Abou-Chabake v The Queen

[2005] HCATrans 371

[2005] HCATrans 371

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S492 of 2004

B e t w e e n -

ANDREW ABOU-CHABAKE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 2005, AT 1.49 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear with my learned friend, MS A. FRANCIS, for the applicant.  (instructed by Legal Aid Commission of New South Wales)

MR L.M.B. LAMPRATI, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GUMMOW J:   Yes, Mr Odgers.

MR ODGERS:   In summary, your Honours, we submit that the Court of Criminal Appeal applied the wrong test in deciding whether a miscarriage of justice resulted from the absence at trial of fresh evidence.  We also submit that the Court of Criminal Appeal appears to have wrongly understood the requirement that fresh evidence be credible as requiring something more than it be capable of belief.  Lastly, we submit that in any event every one of the reasons that were given by the Court of Criminal Appeal for saying that the new evidence was not credible was wrong or misconceived.

Your Honours, it is a question of general importance whether in cases such as the present the appropriate test to determine whether there has been a miscarriage of justice is, as the Court of Criminal Appeal expressed it, whether the evidence would have been likely to have caused a jury to have a reasonable doubt or, rather, as we contend, whether there is a significant or real or reasonable possibility that the jury would have had a reasonable doubt as to guilt.  We accept that in Mickelberg Justices Toohey and Gaudron left open the question of whether there is any practical difference between those two tests, likely/significant possibility, but there is a great deal of support for the “significant or reasonable possibility” test, your Honours.  Chief Justice Mason in Mickelberg said that that test had been settled in Gallagher, Justice Deane agreed, Justice Brennan preferred the “likely” test but, your Honours, Chief Justice Gibbs in Gallagher described the “likely” test as too severe and indeed speculative.

We submit the “likely” test also runs the risk of the Court of Criminal Appeal considering whether they think that the accused is guilty.  We submit that that is the very danger that occurred in this case – and I will come back to that in due course.

Your Honours, in New Zealand, Canada and the United Kingdom there is agreement as to the appropriate test in respect of whether there has been a miscarriage of justice resulting from the absence at trial of fresh evidence.  The test that all of those jurisdictions now apply is whether the new evidence might reasonably have led the jury to have a reasonable doubt.  That in substance is what we contend is the test that should be applied.  That is it is essentially the same as a significant possibility, a real possibility or a reasonable possibility.

Now, in the present case the Court of Criminal Appeal applied the “likely” test.  If I can take your Honours to application book 210, Justice Kirby at the top of the page said:

But whether the explanation for the series of phone calls be right or wrong –

and I will come back to that in a moment –

I do not find Mr Balbarki’s evidence credible or plausible.  I do not believe that his evidence, in the context of the evidence given at the trial, would have been likely to have caused the jury to have entertained a reasonable doubt as to the guilt of the accused.

Now, if your Honours go to the previous page, at 209 your Honours will see at the beginning of paragraph 113 that his Honour said:

To my mind the more likely explanation of the series of telephone calls . . . is that the appellant’s wife . . . endeavoured to locate her husband.  She spoke to Mr Balbarki –

We point to that, your Honours, as supporting a conclusion that Justice Kirby did not apply the “likely” test in the sense of a significant possibility or a reasonable possibility; rather, it suggests that he considered that the more likely explanation was that the accused was guilty on the basis of the new evidence and that that is why he concluded that he did not believe that the new evidence, in the context of the evidence given at trial, would have been likely to have caused the jury to have a reasonable doubt.

The primary significance of the new evidence, your Honours, just so that it is absolutely clear, was in relation to phone call 25.  It really is very simple.  The murder occurred at 10.12 pm.  The phone call 25 occurred at 10.13 pm.  It was a phone call made from the applicant’s house to Balbarki’s house.  If the applicant was at Balbarki’s home when the call was made, he could not have been the shooter, and that has never been challenged.  If it was a reasonable possibility that he was at Balbarki’s home, then there would have to be a reasonable doubt as to guilt. 

Balbarki gave evidence which he never qualified in any way that the applicant was with him when the call was received from the applicant’s wife.  While he was uncertain as to precise times, which we would say is hardly surprising three years after the event, the phone records show that it must have been call 25.  There was no other call.  The Crown has conceded there is no other call in the phone records which could have been this particular call other than call 25.  We say that, therefore, inescapably Balbarki’s evidence leads to the conclusion that at a minimum there is a reasonable possibility that the applicant was not the shooter, and we emphasise that Balbarki’s uncertainty as to timings is immaterial because his certainty as to the fact of the phone call and as to its nature meant that it could only have been call 25 at 10.13 pm.

