to happen and neither of them expected anything to occur in relation to the knife. And that he could not understand why she would not give him the mobile phone. He said this in answer to a long question at p 11 of the transcript of the interview at the top: "Then I pulled the knife at her. I pulled the knife at her and I repeatedly told her to give me the mobile phone, but she did not agree. She spat at me and I hit her with the knife."[5]

In any culture, for anybody to spit on another is a grave matter. For an enemy to spit upon you, you might expect it as showing their contempt for you, but the closer one comes in a relationship with another the less one expects it to occur, and bear in mind my client loved his wife and wanted her back and had said so previously. It is one thing for an enemy to spit upon you, and I suggest it is a rare thing in any culture, but for a friend or a close family member to do it is indeed something unimaginable.

You have heard evidence of the culture in which EH was brought up. He was her husband who tried to get her back, tried as best he could to stop the relationship between EH and Nasir Haba. There was not merely an insult, to put it mildly, something more but it was doubly so. It was an insult to spit at him and it was an insult to spit at him of the highest order where he was spat at, the husband by his wife unexpectedly.

It was a provocative act and it is a provocative act of enormous magnitude, even without the issues of culture and tradition, that it was doubly so with that culture and traditions hard-wired into him. It explains why all of a sudden he stabbed her constantly, furiously. He had lost all control.[6]

21 In her charge, the learned judge directed the jury at some length about the law of provocation. The relevant part of the direction was in these terms:

In the present case the only alleged provocative act is the spitting by EH at [the applicant]. That is the only conduct, relevant conduct, alleged in this case. What that means is if the Crown have satisfied you beyond reasonable doubt that EH did not spit at the applicant that is the end of the provocation. I will repeat that.

If the Crown have satisfied you beyond reasonable doubt that EH did not spit at the applicant that is the end of provocation ...[7]

22 After the jury had retired to consider their verdict, they asked the trial judge the following question:

Provocation. If the jury find that there was no conduct to provoke murder, do we have to go to the next two points of provocation?[8]

The trial judge sought submissions from prosecution and defence counsel about how the question should be answered. Critically, defence counsel said he would have no objection to an answer in these terms:

If you are satisfied beyond reasonable doubt that there was no provocative act ... then the doctrine of provocation no longer has any further relevance in this trial.[9]

23 In the event, the answer which her Honour gave to the jury was as follows:

The answer is this: If you are all satisfied beyond reasonable doubt that there was no provocative conduct - that is to say no spit - then you do not go on to consider the other two points of provocation. In that case, your verdict would be guilty of murder. I just remind you, when I say would be murder, that's because you only consider provocation if you are already satisfied beyond reasonable doubt in relation to the first three elements of murder - that is that he caused the death, that it was a deliberate voluntary and conscious act, and the question of intention. If you've gone through all those three and the Crown has satisfied you beyond reasonable doubt, you're considering provocation. I hope that's answered your question.[10]

**24 The question of whether or not the alleged spitting took place was for the jury to decide. It was the Crown case that there was no provocative conduct by the deceased. As the trial judge correctly instructed the jury, it was not for the applicant to persuade the jury that the spitting had occurred. Rather, it was for the Crown to satisfy the jury beyond reasonable doubt that the spitting did not take place. Having regard to the very clear question which the jury asked, and the clarity with which it was correctly answered, the question of provocation may have been decided by the jury on this threshold factual issue. The trial judge considered this to be the likely explanation when commenting to that effect in her sentencing remarks.

25 Nothing has been put forward by the applicant, nor is there any aspect of the judge's charge on this issue, which suggests that there has been any miscarriage of justice in relation to the provocation issue. The evidence as to what occurred during the fatal attack was clearly and accurately summarised by the trial judge. As a result of a question from the jury, portions of the evidence of certain eye witnesses were read to the jury and the VATE tape was played. As the Crown points out, there was no evidence of the spitting other than the answers which the applicant gave in his record of interview, as identified by defence counsel in the passage set out above. There was in my view ample evidence from which the jury could conclude that EH did not spit at the applicant.

26 The record of interview itself was inconsistent in that, in a separate section of the interview, the applicant gave a detailed account of the stabbing which contained no mention of spitting at all. The relevant part of the record of interview is in these terms:**

Q. Well, you've got the knife out at this stage, is that right?

1. Well, at first we spoke with each other for about 20 minutes before the knife was pulled.

Q. When you pulled the knife on her, what was her reaction?

1. I was facing her - she had nowhere to run away. She tried to move, and I held her from there.

A. I ask her more than two times, and I said to her, "Give me the mobile."

1. I cannot remember exactly I was holding the knife in this way, but at that time I was in a hysterical situation. I was holding the knife in this way.

