Abbosh v The Queen; Bene v The Queen - [2011] NSWCCA 265

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Abbosh v R; Bene v R [2011] NSWCCA 265
Hearing dates: 16 September 2011 (written submissions closed 30 September 2011)
Decision date: 09 December 2011
Before: Bathurst CJ at 1
James J at 6
Johnson J at 7
Decision:
With respect to the Appellant Abbosh:
1. Appeal against convictions allowed.
2. Convictions and sentences on Counts 2 and 5 are quashed.
3. A new trial is ordered on Counts 2 and 5.
With respect to the Appellant Bene:
1. Appeal against convictions allowed.
2. Convictions and sentences on Counts 2 and 5 are quashed.
3. A verdict of acquittal is entered on Count 5.
4. A new trial is ordered on Count 2.

Catchwords: CRIMINAL LAW - conviction appeals - Appellants convicted of two counts of malicious wounding with intent to do grievous bodily harm - Abbosh wounds two persons - claim of self-defence - case against Bene based upon joint criminal enterprise and extended joint criminal enterprise - erroneous failure to exclude prejudicial evidence under s.137 Evidence Act 1995 - misleading directions concerning extended joint criminal enterprise - trial Judge adds unwarranted postscripts on directions concerning good character, right to silence and self-defence - no miscarriage of justice arising from these postscripts - whether verdicts unreasonable or cannot be supported by evidence - conviction of Bene on one count unreasonable - verdict of acquittal on that count - new trials ordered for Bene on remaining count and Abbosh on both counts
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Criminal Appeal Act 1912
Criminal Appeal Rules
Cases Cited: R v Salah Bene and Calvin Abbosh [2010] NSWDC 218
R v Clough (1992) 28 NSWLR 396
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
R v Lisoff [1999] NSWCCA 364
R v GK [2001] NSWCCA 413; 53 NSWLR 317
R v O'Donoghue (1998) 34 A Crim R 397
House v The King [1936] HCA 40; 55 CLR 499
Cornwell v The Queen [2007] HCA 12; 231 CLR 260
R v Thompson [2002] NSWCCA 149; 130 A Crim R 24
FB v R [2011] NSWCCA 217
R v Trimboli (1979) 1 A Crim R 73
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
Gillard v The Queen [2003] HCA 64; 219 CLR 1
RWB v R [2010] NSWCCA 147; 202 A Crim R 209
Colosimo v Director of Public Prosecutions [2006] NSWCA 293
R v Clough (1992) 28 NSWLR 396
Raumakita v R [2011] NSWCCA 126
R v Dang [2001] NSWCCA 321
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
Texts Cited: NSW Law Reform Commission, Report 129, "Complicity", December 2010
Category: Principal judgment
Parties: Calvin Abbosh (Appellant)
Saleh Bene (Appellant)
Regina (Respondent)
Representation: Mr SJ Odgers SC (Appellant Abbosh)
Mr TA Game SC; Mr D Barrow (Appellant Bene)
Mr JH Pickering (Respondent)
Sid Hawach & Co (Appellant Abbosh)
John B Hajje & Associates (Appellant Bene)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/6185 (Abbosh) 2009/6186 (Bene)
Publication restriction: ---
Decision under appeal

Citation:

R v Salah Bene and Calvin Abbosh [2010] NSWDC 218

Before:

His Honour Judge Finnane QC

File Number(s):

2009/6185 (Abbosh)
2009/6186 (Bene)

Judgment

BATHURST CJ: I agree with Johnson J. I would only add the following in relation to Ground 5.

Contrary to what was said by the learned trial Judge, it seems to me that in the context of the present case and the charges proffered against each of the Appellants, there is a very significant difference between the evidence of Mr Qummou to the effect that the Appellant, Bene, had said, "I'll fuck youse all up" and the recollection of Mr Hens that Mr Qummou had said that Mr Bene's statement was, "I'll cut youse all up".

In the present case, in permitting the hearsay evidence of Mr Hens to be led, there was, in my opinion, a real danger of unfair prejudice to the Appellants. The evidence of Mr Hens converted what might be described as the general threat deposed to by Mr Qummou to a specific threat which, as Johnson J pointed out, would directly impact on what was in the minds of the Appellants when Mr Abbosh arrived with a knife which was used to "cut" two members of the Qummou family.

The danger of unfair prejudice to the Appellants in those circumstances outweighed the probative value. As the Appellants submitted, that prejudice could have been overcome by the Crown leading evidence from Mr Hens that complaint had been made to him of a threat without the use of the word "cut".

For these additional reasons and the reasons given by Johnson J, I agree with the orders proposed by him.

JAMES J: I agree with the judgment of Johnson J and with the further remarks of the Chief Justice.

JOHNSON J: The Appellants, Calvin Abbosh and Saleh Bene, appeal against conviction and sentence, following a joint trial in the Sydney District Court before his Honour Judge Finnane QC and a jury in 2010.

The Verdicts and Sentences

Each of the Appellants stood trial between 22 March 2010 and 14 April 2010, on which date the jury returned the following verdicts:

Charge

Abbosh Verdict

Bene Verdict

Count 1 - On 3 February 2007 at Fairfield, wounding Ayed Qummou with intent to murder Ayed Qummou (s.27 Crimes Act 1900)

Not Guilty

Not Guilty

In the alternative to Count 1: Count 2 - On 3 February 2007 at Fairfield, maliciously wounding Ayed Qummou with intent to do grievous bodily harm to Ayed Qummou (s.33(1)(a) Crimes Act 1900)

Guilty

Guilty

In the alternative to Count 2: Count 3 - On 3 February 2007 at Fairfield, maliciously wounding Ayed Qummou (s.35 Crimes Act 1900)

No verdict taken given guilty verdict on Count 2

No verdict taken given guilty verdict on Count 2

Count 4 - On 3 February 2007 at Fairfield, wounding Isam Qummou with intent to murder Isam Qummou (s.27 Crimes Act 1900)

Not Guilty

Not Guilty

In the alternative to Count 4: Count 5 - On 3 February 2007 at Fairfield, maliciously wounding Isam Qummou with intent to do grievous bodily harm to Isam Qummou (s.33(1)(a) Crimes Act 1900)

Guilty

Guilty

In the alternative to Count 5: Count 6 - On 3 February 2007 at Fairfield, maliciously wounding Isam Qummou (s.35 Crimes Act 1900)

No verdict taken given guilty verdict on Count 5

No verdict taken given guilty verdict on Count 5

On 1 October 2010, his Honour Judge Finnane QC sentenced each of the Appellants: R v Salah Bene and Calvin Abbosh [2010] NSWDC 218.

Each of the Appellants Abbosh and Bene were sentenced for two counts of wounding with intent to cause grievous bodily harm under s.33(1)(a) Crimes Act 1900, an offence punishable by imprisonment for 25 years with a standard non-parole period of seven years.

The Appellant Abbosh was sentenced as follows:

(a) Count 2 (maliciously wound Ayed Qummou with intent to do grievous bodily harm) - imprisonment comprising a non-parole period of eight years commencing on 1 September 2009 and expiring on 31 August 2017, with a balance of term of eight years commencing on 1 September 2017 and expiring on 31 August 2025;

(b) Count 5 (maliciously wound Isam Qummou with intent to do grievous bodily harm) - imprisonment comprising a non-parole period of five years commencing on 1 September 2013 and expiring on 31 August 2018, with a balance of term of five years commencing on 1 September 2018 and expiring on 31 August 2023.

The total effective sentence for the Appellant Abbosh comprised a non-parole period of nine years with a balance of term of seven years.

The Appellant Bene was sentenced as follows:

(a) Count 2 (maliciously wound Ayed Qummou with intent to do grievous bodily harm) - imprisonment comprising a non-parole period of eight years commencing on 12 April 2010 and expiring on 11 April 2018, with a balance of term of eight years commencing on 12 April 2018 and expiring on 11 April 2026;

(b) Count 5 (maliciously wound Isam Qummou with intent to do grievous bodily harm) - imprisonment comprising a non-parole period of five years commencing on 12 April 2014 and expiring on 11 April 2019, with a balance of term of five years commencing on 12 April 2019 and expiring on 11 April 2024.

The total effective sentence for the Appellant Bene comprised a non-parole period of nine years with a balance of term of seven years.

Grounds of Appeal

The Appellant Abbosh relies upon the following revised grounds of appeal (filed 22 September 2011):

Abbosh Conviction Grounds

(a) Ground 1 - abandoned.

(b) Ground 2 - a miscarriage of justice was occasioned by reason of the learned trial Judge cross-examining the solicitor for the Appellant before the jury.

(d) Ground 4 - abandoned.

(e) Ground 5 - abandoned.

(f) Ground 5(a) - his Honour's decision to allow evidence of recent complaint by Fayez Qummou to Robert Hens occasioned a miscarriage of justice.

(g) Ground 6 - the trial Judge erred in relation to the directions he gave to the jury concerning joint criminal enterprise and common purpose.

(h) Ground 7 - even if the Court was not persuaded to intervene in respect to any of the grounds referred to above, it is submitted that the conviction should nevertheless be quashed on the basis that it is unsafe and unsatisfactory in the sense referred to by this Court in R v Clough (1992) 28 NSWLR 396 by reason of the accumulation of matters catalogued in the earlier grounds.

(i) Ground 7(a) - the trial Judge erred in respect of the directions to the jury regarding the defence of self-defence.

Abbosh Sentence Grounds

(j) Ground 8 - the sentencing Judge erred in finding the Appellant's level of participation in the criminal enterprise and the seriousness of the assault put his level of offending at the higher than the middle of the scale.

(k) Ground 9 - the sentences in all of the circumstances were manifestly excessive.

(l) Ground 10 - abandoned.

(m) Ground 11 - the sentencing Judge erred in sentencing the Appellant on the basis that he came to the Markets with the intention of stabbing Ayed Qummou.

The Appellant Bene relies upon the following amended grounds of appeal (filed 22 September 2011):

Bene Conviction Grounds

(a) Ground 1 - his Honour's directions on joint criminal enterprise and extended joint criminal enterprise were erroneous and gave rise to a miscarriage of justice.

(b) Ground 2(a) - the conviction of the Appellant on Count 2 is unreasonable and cannot be supported by the evidence.

