Rapovski v The Queen [2017] VSCA 175

88 For the foregoing reasons, the extension of time within which to make application for leave to appeal should be granted, but the application for leave to appeal against conviction should be refused.

89 I have had the advantage of reading in draft the reasons for judgment of Priest JA.

90 While my assessment of the evidence leaves me with a doubt about the matter, nevertheless, I think it was open to the jury - who, unlike this Court, had the singular benefit of seeing and hearing the crucial witnesses give that evidence - to be satisfied beyond reasonable doubt that the applicant was the one who shot Mr

Tepelis. In those circumstances, the sole ground of appeal has not been made good and the proposed appeal must be dismissed.

92 I have a sense of unease about this verdict. After examining the record of the trial, the key parts of which are summarised in the reasons of Priest JA, I am left with a nagging doubt that the applicant shot Mr Tepelis. In particular, despite the direct and circumstantial evidence implicating the applicant as the shooter, upon the whole of the evidence, I am unable to exclude the reasonable possibility that it was Mr Sazdanovski who shot Mr Tepelis.

93 The factors which, in combination, cause me to have a doubt about the applicant's guilt include those mentioned by the trial judge in his summary of the evidence supporting the hypothesis that Mr Sazdanovski was the shooter, which summary he gave in his reasons for extending a Prasad invitation to the jury.[35] Since that detailed summary is extracted in the reasons of Priest JA, there is no need to repeat it here. It will suffice if I emphasise just a few matters.

94 First, while some aspects of the evidence given by the five main eye-witnesses, to a greater or lesser extent, implicated the applicant, there were aspects of their evidence that suggested Mr Sazdanovski was or may have been the shooter. For example, Mr Tepelis conceded that, in his first statement to police, he said that the person who shot him 'may have gotten out of the back of the car on the side closest to where [he, Mr Tepelis] was standing' (which, I interpolate, was to the left of the left side of the car). That person had to be Mr Sazdanovski, for he was the only one in the back of the car, whereas the applicant was in the driver's seat. Mr Sazdanovski's own version was that, after the applicant 'jumped out of the front ... driver's door', he (i.e. Mr Sazdanovski) 'jumped out of the back passenger driver's door [and] went around the back', whereas the applicant 'went around the front [which was] when he shot [Mr Tepelis]'. While Mr Kupresak had the shooter coming from the driver's seat, he placed him near the corner of the boot (i.e. the rear) on the driver's side of the car when the shot was fired - which, on Mr Sazdanovski's account, seems to be about where he was placed, with the applicant at the front of the car, at the time of the shooting. While Mr Krasniqi did not see who fired the gunshot, his account implies that the driver was the shooter, and yet that implication is contradicted by his photoboard identification of the applicant as one who was there but was not the shooter. Finally, while Ms Nicolaidis was suffering the effects of an assault at the time, her evidence suggests that the shot was fired by someone else while the applicant was still in the driver's seat of the car. Well, the only other candidate was Mr Sazdanovski.

95 Thus, apart from Mr Sazdanovski's direct evidence that he did not shoot Mr Tepelis, and that the applicant did, I found the eye-witness evidence to be rather contradictory and as otherwise leaving open the possibility that Mr Sazdanovski was in fact the shooter.

96 The second category of evidence suggesting that Mr Sazdanovski was the shooter concerns his behaviour and motive leading up to and following the shooting. He was angry with Mr Tepelis for what he understood was his violence towards Ms Talevski. It is plain that he was the driving force behind the confrontation. There is evidence that he sourced the (only) gun used in the incident and then falsely denied that to the jury. He had made very threatening remarks to Mr Tepelis. Also, he fled when chased by police. When it was put to him that he disposed of drugs and a gun while fleeing over two fences, Mr Sazdanovski replied, 'I'm not sure, I don't remember.' That was not much of a response.

97 The third category of evidence concerned Mr Sazdanovski's rather extraordinary answers in other parts of his evidence. In addition to his initial feigned inability to remember crucial events, he admitted to the jury that, in their absence, he had been asked, 'Does that mean that there's a chance that you were the shooter, sorry?' and that he answered, 'I don't remember.' Again, this is hardly the response that might be expected from the one who did not fire the gun. Overall, I found Mr Sazdanovski's evidence to be unconvincing. He, of course, had a very powerful motive to implicate the applicant. By reference to the record of the trial, which is what this Court is limited to in assessing witnesses, I am not satisfied beyond reasonable doubt about any of the crucial matters on which Mr Sazdanovski gave evidence.

