Petryk v R

1. [1]

   THE COURT: Daniel Petryk (the applicant) seeks an extension of time for leave to appeal against his conviction following the return of a guilty verdict by a jury at the conclusion of a trial before Wilson J in Newcastle which took place between 11 September and 23 October 2017.

2. [2]

   The applicant seeks leave to appeal on the following two grounds:

   1. (1)

      The trial judge erred in not allowing the applicant to make closing submissions to the jury on matters which had not been put to a relevant Crown witness; and

   2. (2)

      The trial judge’s summing up to the jury on the nature of the applicant’s case caused a miscarriage of justice.

The applicant’s trial

1. [3]

   Before addressing the grounds of appeal it is necessary to summarise the way in which the trial was conducted to provide the relevant context.

2. [4]

   On 18 September 2017 the applicant and Jesse Nikolovski (the co-accused) were tried on an indictment which charged the following two counts:

3. [5]

   The Crown case was based on the evidence of two witnesses who were criminally involved in the events: Pheobe Bronner, who received indemnity from prosecution, and Jeremy Gorman, who received a reduced sentence for the offence of unlawful possession of unauthorised firearm.

4. [6]

   The Crown case was that the applicant wanted to steal cannabis from Robert Parry (the deceased), whom he had heard sold cannabis. The applicant knew where the deceased lived and that he sometimes left his front door open. The Crown alleged that the applicant, who had borrowed a firearm from Mr Gorman, suggested the robbery to the co-accused and his then girlfriend, Ms Bronner. The Crown case was that in the early hours of 7 March 2015, the applicant, the co-accused and Ms Bronner drove to the deceased’s house in Wickham. On the way, they stopped to collect the firearm from Mr Gorman, from whom the applicant had arranged to borrow it. The Crown alleged that the applicant, the co-accused and Ms Bronner entered the deceased’s house. When the deceased confronted the applicant, the applicant discharged the firearm and shot and killed the deceased. The three then stole the deceased’s cigarettes, a small amount of cannabis and a pipe.

5. [7]

   Ms Bronner gave evidence on 3, 4 and 5 October 2017. In her evidence in chief she said that when she had first been interviewed by police on 5 August 2015, she lied because she was scared and told them that she knew nothing about the events of 7 March 2015 which led to the death of the deceased. Subsequently, on 13 August 2015, the police informed her that her DNA had been located at the deceased’s home. This, together with the suggestion that Ms Bronner and the co-accused were the only two at the scene, prompted her to disclose to the police what had happened, including that the applicant was present. She understood at that time that police believed that the co-accused had pulled the trigger on the firearm and told them that it was not the case and that it was the applicant who had shot the deceased. She admitted in examination in chief that she was in a relationship with the co-accused and denied that she attempted to minimise the role of the co-accused on the basis of their relationship.

6. [8]

   Ms Bronner’s evidence in chief was that the applicant had mentioned that they would go to a house where the door would be left open and that they would take a firearm “to look scary”. She said that the applicant asked the co-accused, in whose car they were travelling to the deceased’s home in Wickham, to pull over on the way to pick up the firearm. He had told them, after there had been an audible bang, that the firearm, which was a single-shot firearm, had only one bullet. Call charge records established that there were several text messages sent between the applicant and Mr Gorman between 8.36pm on 6 March 2015 and 1.11am on 7 March 2015. Further text messages between the two recommenced at 7.30am on 7 March 2015 and continued throughout the day.

7. [9]

   On 5 October 2017, the applicant’s then counsel, Mr Austin, cross-examined Ms Bronner. It was put to her that when the police spoke to her on 13 August 2015, her aim was to ensure that she was not charged as a consequence of her DNA having been located at the deceased’s home. When Mr Austin put to her that she was seeking to distance herself from responsibility by implicating the applicant, she maintained that she was telling the truth. Ms Bronner denied the proposition put to her by Mr Austin that the applicant was not with her and the co-accused the night they went to the deceased’s house. She also denied the further proposition Mr Austin put to her that if there was another person involved in the offence who used the firearm and shot the deceased, it was certainly not the applicant. Ms Bronner also said in cross-examination that when they arrived at Wickham the applicant had passed an axe to her which came from the boot of the co-accused’s car.

