R v Williams

On 12 February 2018 the respondent stood trial before Judge Pickering and a jury of 12 on 3 counts as follows:

The s 93G offence has a maximum penalty of ten years imprisonment. The s 33A offence has a maximum penalty of 25 years imprisonment and there is a standard non-parole period of nine years.

On 12 March 2018 the respondent was convicted on counts 2 and 3 but acquitted on count 1.

After the respondent had been arrested he was remanded in custody from 2 July 2016 to 28 July 2016. On the latter date he was released on conditional bail.

After his conviction on 12 March 2018 he was remanded in custody but on 23 March 2018 he was released on bail by the trial judge, Judge Pickering SC. The release order was made on the same conditions that had previously applied. Neither party provided me with a copy of Judge Pickering’s reasons for so doing. The Crown simply informed me that Judge Pickering was of the opinion that the appeal was most likely to succeed, principally because of the evidence of Brandan Randall.

The sentencing hearing took place on 18 June 2018. Judge Pickering has reserved his decision on sentence until 27 July 2018.

After the respondent’s release on 23 March 2018, the Crown lodged a detention application on 29 March 2018, and I heard that application in the Bail List on 2 May 2018. By reason of the considerable amount of material put forward on the bail application and by reason of the failure of counsel for the respondent to file submissions and any other material with the Court prior to the hearing of the bail application, it became necessary for me to reserve my judgment in the matter. The parties were informed that I was to be absent on four weeks leave throughout May 2018.

The respondent has lodged a Notice of Intention to Appeal against his convictions to the Court of Criminal Appeal. Although a Notice of Appeal has not yet been filed, the potential grounds of appeal were said to be these:

Section 22(1) of the Bail Act 2013 (NSW) provides:

Both the offences in respect of which the respondent has been convicted are show cause offences. However, s 22(2) provides that the requirement in the circumstances is for the convicted person to establish that special or exceptional circumstances exist that justify a decision to grant bail, rather than to show cause why his or her detention is not justified. The requirement to establish special and exceptional circumstances is at least as onerous as the requirement to show cause: El-Hilli and Melville v R [2015] NSWCCA 146 at [11].

In Petroulias v R [2010] NSWCCA 95, Barr AJ said of the test for establishing special or exceptional circumstances under s 30AA of the Bail Act 1978 (NSW) (which was in relevantly identical terms to s 22(1)), that an applicant has to show much more than that the grounds seem arguable. His Honour made reference at [34] to R v Wilson (1994) 34 NSWLR 1 in which Kirby P (Sheller JA agreeing) said at [6] that the applicant must appear “most likely to succeed”.

In R v Antoun [2005] NSWCCA 270 the Court (Simpson, Johnson & Rothman JJ) said:

In El-Hilli, Hamill J (Simpson and Davies JJ agreeing) said of these cases:

The following summary of the facts is taken from the Crown’s written submissions on the bail application:

The respondent’s submissions were directed to potential grounds (1) and (2) and to the strength of the appeal based on those grounds. Although the written submissions of the respondent said,

Counsel for each of the parties addressed various aspects of the evidence.

The Crown submitted that the ground of inconsistency was not a strong one and did not have a high likelihood of success on appeal. Count 1 involved the discharge of a firearm out of a moving vehicle in front of Greg Ryan’s house. Counts 2 and 3 involved a shooting about an hour later in Tirriki Close where the respondent lived. Proof of count 1 relied substantially upon the recognition evidence of Matthew Cooper, and there was evidence that the person holding the gun was not visible. Proof of counts 2 and 3 relied on additional evidence and was not dependent on Matthew Cooper’s evidence.