Now, your Honours, I took you to page 210 of the application book and Justice Kirby said he did not find Mr Balbarki’s evidence credible or plausible.  He did not say that it was not capable of belief, nor did he make any comment on Balbarki’s demeanour or the way he gave evidence.  The authorities generally refer to “credible” in the sense of capable of belief.  Justice Gibbs in Gallagher said that a matter that should be taken into consideration is:

whether the evidence is apparently credible (or at least capable of belief) –

So we submit that the true question which is relevant to the ultimate question of whether there is a significant possibility a jury would have a reasonable doubt is whether or not it is capable of belief.  If it is not, then of course it must follow that there is no significant possibility that the jury would have a reasonable doubt.  More importantly, your Honours, each of the reasons that Justice Kirby gave for saying that Balbarki was not credible was wrong or flawed.  Can I take your Honours to 207 of the application book at line 10:

Mr Balbarki’s uncertainty as to the time Mr Abou-Chabake left his home inevitably undermines his testimony concerning the phone call.

Now, it is true, as I have said, Mr Balbarki in evidence did express some uncertainty as to the precise time of something that happened three years ago when you are talking about minutes but, as I have sought to explain, his Honour was wrong to say that that undermined the significance of the phone call, or the testimony regarding the phone call, because he never qualified in any way his assertion that there was a phone call of that nature and we know that it could only have been call 25.  At line 15 his Honour said:

Although Mr Abou-Chabake did not give evidence, cross examination of Crown witnesses during the trial provided some insight into his version.  It is instructive to compare the cross examination of Mr Hadid with the version put forward on this appeal by Mr Balbarki.  They appear to be inconsistent.

Your Honours, that is seriously flawed reasoning.  Why?  Because there was unchallenged evidence before the Court of Criminal Appeal that the applicant’s instructions were that he was with Balbarki.  So Justice Kirby knew that that was the applicant’s account and remained the applicant’s account throughout.  So the fact that defence counsel chose to cross‑examine in the way he did did not impair Mr Balbarki’s credibility.  In any event, the evidence of the applicant’s counsel in the Court of Criminal Appeal made it clear that the strategy that he adopted was very much a second-best option because of Balbarki’s failure to assist.  Trial counsel testified, and it was not challenged ‑ ‑ ‑

CALLINAN J:   Just explain to me why the evidence is fresh evidence.

MR ODGERS:   Why it is fresh evidence, your Honour?  Mr Steirn testified in the Court of Criminal Appeal that numerous attempts were made to contact Balbarki.  It became clear that he was unwilling to talk to them.  The defence had no knowledge of what his account was and it was clear by inference that he was unwilling to talk to them.  Mr Steirn at that point made a judgment that he was not prepared to call ‑ ‑ ‑

CALLINAN J:   Why is that fresh evidence?

MR ODGERS:   Your Honour, firstly, it was not available to defence in the sense they do not have it ‑ ‑ ‑

CALLINAN J:   But why was it not?  They could have subpoenaed him.

MR ODGERS:   They could have subpoenaed him, I accept that, your Honour.  Can I say a number of things about this.  The defence could have subpoenaed him but they could not force him to talk to them.

CALLINAN J:   No.  Well, that often happens with witnesses.

MR ODGERS:   I understand that, your Honour.  He claimed he did not want to talk to them.  He told the Court of Criminal Appeal that he had not wanted to talk to them.  He told the Court of Criminal Appeal that the applicant’s family ‑ ‑ ‑

CALLINAN J:   What is fresh evidence, evidence that is not available at the time of the trial?

MR ODGERS:   The test is not available or not available with reasonable diligence.  The Court of Criminal Appeal, can I say, was prepared to proceed on the assumption it was fresh evidence.

CALLINAN J:   I understand that, but you need ‑ ‑ ‑

MR ODGERS:   I understand that is a problem I have to confront.

CALLINAN J:   Yes.

MR ODGERS:   And I have a lot of things to say about it.  Senior counsel chose not to subpoena Balbarki, and he gave his reasons at ‑ ‑ ‑

CALLINAN J:   It cannot surely depend upon a tactical decision taken by counsel at a trial whether evidence is fresh or not.