8. [10]

   Mr Austin also put to her that she had decided to give evidence which implicated the applicant because she knew that the applicant was going to Queensland, which she denied. Ms Bronner said that the reason the applicant was going to Queensland was because of what had happened at Wickham on 7 March 2015.

9. [11]

   Ms Bronner was then cross-examined by Mr Massey, who appeared for the co-accused. She agreed that the co-accused did not want Mr Gorman’s firearm in his car and that the applicant had assured him that the gun was safe because it was not loaded and he did not have any ammunition. They had previously heard a bang which was assumed to be a single shot going off. She agreed that the applicant had tried to give the co-accused the axe from his bag in the boot but that the co-accused had refused to take it and that she had said that she would take it. Ms Bronner also accepted that the co-accused was not armed at all when they went to the deceased’s home. Ms Bronner said that the co-accused had been reluctant to go in, although the applicant wanted him to, and that the co-accused had only gone in because she had gone in with the applicant. Ms Bronner denied the suggestion by Mr Massey that there were only two people present in the deceased’s house that night, apart from the deceased: herself and the applicant. She maintained that she was there with both the applicant and the co-accused. She denied the suggestion that she had only said that the co-accused was there because she did not want to be charged herself.

10. [12]

    When the court resumed on Friday 6 October 2017, Mr Massey foreshadowed that he would be making a no case submission at the close of the Crown case in respect of count 1. The Crown ultimately accepted that there ought be a directed verdict of acquittal for the co-accused in respect of count 1.

11. [13]

    On Monday 9 October 2017, the Crown closed its case. Her Honour decided to direct a verdict of acquittal in respect of the co-accused in respect of count 1: R v Nikolovski (No 2) [2017] NSWSC 1451. When Mr Austin informed the applicant of the effect of the directed verdict, the applicant apparently raised other matters with Mr Austin which made it impossible for Mr Austin and his solicitor to continue to represent the applicant in the proceedings. Mr Austin indicated that he would attempt to locate another barrister who could step into the matter on behalf of the applicant. As a consequence, the trial judge brought the jury back and directed them to return the not guilty verdict in respect of the co-accused for count 1. After her Honour had taken the directed verdict, she informed the jury that they would not be required until Wednesday 11 October 2017.

12. [14]

    On Tuesday 10 October 2017, the Court resumed with only the co-accused appearing by his counsel Mr Massey. The trial judge was told that the co-accused would enter a plea to the second count. Her Honour decided that, as a matter of fairness to the applicant, the plea ought be entered in the absence of the jury. Her Honour gave ex tempore reasons for the decision on 10 October 2017. Her Honour said, of present relevance:

13. [15]

    When the matter resumed on Wednesday 11 October 2017, the Court was told that representation was available for the applicant but that his new legal representatives would not be ready to continue until Monday 16 October 2017. Her Honour took the plea to count 2 from the co-accused in the absence of the jury. On Thursday 12 October 2017, her Honour discharged the jury in relation to the trial of the co-accused and informed the jury that the trial against the applicant would be likely to continue on Monday 16 October 2017.

14. [16]

    On Monday 16 October 2017, Mr Webb appeared for the applicant. He informed the trial judge that there had been “a specific change of instructions in respect of one important witness”. He indicated that he was having discussions with the Crown about whether prosecution witnesses would be recalled. The matter was adjourned for a short period for Mr Webb to obtain instructions. Her Honour, after further discussion, adjourned the matter until midday on Tuesday 17 October 2017. Further material, including a summary of evidence prepared in her Honour’s chambers, was provided by the Court to counsel to assist Mr Webb in his preparation.