(d) Ground 3 - his Honour's persistent intervention in the cross-examination of and his comments regarding the evidence of Dennis Miralis gave rise to a miscarriage of justice.

(e) Ground 4 - his Honour's direction as to good character was inadequate.

(f) Ground 5 - his Honour's decision to allow evidence of recent complaint by Fayez Qummou to Robert Hens occasioned a miscarriage of justice.

(g) Ground 6 - his Honour's directions as to the silence of the Appellant occasioned a miscarriage of justice.

(h) Ground 7 - his Honour's directions as to the order in which the jury should consider the various counts on the indictment were erroneous - the jury should have been directed that it could consider its verdict in any order.

(i) Ground 7(a) - the trial Judge erred in respect of the directions to the jury regarding the defence of self-defence.

Bene Sentence Grounds

(j) Ground 8 - his Honour erred in concluding that the Appellant was in possession of a knife.

(k) Ground 9 - his Honour erred in his application of s.54B Crimes (Sentencing Procedure) Act 1999 to the sentencing of the Appellant.

(l) Ground 10 - his Honour erred in finding that the offences against Ayed Qummou "are more serious than mid range offences and warrant a larger non-parole period than seven years".

(m) Ground 11 - the sentence imposed upon the Appellant leaves him with a justifiable sense of grievance when compared with the sentence imposed upon the Appellant Abbosh.

(n) Ground 12 - the sentences are manifestly excessive.

Overview of the Crown Case

As at February 2007, brothers Ayed and Isam Qummou owned and operated a family business known as "First Class Kebabs". The business involved three food stalls at the Fairfield Showground Markets ("the Markets") - a coffee cart, an icecream stall and a kebab stall. Their father, Fayez, their mother, Khawla, and their sister, Christine, as well as a family friend, Narmella Dicho, all helped to operate the stalls.

The Qummou brothers also rented space in an area between the icecream stall and the kebab stall where they placed a number of tables and chairs for use by their customers. There were signs on each table which read "First Class Kebab customers only".

Fayez Qummou, the father of the two victims, was working on 3 February 2007. At about lunchtime that day, he asked two men (the Appellant Bene and Danny Sulaqa) not to sit at the tables provided for their customers, as they were consuming food purchased from another food outlet.

The Appellant Bene responded aggressively. Ayed Qummou intervened and asked both men to leave. The Appellant Bene threw $20.00 at him. There was a commotion. The Appellant Bene said: "I'm gunna fuck youse all up".

The Appellant Bene then called his brother, the Appellant Abbosh, on his mobile phone. He said to him, "Sabar, come to Fairfield markets to First Class Kebabs". The call was made at 12.34 pm.

Robert Hens, the Operations Manager at the Markets, received a call at 12.36 pm about the incident. He went with Nathan Laing, a Security Officer, and spoke with Fayez Qummou and Ayed Qummou.

Mr Hens arranged for the security guard to remain at the stall for about 10 minutes.

The Appellant Abbosh was driving in his wife's BMW at the time of the call from the Appellant Bene. Telephone records revealed that he telephoned Daniel Malik (a friend) at 12.39 pm, 12.43 pm and 12.45 pm. Mr Malik drove his sister's RAV 4 to the Markets as well.

At 12.48 pm, the Appellant Abbosh called the Appellant Bene. The two met at the Markets. The Appellant Abbosh then headed towards "First Class Kebabs", looking for Ayed Qummou. He encountered Fayez Qummou and pushed him. Fayez Qummou observed the Appellant Bene, Mr Sulaqa and perhaps two other men. The Appellant Abbosh saw Ayed Qummou, and then pulled out a knife and said, "I'm going to kill you". He then stabbed Ayed Qummou three times.

Isam Qummou tried to get the Appellant Abbosh off his brother. As a result, Isam was stabbed to the head and three times to the back.

Ayed Qummou also felt a thump to his back and felt pain. He turned and saw the Appellant Bene with a knife.

Later, the Appellants Abbosh and Bene got into a BMW vehicle and left. A bystander took the registration number and provided it to security.

At the time of the incident, the Appellant Bene was said to be wearing a red shirt with stripes. He was described as overweight and aged between 30 and 40. The Appellant Abbosh was younger, slim and wearing a light top.

Ayed Qummou suffered stab wounds to the "upper left quadrant; upper left flank on the abdomen", a further two wounds to his back and a minor cut to his right forearm.

Isam Qummou suffered three stab wounds to the back near his neck and a cut to his right temple.

The Appellant Abbosh was arrested on 5 February 2008. He told police that he had been in Canberra on 3 February 2007. The Appellant Bene was arrested on 14 October 2008. He declined to be interviewed.

The Crown case against the Appellant Bene was based upon joint criminal enterprise.

Overview of the Case for the Appellant Abbosh

The Appellant Abbosh gave evidence at the trial.

He admitted that he attended the Markets on 3 February 2007 in response to a telephone call from his brother. He said that his brother sounded scared and he wanted to assist him. He said that, upon arrival at the Markets, he parked his vehicle and made a call to the Appellant Bene to find out where he was. His brother told him where the table incident had occurred and the Appellant Abbosh went to that location. He admitted that he was very angry when he spoke to Fayez Qummou.

The Appellant Abbosh said that Ayed Qummou jumped on him and punched him. He said that he and Ayed Qummou were hitting each other and then he was kicked and punched as well.

The Appellant Abbosh said that he looked around for anything that he could hold and saw a knife on the ground which he picked up. He said that he punched Ayed Qummou whilst holding the knife. He said that Isam Qummou approached and grabbed him around the neck and the Appellant Abbosh then used the knife on Isam Qummou.

The Appellant Abbosh denied that he had brought a knife to the Markets.

He said that after the fight with Isam Qummou, he got up and ran, still holding the knife in his hand. He rang his friend, Daniel Malik, asking him to pick him up. When Mr Malik arrived, the Appellant Bene was already in the car and the Appellant Abbosh jumped in as well. Mr Malik took the Appellant Abbosh straight home.

The Appellant Abbosh said that he broke the knife in half and threw it in a drain in his street that night.

The Appellant Abbosh admitted that he had told lies to the police when he claimed that he had been working in Canberra on 3 February 2007. He lied as well when he said that his wife had gone shopping and driven the black BMW vehicle to the Markets. He was also lying when he said that he did not know Mr Malik and when he said that he did not know anyone with a black RAV 4 vehicle.

In short, the case for the Appellant Abbosh was that he wounded Ayed and Isam Qummou in the course of acting in self-defence.

Overview of the Case for the Appellant Bene

The Appellant Bene did not give evidence at the trial.

His solicitor, Mr Dennis Miralis, gave evidence in the defence case. His evidence was confined to the circumstances in which the Appellant Bene attended the Fairfield Police Station on 14 October 2008, at which time he declined to be interviewed and was charged.

Mr Miralis was asked questions by the trial Judge in the presence of the jury, with those events giving rise to grounds of appeal (Bene Conviction Ground 3 and Abbosh Conviction Ground 2). Reference will be made to that evidence in the course of considering those grounds of appeal.

Grounds of Appeal Against Conviction

Each Appellant relied upon several grounds of appeal against conviction. Some grounds of appeal are common to each Appellant.

Several grounds require leave under Rule 4 Criminal Appeal Rules. With respect to those grounds, it is for the particular Appellant to demonstrate that the ground is arguable and that a miscarriage of justice has resulted so that leave should be granted to rely upon the ground: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 319 [72]; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at 352-353 [20]-[24].

The Trial Judge's Decision to Allow Evidence of Recent Complaint by Fayez Qummou to Robert Hens Occasioned a Miscarriage of Justice (Abbosh Conviction Ground 5(a); Bene Conviction Ground 5)

As mentioned above (at [22]), Robert Hens, the Operations Manager at the Markets attended the scene of the initial incident and spoke with Fayez Qummou and Ayed Qummou. Mr Hens said that Fayez Qummou told him what had happened. Unlike the actual evidence from Fayez Qummou to the effect that the Appellant Bene had said "I'll fuck youse all up", Mr Hens recalled that what Fayez Qummou had told him was that the man in the red shirt (the Appellant Bene) had said "I'll cut youse all up".

Before Mr Hens was called to give evidence, objection was taken to his giving evidence of Fayez Qummou's complaint.

The initial objection taken to this evidence from Mr Hens was that the proposed evidence did not fall within the scope of s.66 Evidence Act 1995. His Honour rejected that argument, however, a second argument was raised, seeking the exclusion of the evidence under s.137 Evidence Act 1995.

The submission was made by trial counsel for each of the Appellants that Mr Hens should not be allowed to give evidence that the words "I'll cut youse all up" had been spoken, given that Fayez Qummou himself had not asserted that the word "cut" had been used. It was submitted that there was real prejudice in Mr Hens giving evidence to this effect, which was not consistent with the account of Fayez Qummou.

It was submitted that there was particular prejudice against each Appellant, given that the Crown case was that the Appellant Abbosh attended the Markets armed with the knife and inflicted knife wounds to the victims. In circumstances where Fayez Qummou had not asserted that the Appellant Bene had used these words, it was submitted that the evidence ought not be allowed as the prejudicial effect of it would heavily outweigh any probative value which attached to it.

The trial Judge rejected this submission and allowed the evidence to be given. In the course of a judgment delivered on 24 March 2010, his Honour said (pages 5-6):

"Mr McGrath [counsel for Abbosh], supported by Mr Crawford-Fish [counsel for Bene], has put a further submission and that is according to Mr Hens' statement, the last words uttered to him that what the two men were going to do was uttered in these words. They said they were going to come back and 'cut me up'. During the trial Mr Fayez Qummou said the words were, 'They are going to come back and fuck me up'.

The evidence then was that Mr McGrath's client did come back and ... [not transcribable] ... said he fucked him up, and certainly, on the evidence so far, 'cut him up'. It has been argued that this creates some prejudice under s 137, which is an unfair type. I am unable to see that that is so. It is possible Mr Hens misunderstood 'cut me up' when what was said was, 'fuck me up'. In truth there is no great substantial difference between them in this case, since what occurred, if it occurred, was that Mr McGrath's client came back and in fact, cut him up, cut up Mr Ayed Qummou.