**27 The applicant's real complaint, as he made clear in the course of his submissions, was that he was the only person who could have known whether there was spitting and, accordingly, the jury should have accepted that it did occur. The fact that the applicant had told the police that the spitting had taken place did not, of course, oblige the jury to accept that it did. As was pointed out to the applicant during the argument, part of the Crown's submission to the jury was that it was very unlikely that EH had spat at the applicant, given that she was already very frightened because he was holding a knife in his hand.

Reversal of guilt obligation and intimidation of witnesses by the Crown.

During its summing up the Crown continually told the jury:

"I want you to find Yasso guilty of murder. If you find him guilty of manslaughter then I will be very upset."

This was an unwarranted intimidation by an officer assisting the court.

30 This ground is without substance. It reflects a misunderstanding of the role of the prosecutor in a criminal trial. It also misrepresents the prosecutor's final address. The prosecutor at no time made any statement to the effect of 'If you find him guilty of manslaughter then I will be very upset.' It was entirely proper for the prosecutor, in the discharge of her public duty, to put to the jury the case for the applicant's guilt on the charge of murder. To do so is in no way inconsistent with the duty of fairness which a prosecutor owes to an accused person. Properly, the trial judge directed the jury that they were not bound to accept what was said by counsel on either side and that the addresses of counsel could be rejected in whole or part.[11]

Ground 4: Prosecutor's statement about Crown witnesses

The Crown confused the jury when it told the jury to not believe the evidence forthcoming from its own Crown witnesses.

The Crown threw doubt upon the credibility of its own witnesses. The transcript will confirm this fact when reading the section related to Crown witness Salam Ellis and family.

32 In the course of her closing address, the prosecutor questioned the impartiality of two Crown witnesses. Once again, it was wholly consistent with the prosecutor's duty to present the prosecution case fairly for her to draw attention to matters which the Crown considered were relevant to the jury's assessment of the evidence.[12] As I have already pointed out, the jury were clearly told that they were in no way bound to accept anything said in the prosecutor's address. This ground is without substance.

Ground 5: Intimidation and coaching of witnesses

Crown intimidated some witnesses and coached others and with knowledge of such occurrence the judge took no step to stop the practice.

As Crown witnesses arrived at the court the police informer, with the knowledge of the Court and the Crown took each witness to a special room.

This was exposed when Crown witnesses complained to the applicant's cousin and he then complained to the applicant's counsel. Counsel though, failed to advise the applicant of this and when the applicant was told - a few days later, he refused to continue the trial but was convinced that the practice was allowed.

In not understanding English the applicant explained to counsel that he was not happy The judge allowed a 1 hour recess to allow the interpreter to explain events to the applicant.

As the applicant discovered later, the practice continued.

The court transcript will confirm that in excess of 50% of the witnesses gave perjured evidence at the retrial, as it was very different to that evidence given at the first trial. As an example was the evidence given by the 14-year old school girl.

34 The concern of the applicant, as reflected in this ground, was conveyed to the Court on the morning of day 12 of the trial. The following exchange records the nature of the complaint and the responses of the trial judge and the prosecutor respectively.

Defence counsel: It concerns a complaint that the informant, Mr Guy, has been speaking to the witnesses and to use my client's phrase or general phrase "telling them what to say". I have spoken to my learned friend and Mr Guy in my learned friend's presence and indicated there is such a complaint and I also indicated that I assumed that Mr Guy was professional in his approach. I don't want to take the matter any further than that, Your Honour, but my client has specifically asked that I do so and draw it to Your Honour's attention and, I have done so.

Her Honour: Yes, thank you. The position would be the same as it was when [the prosecutor] raised the matter in relation to the Interpreter, obviously if at some point you wish to raise something more formally or there's a particular witness it concerns, you can mention that to me otherwise I can do no more than note it.

The Prosecutor: If I have to say anything can I simply indicate that the informant's job is to get witnesses organised and he's been doing that; getting them here on time, trying to explain to them when we don't reach them, all the things that are expected of an informant, not of my instructor, in any trial.

35 The matter was raised again by defence counsel later that morning. Counsel indicated to the trial judge that his client had 'raised some very serious concerns that he has'. The matter was stood down to enable defence counsel to confer with the applicant. On the resumption, defence counsel said:

Thank you, your Honour, I'm glad to say that the matter has been resolved and we can proceed now ...[13]

**36 Given this course of events, there is no basis for inferring that any improper conduct occurred. On the contrary, defence counsel - having quite properly raised his client's concerns - was evidently satisfied after investigation that the concerns were unfounded. As the prosecutor pointed out, it was the informant's obligation to organise the prosecution witnesses and, for that purpose, to meet them on their arrival at court. The informant himself gave evidence and it was open to defence counsel to put in cross-examination any allegations of improper conduct. It was, moreover, open to defence counsel to cross-examine any of the Crown witnesses on the basis of prior inconsistent statements which they might have made. The judge directed the jury appropriately regarding prior inconsistent statements.[14]

Jury failed to keep awake during the defence summary - and with the full knowledge of the judge.