15. [17]

    At noon on Tuesday 17 October 2017, Mr Webb applied for a further adjournment until the following day on the basis of the applicant’s illness, which was granted. When the matter resumed on Wednesday 18 October 2017, Mr Webb informed the Court that there would not be a defence case. When the jury returned to the courtroom, her Honour identified the exhibits which no longer formed part of the trial and asked the jurors to remove them from their folders. The Crown’s address began and was completed before the luncheon adjournment.

16. [18]

    In the defence closing address, Mr Webb emphasised the importance of Ms Bronner’s evidence. He reminded the jury that, at the commencement of the trial, the Crown case had been that the co-accused was guilty of both counts. He said, of the co-accused:

17. [19]

    In the absence of the jury, her Honour said to Mr Webb:

18. [20]

    Mr Webb resumed his closing address which concluded before 4pm.

19. [21]

    Her Honour began the summing up on 18 October 2017. After the jury left for the day, her Honour raised with Mr Webb his insinuation to the jury that everyone but the applicant had got off scot-free: the co-accused because he was no longer in the trial (which would have been misleading as he had pleaded guilty to the second count although the jury was unaware that this was the reason); and Ms Bronner because she had been given an indemnity against prosecution. There was discussion about what ought be done to correct this impression.

20. [22]

    On 19 October 2017, her Honour resumed the summing up. In the course of outlining the Crown case, her Honour said:

21. [23]

    Her Honour said further of the applicant’s case:

22. [24]

    Her Honour warned the jury about the potential unreliability of a person such as Ms Bronner who had been given indemnity by the prosecution. Her Honour also said:

23. [25]

    Her Honour said, of the applicant’s case with respect to Mr Gorman’s evidence:

24. [26]

    Her Honour told the jury that she would briefly touch on the addresses of counsel as they only heard them the day before. Her Honour, when summarising the defence case, referred to the importance of Ms Bronner and the challenge that had been made to her credibility, in part because she had been given an indemnity. Her Honour reminded the jury not to speculate about why the co-accused was no longer in the trial and informed the jury that it “was not Mr Webb’s intention to suggest to you that [the co-accused] has walked away”.

25. [27]

    Her Honour also said:

26. [28]

    No objection was taken by Mr Webb to her Honour’s summing up.

Ground 1: alleged error in not allowing defence counsel to put certain matters in closing address

1. [29]

   Mr Ramrakha, who appeared on behalf of the applicant, submitted that the effect of what her Honour said to Mr Webb in the absence of the jury during his closing address was to prevent him from putting to the jury a viable alternative hypothesis consistent with innocence. He submitted that, although the applicant’s case had been conducted by Mr Austin on the footing that the applicant was not present at the deceased’s home at Wickham when the shooting occurred (the absence hypothesis), the applicant was entitled to have put a further hypothesis: that he was present when the shooting occurred but had not been the shooter (the non-shooting hypothesis). Mr Ramrakha contended that her Honour was not entitled to prevent Mr Webb from putting the non-shooting hypothesis to the jury. He submitted that her Honour ought not to have stopped Mr Webb from putting to the jury that, because of Ms Bronner’s prior relationship with the co-accused, she had exaggerated the applicant’s role and diminished the co-accused’s role.

2. [30]

   Mr Ramrakha cited authorities to the effect that the rule in Browne v Dunn (1893) 6 R 67 (that a party is not entitled to put a submission where the party has not put the matter to a relevant witness to give the witness an opportunity to provide an answer) does not apply strictly in criminal proceedings.

3. [31]

   The difficulty with this submission is that, before her Honour made the remarks set out above, Mr Webb had already made submissions about that very matter to the jury in the passage highlighted above. The jury would have understood that section of the closing to be a reference to the hypothesis that Ms Bronner had given evidence which exonerated the co-accused from the murder charge and implicated the applicant. The submission carried with it an implication that the applicant was actually there at the deceased’s home at Wickham but had not been the shooter.