It is obvious that very often witnesses will misunderstand words or interpret what is being said but where what is being said, whichever way it is interpreted, amounts to much the same thing whichever way you look at it, I am unable to see how there is any prejudice at all and I decline to revise my earlier decision."

Mr Hens then gave evidence before the jury in accordance with his statement.

The trial Judge gave written directions to the jury on a number of topics. The written directions contained the following with respect to the complaint by Fayez Qummou (MFI21, paragraphs 45-47) (emphasis added):

"Complaint

45. You have heard evidence that the [sic] Fayez Qummou shortly after the alleged incidents made complaints to Constable Campbell and Mr Hens that the accused Bene and another man had been sitting at his tables, he asked them to go away, they got upset and protested. He again asked them to leave. One of them threw $20 on the table. Mr Fayez Qummou said that he didn't want the money; he just wanted them to leave because the tables were for his customers only. The men got up, swore, made a threat and left. The threat was that they were going to come back and 'fuck them up' and according to Mr Hens 'to cut them up'. If you accept the evidence that those complaints were made, then you can use this evidence in two ways:

46. It can be used to support the credibility of the complainant Fayez Qummou, because, on the Crown case, it shows that he acted consistently by complaining to a person to whom he might reasonably have been expected to complain about events that had occurred. The Crown says that this is the conduct which could be expected of a truthful person who had been assaulted. In other words, it goes to the credit of the complainant as it may increase his credibility.

47. The statements are hearsay, because neither of the persons to whom the complaint was made, was present when the acts occurred. These complaints however, may be taken into account by you in deciding that the events occurred on the day as the [sic] Mr Fayez Qummou has alleged."

Oral directions were given to the jury in the summing up along similar lines (SU37-38).

Mr Game SC, for the Appellant Bene, and Mr Odgers SC, for the Appellant Abbosh, both submitted that the trial Judge erred in allowing Mr Hens to give evidence asserting that Fayez Qummou had told him that the words "to cut them up" were used. It was accepted that the evidence of complaint generally was admissible under s.66 Evidence Act 1995. However, in circumstances where Fayez Qummou did not assert that those words had been spoken, it was submitted that the admission of this evidence was highly prejudicial and that it should have been excluded under s.137 Evidence Act 1995.

It was submitted for the Appellants that an agreed formula of words should have been utilised, with Mr Hens simply stating that Fayez Qummou had told him that the man in the red shirt had uttered a threat towards him, without the inaccurate statement using the word "cut".

The Crown submitted that evidence of complaint was clearly admissible under s.66 Evidence Act 1995. It was submitted that, as the trial Judge observed, very little turned on the question of whether Fayez Qummou had told Mr Hens that the words used were "I gunna fuck youse all up" or "I'm going to cut youse all up". Whilst acknowledging that, from one perspective, "cut" may imply a predetermined decision to use a knife, it was submitted that the comment that he was going to "fuck youse all up" raised the overwhelming inference of a desire to inflict violence upon the victims' family.

The Crown submitted that, in any event, the prosecutor at trial did not rely upon the version including the word "cut" as being more significant as opposed to the version including the word "fuck". It was pointed out that the Crown prosecutor at trial, in her closing address, had submitted that, whichever formula of words had been used, a threat was involved and that "Mr Hens may simply have been mistaken about that one word, or he may have recollected it incorrectly, or perhaps Fayez did say 'cut them up'" (T575.36).

Thus, the Crown submitted in this Court that the actual word used (whether "fuck" or "cut") was not as important as the making of an instantaneous complaint and the approach by Fayez Qummou for help from security personnel.

The Crown submitted that the evidence was highly probative in the trial and certainly outweighed the danger of any unfair prejudice.

Decision

It may be taken that the evidence of complaint made by Fayez Qummou to Mr Hens was admissible under s.66 Evidence Act 1995. The difficulty here was that Mr Hens' version of the complaint varied in a most significant way from that of Fayez Qummou.

It must be kept in mind that the Crown case against the Appellants was that the dispute between the Appellant Bene and members of the Qummou family had led to the Appellant Bene summoning help from his brother. The Crown alleged that soon after the Appellant Abbosh arrived on the scene armed with a knife, which he commenced to use in a violent attack upon Ayed Qummou and then Isam Qummou. The Crown case against the Appellant Bene was based upon joint criminal enterprise on Count 2 and extended joint criminal enterprise on Count 5.

In these circumstances, the question of what was communicated from one Appellant to the other was most significant, as was the precise nature of the threat made by the Appellant Bene. If the Appellant Bene had said to Fayez Qummou "I'm gunna cut youse all up", that evidence was capable of shedding a great deal of light upon what was in the mind of the Appellant Bene, and inferentially the mind of the Appellant Abbosh, when the latter arrived soon after with a knife which was used to "cut" two members of the Qummou family.

Indeed, the reasoning of the trial Judge in allowing the evidence to be given by Mr Hens involved this process of thought (see [53] above). His Honour appears to have approached the issue upon the basis that, (on the Crown case), as the Appellant Abbosh had arrived armed with a knife which he used to "cut" the victim, it was likely that Mr Hens' recollection of what had been said was correct. A fundamental problem with this however, was that Fayez Qummou did not assert that those words had been said by the Appellant Bene.

Section 137 Evidence Act 1995 is in the following terms:

"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

This Court has observed that s.137 applies where there is a real risk, and not a hypothetical one, of unfairness arising to the accused from the admission of evidence: R v Lisoff [1999] NSWCCA 364 at [60]. The key term in s.137 is "unfair prejudice", in the sense of evidence creating "a real risk that the evidence will be misused by the jury in some unfair way": Papakosmas v The Queen at 324-326 [90]-[94]; R v GK [2001] NSWCCA 413; 53 NSWLR 317 at 324 [30].

This Court should be cautious in approaching grounds of appeal challenging the refusal of trial Judges to exclude evidence under s.137 Evidence Act 1995. It is always necessary to keep in mind the advantage of the trial Judge making such a ruling in the contemporaneous atmosphere of the trial.

Further, this Court (as a court of error) should bear in mind the limited circumstances in which it may overturn a trial Judge's ruling such as a ruling under s.137 Evidence Act 1995. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way or if the judge misdirected himself: R v O'Donoghue (1998) 34 A Crim R 397 at 401. The submission here is that there was, in reality, only one correct answer to the objection, namely the rejection of the evidence under s.137 Evidence Act 1995. I accept that submission. The decision fell within the final category of error in House v The King [1936] HCA 40; 55 CLR 499 at 505.

The admission of the evidence of Mr Hens in this case involves the strong likelihood of the jury misusing the evidence. The Crown closing address left open to the jury the possibility that Mr Hens was correct and that the word "cut" had been used. The written directions of the trial Judge reminded the jury directly that Mr Hens had given this evidence, and did not seek to warn the jury against an impermissible use of this evidence in the trial.

To my mind, this is a clear case where the Crown ought not to have been permitted to adduce from Mr Hens' evidence that the word "cut" had been used. I accept the submission for the Appellants that the appropriate course in this case was to adopt the often-used approach of the Crown leading evidence from Mr Hens, that a complaint had been made to him of a threat without the use of the word "cut". The Crown should not have been allowed the opportunity to have this evidence before the jury in circumstances where Fayez Qummou did not assert that the Appellant Bene had used that word.

In a trial where complex arguments and directions were given to the jury concerning the concept of joint criminal enterprise, the existence of evidence that the Appellant Bene had threatened to "cut them up" (according to Mr Hens, but not Fayez Qummou), with the Appellant Abbosh arriving soon after on the Crown case and doing just that, I am satisfied that misuse of this evidence to strengthen the Crown case against each Appellant was virtually inevitable.

In my view, the Appellants have made good these grounds of appeal. Further, I am satisfied that once the word "cut" was deployed in evidence before the jury in the manner which occurred in this case, a miscarriage of justice resulted.

I am satisfied that these grounds of appeal have been made good.

Other Grounds of Appeal Against Conviction

The decision with respect to the grounds considered above will lead to an order that the convictions of the Appellants be quashed and, subject to s.8 Criminal Appeal Act 1912, new trials will be ordered.

It remains necessary to deal concisely with the other conviction grounds and, in particular, those grounds which, if successful, would lead to an order of acquittal: Cornwell v The Queen [2007] HCA 12; 231 CLR 260 at 300-301 [105].

Grounds Based Upon the Trial Judge's Intervention During the Evidence of Dennis Miralis (Abbosh Conviction Ground 2; Bene Conviction Ground 3)

As mentioned earlier (at [44]), Dennis Miralis was called as the only witness in the case for the Appellant Bene. The forensic purpose in calling Mr Miralis appears to have been related to the ability of the Appellant Bene to speak English. Mr Miralis was called to give evidence concerning the circumstances in which he accompanied the Appellant Bene to the Fairfield Police Station on 14 October 2008.

A short way into the evidence in chief of Mr Miralis, the trial Judge questioned the witness in the following way (T525-526):

"His Honour: did he have an interpreter present?

A: No, he didn't.

Q: How would he understand any of this if he didn't have an interpreter and you say he couldn't speak English?

A: Your honour, he understood through my advising him as to what was going to happen in English and that being translated by Calvin Abbosh to his brother in, presumably, Arabic, what the process was going to be once we arrived at the police station, so in fact, I spent approximately 2 hours with Calvin Abbosh and his brother Salah Bene, before presenting him to the police station -

Q: Do you mean to say-tell me if I am getting this wrong-that you told him through Mr Abbosh, or rather you spoke with him and Mr Abbosh interpreted it, as you understood, and you told him that when he went over there, people would be asking him all sorts of questions and asking him to agree that he understood or he didn't understand, and you told him, although he didn't understand, he should just say, 'yes'. That doesn't seem right to me.

A: Your honour, I spent approximately 2 hours with him. I formed the opinion after I spoke to him about what would happen at the police station, that he understood the process and it was confirmed to me through his brother that he understood what was going to take place once -

Q: But the police officer who asked him questions, says, 'do you understand this?' is surely entitled to have an honest answer. If the man doesn't understand a word of English, how can he be honestly saying yes to something he doesn't understand?