The respondent submitted that Cooper’s evidence in relation to seeing the respondent at the time the shot was fired outside Ryan’s house was embellished. Further, the first time that Cooper saw the respondent in person was said to be at the time the respondent is supposed to have fired that shot. Previously, Cooper had only seen pictures of the respondent on Facebook. In his evidence Cooper was unable to describe the person he saw in those Facebook photographs and when he first saw the respondent outside Ryan’s house he could not recall whether he was wearing a hood or not. The respondent submitted that the jury’s verdict of an acquittal in relation to count 1 was entirely understandable having regard to the evidence given by Cooper of that incident.

The respondent argued that the embellishment and false evidence given by Cooper in relation to count 1 pointed to the fact that a guilty verdict in relation to count 2 was inconsistent with the not guilty verdict on count 1. The respondent submitted that there was no other evidence capable of satisfying a jury beyond reasonable doubt of the respondent’s guilt with respect to count 2.

The principles to be applied when a ground of inconsistent verdicts is raised are set out in the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 366-368. Subsequently, in R v Bonat [2004] NSWCCA 240 in the Court of Criminal Appeal, Sperling J (with whom Sheller JA and Adams J agreed), said at [106]:

Proof of the matters in respect of counts 2 and 3 did not depend only on the evidence of Matthew Cooper. The Crown relied on the evidence of the neighbour, Ms Tracey Kent and the triple 0 call she made, the descriptions given by Myles Taueli, Jordan Langley and Samuel Hetrick, the admission made by the respondent to Jordan Langley and evidence in a number of exhibits which included Facebook posts by the respondent. From an application of the proper principles to apply in relation to inconsistent verdicts, especially sub-paragraph (2) in Sperling J’s judgment at [106], the not guilty verdict in relation to count 1 was explicable because of the evidentiary differences concerning count 2.

I consider, based on the evidence from the trial provided to me, that this first ground has poor prospects of success.

It is necessary next to deal with the ground that the jury’s verdicts are unreasonable and cannot be supported by the evidence. Such a ground involves questions of fact, and the respondent must obtain leave to bring such a ground. The test to be applied by the Court of Criminal Appeal is that laid down by the High Court in M v The Queen (1994) 181 CLR 487 at 492, 493 and 495. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 the High Court said at [12]:

Whether a verdict is unreasonable is a matter to be determined by the Court of Criminal Appeal on a consideration of the whole of the evidence in the case. It is neither appropriate, nor the task of a judge hearing a bail application pending an appeal to the Court of Criminal Appeal, to engage in the same exercise as that of the Court of Criminal Appeal. As Hamill J said in El-Hilli at [35]:

I did not have the full record of the trial; extracts only were provided. In any event, as I have said, it would not be appropriate for me to assess all of that evidence to determine if the jury’s verdict was unreasonable. In most cases where the question of bail is being considered pending an appeal based on an unreasonable verdict ground, the judge hearing the bail application will not be able to do other than to say that the appellant has an arguable case that the verdict was unreasonable. That is because, unless the evidence is all one way or there is no or insufficient evidence to support a finding, the bail judge will not have a sufficient grasp of the factual detail to consider whether the jury ought to have had the sort of doubt that would have resulted in a not guilty verdict: M at 494.

The respondent made a number of submissions about the weakness of the Crown’s evidence in relation to counts 2 and 3. The respondent submitted that Cooper was not a witness of credit and that he embellished his evidence in a number of ways. The respondent submitted that the jury ought to have had a doubt about his evidence because they clearly did not accept it in relation to count 1. The respondent submitted that at the time he made the triple 0 call and said “they shot again”, he was some distance away from the others at the end of the respondent’s driveway. In that way he could not have known that the victim had actually been shot when the gun was discharged. The respondent submitted that Cooper’s evidence concerning his recognition of the respondent showed that it could not be relied upon.

The respondent submitted that there were problems with the evidence from Tracie Kent. She wrongly identified the respondent as having had a crew cut when there was undoubted evidence that he had long, brown shoulder-length hair. He submitted that she was wrong in her evidence about the respondent getting out of the motor vehicle when the police arrived, and her evidence that she heard the respondent say “I think I shot one” was of low probative value when there was no evidence she had ever had a face to face conversation with him.