4. [32]

   In effect, her Honour raised the issue because of a concern that Mr Webb would develop the submission in such a way as to put a positive proposition for which there was no evidence, as distinct from raising a possibility which had not been excluded by the Crown, as he had done in the first segment of his closing. Although her Honour’s remarks were couched in terms of the matters not put to Ms Bronner, this did not amount to a strict enforcement of the rule in Browne v Dunn. Rather, her Honour was concerned that there was no evidence that Ms Bronner had been influenced by her relationship with the co-accused. Had it been put to Ms Bronner, her answer might have constituted evidence sufficient to put the positive proposition. However, as it was not, the highest it could be put was as a hypothetical possibility, which is how it was put at the beginning of the defence opening. In any event, as set out above, the Crown had elicited evidence from Ms Bronner in her evidence in chief to exclude the hypothesis that her relationship with the co-accused had inclined her to give evidence favourable to him.

5. [33]

   The outline of the relevant events in the trial demonstrates the context in which her Honour’s remarks appeared. Mr Webb was not appointed trial counsel for the applicant until after the close of the Crown case. He had been given the opportunity to have any prosecution witness recalled in order to put matters to him or her. Ms Bronner was plainly a witness who must have been considered as a candidate for being recalled. Mr Webb can be taken to have decided, for good forensic reasons, not to recall Ms Bronner. To put again to Ms Bronner that the applicant was not there and then put, in the alternative, that if he was, he was not the shooter would hardly have engendered confidence in the applicant’s primary case. Although there are occasions when counsel might decide to engage in such an exercise, it is understandable that Mr Webb decided not to in the present case. This was an objectively reasonable forensic decision by which the applicant is bound: R v Birks (1990) 19 NSWLR 677 at 685 (Gleeson CJ).

6. [34]

   In the defence closing address, her Honour was entitled to make Mr Webb aware of the way in which the trial on behalf of the applicant had been conducted, in case his trial preparation had left him in any doubt about it. In the passage extracted above, Mr Webb did not maintain his initial objection to what her Honour was putting and appeared to accept its correctness. In particular, he did not maintain that it was necessary for him to put the non-shooting hypothesis to the jury in his closing address as a non-fanciful hypothesis which had to be excluded by the Crown in order to raise it as a viable hypothesis which ought to be included in the summing up. He can be taken to have chosen to accept the force of her Honour’s observations and leave the point as he had put it before her Honour made the remarks. Mr Webb is an experienced criminal trial counsel. No allegation was made on behalf of the applicant that he was incompetent.

7. [35]

   We are not persuaded that in the interchange with Mr Webb set out above, her Honour was in error. The relevant principle, which her Honour sought to enforce, was that counsel is not entitled to put as a positive proposition any matter for which there was neither evidence nor grounding in the cross-examination. This did not amount to an inappropriate adherence to Browne v Dunn. Rather, it constituted an appropriate control on counsel by the trial judge who might otherwise have been obliged to remind the jury that there was no evidence of the proposition put by Mr Webb in closing address and that Mr Austin had not put the proposition to Ms Bronner in cross-examination.

8. [36]

   In these circumstances it is not necessary to address the effect of Browne v Dunn in criminal cases. It is sufficient to observe that it has been authoritatively held that the rule is to be applied in criminal cases with due regard to the nature and course of the proceedings: MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 (MJW) at [18] (Gleeson CJ and Heydon J). Trial judges are generally to abstain from making adverse comments about parties and witnesses where the rule has not been complied with: MJW at [39] (Gummow, Kirby and Callinan JJ). It is not for the defence to clear up inconsistencies in the prosecution case by cross-examining prosecution witnesses about such inconsistencies: MJW at [41].

