The Queen v Rapovski

2 Just prior to the close of the prosecution case, I informed the parties that I was considering giving the jury a Prasad[1] direction once the evidence in the case had concluded. I invited submissions as to whether it was appropriate for me to do so.[2] After the prosecution had closed its case and the accused had indicated[3] he would not be giving or calling evidence,[4] I ruled in favour of giving a Prasad direction, essentially because of issues concerning the credibility and reliability of the key prosecution witnesses, Sazdanovski, Kupresak and Krasniqi. I also ruled that the direction would be brief and not itemise inconsistencies in the prosecution case.[5] I now provide my reasons for those two rulings.

3 The complainant, Evan Tepelis, was in a relationship with a young woman named Natasha Talevski. The two of them had a falling out. Talevski informed a friend, Philip Sazdanovski, that Tepelis was hassling and threatening her. On the afternoon of 1 February 2014, Sazdanovski telephoned Tepelis about Talevski's complaint. This was the beginning of a series of calls and text messages between Sazdanovski and Tepelis on 1 February 2014 which were abusive on both sides, with threats being exchanged.[6] Tepelis' friends, Dejan Kupresak and Jeton Krasniqi, were with Tepelis at the time and overhead some of the exchanges between the two.

4 Sazdanovski was staying with the accused at the time. Late in the evening of 1 February 2014, he got the accused to drive him to Dalton Road, Thomastown where he had arranged to meet or confront Tepelis. Sazdanovski and the accused were accompanied by Kristy-Anne Nicolaidis, who was seated in the front passenger seat. According to Sazdanovski, Nicolaidis was the accused's girlfriend.[7] Sazdanovski was seated in the back seat of the accused's car.

5 Tepelis attended the meeting place in Dalton Road with Kupresak and Krasniqi. Tepelis was armed with a machete. Kupresak and Krasniqi both had golf clubs. Krasniqi also picked up a glass bottle near a bus stop on Dalton Road.

6 When the accused stopped his car near Tepelis' group in Dalton Road, at least one bottle[8] was thrown at the car by Krasniqi. The bottle struck Nicolaidis in the face, as the front passenger window was slightly down. Her face was cut, a tooth was knocked out and there was a lot of blood. She was later found to have sustained a broken jaw.

7 On the prosecution case, both the accused and Sazdanovski then got out of the car and the accused shot Tepelis, wrongly believing that he had thrown the bottle.

8 The prosecution relies on the injury to Nicolaidis as the motive for the accused shooting Tepelis.

9 The prosecution case relies mainly upon a combination of direct and circumstantial evidence from Sazdanovski, Kupresak and Krasniqi. As for Tepelis and Nicolaidis, they were material witnesses called by the prosecution but neither asserts or implies that the accused was the shooter: indeed, Nicolaidis claims the accused never got out of the car.[9]

10 Sazdanovski, Kupresak and Krasniqi have all received undertakings from the Director of Public Prosecutions not to use their evidence against them, as has Tepelis.

11 When Sazdanovski commenced giving evidence before the jury,[10] he said he could not remember relevant events.[11] He claimed he could not remember whether Talevski contacted him about Tepelis, whether he had any contact with Tepelis, whether he was living with the accused in early 2014 or whether he attended Dalton Road on the evening of 1 February 2014. The prosecutor then sought to make an application in the absence of the jury.

12 In the course of that application under s 38 of the Evidence Act 2008 (Vic) ('the Act'), I heard further evidence from Sazdanovski on a voir dire. He maintained that he had no memory of the matters referred to above in [11]. Under cross-examination, he was asked the following questions and gave the following answers, which were later adduced in front of the jury by Mr Dane QC:[12]

Q. All right, you're actually saying you don't remember, not because of any intimidation, not because you've received any injury, it's because you know you're guilty of firing the gun that caused this injury to this man, and you don't want to admit your guilt to it; that's right, isn't it?

Q. So if you were giving evidence in front of the jury and I put that proposition to you, you were the shooter, you'd say 'I don't remember' is that correct?