98 It is true that, on the evidence at trial, the applicant also may have had a motive to be angry at Mr Tepelis, for he may have believed (mistakenly) that Mr Tepelis threw the missile that caused injury to Ms Nicolaidis. (But Mr Sazdanovski may also have been angry over that assault.) As I have said, it is also true that there was evidence - including not just Mr Sazdanovski's direct evidence, but also inferences to be drawn from pieces of the circumstantial evidence provided by the testimony of Mr Kupresak and Mr Krasniqi - that the applicant was the shooter. But it is not a question simply of which hypothesis was the more compelling or that the innocent inference and the guilty inference had to be equally open in order that the verdict be found to be unsafe. Instead, as Mason CJ, Dawson and Toohey JJ said in their joint judgment in Knight v The Queen:[36]

... The appellant had argued that even if the evidence concerning his intention at the time the second shot was fired was consistent with an intention to kill, it was also consistent with an absence of that intention. There being competing hypotheses, neither of which could be excluded, he submitted that the jury were bound to have a reasonable doubt whether he fired the second shot with intent to kill. In rejecting this argument, Young CJ took the view that it could only succeed if the Court concluded that the two inferences, one consistent with guilt and the other consistent with innocence, were equally open. He concluded that the two inferences were not equally open. Nathan J held that the jury were entitled to conclude that there were no competing hypotheses and that the evidence led only to the conclusion that the second shot was fired with intent to kill. Crockett J, in dissent, accepted the appellant's argument, holding that the evidence as to the appellant's state of mind at the relevant time was equivocal and incapable of sustaining a finding that he fired with intent to kill. For this reason he concluded that the verdict was unsafe.

With respect, Young CJ was in error in the view which he expressed below that the appellant could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open. There are not, as Dixon CJ observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.

99 I hasten to add that the foregoing remarks were made in the context of determining whether it was open, on the criminal standard of proof, to draw an inference of an intention to kill in a circumstantial case where there was no dispute that the appellant shot the victim. But the point of principle may still be applied to this case. In particular, the inference that Mr Sazdanovski was the shooter, which in turn may be affected by the issue of competing motives and other prior and subsequent behaviour consistent with his being the shooter, need not be just as open as the inference that the applicant had a motive to shoot, and was the shooter, in order that the innocent inference might avail the applicant. Rather, it is enough, for the purposes of making good the applicant's ground of appeal, that 'a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence'.

100 So, having conducted my own independent assessment of the evidence, while I recognise that there are many other pieces of evidence - both direct and circumstantial - capable of supporting the verdict, nevertheless, in view of the foregoing matters, as well as the additional matters referred to by the trial judge in his ruling on the Prasad invitation, I think that on the whole of the evidence there is a reasonable possibility that Mr Sazdanovski was, and the applicant was not, the shooter.

101 I should add that, in so concluding, I do not mean to suggest that I am satisfied that Mr Sazdanovski was in fact the shooter. On the contrary, on the evidence at trial, I could not exclude the reasonable possibility - or the probability or even the high likelihood - that the applicant, not Mr Sazdanovski, shot Mr Tepelis. This, however, is the type of case in which, despite the certainty that one of two possible candidates fired the shot, on an examination of the record of the trial, I find myself unable to be satisfied beyond reasonable doubt as to which candidate was the shooter.

102 But that is not the end of the matter. In M v The Queen,[37] Mason CJ, Deane, Dawson and Toohey JJ, in a joint judgment, said the following:

In most cases a doubt experienced by an appellate court will be a doubt which

a jury ought also to have experienced. It is only where a jury's

advantage in seeing and hearing the evidence is capable of resolving a

doubt experienced by a court of criminal appeal that the court may

conclude that no miscarriage of justice occurred. That is to say,

where the evidence lacks credibility for reasons which are not

explained by the manner in which it was given, a reasonable doubt

experienced by the court is a doubt which a reasonable jury ought to

have experienced. If the evidence, upon the record itself, contains

discrepancies, displays inadequacies, is tainted or otherwise lacks

probative force in such a way as to lead the court of criminal appeal

to conclude that, even making full allowance for the advantages

enjoyed by the jury, there is a significant possibility that an

innocent person has been convicted, then the court is bound to act and

to set aside a verdict based upon that evidence. ...