The respondent submitted that the Crown had not excluded beyond reasonable doubt that the shooter was Brandan Randell. The respondent pointed to a number of shortcomings in Randell’s evidence. The respondent submitted that Randell had made threats to people in the respondent’s social circle, and submitted that he had a motive to exact revenge on the victim because of the smashing of the window in his car. The respondent pointed to the fact that a video on Randell’s phone had a recording of a gun in his motor vehicle a month prior to the offence.

The respondent said that evidence given by witnesses for the defence all confirmed that the respondent’s girlfriend, Ms Voce, had screamed at the time that “Brandan Randall has a gun”.

The respondent submitted that there was no gunshot residue testing of Randall, and the testing on the respondent returned a negative result.

Notwithstanding the criticisms the respondent makes of the Crown evidence, there was some strong evidence to support the jury’s verdict. Ms Kent was the respondent‘s next door neighbour and might be expected to be able to recognise the respondent. The respondent had a crew cut at the time of the trial, which provided some explanation for her inconsistent description of him.

The respondent had a clear motive to have engaged in the behaviour charged from the time that Greg Ryan smashed a window of his girlfriend’s car. The matters he posted on Facebook were some further support of motive, as was the admission made to the victim Jordan Langley in the toilets at the court during the trial, “At the end of the day I never wanted to shoot you”. Further, the respondent had given an account to the police of wrestling with the victim who had a gun and that the victim had been shot in the course of that altercation. That explanation was abandoned during the trial.

It may be accepted that, as in many or most trials, all of the Crown evidence was not favourable to the Crown. What a consideration of all of the criticisms of the Crown evidence amounts to is that the respondent has an arguable case that the jury’s verdict on counts 2 and 3 was unreasonable. These criticisms, however, cannot be said to demonstrate that the appeal is most likely to succeed. That could only be shown if I was persuaded that the jury must have entertained a doubt about the respondent’s guilt.

As I earlier noted, since the determination of an unreasonable verdict involves a consideration of all of the evidence in the case, a judge hearing a bail application pending an appeal would ordinarily only be in a position to hold that an appeal was likely to succeed on that ground if it could be shown that there was no or insufficient evidence to support a finding of guilt or that the evidence was all one way. That is not the case in the present matter.

When I pointed out to the respondent’s counsel during argument that a bail judge was scarcely in a position to evaluate the unreasonableness of a verdict, counsel pointed to what Buddin J (McClellan CJ at CL and Price J agreeing) said in DPP v SKA [2009] NSWCA 51 at [12]:

Counsel submitted that the trial judge was in the best position to consider the matter and that I should give considerable weight to the matters raised before the trial judge on the release application.

Two things can be said about that submission. First, the respondent did not provide me with the trial judge’s remarks when his Honour granted bail after the trial, so I have no way of assessing the matters his Honour considered. Secondly, notwithstanding Buddin J’s urging of restraint in favour of the trial judge, his Honour then went on at [16] to assess in a broad-brush way, consistent with exercising a bail jurisdiction, the matters raised by the respondent in that case, and found at [18] that, although an arguable case was put forward, this was not sufficient to satisfy the equivalent test in s 30AA of the Bail Act 1978.

The respondent does not suggest any other basis for refusal of the detention application. It is not submitted that any sentence imposed for the offences is unlikely to result in a fulltime custodial sentence. Indeed, the limited information I have about his Honour the trial judge’s thinking is a statement in the Crown submissions that his Honour made reference to the likelihood of a lengthy custodial sentence for count 3, and went on to say that it was not necessarily in the interests of justice to have someone who is successful in an appeal serve a significant sentence before an appeal is upheld.

In United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 the High Court (Gleeson CJ, McHugh and Gummow JJ) said at [39]:

For the reasons I have given, the respondent fails to show that there are special or exceptional circumstances justifying the grant of bail.

I make the following orders: