Wiggins v R

1. [1]

   SIMPSON AJA: At just after 5 pm on 14 April 2012, in Gannet Avenue in Berkeley (a suburb in the Illawarra region of NSW), Mr Darko Janceski was shot dead by a man who arrived on a blue and white Yamaha trail bike. Mr Janceski’s father Slobodan (also known as Steve) Janceski heard shots and came to his son’s aid and confronted the gunman. A struggle took place. Slobodan Janceski was injured. The gunman left the scene on the trail bike.

2. [2]

   On 15 January 2013 the applicant was arrested and charged with the murder of Darko Janceski and with causing grievous bodily harm to Slobodan Janceski. A trial commenced in the Supreme Court on 9 April 2018 and culminated, on 16 May 2018, with a verdict of guilty against the applicant on each count. On 24 July 2018 he was sentenced in respect of the two offences to terms of imprisonment totalling 34 years with a non-parole period of 25 years and 6 months, commencing on 9 July 2017. The applicant now seeks leave to appeal against the convictions. Leave is required because the grounds of appeal on which he proposes to rely involve questions of mixed fact and law: Criminal Appeal Act 1912 (NSW) s 5(1)(b). The applicant has not sought leave to appeal against the sentences imposed.

3. [3]

   This was the third trial of the applicant on these charges. The first jury was discharged; the second was unable to reach a unanimous verdict.

4. [4]

   Initially, the applicant pleaded four grounds of appeal as follows:

5. [5]

   At the hearing of the appeal the applicant abandoned Ground 4. The argument concentrated on Ground 1 although the applicant did not abandon Grounds 2 or 3. There is a degree of overlap in the three surviving grounds.

The Crown case

1. [6]

   There was no direct evidence in the Crown case that implicated the applicant in the shooting. The Crown case was entirely circumstantial and relied on inferences to be drawn from a number of circumstances which, the Crown contended, pointed to the guilt of the applicant.

2. [7]

   It is well established (as discussed in more detail below) that, in a case substantially based on circumstantial evidence, a jury may not convict unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v The King (1911) 13 CLR 619 at 634; [1911] HCA 66.

3. [8]

   To a considerable extent the factual material on which the Crown case was based was not in dispute. What was in dispute was the inferences to be drawn from that factual material, ultimately whether it established, to the criminal standard, the applicant’s guilt.

4. [9]

   The various circumstances on which the Crown relied to establish that the applicant was the gunman fall, generally, into five categories:

5. [10]

   As indicated above, the shooting of Darko Janceski occurred at a little after 5 pm on 14 April 2012 in a suburban street. Mr Janceski was in the front yard of a house occupied by his parents where he was also temporarily resident. A man (“the gunman”) riding a blue and white Yamaha WR 450 trail bike arrived at the house and stopped outside. He was wearing a jacket, a full face helmet, a pair of Prada sunglasses, a balaclava and gloves. He fired seven shots from a handgun, three of which penetrated Mr Janceski’s head and killed him. It was the Crown case that the applicant was the gunman.

6. [11]

   Slobodan Janceski heard the shots and ran outside. He seized a metal garden stake which he swung at the gunman, striking him on the helmet. The blow caused the helmet and sunglasses to be knocked from the gunman’s head, exposing the balaclava that he was wearing. A physical confrontation then took place, with the gunman assaulting Slobodan Janceski and pointing the handgun at him. Slobodan Janceski knocked the gun from the hand of the gunman; it fell to the ground, and a struggle ensued. Slobodan Janceski suffered injuries to the face which constituted grievous bodily harm.

7. [12]

   The gunman had been knocked from the bike in the struggle. He remounted and rode off in the direction of a local Buddhist temple, the Nan Tien Temple. He was still wearing the balaclava. Left behind were the handgun, the helmet and the Prada sunglasses. Also found some distance away was an earplug. Police who were called to the scene took these items into their possession and they were forensically examined, including for DNA. The helmet was a full face road helmet, with visor, THH brand, of which only 22 had been imported into Australia.

8. [13]

   Footage from a closed circuit television from a nearby residence showed a motor cycle travelling at high speed past the house at 5.10 pm.

9. [14]

   Although there was no witness who actually observed the shooting, neighbours of the Janceskis who were in the vicinity heard the shots, and came to investigate. A number made observations of the gunman and the trail bike that he was riding and what he was wearing, including the balaclava. Various descriptions were given of the balaclava; generally the witnesses described a balaclava either with a single opening that exposed the eyes of the gunman, or with two eyeholes. Only two witnesses (of whom Slobodan Janceski was one) described a mouth opening in the balaclava.

10. [15]

    One week later (on 21 April 2012) a Yamaha WR 450 trail bike was found, burned out, adjacent to the Nan Tien Temple, three kilometres away from the scene of the murder. It was the Crown case (but was disputed) that this was the bike that had been used in the shooting.

11. [16]

    On 17 January 2013 police executed a search warrant at the home of Derek Ferguson, who was a close friend of the applicant. They took possession of two black balaclavas from a toolbox in his garage. They were also examined for DNA.

12. [17]

    Mention needs to be made of three witnesses in particular. These were Shane Dingle, Derek Ferguson and Christopher Madden. Leave was granted to the Crown under s 38 of the Evidence Act 1995 (NSW) to cross examine each, on the basis of inconsistent evidence given by them in the previous proceedings.

13. [18]

    The evidence concerning motive was largely undisputed. It was that the applicant had been a friend of a man called Goran Nikolovski. On 31 October 2011 Mr Nikolovski disappeared. He has never reappeared and his body has never been found. He is presumed dead. There was a good deal of evidence concerning the investigation of his disappearance and presumed death. Darko Janceski was believed by some (including Mr Nikolovski’s partner) to have been involved in his disappearance. The Crown case was that the applicant also held that belief and that that was what motivated him to kill Darko Janceski.

14. [19]

    There is a degree of complexity in the factual background to this circumstance. That the gunman was riding a blue and white Yamaha trail bike was not in dispute. Nor was it in dispute that a Yamaha trail bike of the same kind was found, one week later, adjacent to the Nan Tien Temple, burned out. It was the prosecution case that the burned out bike was the bike that had been ridden by the gunman. That was an important element of the Crown case, because the burned out bike could be linked with the applicant, as explained below. Whether the bike ridden by the gunman was the bike found adjacent to the Nan Tien Temple was a factual matter of significant dispute.

15. [20]

    In March 2012 Mr Matthew Ryan, from Cessnock (in the Hunter Valley, some distance from the Illawarra) advertised for sale a blue and white Yamaha WR 450 trail bike. It was purchased on 28 March 2012 by Christopher Madden, under a false name. Mr Madden lived in the Illawarra district. Like the applicant, he was a close friend of Derek Ferguson. Using a mobile telephone sim card purchased in a false name, and used only for the purpose of the purchase of the bike, Mr Madden made arrangements to meet Mr Ryan in order to make the purchase.

16. [21]

    Mr Madden gave some evidence of the circumstances in which he purchased the Yamaha. He said that he travelled with Matthew Purches in a borrowed utility truck to the Cessnock area where he met Mr Ryan in the carpark of a fast food outlet. He did not test ride the bike. On his return to his home that evening, with the help of Mr Ferguson, he unloaded the bike from the truck. He said that he then rode the bike for about 10 hours before it developed a “knock”, so he decided to dispose of it. He did so by chaining it to a telegraph pole with a “For Sale” sign on it. After a day it was purchased by “a man with dreadlocks”. This bike has been referred to as “the Ryan bike”, a term it is convenient to adopt.

17. [22]

    There was no dispute that the Ryan bike was the bike found burned out adjacent to the Nan Tien Temple on 21 April 2012. What was in dispute was whether it was also the bike ridden by the gunman. Expert evidence was given by Mr Rodney McCourt, a specialist forensic imagery analyst. Mr McCourt was asked to compare video images of the trail bike used by the gunman taken from a CCTV camera at a home near the murder scene, and still photographs of the Ryan bike supplied by Mr Ryan. He was unable to say with certainty that the images represented the same bike, but said that the evidence “lends strong support to the contention” that the images and the photographs were of the same bike.

18. [23]

    Although the evidence did not establish, or suggest, a direct connection between the applicant and Mr Madden, it did establish that both were close friends of Mr Ferguson. It was the Crown case that the applicant had used his contacts for the purchase of the bike, presumably to distance himself from it when it was used in the murder. If the burned out bike (the Ryan bike) were shown to have been the bike ridden by the gunman, a significant link to the applicant would be shown. It was therefore important to the defence case to dislodge the Crown contention that the Ryan bike and the gunman’s bike were one and the same.

19. [24]

    Ms Carmen Ballardin, who was a next-door neighbour of the Janceskis, was in her kitchen at the time of the shooting. She heard the approaching bike, and then the gunshots, and went outside to investigate. She saw the confrontation between the gunman and Slobodan Janceski and saw the gunman ride off past her house towards the end of the street. She made some observations of the bike, which she said was a “very nice bright blue and white … brand new …”. She said that she had seen this bike coming to or going from Gannet Avenue on two previous occasions, respectively about three weeks and two weeks prior to Mr Janceski’s murder. She noted the unusual colour of the bike, that it was “brand new” with brand new number plates and that it was very loud. She was confident in her evidence that it was the same bike.

20. [25]

    Ms Ballardin’s evidence was potentially important to the defence case. If the bike ridden by the gunman was indeed the same bike she had seen on the two previous occasions she described (and her dates were correct) it could not have been the Ryan bike. Three weeks before 14 April was 24 March. Two weeks before 14 April was 31 March. The Ryan bike was purchased by Mr Madden on 28 March. If Ms Ballardin’s initial evidence of the time at which she first saw the bike was accepted, the Crown case connecting the applicant with the motor bike used by the gunman lost much (if not all) of its force. However, Ms Ballardin’s evidence with respect to dates was not straightforward. She attempted to pinpoint the dates on which she had previously seen the bike by reference to her bank records, which she linked with shopping purchases. In her evidence in chief, she agreed that her first sighting of the bike was “the last week in March”.

21. [26]

    There was no dispute that the helmet and sunglasses found at the scene of the shooting had been worn by the gunman. The applicant’s DNA was identified on four locations on the helmet, inside the front portion near the mouth, on the base, on the plastic portion of the front (outside) and on the chin strap. No DNA other than that of the applicant was found on the inside front of the helmet or on the left and right arms of the sunglasses; DNA of others (unidentified), as well as of the applicant, was found in the other locations. DNA of Shane Dingle was identified on the chin strap. Two fingerprints of Mr Dingle were also on the top of the helmet.

22. [27]

    From the applicant’s point of view the evidence of his DNA on and in the helmet, particularly that from the inside of the helmet near the mouth, was particularly damaging. It was a reasonable assumption, in the absence of an alternative explanation, that the DNA originated from the last person who had worn the helmet (who undoubtedly was the gunman). With less force, the same could be said of the DNA taken from the chinstrap and the other locations.

23. [28]

    DNA of the applicant was also identified on the right and left inside arms of the sunglasses. There was a large deposit on the right arm, which an expert witness (Ms Sesardic) said was possibly a transfer of saliva. DNA from no other source was identified. That made this evidence also very damaging to the applicant. As with the helmet, in the absence of an alternative explanation, there was a clear inference that the DNA originated from the last person who had worn the sunglasses (who, again, was undoubtedly the gunman). It is not unreasonable to say that the DNA evidence was critical to the Crown case.

24. [29]

    Simple logic dictated that, unless some rational explanation for the presence of the applicant’s DNA on these items and for the absence of DNA from any other source was forthcoming, this evidence strongly suggested that the applicant was the gunman. The applicant proposed such an alternative explanation, which will be outlined below.

25. [30]

    DNA was also taken from the two black balaclavas seized in the execution of the search warrant at the home of Mr Ferguson. On the first was DNA of at least four people. The applicant could not be excluded as a major contributor. On the second was a mixture of DNA that originated from three individuals. Derek Ferguson could not be excluded as the major contributor. (There was nothing that identified either balaclava as having being worn by the gunman.)

26. [31]

    The trial was conducted on the basis that the DNA evidence was not in dispute. It was accepted that the applicant’s DNA was found on the four locations on the helmet, on the sunglasses, and on the balaclava, and that DNA of no other individuals had been found on the inside of the helmet, or on the sunglasses.

27. [32]

    There was evidence from Ms Sesardic that it is not possible to determine the date or time of DNA deposits.

28. [33]

    There was evidence that the applicant had the opportunity to commit the crime. As that does not feature in the issues raised on appeal is not necessary to discuss it further.

The defence case

1. [34]

   The applicant did not give or call evidence. Rather, he sought to cast doubt on the strength of some aspects of the Crown case and to advance a hypothesis consistent with his innocence, in particular by proposing an explanation for the presence of his DNA on the helmet and the sunglasses. That hypothesis, in short, was that his DNA may have been deposited on the helmet and sunglasses when he had used those items on a previous occasion, in circumstances to be outlined below, and that the helmet and sunglasses had subsequently come into the possession of the gunman, who wore them in such a way as to leave no DNA of his own when he travelled to Gannet Avenue to murder Darko Janceski.

2. [35]

   Having regard to the arguments advanced on appeal, it is necessary to explain aspects of the applicant’s response to the Crown case. It is the manner in which these responses were dealt with by the trial judge in the summing up that gives rise to the first and second grounds of appeal.

3. [36]

   Three of the matters on which the applicant relied call for attention.

4. [37]

   As already indicated, the applicant did not dispute that his DNA was found on the helmet and the sunglasses, each of which had indisputably been worn by the gunman. Just as it may be said that the DNA evidence was critical to the Crown case, the applicant’s proposed explanation was critical to his defence. His proposed alternative explanation for the presence of his DNA on these items relied on evidence given (in the Crown case) by Messrs Madden, Ferguson and Dingle.

5. [38]

   Mr Madden said that he had been the owner of another Yamaha road bike, known as an “R6”. He said that he sold the R6 to Kane Wade, who defaulted on payment and that he then reclaimed possession of the bike. He said that he then took the bike to Mr Ferguson’s house so that Mr Dingle, who was looking for a bike to buy, could test ride it. He then either left the bike at Mr Ferguson’s house, or later returned it there. Mr Madden denied that he left a helmet or sunglasses with the bike. Eventually, Mr Dingle purchased the bike.

6. [39]

   Mr Ferguson gave evidence that Mr Madden had left the R6 at his (Mr Ferguson’s) garage because he (Mr Ferguson) might have known someone who would buy it. He said that when he left the bike there Mr Madden also left a helmet (which he described as “dark coloured”, “enclosed”, and a “full face helmet”) and gloves. Mr Ferguson’s evidence that Mr Madden had left a helmet with the bike was in direct conflict with the evidence of Mr Madden, who denied having done so. Mr Ferguson was not sure if there were also sunglasses. Mr Ferguson’s own helmet and riding gear were also in the garage. He said that the applicant gave consideration to purchasing the R6 and took it away for a few days to test ride it. He also took the helmet that Mr Madden had left with the bike. Mr Ferguson made no mention of the applicant using the sunglasses. Subsequently, Mr Dingle test rode the bike and eventually purchased it.

7. [40]

   Mr Dingle gave evidence that, before he purchased it, he test rode the R6, which he picked up from Mr Ferguson’s garage. He said that present in the garage were a black full face helmet and a jacket, black gloves and glasses. When he test rode the bike he used the helmet but not the other items. Mr Dingle’s evidence in this respect was potentially important for the applicant. Because his DNA and fingerprints were located on the helmet worn by the gunman, it provided something of a link between that helmet and the helmet in Mr Ferguson’s garage. That, in turn, could give some support to a hypothesis that the helmet worn by the gunman was the helmet from Mr Ferguson’s garage that had previously been used by the applicant.

8. [41]

   In previous proceedings Mr Dingle had been shown photographs of the helmet found at the scene of Mr Janceski’s murder and, on one occasion, the actual helmet. It was put to him that at no stage had he “actually recognised” the helmet as the one from Mr Ferguson’s garage that he had worn, to which he replied:

9. [42]

   Mr Dingle pinpointed the date of his purchase of the R6 as before 14 April 2012. He did this by reference to a photograph taken at the construction of a shed at the home of a relative.

10. [43]

    From this evidence it was hypothesised on the applicant’s behalf that his DNA could have been deposited in the helmet and on the sunglasses when he test rode the R6 bike from Mr Ferguson’s garage. Underlying that proposition was a premise that the helmet and sunglasses used by the gunman were (or may have been) those left with the R6 in Mr Ferguson’s garage, and that they subsequently came into the possession of the gunman. That was why Mr Dingle’s evidence that he was “pretty sure” that the helmet found at the scene was the one he had used was important to the applicant.

11. [44]

    On this scenario, the gunman (if the applicant were not the gunman) used the helmet and sunglasses in such way as to leave no DNA residue and to leave undisturbed the applicant’s DNA that had already been deposited on those items. The absence of the gunman’s DNA on the inside of the helmet could be explained, it was hypothesised, by his use of the balaclava which could have blocked any such deposit (if it did not have a mouth opening).

12. [45]

    One difficulty with the applicant’s hypothesis was Mr Ferguson’s evidence that, after the applicant had had access to the R6, Mr Dingle test rode the bike – and Mr Dingle gave evidence that he had used the helmet. Yet no DNA from Mr Dingle was found on the interior of the helmet. His DNA was found only on the chin-strap. That would, of course, have been consistent with the applicant’s hypothesis if Mr Dingle had also worn a balaclava, without a mouth opening. But Mr Dingle was expressly asked if he had worn anything under the helmet and denied having done so.

13. [46]

    It was further hypothesised on behalf of the applicant that the absence of DNA from “the real gunman” on the sunglasses could be explained if the gunman wore the sunglasses not under, but outside, the balaclava. This argument recognised that, if the sunglasses had been placed next to the skin of the wearer (under the balaclava), it could be expected that his DNA would be deposited. But if the sunglasses were worn outside the balaclava, the applicant’s DNA, deposited there during the test ride, could have remained in place and not been overlaid by the DNA of “the real gunman”. The argument caused some complication when the trial judge came to sum up, as explained below.

14. [47]

    The applicant also placed emphasis on the earplug found at the scene. It was found to have on it DNA from at least three individuals, none of whom could be identified. That meant that the DNA did not come from the applicant, nor from Messrs Dingle, Madden or Ferguson, all of whom had given DNA samples for forensic examination purposes. The largest component of the DNA on the earplug came from an unidentified individual, who was called “Individual B”.

15. [48]

    The rationale of this aspect of the applicant’s hypothesis was:

16. [49]

    Finally, the applicant advanced an argument based on the absence of any evidence that he was suffering an injury, or had sought medical attention. The underlying premise of this argument was that, having regard to Slobodan Janceski’s evidence concerning the nature and intensity of the struggle between himself and the gunman, and the extent of his own injuries, it could be expected that the gunman also had suffered significant injury, such that he would have sought medical attention. That there was no evidence of injury to the applicant was a factor pointing against his involvement.

17. [50]

    In this respect the applicant relied on evidence that, within a few hours of the murder, police had stopped a vehicle in which he was a passenger, and had questioned the driver, but had not detained the occupants of the vehicle. To complete that evidence, the evidence showed that police were looking for Goran Nikolovski’s brother (Robert Nikolovski), who was, by reason of suspicions that Darko Janceski had killed Goran Nikolovski, a suspect in the murder of Darko Janceski. When it was found that Robert Nikolovski was not in the vehicle, the driver was allowed to drive off.

The proposed appeal

1. [51]

   Grounds 1 and 2 of the proposed appeal raise essentially the same issues. By ground 1 the applicant complains that the trial judge disparaged the arguments made on his behalf, particularly those in which he advanced an alternative explanation for the circumstances in which his DNA came to be on the helmet and sunglasses, and thus a reasonable hypothesis consistent with innocence. In general, he complains that the trial judge “offered counter-points or rebuttals” to each of his arguments, “wrongly used the summing up as a vehicle to strengthen the prosecution case” and “gave what was, functionally, a second address for the prosecution”. The applicant asserts that the trial judge intruded her own opinions on the factual issues for determination in such a way as to cause a miscarriage of justice.

2. [52]

   Similarly, under ground 2, specifically concerning the directions given with respect to proof of a Crown case by circumstantial evidence, the applicant complains that the trial judge unfairly undermined his proposition that there was, on the evidence, an available reasonable hypothesis consistent with innocence.

3. [53]

   By ground 3 the applicant complains of the exclusion of evidence concerning the earplug, which, it was suggested, could have established a link to a Crown witness.

The summing up

1. [54]

   These being the issues on appeal, it is necessary to set out, at some length, the relevant passages of the summing up. This is conveniently done by way of an annexure to these reasons. Those passages of which the applicant makes specific complaint have been printed in bold type, with surrounding passages to give context. Headings and paragraph numbers have been added to facilitate reference. That means that the extracts it is necessary to incorporate in the body of these reasons may be more limited than would otherwise be the case.

Applicable legal principles

1. [55]

   For many years it was understood that, in summing up in a criminal trial, a judge is entitled to comment, and comment strongly, on the factual issues in dispute (although that must be done with circumspection): Green v The Queen (1971) 126 CLR 28 at 34; [1971] HCA 55; RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [42]; R v Zorad (1990) 19 NSWLR 91; R v Sinanovic [2000] NSWCCA 396; Taleb v R [2006] NSWCCA 119. That understanding needs reconsideration in the light of recent authority: McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5.

2. [56]

   In RPS the plurality said:

3. [57]

   That remark has to be seen in its context. In the preceding paragraph their Honours had said:

4. [58]

   It was the applicant’s submission that, since the decision in RPS, the subsequent decision of the High Court in McKell “has changed the landscape in this area of law”. In McKell the plurality (Bell, Keane, Gordon and Edelman JJ) quoted [42] of RPS (without adverse comment), but added significant refinements. Their Honours said:

5. [59]

   “Such unfairness” to which their Honours referred in [5] was unfairness resulting from statements made by the trial judge “so lacking in balance” that they should “be seen as an exercise in persuading the jury of the appellant’s guilt”.

6. [60]

   In the consideration of the fairness and balance of a summing up it is necessary that the summing up be considered “in its entirety and in the context of the issues and the evidence led in the trial” (McKell at [30]).

7. [61]

   With respect to a Crown case based on circumstantial evidence, the enduring statement of principle derives from R v Hodge 2 Lewin C.C. 227, adopted in the judgment of Griffiths CJ in Peacock v The King (1911) 13 CLR 619 at 634; [1911] HCA 66:

8. [62]

   The principle has been repeatedly restated including in, for example, Barca v The Queen (1975) 133 CLR 82 at 104; [1975] HCA 42, and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46].

9. [63]

   Questions may arise about what constitutes a reasonable inference consistent with innocence:

10. [64]

    These statements were adopted by the High Court in Baden-Clay, at [46]-[47], in a judgment of the Court. Their Honours added:

11. [65]

    Where an accused person, in answer to a circumstantial case, advances “an hypothesis consistent with innocence”, the hypothesis must be consistent with the evidence in the case and go beyond “mere conjecture”. That does not entail any obligation on the accused person to adduce evidence to prove or support the hypothesis. It is sufficient if such an hypothesis can be derived, reasonably, from the evidence in the Crown case. No standard of proof applies. All that is necessary is that the hypothesis be such as to raise a reasonable doubt that the accused person has been proved guilty. Nor is it incumbent on an accused “to establish that some inference other than that of guilt should reasonably be drawn from the evidence: Barca at 105.

12. [66]

    In Barca the applicant was charged with the murder of his brother-in-law. The case put forward by the Crown was circumstantial. There were some features of the evidence in the Crown case that could have been seen to implicate his father as the killer. The trial judge told the jury that there was no evidence that the father had been involved in the killing. The High Court, by majority, held that to have been an incorrect direction, because there was, in the evidence in the Crown case “some circumstantial evidence” pointing to the father’s involvement. The circumstantial evidence was “far too slight” to support a positive finding of guilt but, nevertheless, a finding that the father may have committed the murder could reasonably be based on the evidence. That would be sufficient to constitute the basis for a reasonable hypothesis consistent with the innocence of the accused and therefore defeat the Crown’s circumstantial case.

13. [67]

    Just as it is juries themselves who set the standard of what is a reasonable doubt in the circumstances of any case (Green at 33), so it is juries who determine whether a proposed alternative hypothesis is reasonable (Barca at 105). A judge is entitled to “restore, but to do no more than restore, the balance” where “possibilities which are in truth fantastic or completely unreal” have been presented as a basis for a reasonable doubt (Green at 33). The same must apply to an alternative hypothesis that is “fantastic or completely unreal” or, indeed, has no basis in the evidence.

14. [68]

    These principles are no more (and no less) than a reflection of the more general, and fundamental principle that the onus lies on the prosecution to prove the guilt of an accused person beyond reasonable doubt. They are not always easy to apply in practice.

The applicant’s argument – grounds 1 and 2

1. [69]

   This was not a case in which the “alternative hypothesis consistent with innocence” involved a posited alternative cause of death (see Baden-Clay) or an alternative perpetrator of a crime (as in Barca). This was a case in which the applicant proposed an alternative hypothesis for one of the important circumstances – possibly the most important – of the Crown case.

2. [70]

   In what follows, references to paragraph numbers in the summing up are references to paragraph numbers that have been assigned to the extracts of the summing up in the annexure to these reasons.

3. [71]

   On behalf of the applicant the transcript of the summing up was subjected to minute scrutiny. Many of the criticisms that emerged from that scrutiny were unfair or trivial. For example, criticism was made of the direction given at an early point in the summing up (at [5]) where the trial judge told the jury that they were being asked by the Crown to make a critical finding of fact from a combination of facts established by the evidence and that she would explain how to go about the fact finding task. The applicant contended that that suggested to the jury that the facts on which the Crown relied were established, rather than that it was the task of the jury to determine whether or not those facts were established. That submission overlooks two important things: first, that, in a part of the summing up that followed shortly after that general direction and that is not the subject of criticism, the trial judge gave comprehensive directions about the fact finding exercise the jury was to undertake; second, the fundamental facts on which the Crown relied were, to a significant extent, not in dispute. It was the inferences to be drawn from facts the jury found to have been established that were in dispute. (That included, importantly, whether the Ryan bike was the bike ridden by the gunman, as well as the “critical finding” that the applicant was the gunman.)

4. [72]

   The applicant also submitted that, in that same direction:

5. [73]

   The applicant then submitted that the direction (put by way of suggestion) at [36] of the summing up, that if the jury were satisfied beyond reasonable doubt that the applicant was the “shooter”, it would follow that the Crown had proved both counts. The complaint was that this

6. [74]

   In circumstances where there was no dispute that the elements of the offences were made out, and that the question for determination by the jury was the identity of the perpetrator, that submission was also without any proper foundation.

7. [75]

   Another criticism was that the direction at [35] of the summing up, that the critical issue for the jury to resolve was whether the Crown had proved beyond reasonable doubt that the person on the bike was the applicant, “oversimplified” the task of the jury, which was to exclude all reasonable hypotheses consistent with innocence.

8. [76]

   That criticism also should be rejected. What the trial judge told the jury was perfectly correct. It was not in issue that the man on the bike was the man who shot Darko Janceski and engaged in a confrontation with Slobodan Janceski. The direction was merely another way of saying that the dispute in the trial was whether the Crown had proved beyond reasonable doubt that the applicant was the gunman, or that the applicant was the person who committed the murder. If that were proved, there were no reasonable hypotheses consistent with innocence.

9. [77]

   There are, however, criticisms of more substance.

10. [78]

    The applicant’s case was most clearly put in his submissions in reply to lengthy written submissions provided by the Crown. As I understand the applicant’s argument, it was that, where he sought to make a response to an aspect of the Crown case, the trial judge directed the jury in terms that supported the Crown case and undermined and dismissed his response. The applicant’s submissions in reply identified six aspects of the summing up, which, it was contended, support the complaint of unfairness and lack of balance. It is convenient to deal with them in the sequence adopted by the applicant (which is not the sequence in which they appear in the summing up). In order to put the submissions in context, some repetition will be unavoidable.

11. [79]

    The directions relevant to this compliant are to be found at [102]-[106] and [113]-[117] of the summing up.

12. [80]

    As is clear from what is set out above, an important part of the Crown case lay in the applicant’s DNA on various locations on the helmet, and on the sunglasses. It was important because a strong inference is available that the DNA originated from the last person to wear those items, who was, indisputably, the gunman. In brief, what was suggested on behalf of the applicant by way of explanation was that it was reasonably possible:

13. [81]

    At [113] of the summing up the trial judge described the proposition that the helmet in the garage was the helmet worn by the gunman as a “foundational assumption” that the jury were asked to accept; she then said (at [114]) that there was no evidence to establish that assumption, but whether it was a reasonable possibility that the helmet from Mr Ferguson’s garage was worn by the applicant during a test ride and then used by somebody else during the shooting “is a matter for you”. She concluded:

14. [82]

    The trial judge then referred to the conflicting evidence of Mr Ferguson and Mr Madden about whether the helmet and sunglasses had been left with the bike and to a defence submission that, in the circumstances, there was “nothing remarkable” about Mr Ferguson, Mr Dingle and Mr Madden being vague about such matters because it was “inconsequential” in their lives and they could not be expected positively to identify the helmet. She said:

15. [83]

    The applicant makes three complaints of these directions:

16. [84]

    The second complaint must be accepted. It was, as was pointed out in argument, factually incorrect to say that there was no evidence that the helmet worn by the gunman was the helmet in Mr Ferguson’s garage. There was the evidence of Mr Dingle to that effect.

17. [85]

    I also accept, reluctantly, that the directions, taken together ([113]-[115] and [117]) are somewhat dismissive. In particular, the closing two substantive sentences of [117]:

18. [86]

    It may here be observed that the trial took place in May 2018, before delivery of the judgment in McKell, and at a time when it was considered that a trial judge was entitled to express (even strongly) an opinion on the facts of a case, provided that was done with “circumspection”. When she did convey an opinion the trial judge reminded the jury that the ultimate decision on the facts was for them. However, in this respect, the summing up did not meet the more exacting requirements of McKell.

19. [87]

    The interpolation of “I’m just pointing out what the evidence tells you” (in [114]) was inappropriate and potentially misleading. What the jury had to do was consider whether the applicant’s hypothesis was one that was reasonably available on the evidence that they accepted. The trial judge had already (at [44]-[49]) correctly directed the jury about the fact finding process. She correctly directed the jury (at [53]) to exclude speculation, conjecture and supposition. She correctly directed the jury at [50] to ask themselves whether there was a reasonable conclusion, arising from the combination of the facts they found to be established, that was inconsistent with the guilt of the accused, and that, if so, the Crown case must fail. But directing attention only to “what the evidence tells you” excluded consideration by the jury of hypotheses, not the subject of evidence, but available and consistent with the accepted evidence. It implied that, unless there was express evidence of a possible fact, that possible fact was not available for consideration. That was inconsistent with the decision of the High Court in Barca. This complaint must be upheld.