A: My impression, your Honour, was that he understood because I had given him, in advance, a very detailed rundown of the very specific questions that the police officer was going to ask him, which was effectively, that caution, which was administered to him.

Q: One of the questions they asked was, 'are you on any medication?' 'Do you have a need for a doctor?' 'Do you wish to speak to anyone?' What would he say to these things?

A: I advised him they were questions that were going to be asked of him. I indicated to him that the sooner the interview process was over, the sooner he would be dealt with by a court.

Q: How did he answer the question, 'are you on any medication?' How did he?

A: in relation to that specific question, I don't recall what his response was."

There were further questions asked by the trial Judge in a similar vein through the evidence of Mr Miralis.

At the end of the evidence of Mr Miralis, in the presence of the jury, the trial Judge said to the witness (T535):

""Thank you. You can step down. You might notice I didn't say you're excused. I said you can step down, but you can't leave for the moment."

Thereafter, in the absence of the jury, the trial Judge raised with counsel the question of whether Mr Miralis should be referred to relevant professional bodies (T536-539).

The following morning (7 April 2010), application was made by trial counsel for the Appellant Bene that his Honour should disqualify himself. In a judgment delivered later that day, his Honour declined to disqualify himself.

It is submitted for the Appellants that the trial Judge's intervention in the evidence of Mr Miralis gave rise to a miscarriage of justice. It is submitted that the trial Judge's negative approach to the witness was prejudicial to the Appellant Bene, in whose case Mr Miralis was called, and also the Appellant Abbosh as he had been present with Mr Miralis and the Appellant Bene before they attended the police station.

It was submitted that excessive judicial questioning of Mr Miralis had created a real danger that the trial was unfair: R v Thompson [2002] NSWCCA 149; 130 A Crim R 24 at 31-33 [34]-[44]. It was submitted that the trial Judge's questioning of Mr Miralis indicated that he did not accept his evidence. Further, the trial Judge's statement to Mr Miralis at the conclusion of his evidence, made in the presence of the jury, was likely to have enhanced the impression that he did not believe the evidence of the witness.

With respect to the Appellant Bene, the Crown submitted that the questioning by the trial Judge of Mr Miralis would not have created, in the minds of the jurors, a perception that the trial Judge disbelieved the evidence, nor did it give rise to a miscarriage of justice.

The Crown submitted that the judicial questioning of Mr Miralis could not in any way have prejudiced the Appellant Abbosh. Further, no complaint or application was made by trial counsel for the Appellant Abbosh, so that leave was required in any event under Rule 4 Criminal Appeal Rules to rely upon this ground.

Decision

This Court has considered the extent and nature of permissible questioning of a witness by a trial Judge in a jury trial (R v Thompson) and in a Judge-alone trial (FB v R [2011] NSWCCA 217 at [84]-[110]). It has been observed that more latitude should be granted to a Judge sitting alone in terms of the nature and extent of permissible judicial questioning of a witness: FB v R at [84].

It is sufficient to observe that it was regrettable that the trial Judge questioned the witness in the presence of the jury in the manner revealed. It was for the jury, as the tribunal of fact, to form its own assessment of the evidence of Mr Miralis, and the use to be given to it in reaching verdicts in the trial, with the task of adducing evidence from him, and testing that evidence, being a matter for counsel appearing at the trial.

Any concern which the trial Judge may have had concerning the professional conduct of the witness was not a matter to be developed in the presence of the jury. That said, I am entirely unpersuaded that what occurred in this case gave rise to a miscarriage of justice.

I reject the Appellant Bene's Conviction Ground 3.

I refuse leave under Rule 4 for the Appellant Abbosh to rely upon Conviction Ground 2 which, in any event, ought be rejected.

The Trial Judge's Direction as to the Good Character of the Appellant Bene was Inadequate (Bene Conviction Ground 4)

The Appellant Bene raised good character. The trial Judge gave the jury a written direction concerning good character which is not challenged in this Court (MFI21, paragraph 14).

However, during the course of the summing up, his Honour made additional observations to the jury on the issue of good character. His Honour said (SU30):

"Mr Bene is a person of good character, a police officer has said he had no previous criminal convictions and you can take that into account in determining whether or not he committed the offence. Now good character is not a sort of shield that prevents anybody ever being convicted of anything. Everyone until he is first convicted is a person of good character. There have been some amazing people who have been convicted in our courts over the years. I suppose the most spectacular fall from grace was that of Mr Allan [sic] Bond, he was a hero in Australia for winning the America's Cup, within a few years he had been convicted of fraud. The fact that he was a person of good character did not prevent a prosecution of him for fraud, nor did it prevent his conviction. No doubt it was taken into account by the jury at the time. Well you are invited to take it into account too. Certainly it has to be said that people of good character are much less likely to commit crimes than people of bad character. I think that is all I can really say about that."

Mr Game SC submitted that the trial Judge's direction failed to properly communicate to the jury the significance of good character when it came to the likelihood that the Appellant Bene would have acted in the manner alleged by the Crown. Further, it was submitted that the trial Judge, in his oral directions, did no more than identify the fact that good character had been raised. The balance of the comments on the topic served to diminish and undermine the significance of good character by focusing on the fact that people of prior good character do commit criminal offences, including a discourse about Alan Bond.

It was submitted that the direction was inadequate and prejudicial to the Appellant Bene in the circumstances of the trial.

The Crown submitted that the evidence of the Appellant Bene's good character was very limited in the trial. It was submitted that the criticism of his Honour's further directions on good character was unfounded, as the trial Judge was entitled to point out to the jury that people do commit crimes for the first time, and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing, notwithstanding the previous character of the accused: R v Trimboli (1979) 1 A Crim R 73 at 74.

The Crown submitted that leave should not be granted under Rule 4 and, in any event, the ground of appeal should be dismissed.

Decision

I am not persuaded that the direction given to the jury failed to communicate the use which the jury could make of evidence of the Appellant Bene's good character. It is noteworthy that no further direction was sought from trial counsel for the Appellant Bene, nor was any objection taken to the content of the written direction on this issue.

Of course, the trial Judge was at liberty to remind the jury of the self-evident proposition that people do commit crimes for the first time: R v Trimboli at 74.

The trial Judge placed an unhelpful anecdotal gloss upon the good character direction by the reference to Alan Bond. Such a comment was likely to distract rather than assist the jury. There is a risk that such a gloss will detract from the direction on good character to which an accused person is entitled at law.

That said, I am not persuaded that the present direction gave rise to any miscarriage of justice. This view is fortified by the absence of complaint by trial counsel for the Appellant Bene.

I would refuse leave under Rule 4 for the Appellant Bene to rely upon this ground of appeal which, in any event, ought be rejected.

The Trial Judge's Directions Concerning the Silence of the Appellant Bene Occasioned a Miscarriage of Justice (Bene Conviction Ground 6)

The trial Judge gave a written direction to the jury concerning the Appellant Bene exercising his right to silence when spoken to by police and by not giving evidence in the trial. Those directions are not challenged on appeal (MFI21, paragraphs 51-52).

The trial Judge expanded upon this direction during the course of the summing up in a manner which is also not challenged on appeal. However, the trial Judge then said (SU39):

"He is entitled to take the view that, if he does not wish to give evidence - he has exercised that right and I suppose the only effect of it is that he has put nothing before you, himself, about the case. You do not know what he might say because he has not said it."

Mr Game SC submits that this remark undermined the onus of proof and invited the jury to consider the failure of the Appellant Bene to give evidence as being a matter of some significance. It was submitted that this additional direction gave rise to a miscarriage of justice.

The Crown submitted that it would have been preferable if the trial Judge had not added anything to what, up until that stage, had been a model direction on the right to silence both before and during the trial. Although acknowledging that the trial Judge's additional words were unfortunate and problematical, the Crown submitted that the entire direction on the Appellant Bene's right to silence would not give rise to a miscarriage of justice.

Further, the Crown submitted that no complaint had been made in this respect by trial counsel, so that leave under Rule 4 ought be refused.

Decision

It is the case that the trial Judge's written directions and oral directions, up to the point when the challenged remark was made, were correct. The trial Judge's additional remark ought not to have been made. The fact that it was made has given rise to debate concerning the consequences which should flow from it, in the circumstances of this trial.

The challenged remark provided no assistance to the jury in understanding the otherwise correct direction on the right to silence. At best, it had a tendency to distract or deflect the jury from their task. Although the dynamic nature of a summing up is such that a trial Judge will, at times, seek to add to a direction to assist the jury's understanding, the process requires care so as to avoid distraction or confusion, let alone the giving of an erroneous direction.

That said, I am not persuaded that the additional remarks made by the trial Judge in this case gave rise to a miscarriage of justice. Once again, it is noteworthy that trial counsel did not seek a further direction or express any concern that the comment had been made. Although the remarks should not have been made, I do not consider that they had any adverse effect upon the fair trial of the Appellant Bene.

I would refuse leave under Rule 4 for the Appellant Bene to rely upon this ground which, in any event, I would reject.

Grounds Complaining of Directions Concerning Joint Criminal Enterprise (Abbosh Conviction Ground 6; Bene Conviction Ground 1)

The determination of grounds considered so far will see the convictions of the Appellants quashed, with the outstanding questions being whether there is an entitlement to acquittal on any count and, if not, whether new trials should be ordered.

The present grounds of appeal, if successful, would not see a more favourable outcome for the Appellants than orders for new trials. In these circumstances, it is appropriate to consider the grounds relatively briefly.

This judgment is not the occasion for a further dissertation on the topic of joint criminal enterprise and extended joint criminal enterprise. It will be necessary to have in mind the relevant principles to be applied when considering grounds of appeal which contend that the verdicts of guilty were unreasonable or cannot be supported by the evidence.

Mr Game SC, for the Appellant Bene, submitted that the trial Judge had erred in directions given to the jury concerning joint criminal enterprise and extended joint criminal enterprise and that these errors gave rise to a miscarriage of justice.

Whilst accepting that the trial Judge did not give the jury accurate directions concerning joint criminal enterprise and extended joint criminal enterprise, the Crown submitted that no miscarriage of justice resulted, with the relevant misdirections operating against the interests of the Crown and in favour of the Appellant Bene, at least with respect to Count 2.

