The Queen v Rapovski

3 I rejected that submission, and indicated that I would provide my reasons later. I now provide those reasons.

4 The complainant, Evan Tepelis, was formerly in a relationship with a woman named Natasha Talevski. Talevski informed a friend, Philip Sazdanovski, that Tepelis was hassling and threatening her. Sazdanovski contacted Tepelis by telephone on the afternoon of 1 February 2014. There followed a series of calls and texts between Sazdanovski and Tepelis that day which were abusive on both sides, with threats being made.

5 That same evening, Sazdanovski, who was staying with the accused, got the accused to drive him to Thomastown to meet or confront Tepelis at a pre-arranged meeting place on Dalton Road. Sazdanovski and the accused were accompanied by the accused's friend or girlfriend Kristy-Anne Nicolaidis, who was seated in the front passenger seat. Sazdanovski was in the back seat.

6 Tepelis attended the meeting place with two friends, Dejan Kupresak and Jeton Krasniqi. Tepelis and his friends brought weapons, namely a machete and golf clubs.

7 When the accused stopped his car near Tepelis' group in Dalton Road, at least one[2] glass bottle was thrown at the car by Krasniqi. It struck the front passenger window, which was slightly down. It also struck Nicolaidis. Her face was cut, a tooth was knocked out and there was a lot of blood and screaming. She was later found to have sustained a broken jaw.

8 On the prosecution case, both the accused and Sazdanovski then got out of the car and the accused shot Tepelis once.

9 Tepelis said that the shooter moved towards him, 'line[d] the shot up and shot me.'[3] Tepelis was shot in the neck, from a distance which Tepelis estimated as being 'probably 10 metres.'[4]

10 The prosecution rely on the injury to Nicolaidis as the motive for the accused shooting Tepelis, in the mistaken belief that Tepelis had thrown the bottle. They also rely on it as part of the circumstantial evidence founding an inference that the accused fired with the intention to kill.

11 In Doney v R,[5] the High Court stated the test for whether a no case submission is made out:

[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

12 To prove the attempted murder charge, the prosecution must prove, amongst other things that, at the time the accused fired the shot, he intended to kill the complainant. The accused's no case submission solely concerned this element.[6] Accordingly, for the application to succeed, I must be satisfied that, taking the prosecution case at its highest, there is insufficient evidence to support an inference that the accused intended to kill Tepelis.

13 Mr Dane QC submitted that it was not reasonably open to the jury to infer intention to kill the complainant, from the available evidence.

14 First he argued that, at best, the jury could infer that the accused intended to shoot the bottle thrower, Krasniqi, not the complainant, and therefore intention could not be made out. Mr Dane QC ultimately and appropriately resiled from this submission:[7] the likelihood that the accused mistakenly believed Tepelis was the bottle thrower does not prevent the accused having formed an intent to kill Tepelis.

15 Secondly, Mr Dane QC submitted that the prosecution had to prove that the accused had a motive to kill, not just a motive to shoot,[8] in order to prove an intention to kill. Further, Mr Dane QC submitted that the prosecution had to prove motive to kill beyond reasonable doubt. He relied on R v Penney[9] for this submission. He did not say so expressly but Mr Dane QC's submission appeared to be that, on the prosecution's case, a finding that the accused had a motive to kill was an indispensable link in a chain of reasoning to a finding of an intent to kill.[10] It was implicit in his submission that a reasonable jury could not be satisfied beyond reasonable doubt that the accused had a motive to kill.

16 Thirdly, Mr Dane QC submitted that given the events in question happened quickly, it was not open to the jury to conclude that the accused formed any specific intention to shoot the complainant - the best that could be said is that the accused recklessly discharged the gun.[11] He submitted it was inappropriate to ascribe intention to someone, merely on the basis that they were carrying a gun and pointed it.[12] Mr Dane QC relied upon the fact that the accused allegedly shot the complainant, rather than the bottle thrower, Krasniqi, as evidence that the shot was fired recklessly, without intention.[13]

17 The defence denied that one could infer intention based on the complainant's evidence that the accused fired at him in relatively close proximity, stating that it is not the complainant's perceptions, but rather the accused's which are of relevance.

18 The prosecutor, Mr Gibson, submitted that the Crown does not have to prove motive although he said the injury to Nicolaidis, was, on the prosecution's case, the motivation for the accused shooting Tepelis.[14]

19 Mr Gibson referred to the relevant test from Doney v R quoted above and added that in assessing a no case submission, 'the judge is to ... draw all inferences most favourable to the prosecution, which can reasonably be drawn from the primary facts.'[15]

20 Mr Gibson identified a number of pieces of evidence which he submitted supported an inference that the accused had formed the requisite intention. First, the fact that a bottle was thrown by one of Tepelis' crew, causing visible injury to the accused's girlfriend.[16] Secondly, he said there was evidence that when the accused got out of the car, he moved some metres towards the complainant before firing the shot. Although it was brief, some time passed between the accused getting out of the car and pulling the trigger: it was not a case where the accused got out of the car and immediately fired a shot.[17] Thirdly, Mr Gibson relied on the evidence of Tepelis, as evidence that the shot was directed, that the victim was lined up by the accused.[18] He noted the absence of evidence that the gunman was waving the gun about prior to discharging it.[19]

21 The prosecution must prove an intention to kill. It seeks to prove that intent from a combination of circumstances, including the anger generated in the accused by what happened to his friend Nicolaidis shortly before Tepelis was shot. Whilst that anger is central to the prosecution case, it is, in my view a piece of evidence which is 'strand in a cable' rather than a 'link in a chain' of reasoning towards proof of the requisite mental element. The prosecution does not need to prove motive to kill beyond reasonable doubt. It is the combination of the accused's likely anger at what happened to Nicolaidis, his movement towards Tepelis before shooting and the fact that, on Tepelis' account, the accused lined him up before shooting him in the neck at relatively close range that permits a reasonable jury, taking the prosecution case at its highest, to find that the accused formed an intent to kill.

[1] Trial transcript 467. On 29 April 2015, during submissions as to whether the prosecution could lead certain credibility evidence concerning the accused, Mr Dane QC indicated he would not be calling the accused.

[2] 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), whereas 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.

[5] [1990] HCA 51; (1990) 96 ALR 539 ('Doney v R'), 544.

[6] Notwithstanding that the defence case was that the evidence could only potentially support a finding that the accused acted recklessly (not intentionally), the no case submission did not extend to the alternative charge of intentionally causing serious injury (Trial transcript 572).

[8] Trial transcript 565-568, especially at 567.13-.15.

[9] (1998) 155 ALR 605; [1998] HCA 51 ('R v Penney').

[10] Trial transcript 565.24-.31 and 568.21.

[15] Trial transcript 572.22-.23. Although not stated by the Crown, this principle derives from Attorney-General's Reference (No 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410; Case Stated by DPP (No 2 of 1993) [1993] SASC 4152; (1993) 70 A Crim R 323; R v Galbraith [1981] 2 All ER 1060. See the Judicial College of Victoria, Criminal Proceedings Manual, No Case to Answer, 5.7.1.