20. [88]

    The relevant directions are at [108] of the summing up.

21. [89]

    The underlying premise of the applicant’s argument with respect to the earplug was that it was very likely to have come from the gunman when the helmet and sunglasses were dislodged and that it could be expected that an earplug would bear DNA of the last person who had worn it. As might be expected, there was DNA on the earplug, but it was not that of the applicant. Since there was no DNA of the applicant on the earplug he could not have been the gunman.

22. [90]

    The trial judge directed the jury (at [108]) that there was no evidence “that the earplug was worn in the ear of the shooter” and added that defence counsel had acknowledged that to be a speculative conclusion.

23. [91]

    The applicant argued that it was incorrect to say that there was no evidence that the earplug was worn in the ear of the shooter, because “there was ample circumstantial evidence” in support of the defence theory.

24. [92]

    I do not accept that that was so. While there was clear evidence that the helmet and sunglasses came from the gunman, there was no evidence that the earplug did. The earplug was found some distance from the other items. It was common ground that the balaclava worn by the gunman remained in place, making it unlikely that an earplug had been dislodged. The hypothesis that the earplug was worn by the gunman did not rise above sheer conjecture.

25. [93]

    There is no legitimate complaint about the directions in this respect.

26. [94]

    Her Honour appears to have been incorrect in saying that it was acknowledged by senior counsel for the applicant that the proposition was “a speculative conclusion”. The Crown has not identified any passage in the transcript where senior counsel made such a concession. That is a relatively minor matter which does not warrant upholding this complaint.

27. [95]

    The relevant directions are at [77]-[78] of the summing up.

28. [96]

    The third aspect of the applicant’s complaints about the summing up also concerned his alternative hypothesis for the DNA evidence, which was, without a plausible explanation, highly incriminating. The absence of any DNA other than his own on the interior of the helmet was a significant obstacle to the applicant’s “alternative hypothesis”. In the ordinary course, it might be expected that the user of a helmet would deposit some DNA on the interior, particularly in the mouth area. The applicant proposed that the absence of any other DNA could be explained by the fact that the gunman wore a balaclava which could have blocked any transmission of his DNA.

29. [97]

    After referring to this argument, the trial judge observed (at [78]) that there was no evidence “in relation to the position of the balaclava” prior to the gunman’s arrival at the scene of the shooting. She then referred to evidence of Ms Sesardic to the effect that it was possible, depending on the nature of the balaclava, for DNA to be deposited through the fabric.

30. [98]

    The applicant described this direction as “very problematic because it involved an invitation to the jury to speculate beyond the evidence in the case” and was calculated to strengthen the Crown case.

31. [99]

    There is substance in this complaint. Inherent in the direction is a suggestion that the balaclava may, on the journey to the scene of the shooting, have been worn in a way different to the way it was worn when observed by witnesses at the scene, and in such a way as to permit transfer of DNA from the mouth of the wearer to the inside of the helmet.

32. [100]

    There was no call for the trial judge to make such a suggestion. There was no evidence to support it. It was not an answer that had been proposed by the Crown. It was plainly supportive of the Crown case and significantly undermined the applicant’s attempt to explain an important aspect of the Crown case, that explanation being that the balaclava impeded the transmission of the DNA (of the “real shooter”) to the helmet and left his own, earlier deposited, DNA intact.

33. [101]

    The observation was inappropriate and damaging to the defence case. The applicant’s complaints in this respect are justified.

34. [102]

    The relevant directions are at [102]-[106] of the summing up.

35. [103]

    As with the helmet, in the absence of some other explanation, it was an almost irresistible inference that the DNA on the inside of the arms of the sunglasses originated from the last person to have worn them (the gunman).

36. [104]

    At [102] and [103] of the summing up the trial judge attempted to give directions with respect to a submission made by senior counsel concerning the DNA on the sunglasses. Those directions can be seen in full in the annexure to these reasons. Referring to a submission made by senior counsel that the sunglasses might have been worn on the outside of the balaclava her Honour said:

37. [105]

    At the next break in the trial senior counsel took issue with those directions. In response to his complaint her Honour said that, after reading the transcript of his address, she had difficulty understanding the submission he had put to the jury. Having also read the transcript of the submissions, I have considerable sympathy with her Honour’s comment.

38. [106]

    It appears from the discussion that ensued that what senior counsel had intended to put to the jury was a suggestion that the applicant might have worn the sunglasses without a balaclava when he test rode the R6, thus depositing DNA on the inside arms of the sunglasses; but that the gunman, when he wore the sunglasses, might have worn them on the outside of the balaclava, thus not disturbing the applicant’s DNA deposit, and not depositing his own DNA. That would explain why the applicant’s DNA was on the inside of the arms, but the DNA of the gunman was not.

39. [107]

    That explanation cannot be read clearly (or at all) into the submissions made to the jury.

40. [108]

    The applicant made three criticisms of the directions:

41. [109]

    Those criticisms may have had some substance except for what followed. After senior counsel had explained his submission the trial judge redirected the jury in the following terms:

42. [110]

    No further complaint was made on behalf of the applicant.

43. [111]

    As I have indicated, were it not for the redirection, there may well have been substance in the applicant’s complaints. The redirection cured the error and was not subject to any comment by senior counsel. I would not uphold this complaint.

44. [112]

    The relevant directions are at [73]-[74] of the summing up.

45. [113]

    The applicant raised an argument that, in the light of the nature and intensity of the struggle between Slobodan Janceski and the gunman, and the extent of his own injuries, it could be expected that the gunman would also have suffered significant injuries, such that he would have sought medical attention. The Crown produced no evidence that the applicant had done so. Moreover, on the evening of the shooting, the applicant was a passenger in a car that was briefly pulled over by police who observed no injury to him. Of this, the trial judge said:

46. [114]

    The applicant’s submission in respect of this direction is that, contrary to what the trial judge said, there was sufficient circumstantial evidence to support the argument that it could be expected that the gunman would have suffered significant injury and that the absence of any evidence of injury to him (the applicant) pointed against his involvement. The comment by the trial judge was, accordingly, unwarranted and undermined the defence case.