With respect to Count 5, the Crown submitted that, although the trial Judge had injected his opinions at several points into the relevant directions, the directions given concerning joint criminal enterprise were not erroneous so that this ground of appeal should be dismissed.

Decision

The Crown case was that the Appellant Abbosh caused all of the injuries to both victims.

The Crown relied upon the principles of joint criminal enterprise and extended joint criminal enterprise when it came to the case against the Appellant Bene for Count 2 (where Ayed Qummou was the victim) and principles of extended joint criminal enterprise for Count 5 (where Isam Qummou was the victim).

In this Court, the Crown acknowledged that the prosecution had put its case against the Appellant Bene in an overly complicated way.

The Crown case regarding (relevantly) Count 2 was run on the primary basis that there had been an agreement between the two Appellants that the Appellant Abbosh would assault Ayed Qummou and cause him grievous bodily harm.

In the alternative, the Crown asserted that if the jury was satisfied that the Appellant Bene contemplated there was a substantial risk that the Appellant Abbosh might form an intention more serious than what they had agreed upon, he could be guilty of a more serious offence by reason of the principles of extended joint criminal enterprise. This approach asserted that the Appellants entered into an agreement to commit an offence as part of the joint criminal enterprise to maliciously wound Ayed Qummou, however, the Appellant Abbosh had ultimately committed a crime outside the agreement (malicious wounding with intent to cause grievous bodily harm), but that the Appellant Bene, in entering into the joint criminal enterprise, would have contemplated the possibility that the Appellant Abbosh may form such an intent, and yet continued his involvement in the joint criminal enterprise. The Crown submitted to this Court that the trial Judge had not left this alternative to the jury, an approach which was unduly favourable to the Appellant Bene.

In this Court, the Crown observed that the prosecutor did not open to the jury on what was a potentially further available option concerning Count 2. On this approach, it was open to the Crown to contend that the Appellants had entered into an agreement to commit an offence as part of the joint criminal enterprise to assault Ayed Qummou, however the Appellant Abbosh had ultimately committed a crime outside the agreement (being malicious wounding with intent to do grievous bodily harm), but that the Appellant Bene, in entering into the joint criminal enterprise, would have contemplated the possibility that the Appellant Abbosh may form such an intent, and yet continued his involvement in the joint criminal enterprise.

With respect to (relevantly) Count 5, the Crown acknowledged in this Court that there was an incomplete and inaccurate identification of the Crown case against the Appellant Bene in the Crown opening to the jury. However, the Crown submitted that the closing address by the prosecutor correctly, and in more detail, outlined the manner in which the Crown sought to establish criminal responsibility for these offences against the Appellant Bene.

In order to establish the criminal responsibility of the Appellant Bene for Count 5, it was necessary that the Crown first establish that the Appellant Abbosh was guilty of the relevant act (in this case, Count 5) and then (as a general proposition), the Crown needed to establish that when the Appellant Bene entered the joint criminal enterprise in relation to the offence occasioned to Ayed Qummou, he (the Appellant Bene) contemplated the possibility that someone would come to the aid of Ayed Qummou, and that he contemplated that the Appellant Abbosh would then act in a manner consistent with the offence alleged (for Count 5 - wound with intent to cause grievous bodily harm).

The relevant law to be applied with respect to joint criminal enterprise and extended joint criminal enterprise may be found in the decisions of the High Court of Australia in McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at 114-118 and Gillard v The Queen [2003] HCA 64; 219 CLR 1 at 36 [112]. The principles are summarised helpfully in Report 129 of the NSW Law Reform Commission, "Complicity", December 2010, paragraphs 2.20-2.39.

I am satisfied that the written and oral directions given to the jury concerning joint criminal enterprise and extended joint criminal enterprise in the case against the Appellant Bene were attended by a measure of confusion. It is likely that the element of confusion flowed from the overly complicated way in which the Crown sought to put its case against the Appellant Bene.

The Crown case against the Appellant Bene was clearer and stronger on Count 2 than on Count 5. I will return to these issues when considering the unreasonable verdict grounds relied upon by the Appellant Bene.

I am not persuaded that the deficiencies in the directions concerning Count 2 with respect to joint criminal enterprise should lead to the upholding of the appeal on this ground.

The directions with respect to Count 5 are in a different category. A clearer formulation of the Crown case was required, accompanied by appropriate directions of law as to the manner in which the jury should approach its task in considering the case against the Appellant Bene on that charge. Clear directions were required on the concept of extended joint criminal enterprise, and its application to this case.

Oral directions concerning the case against the Appellant Bene on the Isam Qummou counts (relevantly, Count 5) included the following (SU27-29) (emphasis added):

"When it comes to Isam Qummou both on the Crown case and Mr Abbosh's case, he is an incidental person in a sense. He was stabbed on the Crown case because he came to the assistance of his brother. The person that Mr Abbosh was seeking out was Ayed Qummou, he was not seeking out Isam Qummou. You will recall the evidence that the confrontation between his brother and the Qummous was between his brother, Mr Bene, Fayez Qummou and Ayed Qummou, not Isam Qummou. Isam Qummou had nothing to do with any argument that was conducted near the tables. He was not there when twenty dollars was either placed on a table or thrown on the ground. He was not standing there when Mr Bene said whatever he had to say. He was somewhere else. So how then does the case against Mr Bene in relation to Isam Qummou arise. Well the Crown has to show before Mr Bene can be convicted, first of all the Crown can only get a conviction against Mr Abbosh if you are satisfied beyond reasonable doubt that Mr Abbosh in fact stabbed Mr Isam Qummou and did not do so in self defence. There seems no doubt whatsoever that he got stabbed and the only person who had a knife who was doing any stabbing was Mr Abbosh.

So how then does Mr Bene come into the picture with Mr Isam Qummou? Let it be assumed that Mr Abbosh is regarded by you as having the intention of wounding with intent to murder or cause grievous bodily harm to Ayed Qummou. Lets assume that Mr Bene was part of that, he contemplated seeing that his brother had a knife that he might do that. If the facts are as Isam Qummou alleges, he came out to assist his brother and there was a struggle and in the course of that he got stabbed. How is Mr Bene responsible for that? Mr Bene is responsible for that if the Crown establishes beyond reasonable doubt that it was in the contemplation of Mr Bene that his brother might deal with anybody who tried to intervene by stabbing them and causing a wounding.

It has to be less clear that it would be in his contemplation that if his brother did that, his brother might intend to murder the person who intervened or he might intend to cause him grievous bodily harm, that would be less certain. But the Crown puts the proposition to you that that is what was in all the circumstance of the case, particularly if you accept that Mr Bene did attack Mr Ayed Qummou by hitting him or stabbing him in the back, all the circumstances the Crown says point to his having that contemplation.

You might well come to the conclusion that you are satisfied that he had a contemplation, that his brother might intend to wound with intending to kill Mr Ayed Qummou or intending to cause him grievous bodily harm, but that was in his contemplation if somebody else came along he might injure them in some way without thinking that he might intend to kill them or cause them grievous bodily harm.

So it is quite clear you can give completely different verdicts in this case. It is not an all in, all out situation, it would be different of course if both men were armed with knives and both men attacked at the same time and two people were wounded as a result of a joint attack by two men you would not have any difficulty with that. But here you are saying that you were confronted with the situation of Mr Bene not doing the stabbing, but being present, perhaps being there for the purpose of assisting his brother. Perhaps being

part of a joint criminal enterprise to wound Mr Ayed Qummou with intent to murder, but less certainly having that intent in relation to Mr Isam Qummou who appears to have been wounded because he came to the defence of his brother and Mr Abbosh was trying to get away and he struck out and struck him."

Mr Game SC submitted that the underlined portions of the summing up in the preceding paragraph illustrate the measure of confusion that was introduced. The term "agreement" was not used, with the term "contemplation" being used effectively in its place. The somewhat tenuous nature of the case against the Appellant Bene (on Count 5) was discernible in the qualified language used at times by the trial Judge.

I am persuaded that the directions given in this trial were accompanied by a degree of confusion so that this ground of appeal should be upheld with respect to the conviction of the Appellant Bene on Count 5.

I am entirely unpersuaded that any problem in the directions concerning joint criminal enterprise operated adversely to the Appellant Abbosh. The Crown case against him was that he was the assailant who wounded the two victims. I reject the Appellant Abbosh's ground of appeal.

Grounds Complaining of Directions Concerning Self-Defence (Abbosh Conviction Ground 7(a); Bene Conviction Ground 7A)

These grounds of appeal, if successful, would not see a more favourable order for the Appellants than an order for new trials. Accordingly, they may be considered relatively briefly.

It will be necessary, however, to bear in mind appropriate directions concerning self-defence when the time comes to consider later grounds of appeal which contend that the verdicts of guilty are unreasonable or cannot be supported by the evidence.

Mr Odgers SC submitted that the Appellant Abbosh's entire defence turned on the contention that he was acting in self-defence. The trial Judge gave written directions to the jury concerning self-defence (MFI21, paragraphs 53-58). No complaint is made concerning the written directions, nor the oral directions concerning self-defence until the trial Judge added a gloss at the end of the direction.

Mr Odgers SC contends that the trial Judge misdirected the jury in giving the following direction (SU42-43):

"As I said, before you came to that conclusion that self-defence was even relevant you would have to look at what actually happened. It does not arise unless there is a reasonable possibility of it happening in the way that he said it happened. And a reasonable possibility means a reasonable possibility, not a far flung chance, or perhaps it could have happened somehow or other."

Mr Odgers SC submitted that this was a significant misdirection which involved a type of elaboration upon the standard of proof, beyond reasonable doubt. He relied upon the line of authority summarised in a recent decision of this Court in RWB v R [2010] NSWCCA 147; 202 A Crim R 209 at 214-219 [13]-[61]. He submitted that the trial Judge erred in effectively undermining the standard of proof imposed on the prosecution.

Mr Odgers SC submitted that it was permissible to direct a jury that self-defence did not arise as an issue if the jury was satisfied beyond reasonable doubt that the Appellant Abbosh was the attacker, and that it was permissible to direct the jury that self-defence only arose as an issue if it was a reasonable possibility that Ayed Qummou was the attacker. He submitted, however, that it was a misdirection to elaborate on the meaning of "reasonable possibility" in the way contained at [140] above. He submitted that it undermined the high standard of proof imposed on the prosecution and that this elaboration may have had the result that the jury misunderstood the level of proof required to be met by the prosecution.