Q. Does that mean that there's a chance that you were the shooter, sorry?

Q Yes I know that but if you can't remember, it means that there's an even chance that you were. It may well be the case that you were the shooter. Do you agree with that?

Q Ownership doesn't really play a part in it and it's who fired the gun. I'm suggesting you fired the gun. What do you say?

Q Well, if you can't remember it may well have been you but you just can't remember firing it. Do you understand that I'm saying there?

Q. What do you say to that proposition? It may well have been you.

13 At the conclusion of the voir dire, I ruled that the prosecution could cross-examine Sazdanovski under s 38 of the Act.[13]

14 Sazdanovski returned the following day to continue giving evidence in front of the jury. After agreeing with the prosecutor that he had participated in a record of interview about the events in question, that he had made a police statement in accord with the answers given in his record of interview and that at the committal he had confirmed that his police statement was true and correct, Sazdanovski indicated that he could in fact recall the relevant events. At that point, the prosecutor resumed examination-in-chief in the normal manner, that is, through non leading questions, and Sazdanovski gave an account largely consistent with his police statement, alleging that the accused was the shooter.

15 He said that the accused stopped the car in Dalton Road, near the intersection with Rochester Drive. He said that after Nicolaidis was struck by the bottle, and while he was still in the car, he saw the accused reach down to the front passenger foot bay and grab a gun from a bag, before jumping out of the car.[14] When cross-examined about the colour of the bag, he said the bag was black or dark blue, he couldn't be 100% sure.[15] Mr Dane QC took him to his police statement, where he said 'I saw his hand go into a green coloured satchel bag and pull out a gun.'[16] Mr Dane QC also questioned him about the fact that at committal, he was asked '[d]id you see where it came from or not?' and he said '[o]bviously when he leaned over it's like he just pulled it out of his pocket.' Initially, Sazdanovski denied that he said that, but then said he'd meant to say bag, not pocket.[17]

16 Sazdanovski said that a few seconds after the accused got out of the car, he, Sazdanovski, jumped out of the 'back passenger driver's door'[18] with a mallet.[19] He said the accused moved to the front of the car[20] and fired the gun from the 'front left hand side of the car'.[21] Sazdanovski said that when the accused fired the shot from near the front of the car, he was positioned at the rear of the car. This is significant because of other evidence, discussed below, indicating that the shooter fired from near the rear of the car.

17 Sazdanovski said that at the time of the shooting, he was under the influence of ice and had a $2,000 a week habit.[22] Under cross-examination, he was asked the following questions and gave the following answers:[23]

Q. Look, in the cold light of the free air of Monday morning looking back on that incident you'd have to concede that your memory of it is quite unreliable?

Q. The reason for that is that at the time you're on ice?

Q. So it would be quite unfair to Denis [Rapovski] for a jury to make a serious decision based on your recollection of this event?

A. Well yes and no because I do remember but - just 'cause I was on drugs doesn't mean - do you know what I'm trying to say. Just 'cause I'm drugs doesn't mean what I say isn't reliable.

Q. What I'm suggesting to you is that you might be able to have a reconstruction of it in your head, but in reality, it's quite unreliable?

Q. So I might be able to cross-examine you backwards and forwards here and demonstrate a mistake by you here and a mistake by you there, but the - you might say to me in the exchange between the two of us, oh yeah, you've got me there. And then you might say, oh no but I remember that, and so we can go backwards and forwards in cross-examination like that, can't we?

Q. But at the end of the day, when I get you on a point, you go, I can't remember that, you might be right. And when you get me on a point, you say, there you are, I can remember. Is that right?

Q. But when we mix it all up together, it's a bit of a mixed soup, isn't it?

Q. And we're looking through the prism - the haze of drugs. You're clear of drugs now, aren't you?

Q. The difference between the clarity of your brain now and the clarity of your brain back then is an ocean, isn't it?

Q. You can think clearly, you can recall, can't you?

Q. Whereas if you were on the gear, you go I don't know what the judge's gown was like. I can't - that'd be like - that's an illustration, isn't it?