Ground 2: alleged miscarriage of justice arising from the summing up

1. [37]

   Mr Ramrakha contended that ground 2 was related to ground 1. He submitted that the trial judge’s prohibition on Mr Webb putting the non-shooting hypothesis as a positive proposition had the effect that her Honour failed to put to the jury in the summing up that hypothesis as a viable hypothesis consistent with innocence which had to be excluded by the Crown beyond reasonable doubt. He submitted that her Honour limited the applicant’s case to the absence hypothesis and that there was, accordingly, a miscarriage of justice because her Honour failed to put the applicant’s case accurately and fairly to the jury.

2. [38]

   Mr Ramrakha submitted that, by the time her Honour delivered the summing up, it ought to have been evident to her Honour (including from the exchange with Mr Webb set out above) that the applicant had changed his mind about how he wanted his case to be put. Although his primary case remained that he was not present at the deceased’s home when the deceased was shot, the applicant wanted the jury to consider his alternative case based on the non-shooting hypothesis. He contended that the jury was likely to have been confused by what her Honour said about needing to consider the propositions put at trial in the context of cross-examining witnesses. He also contended that her Honour invited the jury to consider a case which the applicant had abandoned (that Ms Bronner and Mr Gorman had been the robbers). He submitted that her Honour highlighted the change to the jury and thereby created a risk of unfair prejudice to the applicant.

3. [39]

   Mr Ramrakha contended that her Honour’s omission to put the hypothesis that the co-accused was the shooter was erroneous and caused the applicant to lose a realistic chance of acquittal. He submitted that her Honour’s reference to the possibility that Mr Gorman was the shooter neutered Mr Webb’s submissions about the role of the co-accused and the importance of Ms Bronner’s attachment to the co-accused which may have led her to attribute the acts of the co-accused to the applicant. Mr Ramrakha relied on Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 (Barca) in which a conviction was quashed because the hypothesis that the appellant’s father had committed the murder, for which there was some support in the evidence, had not been left to the jury.

4. [40]

   Mr Ramrakha said that although Mr Webb had not complained about the summing up, this might have reflected his acceptance that any redirection would have simply highlighted the inconsistency for the jury.

5. [41]

   The first point is that the applicant maintained his primary case throughout: that he was not present when the deceased was shot. This was made clear by Mr Webb in his closing address to the jury and also in his exchanges with her Honour in the absence of the jury. Further, although Mr Webb told her Honour that he did not intend to make a “direct submission” that Ms Bronner and Mr Gorman were the robbers, this does not amount to an abandonment of that hypothesis. The submission that her Honour invited the jury to consider a case which had been abandoned must be rejected.

6. [42]

   Trial judges have a duty when summing up to summarise the respective cases of the parties fairly and in a way that does not cause undue prejudice to the accused: Domican v The Queen (1992) 173 CLR 555 at 561 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1992] HCA 13. In Cleland v The Queen (1982) 151 CLR 1 at 10; [1982] HCA 67, Gibbs CJ described the duty as requiring the trial judge to “hold an even balance between the cases of the prosecution and the accused.” A trial judge is entitled, and may in some circumstances be obliged, to comment if fairness requires the correction of an incorrect impression given to the jury. In McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, the majority (Bell, Keane, Gordon and Edelman JJ) said at [54]:

7. [43]

   The passages extracted above from the summing up are sufficient to indicate that the jury was told that the applicant’s case was that he had no involvement in the killing of the deceased; he was not the shooter and may not even have been there. Her Honour reminded the jury that it had been suggested in cross-examination that Ms Bronner and Mr Gorman were the robbers who had come to the deceased’s house and that it had also been suggested to Ms Bronner that the applicant had not been involved at all. Given that the summing up took place on 18 and 19 October 2017 and that both addresses had been given on 18 October 2017, her Honour was entitled to summarise the cases relatively briefly. Further, it was open to her Honour not to highlight the inconsistency between the applicant’s primary case and his alternative case. Indeed, it would have been difficult to do so without casting aspersions on the applicant’s case. It was sufficient in this respect for her Honour to refer in relatively broad terms to Mr Webb’s address, which would have been fresh in the jury’s memory.