It was submitted that the error was a fundamental one and that, although the point was not taken at trial, leave should be granted under Rule 4 to rely upon it on appeal.

Mr Game SC adopted the submissions of Mr Odgers SC in support of his corresponding ground of appeal. He submitted that the directions on self-defence were relevant as well to the Appellant Bene. He submitted that leave ought be granted to the Appellant Bene to rely upon this ground of appeal.

The Crown submitted that the written and oral directions given to the jury on the issue of self-defence, apart from the challenged paragraph, were not attacked in this Court. The Crown submitted that the trial Judge had, on no fewer than seven occasions, outlined correctly to the jury where the onus of proof lay in relation to self-defence.

With respect to the challenged elaboration by the trial Judge, the Crown submitted that the remarks were not made to the jury as a way of directly explaining what was meant by the words "beyond reasonable doubt". Directions concerning the standard of proof were given elsewhere in the summing up, at a point some distance from the challenged remarks.

Even if the challenged elaboration could be construed as bearing upon the standard of proof, the Crown submitted that, whilst undesirable, it did not give rise to a miscarriage of justice for reasons explained in RWB v R. The Crown observed that trial counsel for the Appellants did not express any concerns over this direction. Despite seeking redirections on other aspects of the self-defence direction, no redirection was sought on this aspect.

The Crown submitted that further arguments made on behalf of the Appellant Bene in support of this ground of appeal ought not be accepted, and that no error had been demonstrated in the directions given for self-defence to the extent that the Appellant Bene relied upon that issue at trial.

It was submitted that the Appellants should be refused leave under Rule 4 to rely upon these grounds.

Decision

I am not persuaded there is substance in the submissions made on behalf of the Appellant Abbosh. No complaint is made concerning the directions on self-defence given up to the point where the challenged elaboration was stated. In a manner reminiscent of other grounds of appeal considered in this judgment, the trial Judge added a gloss at the end of otherwise appropriate directions, with the gloss giving rise to controversy in this Court.

This elaboration by the trial Judge was not helpful to the jury. It would have been better if it was not said. The additional remarks may have distracted or deflected the jury.

The question whether self-defence is raised, for the purposes of ss.418-419 Crimes Act 1900, so that it should be left to the jury is a matter for the trial Judge, applying the principles in Colosimo v Director of Public Prosecutions [2006] NSWCA 293 at [19]-[24]. Once, as here, the trial Judge decides to leave self-defence to the jury, care is required to frame directions in accordance with applicable statutory provisions and principles. His Honour did so until the challenged elaboration was made. The additional remarks should not have been made.

That said, I am not persuaded, that the additional remarks in some way compromised the accurate and repeated directions given to the jury on the question of onus and standard of proof. To the extent that it is suggested that the remarks might, in some way, have undermined the direction on standard of proof (a submission I do not accept), I would adopt the same approach as that taken by the Court in RWB v R. No miscarriage of justice has been demonstrated.

The Appellant Bene sought to develop additional submissions complaining of error with respect to the self-defence directions. I accept the Crown submission that there is no substance in the argument advanced in support of that ground of appeal.

The arguments sought to be advanced in this Court with respect to self-defence directions were not raised by trial counsel for either Appellant in the District Court.

I would refuse each Appellant leave under Rule 4 to rely upon these grounds which, in any event, I would reject.

Grounds Complaining of Order in Which Jury Was Directed to Consider Verdicts (Bene Ground 7)

This ground of appeal is entirely procedural. In the circumstances of this appeal, there is no utility in considering this ground of appeal further.

Ground of Appeal Based Upon Alleged Cumulative Errors (Abbosh Conviction Ground 7)

It was submitted for the Appellant Abbosh that, even if the Court was not persuaded to intervene in respect of any of the earlier recited grounds of appeal, that the convictions should nevertheless be quashed because of the accumulation of matters catalogued in the earlier grounds in accordance with R v Clough (1992) 28 NSWLR 396.

It is sufficient to record that the Appellant Abbosh's appeal against conviction will be allowed following the conclusion with respect to Conviction Ground 5(a). All other conviction grounds of the Appellant Abbosh (considered so far) have been rejected.

In these circumstances, there is no utility in considering this ground of appeal further.

Grounds of Appeal Contending that Verdicts of Guilty Are Unreasonable or Cannot be Supported by the Evidence (Abbosh Conviction Ground 3; Bene Conviction Grounds 2(a) and 2(b))

Mr Odgers SC submitted that verdicts of guilty with respect to the Appellant Abbosh were unreasonable or cannot be supported by the evidence. He developed that submission by reference to aspects of the evidence of various witnesses.

Mr Game SC submitted that the verdicts of guilty with respect to his client on Counts 2 and 5 were unreasonable or cannot be supported by the evidence. He developed submissions by reference to the evidence of prosecution witnesses concerning the involvement of the Appellant Bene in the violence, contending that it was limited and inconsistent. Reference was made to evidence on the topic on whether the Appellant Bene had a knife during the incident and whether he was aware that the Appellant Abbosh had a knife at the time the brothers met at the Markets. He submitted as well that, applying correct principles of joint criminal enterprise and extended joint criminal enterprise, there ought be an acquittal on Count 5.

The Crown made detailed written submissions contending that the verdicts of guilty with respect to each Appellant were not unreasonable and were supported by the evidence.

Decision

If either Appellant succeeds on an unreasonable verdict ground, the consequential order would be a verdict of acquittal on the count or counts where the ground had been made good. Accordingly, it is necessary to consider these grounds in some detail. If an unreasonable verdict ground succeeds, the successful Appellant would be entitled to a more favourable outcome than an order for a new trial.

The task of this Court when considering a ground such as this was summarised in Raumakita v R [2011] NSWCCA 126 at [31]-[34]:

"31 In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22].

32 In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29].

33 In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen, Mason CJ, Deane, Dawson Toohey JJ said at 494-495:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.'

34 The M v The Queen formulation of the task of this Court has been emphasised by the High Court in later cases: The Queen v Nguyen [2010] HCA 38; 85 ALJR 8 at 14 [33]; SKA v The Queen at 575 [13]."

I have read the evidence adduced at the trial. In addition, I have had regard to relevant directions of law (including those on joint criminal enterprise and extended joint criminal enterprise) which are appropriate in this case.

Are the Verdicts of Guilty for the Appellant Abbosh Unreasonable or Not Supported by the Evidence?

It is important to observe that the Appellant Abbosh, in his evidence at the trial, accepted that he was the person who stabbed both Ayed Qummou and Isam Qummou. As a result of this evidence, the two central issues in his trial became:

(a) could the Crown negative self-defence, and

(b) if the Crown could negative self-defence, what was the Appellant Abbosh's intent at the time he stabbed Ayed, and then Isam Qummou?

In order to negative self-defence and establish the Appellant Abbosh's relevant intent, the Crown relied on evidence of all the circumstances leading to his involvement prior to the woundings and his behaviour after the woundings, to rebut his claim that he acted in self-defence.

The Crown relied as well on the evidence of members of the Qummou family - Ayed, Fayez, Isam and Christine - that it was the Appellant Abbosh who was the armed aggressor in the two stabbings, and that he had not acted in self-defence.

The Crown case against the Appellant Abbosh may be summarised as follows:

(a) the Appellant Abbosh had a very close relationship with his brother, and felt very protective of him;

(b) the Appellant Bene, having had an altercation with the victims' family, immediately called his brother on his mobile phone and requested that he come immediately to the Markets - this evidence came from various sources, including the Appellant Abbosh himself;

(d) the Appellant Abbosh then spoke to his brother who indicated to him aspects of the initial altercation with the Qummou family;

(e) the Qummous continued to work at their stall at the Markets after the initial altercation - they did not leave the stall to seek out the Appellant Bene, rather they requested security personnel to assist them;

(f) the Appellant Abbosh was very angry when his brother told him about the initial altercation, and he went to confront the victims' family;

(g) the Appellant Abbosh was armed with a knife which he brought with him to the Markets - the jury and this Court are entitled to reject completely his evidence that he happened to find the knife laying on the ground at the time he was being attacked - the evidence that the Appellant Abbosh produced a knife was given not only by members of the Qummou family, but by William Bimler (T309-310), a witness with no connection with the Qummou family;

(h) no member of the Qummou family was armed, although after the stabbing an attempt was made by Ayed Qummou to obtain a weapon from a hardware stall;

(i) the Appellant Abbosh stabbed Ayed Qummou four times, and then stabbed Isam Qummou three times when he came to assist Ayed Qummou;

(j) the areas on the bodies of each of the victims, where the multiple stab wounds were inflicted, were consistent with the Appellant Abbosh having an intention to cause grievous bodily harm;

(k) having stabbed both men, the Appellant Abbosh ran from the scene, abandoning the BMW at the Markets - flight was left to the jury as evidence of consciousness of guilt and no challenge was made on the appeal to that direction - both the jury and this Court are entitled to use the evidence of flight as demonstrating consciousness of guilt;

(l) the Appellant Abbosh then destroyed the knife and hid the remaining parts of it;

(m) the Appellant Abbosh never sought any medical treatment for any alleged injuries as a result of the claimed attack upon him, and never reported the alleged attack upon him to police or any other authority;

(n) upon being interviewed by the police on 5 February 2008, the Appellant Abbosh deliberately lied by claiming that he was working in Canberra at the time of the offences, denying all knowledge of the incident - he later admitted that he had told extensive lies to the police - the Crown relied on these lies as consciousness of guilt, and the jury and this Court are entitled to use these lies in that way;

(o) unlike the Appellant Abbosh, the Qummou family made immediate complaint after the initial altercation to Mr Hens and sought security assistance - the Qummou family also made immediate complaint to police after the woundings;

(p) on the other hand, the Appellant Abbosh, with his brother, sought out the victims' family and the Appellant Abbosh went to confront them;

(q) there was a consistency to the immediate complaints made by the victims and their evidence subsequently given at trial - it would have been abundantly clear to the jury that the victims' family (who had been long-term tenants of the Markets since 1990) were the victims of a reprisal attack by the Appellants Abbosh and Bene, and not the other way around.