Q. So we end up in a trial where you're a witness, your mate's on trial, you have to do the best you can, is that right?

Q. And the best you can is in reality, if you really tell the truth to the jury is, I haven't got such a good memory of it. It's a bit unreliable. That's fair, isn't it?

18 Kupresak said that he deliberately made a false statement to police on the night of the incident.[24]

19 Kupresak said in testimony that on the afternoon of 1 February 2014, he was with Tepelis and Krasniqi and overheard Tepelis having a number of 'unfriendly'[25] calls with another male. He overheard the male say he was going to Tepelis' house. Initially, he said the other male was threatening to shoot up Tepelis' house but then he said he didn't know that a shooting was threatened.[26] Mr Dane QC took him to his evidence at committal[27] where Kupresak said the male was threatening to shoot Tepelis and shoot up his house.

20 Kupresak said that the passenger got out of the vehicle first[28] on the passenger side of the car.[29] He was holding a baseball bat.[30] Kupresak said that when the driver got out, the driver went to the rear back corner on the right (or the driver's) side of the car.[31] Mr Dane QC took him to his evidence at committal where he initially said that when the driver got out of the car, the driver went to the front of the car, although he then corrected himself to say the driver moved to the rear of the car.[32]

21 Kupresak drew a diagram (Exhibit G) indicating that the passenger was the shooter but as counsel were inspecting the diagram, he said he had made a mistake and meant to indicate that the driver was the shooter.[33] He corrected the diagram in red pen, crossing out the word 'passenger' which he had written immediately under the word 'shooter' and wrote in 'driver'. He also wrote the letter 'P' in red to denote the position of the passenger when the driver fired the shot.

22 Kupresak said the passenger was still in front of the passenger door on the left side of the car when the shot was fired by the driver.[34] Kupresak said he saw the driver raise his hand as if pointing a gun and heard the shot.[35]

23 Mr Dane QC took Kupresak to his second police statement, made on 3 February 2014, in which he said 'I have bad eye sight so I couldn't see too much'. He agreed that what he said about his eyesight was accurate.[36] He said his eye condition had been diagnosed but he could not remember the diagnosis. He said he was not wearing glasses or anything else to correct his vision on 1 February 2014. He denied that his vision was worse at night or blurry; he said things just looked smaller. Mr Dane QC then took him to his evidence at committal where he said at night time his eyesight gets all blurry.[37] As regards the incident, he said his eye condition only prevented him from seeing faces clearly, not larger things like the car or bodies.

24 Krasniqi admitted he deliberately made a false statement to police on the night of the incident.[38]

25 Like Kupresak, Krasniqi said in testimony that the passenger got out of the car first[39] and on the passenger side of the car.[40] He said the passenger had a baseball bat.[41]

26 Krasniqi said the passenger just got out one step from the car and was about half a metre from it.[42] Krasniqi said the driver got out and went around the rear of the car, to beside the passenger, near what he called the headlights.[43] Krasniqi said he was watching the passenger with the baseball bat at the time the shot was fired. Unlike Kupresak, he did not claim to see the firing of the shot but thus implied that it was the driver (the accused) who fired the shot.

27 Krasniqi agreed that on 20 February 2014, he was shown a photoboard that included a photograph of the accused. He agreed that he had pointed at the photograph of the accused and said 'pretty sure it is him, but this guy came out. He is not the shooter'.[44]

28 Tepelis said that after a series of abusive phone calls and texts between himself and Sazdanovski, during which Sazdanovski threatened to run through his house, they agreed to meet in Thomastown.

29 He said the car in which the other group arrived turned left from Dalton Road into Rochester Drive and parked out of his view. He said he only saw the two men after they got out of the car and walked back around the corner, towards Dalton Road. He agreed that in his first police statement, he said that the shooter 'may have gotten out of the back of the car on the side closest to where [Tepelis] was standing' (namely the passenger side).[45] But he indicated that in his second statement he had corrected that, as he could not say which side of the car the shooter got out of.