MR ODGERS:   Your Honour, this is not a case where the defence chooses not to use evidence that they have and then use it on appeal.  That is not this case.  They did not know what his account was.  They had no idea what his evidence would have been if he had been called as a witness.  They inferred correctly that he did not want to assist them.  Counsel is not required to call somebody blind.  Jones v Dunkel ‑ ‑ ‑

CALLINAN J:   One often has to call people blind.  One often has to do it, or make a choice to say, “I’m not prepared to take a chance on this witness”, but it is a deliberate decision.

MR ODGERS:   It was a deliberate decision not to subpoena and the evidence was his family had been asking Balbarki to testify, he had been refusing.  The accused in a sense has to wear that.  But, your Honours, if it was a mistake by trial counsel ‑ ‑ ‑

CALLINAN J:   No, it is not a mistake.  It is a judgment by trial counsel.  Trial counsel might have been absolutely right to make that judgment, but that does not make the evidence fresh, at the moment so far as I can see.

MR ODGERS:   Your Honour, in my submission, it would be grossly unjust that the applicant’s appeal fails because his lawyers did not do their job properly.

CALLINAN J:   No, they made a judgment.  It might have been a perfectly proper thing to do at the time.  Think, Mr Odgers, what a charter it would be for having a second shot at it to have a potential important witness be unco‑operative and then to bring that witness along in the Court of Criminal Appeal.

MR ODGERS:   Your Honour, I can accept a charter if you know what he is going to say and you choose not to get him to come to court.

CALLINAN J:   Well, if you have been convicted, you have nothing to lose, have you?  It cannot make it worse.

MR ODGERS:   The reality of this case was, your Honour, because Balbarki was unwilling to testify or unwilling to help and the defence counsel chose not to force him to come, the defence case was non‑existent.

CALLINAN J:   Can you refer us to any case in which evidence of this kind in this sort of situation has been held to be fresh evidence?

MR ODGERS:   Can I take you to the House of Lords in Pendleton, your Honour, because it is not dissimilar.  It is tab D in the pile of cases.  Can I give you the background to this case, your Honour.  This was a case where there was a murder.  The accused was interviewed by the police and he, in his interview, essentially admitted that he had been in the vicinity but denied that he had done the act which had caused death.  At page 526, your Honours, at the bottom of the page you will see:

[3]      At trial the appellant was represented by solicitors and two counsel.  His instructions consistently were that he had not been in the vicinity at the time of the murder.  When arrested he had been so upset and distressed that he could not stop shaking . . . The appellant was unable to call evidence (other than his own) to substantiate his assertion that he had not been present . . . and that assertion was directly contradicted by the admissions he had repeatedly made in interview.  The view was taken that, if he were to give evidence that his admissions of presence at the scene had been false, the jury would be unlikely to believe him.  So . . . he was not called to give evidence and it was hoped that the jury would accept the truth of what he had said –

So, your Honours, the situation was that even though ‑ ‑ ‑

GUMMOW J:   Any discussion of the Australian authorities?

MR ODGERS:   Your Honours, the decision of the court is to be found – the court referred to Stafford at 532, paragraph [15] ‑ ‑ ‑

GUMMOW J:   No, in Pendleton.

MR ODGERS:   No, your Honour, but the test that was adopted was “Might the evidence have led the jury to return a verdict of not guilty?”  That is a quotation from Stafford at paragraph [15].  Then at 535, your Honours, in the judgment of Lord Bingham about five or six lines down:

But the test advocated by counsel in Stafford v DPP and by Mr Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps gave somewhat inadequate recognition.  First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker.  Secondly . . . it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict.

Your Honours, can I also take you to page 538, paragraph [25]:

In reviewing this case the House is at once confronted by the problem that the appellant’s true defence – that he had not been present when the crime was committed and had lied to the police when telling them that he had been – was never put to the jury at all . . . But the inescapable fact is that the trial jury never had the opportunity to consider an issue very close to the heart of the case:  were the appellant’s admissions reliable and true?

The issue was whether – he had told his lawyers that he had wrongly confessed, but the decision was made not to run that argument but to accept that it was a reliable confession.  The House of Lords heard new evidence tending to undermine the reliability of the confession.  Then his Honour Lord Bingham said, at about seven lines from the bottom:

Given the primacy of the jury, it must always be a ground for concern if the jury have never considered a potentially important aspect of the case.