To my mind, the summary of the Crown case in the preceding paragraph, supported as it is by evidence, constitutes a very strong case against the Appellant Abbosh with respect to Counts 2 and 5.

I accept the Crown submission that, once the jury had resolved, beyond reasonable doubt, that the Appellant Abbosh had brought a knife to the Markets, and rejected his implausible version of finding a knife on the ground, then his claim of self-defence would run hollow.

Submissions were made on behalf of the Appellant Abbosh pointing to inconsistencies between the accounts of various witnesses in the trial. I have had regard to the arguments made in this respect. The jury and this Court are entitled to weigh up the inconsistencies in what was a quick and violent attack, where persons were witnessing an unexpected event from different angles. It is the experience of courts that inconsistencies in the accounts of witnesses are likely to occur in such circumstances.

Likewise, the jury and this Court are entitled to take into account the shock that Ayed, Isam and Fayez Qummou experienced as a result of the unexpected aggressive confrontation and the violent attack involving the use of a knife by the Appellant Abbosh. I am not persuaded that any inconsistencies relied upon by the Appellant Abbosh stand in the way of the acceptance of the core evidence of these witnesses as being truthful and reliable. The evidence of Christine Qummou supported the evidence of Fayez, Ayed and Isam Qummou in significant respects.

The Appellant Abbosh pointed to aspects of the evidence of Rodney Crossley, Nathan Laing and JT (an 11-year old boy) in support of this ground of appeal. I accept the submissions of the Crown that the evidence of Mr Crossley and Mr Laing relied upon in this respect, was indicative of each witness making observations at a point in time after the Appellant Abbosh had already commenced his attack on Ayed Qummou.

I accept the Crown submission that JT did not see the commencement of the fight, but observed a part of the struggle which had been described by Mr Crossley and Mr Laing, and the involvement of the Appellant Bene in that altercation.

In any event, none of these three witnesses could be seen as supporting the claim by the Appellant Abbosh that his actions in stabbing the victims were carried out in self-defence. Further, the versions of these three witnesses were not so significantly different from the accounts given by Ayed, Isam and Fayez Qummou that would lead the jury or this Court not to accept their accounts on criminal matters.

Although there were some features of the evidence of Fayez Qummou which required care in assessment of its reliability, it was and remains necessary to consider his evidence in the context of all the evidence adduced at the trial. It is clear that Fayez Qummou made immediate complaint to Mr Hens of the threat made by the Appellant Bene, with an associated request for security to be present. He made immediate complaint thereafter to police.

Submissions were made on behalf of the Appellant Abbosh that the Appellant Bene could not speak English, so that the assertion by members of the Qummou family that he had spoken in English during the initial altercation ought be rejected.

The jury and this Court are entitled to accept that the Appellant Bene, who had lived in Australia at that time for more than six years, was capable of speaking some English words, particularly swear words when he was angry such as "I'm gunna fuck youse all up". The fact that a Crown witness, Rafael Pelli, said that he heard words being spoken in a different language, which sounded "like Arabic", is not inconsistent with the evidence of the Qummou family that the Appellant was speaking at times in both Arabic and in English. Further, the evidence of other witnesses, including Nairy Bedrossian, indicated that the Appellant Bene was speaking in English and was also being aggressive during the initial altercation.

In accordance with the principles set out above at [164], I have made an independent assessment of the evidence, both as to its sufficiency and quality. I am satisfied that it was open to the jury to conclude beyond reasonable doubt that the Appellant Abbosh was guilty of each of the offences contained in Counts 2 and 5. I have kept in mind that the jury had the advantage of seeing the witnesses give evidence, including the Appellant Abbosh.

The verdicts of guilty with respect to the Appellant Abbosh on Counts 2 and 5 are not unreasonable and the verdicts are supported by the evidence. I reject Conviction Ground 3 relied upon by the Appellant Abbosh.

Are the Verdicts of Guilty for the Appellant Bene Unreasonable or Not Supported by the Evidence?

It is appropriate to first consider the guilty verdict for the Appellant Bene on Count 2. The Crown acknowledges that the Crown case against the Appellant Bene on Count 2 was significantly more cogent than it was for Count 5.

The Crown pointed (accurately) to the following features of its case against the Appellant Bene on Count 2:

(a) the Qummou family had run the kebab shop and associated stalls at the Markets for many years (since 1990) - the day of these events (3 February 2007) was simply another day for them conducting their business until the behaviour of the Appellant Bene changed everything;

(b) the Appellant Bene, and his friend, Mr Sulaqa, reacted angrily to a simple request that they not eat food from another stall at the reserved tables - it was a perfectly reasonable request from Fayez Qummou, which drew an unjustifiably angry response from the Appellant Bene;

(c) the Appellant Bene took offence to the request that he move and his act in throwing a $20.00 note at Fayez Qummou indicated a measure of disdain;

(d) an altercation then occurred in which the Appellant Bene clearly became angry, with his voice being raised and heard by other persons at the Markets;

(e) the Appellant Bene then threatened Fayez and Ayed Qummou by claiming that "I'm gunna fuck youse all up" - if the Appellant Bene had not telephoned his brother immediately, or had his brother not then come immediately to the Markets and come to the kebab stall with his brother to confront the family, then the verbal threat may have been seen as something of an empty gesture - however, the actions of the Appellant Bene in calling his brother, who returned with him to confront the Qummou family, meant that the threat was a sinister and significant one;

(f) the evidence that the Appellant Bene (a citizen of Australia for more than six years) was incapable of using crude English words such as "I'm gunna fuck youse all up" was unconvincing - it was entirely plausible and should be accepted that the Appellant Bene spoke English words such as these in anger;

(g) Fayez Qummou made immediate complaint of those words to the organisers of the Markets and requested security help to be posted at his stalls - this evidence supported the version of events given by Fayez and Ayed Qummou, and pointed to the inherent implausibility of the version relied upon by the Appellant Bene at trial (through cross-examination of witnesses) that it was he who was threatened and put at risk;

(h) the Appellant Bene made a telephone call immediately to his brother to come to the Markets - if the Appellant Bene had been threatened, it would have been expected that he would have left the Markets or sought help from security or police, but he did neither, rather he called for reinforcements;

(i) after the Appellant Abbosh arrived at the Markets, his conversation with his brother caused him to become very angry - the jury and this Court are entitled to infer that the Appellant Bene communicated with his brother in a way which stirred up emotion in his brother;

(j) the Appellant Bene then went with his brother (whom the Appellant Bene would have known was angry and upset in light of what he had told him) to the kebab stall, where a confrontation ensued, initiated by the Appellant Abbosh;

(k) the jury and this Court are entitled to accept the evidence of Ayed Qummou that the Appellant Abbosh held a knife above his head and yelled out that he was going to kill Ayed Qummou;

(l) the jury and this Court are entitled to conclude that the Appellant Abbosh had the knife in his possession at the time that he went to the kebab stall - the evidence of the Appellant Abbosh that he simply found a knife lying on the ground, at the time he was being assaulted, was not plausible and was entirely contrary to the evidence of the Qummou family and an independent witness, Mr Bimler, who said that the Appellant Abbosh produced the knife;

(m) a conclusion that the Appellant Abbosh brought the knife with him to the Markets is very significant - having been summoned by his brother to the Markets in response to the altercation, the Appellant Abbosh became very angry and confronted Ayed Qummou, not because of any dispute he had with him, but directly because of what his brother had told him over the telephone and in person - both the jury and this Court should draw the inference that the Appellant Abbosh was acting jointly with the Appellant Bene to achieve what the Appellant Bene had threatened to Ayed and Fayez Qummou - that he would "fuck them up";

(n) although, on the Crown case, the Appellant Abbosh was the initial and main aggressor, the Appellant Bene was not simply a passive observer - there was evidence available to the jury and this Court that the Appellant Bene became involved in the physical fight by striking Fayez Qummou;

(o) the trial Judge directed the jury that they were entitled to take the Appellant Bene's flight from the scene as consciousness of guilt, and there has been no challenge to that direction on appeal - flight is an important aspect of this case as the Appellant Bene's case at trial (through cross-examination of witnesses) was to seek to shift the blame to Ayed Qummou and his family - the fact that it was the Appellant Bene who ran from the scene, and not the victims who contacted security prior to the attack and the police immediately after it, fortified the Crown case and emphasised the significance of the Appellant Bene's flight;

(p) when the Appellant Bene fled the scene, he entered a black vehicle in which his blood was located later on two areas of the front console - this evidence pointed to the Appellant Bene bleeding after the incident, this feature being consistent with evidence of his physical involvement in the fight - it pointed to his involvement in a joint criminal enterprise, and not merely as a passive observer.

I accept the Crown submission that the circumstances recited in the preceding paragraph, when combined together, allowed the jury and this Court to be satisfied that the Appellant Bene meant what he said to the Qummou family - that he would "fuck them all up" - and that he put a plan into action by recruiting his brother to come to the Markets to assist him in a violent attack upon Ayed Qummou, in which they subsequently acted in a joint criminal enterprise to maliciously wound that victim with intent to cause him grievous bodily harm. The evidence established that the Appellant Bene was not only present and willing to assist, but actually did assist during the attack, although the acts which constituted the offence in Count 2 were committed by the Appellant Abbosh.

To the extent that submissions made on behalf of the Appellant Bene sought to place importance on whether the Crown could actually establish whether he had a knife in his possession, I accept the Crown submission that it was not necessary for the Crown to prove that the Appellant Bene was also armed with a knife.

It was an essential matter for the Crown to prove that there had been an agreement entered into between the Appellant Bene and the Appellant Abbosh, and this agreement was established on the totality of the evidence.

Having undertaken an independent assessment of the evidence as to its sufficiency and quality, I am satisfied that it was open to the jury to conclude beyond reasonable doubt that the Appellant Bene was guilty of the offence charged in Count 2.

Having applied the principles referred to at [164] above, I am satisfied that the verdict of guilty for the Appellant Bene on Count 2 is not unreasonable and is supported by the evidence.

The Crown case against the Appellant Bene on Count 5 is in a different category.