47. [115]

    I do not accept that submission. That the confrontation was such as would be expected to have caused injury to the gunman was no more than conjecture. As the trial judge said, the evidence was that the gunman was wearing a jacket. Moreover, the applicant pointed to no evidence that he had not sought medical treatment – although (as reflected in the direction) he made some reference to investigations made by police of medical or pharmaceutical records, that evidence was not identified for the purposes of this appeal. It was entirely correct for the trial judge to point out to the jury that there was no evidence to support the premise on which the submission was based. There was no unfairness in this respect. I would not uphold this complaint.

48. [116]

    The relevant directions are at [81] of the summing up.

49. [117]

    The applicant sought to draw comfort from the evidence of Ms Ballardin, given in the Crown case (in summary) that, about two to three weeks before the shooting, she had observed the blue and white trail bike in the vicinity. If she were correct in her observations, and in her fixing of the dates of her observation, the trail bike ridden by the gunman could not have been the Ryan bike which provided a link to the applicant. That would have damaged the Crown case that the bike ridden by the gunman was the Ryan bike, which could be associated with the applicant.

50. [118]

    The trial judge directed the jury that Ms Ballardin’s assertion that the bike she had previously seen was the bike she saw on 14 February relied on three features which Ms Ballardin described – the colour, the sound, and its brand new appearance. She then said:

51. [119]

    The applicant’s complaint in relation to these directions is that the trial judge addressed an issue which had been emphasised by senior counsel for the applicant, but in a way that introduced “new counter arguments”, not raised by the Crown, who had not addressed the jury on Ms Ballardin’s evidence at all.

52. [120]

    After complaint by senior counsel for the applicant, the trial judge redirected the jury to add a reference to evidence of Ms Ballardin’s to which she had not previously referred, that on each previous occasion on which she had seen the bike, the rider was wearing dark clothes, a full face helmet and a balaclava. This was consistent with descriptions given by a number of neighbours of the gunman’s clothing.

53. [121]

    The observation of the trial judge at [81] was gratuitous, and, as correctly observed on behalf of the applicant, called into question, in a way that the Crown had not, evidence in the Crown case that might have assisted the applicant. I accept that the direction was inappropriate. The trial had proceeded on the basis that the bike previously observed by Ms Ballardin was the bike ridden by the gunman. The further directions given by the trial judge did not ameliorate the damage that had been done by the original directions. This complaint should be upheld.

Conclusions

1. [122]

   I have concluded that ((i), (iii) and (vi)), of the six complaints made by the applicant about the summing up, three have substance. The significance of the directions the subject of legitimate complaint has to be evaluated in the light of the overall case, and the summing up as a whole.

2. [123]

   Although the Crown case depended upon a number of individual circumstances, as set out above, two could be said to have been of greatest significance. One was the identity of the bike found burned out adjacent to the Nan Tien Temple (which, it was not disputed, was the Ryan bike). To repeat, that was of significance because the Ryan bike could be linked, through Mr Ferguson, to the applicant. The Crown sought to establish that the burned out bike was the bike ridden by the gunman principally by the evidence of Mr McCourt. The applicant sought to cast doubt on that asserted fact by relying on the evidence of Ms Ballardin to the effect that she had seen the bike ridden by the gunman on the day of the shooting on two previous occasions, one of which, at least on one view of her evidence, pre-dated Mr Madden’s acquisition of the Ryan bike. No issue was raised by the Crown concerning the identity of the bike Ms Ballardin had seen; the focus was on the dates on which she had seen it.

3. [124]

   The inappropriate direction concerning Ms Ballardin’s evidence (which had been tendered, and not called in question, by the Crown) significantly supported the Crown case and undermined the defence case. It cannot be treated as trivial or unimportant.

4. [125]

   The second important circumstance on which the Crown placed reliance was the DNA evidence. Indeed, the evidence that the applicant’s DNA was located on both the interior of the helmet, and on the inside arms of the sunglasses, was of central importance to the Crown case, as was the absence of any DNA on either of those items other than that of the applicant. Without the DNA evidence the Crown case was weak. The DNA evidence could be said to have been the lynch pin of the Crown case. A rational explanation for the presence of the applicant’s DNA on those items, and the absence of any other DNA, would have gone some way to rebutting the Crown case. The applicant’s proposed explanation for the presence of his DNA on the helmet and the sunglasses could be said to have been the lynch pin of his response to the Crown case. Without an explanation, his response was weak.

5. [126]

   In two respects, the trial judge wrongly undermined the applicant’s response – by the erroneous direction that there was no evidence that the helmet found at the scene was the helmet in Mr Ferguson’s garage, and by the gratuitous comment concerning the position of the balaclava on the face of the gunman. Taken together with the inappropriate comment about Ms Ballardin’s evidence, these directions establish that the applicant’s case was not fairly put to the jury. There was a miscarriage of justice on that basis.

6. [127]

   On the morning that the application was listed for hearing, the Crown advised that it would submit that, in order to argue ground 1, the applicant required leave pursuant to r 4 of the Criminal Appeal Rules (NSW) on appeal.

7. [128]

   The Crown did not elaborate on which part of the applicant’s arguments fell foul of r 4. There were many parts to that argument, and senior counsel at trial was arduous, during breaks in the summing up, to take issue with anything he perceived to be unfair or erroneous.

8. [129]

   The most significant omission I can identify was with respect to the direction concerning evidence about the helmet. It is a pity that point was not drawn to the attention of the trial judge as it was an error that could readily have been remediated. But the error was also significant: of most significance that the applicant should not have been deprived, on appeal, of taking the point.

9. [130]

   In my opinion the applicant has succeeded in establishing that there was unfairness in the manner in which the jury was directed. The appeal must be allowed, the conviction set aside, and a new trial ordered.

10. [131]

    In those circumstances, it is unnecessary to deal with ground 3.

11. [132]

    The orders I propose are:

12. [133]

    FAGAN J: I agree with Simpson AJA’s reasons and with the orders proposed.

13. [134]

    Resolution of appeal grounds 1 and 2 has required the Court to filter out numerous of the applicant’s complaints about the summing up that do not contribute to the success of the grounds. The applicant critiqued more than 20 passages but beyond the small number of matters that Simpson AJA has identified, I do not find fault. The applicant’s submissions about an alleged “cumulative rhetorical effect” of the summing up are also not sustained.