103 Consistently with those statements of principle, in my opinion, this is just the type of case in which the jury's advantage in seeing and hearing the crucial witnesses in the flesh - an important advantage the jury had over this Court - is capable of resolving the doubt which I hold about the applicant's guilt.

104 Mr Sazdanovski was a crucial witness. If the jury were able to be satisfied, beyond reasonable doubt, of the key aspects of his account, the verdict was plainly open. As I have said, however, Mr Sazdanovski had a powerful motive to shift blame onto the applicant. His evidence also suffered from other weaknesses, which have been mentioned by Priest JA or the trial judge in their respective sets of reasons. But, in the circumstances of this case, assessing the credibility and reliability of such a witness was very much a matter for the jury who saw and heard him give his evidence. The same applies to the other eye-witnesses.

105 While the precise positions differ, in every court, the jury box and the witness box are positioned so that the jury is in a prime position to observe the witnesses. There is nothing quite like looking witnesses in the eye or otherwise observing them as they give their evidence. The jury are especially well-placed to pick up witnesses' expressions, intonations and demeanour, as well as nuances in the manner in which questions are answered or appear to be understood by witnesses. Usually, none of these things can be appreciated by a court of criminal appeal when considering merely the paper record. Yet they are matters that can impact on the assessment of witnesses by any trier of fact, including a jury. And it may well have been these considerations that moved the jury to act on the evidence of Mr Sazdanovski, particularly when coupled with other aspects of the eye-witness evidence that supported him.

106 I agree with Priest JA that it is appropriate for this Court to have regard to the judge's analysis of the strength of the defence hypothesis that Mr Sazdanovski shot Mr Tepelis. After all, his Honour, like the jury but unlike this Court, had the advantage of seeing and hearing the witnesses give their evidence. Indeed, in conducting my assessment of the evidence, I have given great weight to the points the judge made in his ruling on whether to give a Prasad invitation, including his conclusion, which he expressed in the following terms:[38]

When the factors supporting the possibility that [Mr] Sazdanovski was the shooter are combined with the factors adversely affecting the credibility and reliability of [Messrs] Sazdanovski, Kupresak and Krasniqi, it is clear in my view that the threshold articulated by King CJ in R v Pahuja, namely that the evidence 'although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty', has been met. I reject the prosecution's submission that these issues are within a normally expected range and I rule that a Prasad direction should be given to the jury.

107 A conclusion that the evidence 'is insufficiently cogent to justify a verdict of guilty', from a trial judge with his Honour's experience in the criminal law, is, in my respectful opinion, a powerful consideration and one that this Court should heed.

108 That said, his Honour's conclusion, as well-informed as it is and as helpful as I have found it, cannot trump that of the jury. While a trial judge is in a much better position than this Court is to assess the witnesses, he or she is not usually in quite the same privileged position that a jury enjoys. This is because, unlike the jury, whose task it is to observe witnesses closely and critically, a judge's approach is usually a little more detached and also involves concentration on matters of law, evidence and procedure as the witnesses give their evidence, rather than on whether the witnesses are to be accepted or not, albeit that he or she may well have an eye to that consideration as well.

109 In any event, on an application of this type, in answering the ultimate question that must be asked - namely, whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty - this Court 'must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses'.[39]

110 Applying those principles to my own independent assessment of the record of the evidence at trial, despite my nagging doubt, despite my feeling of unease, I accept that it was open to the jury, having had the singular benefit of seeing and hearing the crucial witnesses in the flesh, to conclude, on the whole of the evidence, that they were satisfied beyond reasonable doubt that the applicant was the shooter, and that Mr Sazdanovski was not.

111 It follows that the verdict of guilty was open.

112 It is for these reasons that I am not satisfied that the verdict is unreasonable or that it cannot be supported having regard to the evidence.

113 I agree, for the reasons given by Priest JA, that the application for extension of time within which to make application for leave to appeal should be granted. I would grant the application for leave to appeal but dismiss the appeal.

[1] Common law and s 321M of the Crimes Act 1958.

[2] Charges 2 and 3 on the indictment respectively were intentionally causing serious injury and recklessly causing serious injury. Since they were alternatives, it was unnecessary to take a verdict on either of those charges.

[3] See R v Rapovski [2015] VSC 359. By virtue of s 321P of the Crimes Act 1958, the maximum sentence for attempted murder is 25 years' imprisonment.