It was not part of the Crown case that the Appellant Bene desired to harm Isam Qummou because of the initial altercation. The evidence of the Appellant Bene obtaining his brother's assistance to confront Ayed Qummou, related solely to Count 2.

For the Appellant Bene to be convicted on Count 5, it was necessary for the jury to be satisfied that, in reaching an agreement with the Appellant Abbosh to maliciously wound Ayed Qummou with intent to do grievous bodily harm, the Appellant Bene contemplated the possibility that other family members would come to Ayed Qummou's assistance and, if they did, that the Appellant Abbosh would then maliciously wound them also, with intent to do grievous bodily harm.

I accept the Crown submission that the first part of this proposition may not have been that difficult to establish - that being the contemplation by the Appellant Bene that other Qummou family members may come to the assistance of Ayed Qummou. The Appellant Bene had been involved in the initial altercation which involved at least two members of the Qummou family (Fayez and Ayed) so that, when he and the Appellant Abbosh went back to the kebab stall to confront Ayed Qummou, he (Ayed Qummou) would not be by himself. There was a high likelihood that the Appellants would have to confront other persons as well.

However, a major difficulty for the Crown was to establish that the Appellant Bene contemplated that the Appellant Abbosh would form the intent required (the intent to cause grievous bodily harm) against someone (such as Isam Qummou) who came to assist Ayed Qummou. It is at this point that there are significant problems for the Crown case on Count 5 against the Appellant Bene.

I accept the submission for the Appellant Bene that, with respect to Count 5, the foundational offence had to be identified with some precision. Further, the jury should have been directed, and this Court should approach the issue upon the basis that, to find the Appellant Bene guilty on Count 5, it was necessary to establish beyond reasonable doubt that he had in contemplation a substantial or real risk of the Appellant Abbosh using his knife to stab a person who was minded to intervene during the commission of the foundational crime, and in so doing, that the Appellant Abbosh would act with the mental state relevant to the particular count on the indictment (intent to cause grievous bodily harm): R v Dang [2001] NSWCCA 321 at [45]-[46].

To convict the Appellant Bene on Count 5, it was necessary for the Crown to prove matters which the evidence simply did not support in this case.

Having undertaken the required independent assessment, I have reached the conclusion that the evidence is not such that it was open to the jury to conclude beyond reasonable doubt that the Appellant Bene was guilty of the offence charged in Count 5. It has been demonstrated that the verdict of guilty on Count 5 is unreasonable and cannot be supported by the evidence.

A consequence of this finding is that the Appellant Bene is entitled to an acquittal on Count 5.

Conclusions on Conviction Grounds

In summary, the Appellant Abbosh has:

(a) made good Conviction Ground 5(a), so that his convictions on Counts 2 and 5 should be quashed;

(b) not demonstrated that the verdicts of guilty with respect to Counts 2 and 5 are unreasonable or cannot be supported on the evidence, so that he is not entitled to an acquittal on either count;

It was not submitted for the Appellant Abbosh that, if an outcome such as this arose on the appeal, an order for a new trial should not be made. For the purposes of s.8 Criminal Appeal Act 1912, I am satisfied that an order for a new trial should be made in his case.

In summary, the Appellant Bene has:

(a) made good Conviction Ground 5, so that the convictions on Counts 2 and 5 should be quashed;

(b) succeeded with respect to Conviction Ground 1 in establishing error in directions concerning extended joint criminal enterprise with respect to Count 5;

(c) succeeded on Conviction Ground 2(b) in establishing that the conviction on Count 5 is unreasonable and cannot be supported on the evidence, so that a verdict of acquittal on that count should follow;

(d) not succeeded on Conviction Ground 2(a) with the result that he is not entitled to an acquittal on Count 2;

(e) not otherwise succeeded with respect to any ground of appeal against conviction.

It was not submitted on behalf of the Appellant Bene that, if his appeal against conviction produced these results, an order for a new trial should not be made with respect to Count 2. For the purposes of s.8 Criminal Appeal Act 1912, I am satisfied that a new trial should be ordered with respect to Ground 2.

Appeals Against Sentence

Having regard to the outcome of the conviction appeals for each Appellant, it is not necessary to consider the grounds of appeal with respect to sentence. It should be observed, however, that the Crown conceded in this Court that a number of errors had been demonstrated with respect to sentence.

In addition, it should be noted that the offences for which the Appellants were sentenced carry a standard non-parole period. The sentences imposed upon them were passed at a time when the relevant law was that stated in R v Way [2004] NSWCCA 131; 60 NSWLR 168. Should either or both Appellants be convicted again and stand for sentence for an offence under s.33(1)(a) Crimes Act 1900, it will be necessary for a sentencing Judge to apply the principles expressed by the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154.

I mention these matters because, if either or both Appellants are to be sentenced in the future for these offences, the sentences imposed in the District Court on 1 October 2010 should not be taken as a useful guide for possible future sentences. In my view, the proper approach for a sentencing Judge, should the Appellants stand for sentence for these offences at a future time, is to put completely to one side the sentences imposed on 1 October 2010.

Orders

I propose the following orders with respect to the Appellant Abbosh:

(a) appeal against convictions allowed;

(b) convictions and sentences on Counts 2 and 5 are quashed;

I propose the following orders with respect to the Appellant Bene:

(a) appeal against convictions allowed;

(b) convictions and sentences on Counts 2 and 5 are quashed;

(d) a new trial is ordered on Count 2.

**********

Amendments

08 March 2013 - Amendment made to Publication Restriction

Amended paragraphs: Coverpage

Decision last updated: 08 March 2013

Medium Neutral Citation:	Abbosh v R; Bene v R [2011] NSWCCA 265
Hearing dates:	16 September 2011 (written submissions closed 30 September 2011)
Decision date:	09 December 2011
Before:	Bathurst CJ at 1 James J at 6 Johnson J at 7
Decision:	With respect to the Appellant Abbosh: 1. Appeal against convictions allowed. 2. Convictions and sentences on Counts 2 and 5 are quashed. 3. A new trial is ordered on Counts 2 and 5. With respect to the Appellant Bene: 1. Appeal against convictions allowed. 2. Convictions and sentences on Counts 2 and 5 are quashed. 3. A verdict of acquittal is entered on Count 5. 4. A new trial is ordered on Count 2.
Catchwords:	CRIMINAL LAW - conviction appeals - Appellants convicted of two counts of malicious wounding with intent to do grievous bodily harm - Abbosh wounds two persons - claim of self-defence - case against Bene based upon joint criminal enterprise and extended joint criminal enterprise - erroneous failure to exclude prejudicial evidence under s.137 Evidence Act 1995 - misleading directions concerning extended joint criminal enterprise - trial Judge adds unwarranted postscripts on directions concerning good character, right to silence and self-defence - no miscarriage of justice arising from these postscripts - whether verdicts unreasonable or cannot be supported by evidence - conviction of Bene on one count unreasonable - verdict of acquittal on that count - new trials ordered for Bene on remaining count and Abbosh on both counts
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Criminal Appeal Act 1912 Criminal Appeal Rules
Cases Cited:	R v Salah Bene and Calvin Abbosh [2010] NSWDC 218 R v Clough (1992) 28 NSWLR 396 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 R v Lisoff [1999] NSWCCA 364 R v GK [2001] NSWCCA 413; 53 NSWLR 317 R v O'Donoghue (1998) 34 A Crim R 397 House v The King [1936] HCA 40; 55 CLR 499 Cornwell v The Queen [2007] HCA 12; 231 CLR 260 R v Thompson [2002] NSWCCA 149; 130 A Crim R 24 FB v R [2011] NSWCCA 217 R v Trimboli (1979) 1 A Crim R 73 McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 Gillard v The Queen [2003] HCA 64; 219 CLR 1 RWB v R [2010] NSWCCA 147; 202 A Crim R 209 Colosimo v Director of Public Prosecutions [2006] NSWCA 293 R v Clough (1992) 28 NSWLR 396 Raumakita v R [2011] NSWCCA 126 R v Dang [2001] NSWCCA 321 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
Texts Cited:	NSW Law Reform Commission, Report 129, "Complicity", December 2010
Category:	Principal judgment
Parties:	Calvin Abbosh (Appellant) Saleh Bene (Appellant) Regina (Respondent)
Representation:	Mr SJ Odgers SC (Appellant Abbosh) Mr TA Game SC; Mr D Barrow (Appellant Bene) Mr JH Pickering (Respondent) Sid Hawach & Co (Appellant Abbosh) John B Hajje & Associates (Appellant Bene) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2009/6185 (Abbosh) 2009/6186 (Bene)
Publication restriction:	---
Decision under appeal	Citation: R v Salah Bene and Calvin Abbosh [2010] NSWDC 218 Before: His Honour Judge Finnane QC File Number(s): 2009/6185 (Abbosh) 2009/6186 (Bene)

Charge	Abbosh Verdict	Bene Verdict
Count 1 - On 3 February 2007 at Fairfield, wounding Ayed Qummou with intent to murder Ayed Qummou (s.27 Crimes Act 1900)	Not Guilty	Not Guilty
In the alternative to Count 1: Count 2 - On 3 February 2007 at Fairfield, maliciously wounding Ayed Qummou with intent to do grievous bodily harm to Ayed Qummou (s.33(1)(a) Crimes Act 1900)	Guilty	Guilty
In the alternative to Count 2: Count 3 - On 3 February 2007 at Fairfield, maliciously wounding Ayed Qummou (s.35 Crimes Act 1900)	No verdict taken given guilty verdict on Count 2	No verdict taken given guilty verdict on Count 2
Count 4 - On 3 February 2007 at Fairfield, wounding Isam Qummou with intent to murder Isam Qummou (s.27 Crimes Act 1900)	Not Guilty	Not Guilty
In the alternative to Count 4: Count 5 - On 3 February 2007 at Fairfield, maliciously wounding Isam Qummou with intent to do grievous bodily harm to Isam Qummou (s.33(1)(a) Crimes Act 1900)	Guilty	Guilty
In the alternative to Count 5: Count 6 - On 3 February 2007 at Fairfield, maliciously wounding Isam Qummou (s.35 Crimes Act 1900)	No verdict taken given guilty verdict on Count 5	No verdict taken given guilty verdict on Count 5