CALLINAN J:   Mr Odgers, did the case there turn upon section 9 of the Criminal Appeal Act 1907?  I ask you that because of what appears at page 528 where the section is quoted.  Then if you go to the next page:

This section clearly expresses Parliament’s overriding intention that the interests of justice should be served –

and so on.  I just wonder whether the case turns upon that.  Do you have a section like that in New South Wales?

MR ODGERS:   The question is a miscarriage of justice.  That is section 6 of the Criminal Appeal Act.

CALLINAN J:   Yes, but it expressly refers to the Court of Criminal Appeal, if they think fit, ordering any witness who would have been compellable to attend to be examined, whether they were called or not called at the trial.  Now, the accused there did not give evidence at the trial.

MR ODGERS:   No, he chose not to on the advice of his lawyers.

CALLINAN J:   I understand that, but it is somewhat different from a situation in which you simply have the common law rule, is it not, which I take it is the rule in New South Wales?  Am I wrong about that?

MR ODGERS:   Your Honour, the common law is applicable in the sense of determining – can I also say some other things?  It is well accepted that in criminal cases the appeal court should not apply a very strict rule here in terms of what is reasonably available with due diligence.  Your Honours, the High Court said in Ratten, Justice Barwick, great latitude ‑ ‑ ‑

CALLINAN J:   I can accept that.  A man who is going to be in prison for almost the rest of his life, I can understand ‑ ‑ ‑

MR ODGERS:   Yes.  The New Zealand Court of Appeal also took the same view in Bain’s Case, that you have to show great flexibility and the more significant the new evidence is that the more likely you are to err on the side of saying, “Well, we really should let this go before a jury”.  Going back to Pendleton, what is significant there, your Honours, in the pages I was taking you to at 538 and 539, it was the very fact that the trial would have been run completely differently if the material had been advanced at trial which was available on appeal, which persuaded the House of Lords to disagree with the Court of Appeal and allow the appeal.  They say at the bottom of page 538:

[27]     No one can now be sure what would have happened had the evidence of Professor Gudjonsson been available at the time of the trial.  But the defence might in at least three respects have been conducted differently . . . 

[28]     In the light of these uncertainties . . . it is impossible to be sure that this conviction is safe, and that is so whether the members of the House ask whether they themselves have reason to doubt the safety of the conviction or whether they ask whether the jury might have reached a different conclusion . . . And the jury never had the opportunity to consider what, on the appellant’s instructions, had actually happened.  Had the jury been trying a different case on substantially different evidence the outcome must be in doubt.  In holding otherwise the Court of Appeal strayed beyond its true function of review and made findings which were not open to it in all the circumstances.  Indeed, it came perilously close to considering whether the appellant, in its judgment, was guilty.

We call that in aid, your Honours.  We say it is very similar here.  The jury never heard the true defence, which was that he was with Balbarki in the event.  The defence case was almost non‑existent at trial.  Now Balbarki has come forward.  He has given his side.  He approached the defence solicitor after the trial and said, “He’s innocent”.  He was then called before the Court of Criminal Appeal.  His evidence was effectively unchallenged.  If it is capable of belief, as it plainly is, it is absolutely a rock-solid alibi.

Your Honours, it would be a terrible miscarriage of justice if because his trial counsel made a decision he did in the circumstances where Balbarki was unwilling to talk or unwilling to assist that he is now precluded, when the circumstances have changed, from putting that material before a jury in a completely different trial.  I see the red light, your Honours.  I am not sure I can say any more at this stage.

GUMMOW J:   Thank you.  Yes, Mr Lamprati, what do you say about Pendleton?

MR LAMPRATI:   I say this, your Honour, that the factual situation there is very significantly different from that which we have here.  In this case the Court of Criminal Appeal heard this evidence from Mr Balbarki and found it neither credible nor plausible.  Nothing like that, as I read the decision, happened in Pendleton.  The court, as the Australian authorities required, considered the proposed new evidence, if I can call it that, fresh evidence, in the context of the evidence given at trial.

CALLINAN J:   Did they apply the “significant possibility” test though?  That is the test, is it not?  The better view is that that is the test?

MR LAMPRATI:   The authorities say, as we have referred to in the application book, your Honour, that, to quote Sir Harry Gibbs, there is no magic incantation, there is no set formula.

CALLINAN J:   But is that not the expression that has been accepted as the correct one, “significant possibility”?

MR LAMPRATI:   Yes, although I qualify that, your Honour.  As I read the authorities, they appear to say that there is no practical difference between the two.

CALLINAN J:   Between – well, what is the other one?