30 When the two men came around the corner, Tepelis said the men stood next to each other and that the shooter was on the right hand side, from his perspective - that is, the side closer to Dalton Road. He said the shooter fired from this position. He said the car was not in his line of sight at the time as it was parked somewhere around the corner in Rochester Drive.

31 Nicolaidis claimed that the accused did not get out of the car after she was struck by the bottle. On her version, only Sazdanovski got out of the car. This was at odds not only with the evidence of Sazdanovski, Kupresak, Krasniqi and Tepelis but also an independent witness, Sarah Michell, who worked at the KFC across the road and was standing in the KFC car park for a short time just before going into work. She only saw the beginning of the incident involving the two groups. She saw the parked car with its nose in Rochester Drive and two males near the car as well as another group of three males approaching the car. Consequently, there are good grounds to doubt the reliability of the account of Nicolaidis, that the accused did not get out of the car.

32 As stated by King CJ in R v Prasad:[46]

It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings ...

33 In R v Pahuja,[47] King CJ warned that Prasad directions should be 'used sparingly and only when the judge is of the opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty'.

34 Mr Gibson submitted that the prosecution case had not descended to a point where the evidence lacked cogency or consistency so great as to warrant a Prasad direction. He said that I should take into account six factors: the quality of the evidence; admitted lies; plain contradictions; vacillations and non-conformity with witness statements; and unsatisfactory witnesses, when determining whether to give a Prasad direction.[48]

35 Mr Gibson conceded that there are matters of concern regarding reliability[49] and that different accounts had been given by various prosecution witnesses.[50] But noted that Kupresak and Krasniqi's evidence largely conformed with their second statements.[51] And he maintained that the inconsistencies and aspects of unreliability fell within the normal realm of what would be expected in a Crown case.[52] Mr Gibson expressed concern that a direction from me, even if short and succinct, may unduly affect the jury's thinking.[53]

36 Mr Dane QC submitted that having regard to the six factors outlined by the prosecution, the deficiencies with the evidence went beyond the normal conflict expected to emerge from a prosecution case, and thus called for a Prasad direction. Mr Dane QC noted that the circumstances of the shooting - which occurred quickly, at night and generated trauma - bespeak unreliability. He then referred to a number of matters in evidence which suggest Sazdanovski, Kupresak and Krasniqi lack credibility and reliability.[54] He noted that: Sazdanovski and Krasniqi are criminally concerned (Sazdanovski, as he may be the shooter, Krasniqi, as he threw the bottle which injured Nicolaidis); Kupresak and Krasniqi both admitted that their initial statements contained lies, which suggests vacillation and dishonesty; Sazdanovski had vacillated as to the colour of the bag from which he said the accused had retrieved the gun, and when first called to give evidence he denied recalling key matters, but when he returned the following day he gave detailed evidence; all three witnesses were granted undertakings by the Director of Public Prosecutions; and Sazdanovski admitted to being drug affected on 1 February 2014 and to being an unreliable witness.

37 Mr Dane QC emphasised that conflicting accounts were given by the prosecution witnesses regarding key details, including the sequence of events from the time when the first occupant of the car exited the vehicle, to the moment the shot was fired. He noted that aspects of these accounts suggest that Sazdanovski was in fact the shooter. He also submitted that Tepelis' description of the shooter as the 'skinny one', implicated Sazdanovski.[55] Mr Dane QC pointed to direct evidence that the accused was not the shooter, namely Krasniqi's negative identification of the accused.

38 I raised with the parties that Sazdanovski's ice addiction and the heated exchange of calls and text messages between Sazdanovski and Tepelis in the lead up to the shooting, go to whether Sazdanovski had motive to arm himself and shoot Tepelis. Mr Gibson conceded that that evidence 'gives rise to the notion that there's a likelihood' that Sazdanovski took the gun to the confrontation, but he said that the timing of the shot - which occurred shortly after the assault on Nicolaidis - militates against the notion that it was motivated by the 'waring of words' that took place between Sazdanovski and Tepelis that day.[56]