14. [135]

    There have been identified some discrete but important misdirections on the evidence that may have wrongly influenced the jury in assessing whether there was a reasonable hypothesis consistent with innocence. That is where error has been demonstrated. It is a narrow error but, regrettably, it demands a retrial. I do not read the summing up as having a more generalised, pervasive tendency to influence the verdict, in excess of the trial judge’s proper function.

15. [136]

    In support of ground 2, that the jury were misdirected on circumstantial evidence, the applicant’s broad attack included an assertion that the learned trial judge’s general direction on this subject was wrong. I see no error in it. As for the six more specific complaints of misdirection, concerning particular features of the evidence with respect to which the defence submitted to the jury that there was a reasonable hypothesis consistent with innocence, I agree entirely with Simpson AJA’s identification of three of those complaints that have substance and with her Honour’s rejection of the other three.

16. [137]

    As regards the three points that are rejected, I only wish to add the following observations by way of emphasis with respect to one of them; namely, the point concerning the learned trial judge’s direction about the ear plug found on the kerb in front of the house where the deceased was shot. The impugned direction was as follows:

17. [138]

    Defence counsel submitted to the jury that the ear plug was worn by the gunman and was dislodged during his physical conflict with Mr Jankeski snr. As no DNA originating from the applicant was identified on the tape lift from this item, counsel argued that this told against an inference that the applicant was the gunman. This was not an argument by way of possible explanation of circumstances relied upon by the Crown, to reconcile those circumstances to a hypothesis consistent with innocence. The Crown did not to any extent base its case upon evidence concerning the ear plug, nor ask the jury to draw any inference from it. For the jury to conclude, as defence counsel invited, that the ear plug had been worn by the gunman, they would have had to act upon evidence. They were being asked to find affirmatively that this was the shooter’s ear plug.

18. [139]

    I have examined carefully the evidence of Mr Jankeski snr, including a video recording of his walk-through with investigating officers. I have reviewed the photographs and plans of the crime scene and the evidence of those witnesses who saw parts of Mr Janceski’s physical conflict with the gunman. That conflict took place at a considerable distance from where the ear plug was found. Her Honour was justified in saying that there was no evidence that it was dislodged from the gunman’s ear in the struggle. For it to have come from that source it would have to have worked its way out from under the gunman’s balaclava, that had remained in place, and somehow come to rest on the raised kerb, 2½ metres from the nearest point of the fight, which had taken place entirely on the road way.

19. [140]

    Of the three specific complaints about the summing up that, as Simpson AJA has shown, have substance, the most significant to my assessment of the appeal is that concerning [114] of the summing up. I refer to the direction that there was “no evidence” to identify the helmet worn by the shooter as the same helmet as that which was said to have been worn by the applicant on a previous and innocent occasion. I have taken into account the context in which that direction appears, which is the whole of the following passage:

20. [141]

    Simpson AJA has referred to the oral testimony that made it incorrect for the learned trial judge to say, at [114], that there was no evidence to identify the gunman’s helmet with a helmet left in Ferguson’s garage. Dingle said that there was a black full-face helmet with Madden’s R6 motorcycle at Ferguson’s garage and that he thought the helmet found at the scene “is the one”; he was “pretty sure it is the one” and he was “pretty positive that it is”. Ferguson said that the helmet that was “with the bike”, meaning the R6, when Dingle took it had also been “with the bike” when the applicant test rode it and that it had been used by the applicant. He said that it “looked like the same helmet” as was found at the scene.

21. [142]

    For the purposes of the applicant’s defence, the evidence of this prior innocent usage of the helmet was weak. Defects in it included the late emergence of assertions by Dingle and Ferguson that a black helmet had accompanied the R6; differences between the two witnesses regarding details of the sale of the bike and whether any, and if so what, other riding gear was with the helmet; direct contradiction by Madden of the proposition that he had left a helmet with the R6 at Ferguson’s garage and evidence from him of the circumstances of sale of the R6 that contradicted Ferguson and Dingle. There could have been no complaint if her Honour had reminded the jury in neutral terms of the differing accounts given by the three witnesses. Her Honour could properly have instructed the jury that they should consider whether, having regard to that evidence, they considered it a reasonable possibility that a borrowed helmet had been worn by the applicant on a test ride of the R6, as Ferguson described, and had later come into the hands of some other person, to be used in connection with the shooting.

22. [143]

    Her Honour’s incorrect statement of “no evidence” was not neutralised by the last two sentences of [114]. Informing the jury that consideration of this possibility was “a matter for you” was contradicted by her Honour “just pointing out what the evidence tells you”, namely, that identity between the helmet on each of the two occasions was a “foundational assumption” and that there was no evidence to support it.

23. [144]

    At [115], the learned trial judge correctly said that there was no evidence that, during the asserted test ride of the R6, the applicant had worn sunglasses of the kind that were found at the scene of the shooting with the applicant’s DNA on them. The only witness who claimed to have seen the applicant test riding the bike was Ferguson and he did not say that a pair of sunglasses was taken with the bike and worn during the test. The jury could be expected to have found the applicant’s suggested innocent explanation for the DNA on the sunglasses extremely faint in view of there being no evidence from Ferguson to support it. Nevertheless, favourably to the applicant, her Honour left it to the jury to consider whether this was a reasonable possibility: see the first half of [117].

24. [145]

    Were it not for the incorrect direction at [114], that there was no evidence to identify the gunman’s helmet with one that the appellant had borrowed from Ferguson’s garage for a test ride of the R6, perhaps no substantial miscarriage of justice would actually have arisen from the sceptical mode of expression adopted by her Honour in the last two sentences of [114] and, more particularly in the last two sentences of [117]. But taken in conjunction with the erroneous direction about no evidence the learned trial judge’s implicit scepticism may well have been influential.

25. [146]

    All of this occurred within a handful of paragraphs in a long summing up. However, it was important. The evidence of the applicant’s DNA on the inside of the helmet’s chin guard, on the nose guard, on the chin strap and around the base, was a central and very powerful part of the Crown’s circumstantial case. If the jury could be persuaded that this evidence was consistent with a reasonable possibility that the DNA was deposited on an earlier innocent occasion, that may have left them with a reasonable doubt about the applicant’s guilt. Her Honour’s misdirection on this point in particular was material.

26. [147]

    IERACE J: I also agree with Simpson AJA and the orders proposed.