8. [44]

   The present case is to be distinguished from Barca where the trial judge, erroneously, directed the jury that there was no evidence that the appellant’s father had committed the murder (this being one of the hypotheses consistent with innocence on which the appellant relied). The majority (Gibbs, Stephen and Mason JJ) said at 105:

9. [45]

   In Barca, there was evidence to implicate the appellant’s father which meant that the hypothesis that it was the appellant’s father, and not the appellant, who killed the deceased had to be specifically left to the jury and the evidence for that hypothesis summarised. In the present case, there was evidence that Ms Bronner and the co-accused had been in an intimate relationship. This was the only basis for the suggestion that Ms Bronner had falsely attributed the shooting to the applicant when the shooter was, on the applicant’s case, the co-accused. In these circumstances it was sufficient for her Honour to direct the jury that they had to be satisfied, for count 1, that the applicant was the shooter. Moreover, for her Honour to emphasise the non-shooter hypothesis in the summing up ran the risk of undermining the applicant’s primary case that he was not there. These matters are plainly matters for the judgment of the trial judge in the context of the trial.

10. [46]

    It is significant that Mr Webb did not request any alteration to be made or redirection given in the summing up. He can be taken to have been acutely aware of the difficulties occasioned by the applicant’s change in instructions which led to Mr Austin’s withdrawal and his own retainer late in the trial. Accordingly, Mr Webb must have been particularly conscious of the way her Honour dealt with the issue in the summing up. That he sought no further comment or direction is a powerful indication that he did not consider there to be any unfairness to the applicant which could be remedied by her Honour in the summing up: R v Saffron (1988) 17 NSWLR 395 at 434 (Hope JA, Clarke JA agreeing).

Leave to appeal out of time, leave under s 5 of the Criminal Appeal Act and leave under rule 4 of the Criminal Appeal Rules

1. [47]

   The delay in filing the notice of appeal has been explained and was occasioned by an administrative error at the Legal Aid Commission. In these circumstances time ought be extended pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) for the filing of the notice of appeal.

2. [48]

   The applicant contended that ground 1 did not require leave since it involves a question of law alone. We do not accept this characterisation. The test was authoritatively stated by Gibbs CJ in Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88:

3. [49]

   In substance, the applicant’s argument on ground 1 was that her Honour failed to apply the correct principles and erroneously limited defence counsel’s address. The distinction between a ground that involves a mixed question of fact and law on the one hand and a ground that involves a question of law alone on the other was considered by this Court in R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199. Spigelman CJ (McClellan CJ at CL and R A Hulme J agreeing) said at [26]:

4. [50]

   Accordingly, ground 1 requires leave under s 5(1)(b) of the Criminal Appeal Act. We are disposed to grant leave, having regard to the importance of the principles set out above, but dismiss the appeal.

5. [51]

   It was accepted by Mr Ramrakha that ground 2 required leave under rule 4 of the Criminal Appeal Rules and also under s 5(1)(b) of the Criminal Appeal Act. We are not disposed to grant leave under rule 4. For the reasons we have given above, we do not consider that the alleged omission by the trial judge should be allowed as a ground of appeal, having regard to the circumstance that no complaint was made about the summing up by Mr Webb at trial.

Orders

1. [52]

   For the reasons given above, the Court makes the following orders:

   1. (1)

      Extend the time for filing the notice of appeal/notice of application for leave to appeal to 9 March 2020.

   2. (2)

      Grant leave to appeal with respect to ground 1.

   3. (3)

      Refuse leave under rule 4 of the Criminal Appeal Rules with respect to ground 2.

   4. (4)

      Dismiss the appeal on ground 1.