39 In defence of Sazdanovski, Mr Gibson submitted that his initial evidence to the effect that he 'did not recall' most of the relevant events, was not fatal to his credibility. To the contrary, he said that Sazdanovski's unwillingness to inculpate his friend was understandable. Mr Gibson acknowledged that if Sazdanovski was correct about getting out of the car on the same side as the accused, the other witnesses may have confused Sazdanovski and the accused. He asserted that Kupresak and Krasniqi - who had no motive to lie - were both strong in their evidence that the baseball bat wielding person got out on the passenger side, and that it was open to the jury to find that Sazdanovski was mistaken when he said he got out on the passenger side.[57]

40 There is evidence that supports the defence case that Sazdanovski was the shooter. First, it was Sazdanovski who contacted Tepelis on the afternoon of 1 February 2014 and engaged in a series of abusive and threatening calls and texts. According to Kupresak's evidence, initially at trial and also at the committal, in the course of those calls, Sazdanovski threatened to shoot Tepelis and shoot up his house. That evidence supports the possibility that Sazdanovski brought the gun. Second, Sazdanovski, on his own admission, had a $2,000 a week ice habit at the time and was under the influence of ice on 1 February 2014. This increases the chances that he armed himself and was the shooter. Third, Krasniqi participated in a photoboard identification on 20 February 2014. He correctly nominated the accused as being one of the two men who turned up in the car but said '[h]e is not the shooter'. Fourth, Sazdanovski said the accused got out of the car first, after Nicolaidis was struck by the bottle. Sazdanovski said that just before the accused got out, he saw the accused reach into a bag in the front passenger footwell and grab a gun. Kupresak and Krasniqi, on the other hand, say the passenger got out before the driver, which suggests Sazdanovski's account of seeing the accused reach for the gun is a lie. Sazdanovski also gave conflicting accounts at committal and the trial as to the colour of the bag from which the accused supposedly grabbed the gun and, at one stage of the committal, stated the accused grabbed the gun from his pocket just before alighting from the car. Fifth, Tepelis said in his first police statement that the shooter may have got out of the rear passenger door of the car. Sixth, Tepelis said that when the shot was fired, the shooter was to the right of the other man, from Tepelis' perspective. Sazdanovski said that when he and the accused got out of the car, the accused went to the front of the car and he went to the rear. Given that the weight of the evidence favours the view that the car was stopped in, or with its nose in, Rochester Drive, Sazdanovski's account of his movements and that of the accused on getting out of the car tends to put him in the position of the shooter, as described by Tepelis. Seventh, Kupresak initially said at committal that when the driver got out of the car, he moved to the front of the car. This puts the accused in the position of the non-shooter, having regard to Tepelis' evidence as to the position of the two men when the shot was fired. Eighth, Kupresak drew a diagram in which initially he suggested the passenger was the shooter. Ninth, Sazdanovski lied when he initially claimed in examination-in-chief that he couldn't remember relevant events. Whilst it may be that he lied because he didn't want to implicate a former friend, another possible explanation is that he lied because he was the shooter. The fact that he was prepared to perjure himself when he commenced giving evidence casts a pall over his credibility. Further, when it was put to him in the voir dire that he was the shooter, he initially said, rather startlingly, 'I don't recall.' This part of his evidence on the voir dire was adduced in subsequent cross-examination of Sazdanovski before the jury. Tenth, his reliability was also questionable because, on his own admission, he was under the influence of ice at the time of the shooting and agreed that his recollection of the events was hazy.

41 It is true that, unlike Sazdanovski, neither Kupresak or Krasniqi appear to have had any reason to falsely suggest that the driver, as opposed to the passenger, was the shooter: both the driver and passenger were strangers to them. It is also true that there is a degree of consistency in the accounts given by Kupresak and Krasniqi. Both say the passenger got out first, with a baseball bat. Both ultimately say that when the driver got out shortly after the passenger, the driver moved to the rear of the car. Kupresak says he saw the driver raise his arm in a manner consistent with someone pointing a gun and then heard the shot.[58] Whilst Krasniqi said he didn't see the shot, he said he was looking at the passenger with the baseball bat when he heard the shot, thus implying it was the driver who fired the shot. And there is no dispute that the accused was the driver.