This became a joke and at one stage the judge made the comment:

39 In her report dated 16 September 2005, the trial judge provided the following response to this ground:

As the trial occurred during a spell of particularly hot weather, I gave the jury more frequent or longer breaks than might otherwise have occurred. On occasion, the court finished sitting early if jurors looked as if they were losing concentration.

I am not aware of any juror having been asleep at any stage of the trial.

**40 As the Crown has pointed out in submissions, the comfort of the jury and difficulties with concentration in the heat were addressed on a number of occasions during the trial. Various measures were taken, including the provision of fans; increased jury breaks; and monitoring the jurors for signs of fatigue. The transcript does not record the judge making any statement to the effect of 'It is good that all are not sleeping'.

41 I am satisfied that the issue of jury concentration was appropriately monitored and managed. There is, accordingly, no substance in this ground.**

Ground 7: Crown witnesses not called at second trial

Witnesses who would have confirmed the applicant's story were not called by the Crown.

The fruit shop proprietor and the shopping centre security camera operator were both most supportive of the Applicant at the Applicant's first trial. For reasons unknown to the Applicant neither was called by the Crown - for this retrial.

The prosecutor told the court that only one witness had not been called but that was not true. That witness, the Crown told the court, was overseas.

**43 This ground was, in my opinion, comprehensively disposed of by the Crown submission, which was in the following terms.

44 Mr Zakir Kormaz (a fruiterer from Meadow Heights), Constable Martin James Stewart and Leading Senior Constable Sally Jane Rooks were the only witnesses who gave evidence in the first trial but did not give evidence at the second trial. No issue was raised during the course of the second trial regarding the failure of the Crown's to call relevant witnesses.

45 In the first trial Mr Kormaz gave evidence of his observations of seeing a man of Middle Eastern appearance in his late 30s to early 40s running from the direction of the stabbing through the shopping centre at about 12:30 pm. About 30 seconds later he heard coming from that direction the sound of a woman screaming. Mr Kormaz was not cross-examined by defence counsel.[15] His evidence did not assist the applicant.

46 Constable Stewart gave evidence of attending the crime scene at about 12:33 pm and then attending at Broadmeadows Valley Park where he saw the applicant in custody. Constable Stewart was present with the applicant in a room at the Broadmeadows Police Station when he had a conversation with the applicant in which the applicant said: 'I killed my wife at shopping centre, Meadow Heights, not for money. She got my passport and things. My finger cut with knife'. Constable Stewart was not cross-examined by defence counsel.[16] The effect of Constable Stewart's evidence was covered by other evidence led in the second trial, particularly the record of interview and the evidence of Dr Cecilia Ho.[17] Constable Stewart's evidence did not assist the applicant.

47 Leading Senior Constable Rooks gave evidence of a conversation with the applicant at the Mill Park Police Station on 18 May 2001 in which she said: 'How did you cut your finger?' and the applicant replied: 'I did it on my wife'. Leading Senior Constable Rooks was not cross-examined by defence counsel.[18] The effect of Leading Senior Constable Rooks' evidence was covered by other evidence led in the second trial, particularly the record of interview and the evidence of Dr Cecilia Ho.[19] Leading Senior Constable Rooks' evidence did not assist the applicant.

48 No 'shopping centre security camera operator' was called at the first or second trial. The inability of the Crown to call a witness who was in Egypt was raised during the trial.[20] Defence counsel expressed no concern regarding these matters.**

Ground 8: irregularities leading to the miscarriage of justice

**49 This ground relies on what are said to be eight irregularities. I will deal with them in turn.

(i) The transcript endorses that neither the judge nor the jury understood the significance of the deceased's provocation of the Applicant.

50 It is clear from the transcript that both judge and jury understood the significance of what the applicant said was the act of provocation by EH. That was in no small part attributable to the powerful submission made to the jury by the applicant's counsel, as set out earlier.

(ii) The Applicant was not able to brief or even meet with, Defence counsel prior to his arrival in the courtroom.

(iii) As confirmed by the interpreter Defence counsel had no knowledge of the Applicant's defence, until the trial was underway.

(iv) Counsel did not even know the number of, or names of any Crown Witnesses.