[4] It is of no great moment, but there was some controversy at trial as to whether one or two bottles were thrown.

[5] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495; Cutter v The Queen (1997) 71 ALJR 638.

[6] See Criminal Procedure Act 2009, s 313. See also Supreme Court (Criminal Procedure) Rules 2008, r 2.22.

[7] The parties were advised by the Registry in correspondence dated 21 September 2016 that 'this matter will proceed to hearing before a bench of 3 judges who will determine the applicant's application for extension of time, the application for leave to appeal, and if leave is granted, the appeal itself'.

[8] Derwish v The Queen [2016] VSCA 72, [55]-[57] (Weinberg AP, Redlich and Kyrou JJA).

[9] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).

[14] The undertakings, each dated 1 April 2015, were given pursuant to s 22(1)(cb) and s 22(1A) of the Public Prosecutions Act 1994, and were to the effect that any answer given, or statement or disclosure made, by Sazdanovski, Kupresak or Krasniqi in the applicant's trial would not be used in evidence against them in any criminal proceeding, other than a proceeding in respect of the falsity of evidence given by them.

[15] The undertaking was similar to that given to Sazdanovski, Kupresak and Krasniqi. See footnote 14 above.

[16] In a statement read to the jury, Dr Thomas Rechnitzer, of the Royal Melbourne Hospital, said that Tepelis arrived at the hospital at 11.28 pm on 1 February 2014. He had a gunshot entry wound to the left side of his neck. In surgery, the bullet was found in the right side of his spinal cord and removed. Further, Dr Richard Clements, from the Austin Health Victorian Spinal Cord Service said that: 'The overwhelmingly likely outcome however is that [Tepelis] will not regain movement and sensation in the lower limbs to a degree that will allow him to stand and walk'.

[18] Dr Felix Sim gave evidence that he examined Nicolaidis on 2 February 2014. She had a laceration on her chin, a canine tooth had been knocked out and her jaw was fractured. Nicolaidis told him that she sustained the injuries when she was pushed by children and fell and struck a metal fence.

[20] In other evidence he said that the screen on his iPhone had broken when he was punching it in anger, so that he took the SIM card out of the iPhone and put it into a Nokia. He then sent the message (to 'Rebecca') asking for a 'Samsung phone'. 'Rebecca' then brought him the Samsung.

[23] Sarah Michell was approximately 30 metres away. She was about to start work at the KFC. Ms Michell gave evidence that she was to start work at 10.30 pm, but that she was 'running a little late' and had arrived at 10.29 pm. Her car was in the KFC car park. She was changing into her work boots at the back driver's side door of her car when she noticed a silver Holden 'parked abnormally' across Dalton Road at the entrance to Rochester Drive. Ms Michell said that it was 'very dark'. She gave evidence that she saw 'two men already outside of the car', one 'standing near the driver's door', and the other 'standing on the passenger side', moving around the rear toward the driver's side of the car. After she noticed the car she saw three men walking from the bus stop. Ms Michell said 'the two groups of men were walking towards each other and at that point [she] went into work'. When she last saw them, the two groups of men were separated by two metres. She did not notice anybody holding weapons.

[24] R v Prasad (1979) 23 SASR 161.

[25] As I have mentioned, it was argued that he sent a coded message at 9.05 pm: 'Bring that Samsung. I need a phone'.

[26] R v Rapovski (Ruling No 4) [2015] VSC 357.

[27] R v Rapovski (Ruling No 3) [2015] VSC 356.

[28] The judge declined to provide any comment in a report to this Court.

[29] R v Rapovski (Ruling No 3) [2015] VSC 356, [40]-[42].

[30] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-3, 494-5; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 405-6 [11]-[13]; R v Baden-Clay [2016] HCA 35; (2016) 334 ALR 234, 246 [65]-[66]; R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40]; Greensill v R [2012] VSCA 306; (2012) 37 VR 257, 276-7 [81]-[83].

[31] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113] (Hayne J).

[32] With respect, I would prefer 'non-guilt' rather than 'innocence'.

[33] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.

[35] R v Rapovski (Ruling No 3) [2015] VSC 356, [40]-[42].

[36] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495, 501-502 & 503.

[37] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494-495.

[38] R v Rapovski (Ruling No 3) [2015] VSC 356, [43].

[39] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.