42 Nevertheless, there are significant issues in respect of their credibility and reliability too. First, both made false statements to the police on the night of the incident. Second, both were criminally concerned in the events of that night, attending a public street armed with golf clubs, while the third member of their group, Tepelis, brought a machete. Krasniqi also threw a bottle which injured Nicolaidis. None of them have been charged over their conduct that night. They gave their evidence pursuant to undertakings from the Director of Public Prosecutions. Third, Kupresak has poor eyesight. The incident occurred at night, and was a fast moving affair. Although his eye condition may not have prevented him from seeing bodies moving about, as opposed to making out faces, it adds somewhat to the risk of mistake. Fourth, Kupresak's descriptions of the movements of the passenger and driver have been variable. Fifth, whilst Krasniqi's account implies that the driver was the shooter, it is contradicted by his photoboard identification in which he said that the accused was not the shooter, even though he correctly picked him out as one of the men who arrived in the car.

43 When the factors supporting the possibility that Sazdanovski was the shooter are combined with the factors adversely affecting the credibility and reliability of 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.

44 Mr Dane QC asked that any Prasad direction include an itemisation of the unsatisfactory aspects of the evidence, but did not take me to any authorities in this regard. Mr Gibson submitted that in accordance with R v Pahuja, a more succinct direction should be given.

45 In R v Pahuja,[59] Cox J commented that 'any Prasad direction should be put to the jury quite simply and shortly' and warned against 'any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction - usually some serious weakness in the Crown case ...'.

46 In formulating the direction, I am mindful not to usurp the jury's role as judge of the facts. Were I to itemise the problems with the credibility and reliability of the witnesses, it would not be a short direction and there is a real risk that the jury may be unduly influenced by 'what the judge thinks'. Accordingly I reject the submission of Mr Dane QC that I should itemise the problems with the prosecution case in the Prasad direction.

[1] R v Prasad (1979) 23 SASR 161; 2 A Crim R 45.

[4] Prior to the close of the prosecution case, and in the context of a discussion as to whether the prosecution would seek to adduce evidence that impugned the credibility of the accused, Mr Dane QC said the accused would not be giving evidence, and thus his credibility was not in issue (Trial transcript 466-467).

[6] See Exhibit 9, a spreadsheet of the relevant call charge records, containing abusive and threatening text messages between Sazdanovski and Tepelis.

[7] Sazdanovski said Nicolaidis was the accused's girlfriend (Trial transcript 249.20-.21) whereas Nicolaidis said she and the accused were friends as at 1 February 2014 (Trial transcript 442.23).

[8] There was conflicting evidence on this point. Nicolaidis said that two objects, which she now believes were bottles, were thrown at the car (Trial transcript 451). Sazdanovski described one bottle being thrown (Trial transcript 257.23-257.26). Krasniqi described throwing one bottle only (Trial transcript 318.29). Tepelis and Kupresak were not aware that any bottle had been thrown at the time.

[10] Sazdanovski was undergoing sentence for an unrelated matter when first called to give evidence.

[13] R v Rapovski (Ruling No 2) [2015] VSC 355.

[27] See Exhibit 2, Committal transcript 43.15-.22; and Exhibit 3, Committal transcript, 46.26-.30.

[29] Trial transcript 188.15. Note that at committal Kupresak said the man with the baseball bat exited from the front passenger side (Trial transcript 230.14), but at trial, although he maintained that it was the passenger side, he could not recall if it was the front or rear passenger side door (Trial transcript 188.15 and 319.18).

[33] Trial transcript 190 (examination-in-chief) and 202-203 (cross-examination).

[37] Exhibit 4, committal transcript, 53.25-.28.

[46] (1979) 23 SASR 161; 2 A Crim R 45 ('R v Prasad'), 163; 47.

[47] (1987) 49 SASR 191 ; 30 A Crim R 118 ('R v Pahuja'), 201; 128.