51 Crucially, there is no indication that the manner in which defence counsel was briefed operated to prejudice the fair trial of the applicant in any way. Defence counsel made no complaint during the trial that his ability to defend the applicant was handicapped in any way. On the contrary, a review of the transcript reveals that the defence case was competently conducted throughout the trial. Defence counsel, who was an experienced member of the criminal bar did all that could reasonably have been expected of him in the discharge of his duty.

52 Accordingly, these grounds do not warrant a grant of leave to appeal.

(v) At the first trial, the Court of Appeal confirmed that the judge made mistakes yet those mistakes carried over and occurred at the retrial.

53 The applicant's appeal against his conviction at the first trial succeeded on the ground that the trial judge had erroneously failed to leave the defence of provocation to the jury. In this trial, as discussed earlier, the defence of provocation was squarely before the jury. No error made in the first trial was repeated.

(vi) At this trial the police informer briefed or coached Crown witnesses that led to a dramatic change in the witness evidence given between the first trial and this retrial.

54 This ground has already been dealt with under ground 5.

55 This ground has already been dealt with under ground 4.

(viii) For reasons unknown to the Applicant four - (4) juries were empanelled. Three - (3) were dismissed.

56 Two previous juries were discharged before the final jury was empanelled. The first jury was discharged because a witness inadvertently mentioned that the applicant had been in prison in London. The second jury was discharged shortly after empanelment because a juror was in a distressed state. These were matters properly within the discretion of the judge and have no bearing on the verdict of the jury in the present trial.

57 For these reasons, I would refuse the application for leave to appeal against conviction.**

Application for leave to appeal against sentence

58 The sole ground of the sentence application is that the sentence imposed was manifestly excessive. The ground of appeal is in these terms:

The judge sentenced the Applicant on the basis of the sentence given by the judge at the Applicant's first trial.

The Court of Appeal agreed that, that conviction and hence, the sentence given at the first trial was wrong, yet the judge in knowing this still sentenced the Applicant on that very same (wrong) basis.

On that basis the retrial judge was wrong in selecting the same sentence. Wrong at trial sentencing must mean, wrong at the retrial sentencing.

**59 Insofar as this ground assumes that the Court of Appeal, in the first appeal, held that the first sentence was wrong, the ground is based on a misconception. The Court of Appeal had no occasion to consider the appropriateness of the sentence. Once the appeal against conviction was upheld, the sentence was automatically set aside.

60 In my opinion, there is no substance in the argument that the sentence was manifestly excessive. As the trial judge correctly observed, this was a very grave offence. That it was committed in breach of an intervention order was itself a significant aggravating circumstance.

61 The judge made clear in her careful sentencing reasons that she was not obliged to restore the sentence imposed at the first trial but, instead, was required to exercise her own judgment. Her Honour then said:**

I agree with both counsel that even though I would otherwise have been minded to impose a heavier sentence, it would not be appropriate for me to impose a sentence greater than that imposed at the first trial. You were successful in your appeal against the provocation ruling at the first trial and there are important public policy considerations of fairness why persons in your position should not be exposed to a heavier penalty after conviction for the same offence at a subsequent trial.[21]

62 Her Honour noted the concession of defence counsel that the first sentence was within the available range. No sentencing error has been demonstrated. I would therefore refuse the application for leave to appeal against sentence.

63 I agree, for the reasons given by Maxwell P, that the application for leave to appeal against conviction and sentence should be refused.

**64 I agree with the learned President that, for the reasons he has given, the applications for leave to appeal against conviction and sentence should both be refused.

[1] R v Yasso (No 2) [2004] VSCA 127; (2004) 10 VR 466.

[2] See, for example, R v Lee Kun [1916] 1 KB 337 (right of accused to an interpreter at trial); Kunnath v The State [1993] 4 All ER 30 (incomplete interpretation at criminal trial); Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 (right of accused to fair trial according to law); R v Johnson (1986) 25 A Crim R 433 (whether a witness should have an interpreter); R v Saraya (1993) 70 A Crim R 515 (deficient interpretation at criminal trial) cf Fernando de la Espriella-Velasco v R [2006] WASCA 31 (requisite standard of interpretation at criminal trial). See also Charter of Human Rights & Responsibilities Act 2006 s 25(2)(i).

[3] This section of the judgment is drawn from the Crown summary of evidence.

[4] The claim that the deceased spat on the applicant is dealt with under grounds 1 and 2.

[8] The reference to 'the next two points' was a reference to the other elements of the defence of prosecution, as set out on a sheet which the judge had given the jury.

[12] Cornelius v R (1988) 34 A Crim R 49, 80 (Wallace & Olney JJ).

[21] See, for example, Gilmore (1979) 1 A Crim R 416; R v Chen [1993] VicRp 64; [1993] 2 VR 139.