MR LAMPRATI:   “Significant possibility” and “likely”.

CALLINAN J:   But do they not make it clear that they use “likely” in that sense?  “Likely” does not always have a fixed meaning.

MR LAMPRATI:   Well, that is the difficulty we are in, your Honour.  Without I hope getting away from the point your Honour is putting to me, whether that is true or not, we put that whatever formulation you use – “likely”, “possibility”, “significant possibility”, “acceptable belief” – when the Court of Criminal Appeal makes a positive finding the evidence is neither credible nor plausible, it is very hard to conclude that whatever test of the Australian formulations that one applies that the evidence could pass that test ‑ ‑ ‑

CALLINAN J:   It depends – credible on the balance of probabilities, or credible according to some higher test, or lesser test?  That is the problem, is it not?

MR LAMPRATI:   Yes.

CALLINAN J:   That phrase to which Mr Odgers drew attention in Justice Kirby’s judgment – I have just forgotten where it is now.  Page 110, is it?

GUMMOW J:   Paragraph 114 on page 210:

would have been likely to have caused the jury to have entertained a reasonable doubt as to the guilt of the accused.

MR LAMPRATI:   Yes, “entertained a reasonable doubt”, your Honours.  With respect, we submit there is no problem by the use of such formulation, given the findings that the court made.  We submit that whatever formulation you use, if you make the finding that it is not credible or plausible, it cannot survive the tests that the Australian cases apply.

CALLINAN J:   Where is that finding again, Mr Lamprati?

MR LAMPRATI:   Application book 210 ‑ ‑ ‑

CALLINAN J:   No, “not credible or plausible”.

MR LAMPRATI:   Yes, it is at line 6 on that page at the top.

CALLINAN J:   Yes.

MR LAMPRATI:   Now, with respect to my learned friend’s submission ‑ ‑ ‑

GUMMOW J:   It is said against you that that conclusion as to lack of credibility or plausibility was reached by flawed reasoning.

MR LAMPRATI:   Well, we submit no.  We submit that his Honour was entitled to come to that conclusion for the reasons that his Honour gave in the judgment.  His Honour spelled out, firstly, what I might call the shifting in ground of Mr Balbarki in his evidence before the court.  Before the luncheon adjournment he had no doubt at all as to the correctness of his memory.  After the luncheon adjournment he said that he had difficulty remembering the times and so on.  He said that after the phone call they continued to watch the State of Origin game together but, as his Honour pointed out, that cannot have been correct because the game finished at 9.51.  That was agreed by the parties.  So the time of this call was at 10.13.

His Honour put that the very lateness of Mr Balbarki coming forward is again a matter that was weighed against him.  He said that he had known the applicant since childhood.  He had not come forward when the applicant had been charged, he had not come forward at the trial, he had not come forward even when he was convicted and sentenced and even, as it turned out at the CCA hearing, your Honours, he was subpoenaed, he had not conferred with anybody, and he was even unco‑operative there.  Indeed I would submit, with respect, your Honours, that the reading of his evidence dictates a certain hostility to the proceedings.  His Honour took that into account too as to the credibility or plausibility of this man’s evidence.

His Honour also took into account another important question in assessing no doubt the effect upon the jury’s verdict in the context of the evidence given at the trial.  It was this, your Honours, that the Crown at the trial ran its case with two major themes.  First of all, the accused was identified by the other man in the trial, Mr Fadir Nasr, who knew the applicant, as having fired the gun.  He had run up to the car and fired the shots.  He identified him.  But apart from that there were what the Crown called the circumstances of the case which pointed strongly towards the accused as being the shooter, and his Honour listed them.

They were, first of all, the fight between the applicant and the deceased whereby it appears that, to use a colloquialism, the applicant had king‑hit the deceased on the jaw, they had been separated, a gun was produced, they had gone their way with the deceased saying words to the effect that, “I’m not finished with you”.  There was evidence that thereafter the deceased made several attempts to contact the applicant with a view to finishing the unfinished business, having it out with him in a fair fight.  There was then the evidence of the applicant refusing to meet him, the evidence of the deceased and Mr Fadi Nasr, the other man in the car, driving outside to where Mr Chabake, the applicant, lived with the deceased

shouting, “Come on out, Andrew”, his first name, words to that effect, and there was evidence from neighbours. 

Shortly thereafter there was evidence from the survivor, Mr Fadi Nasr, of the lights going out in the house, the curtain being moved and neighbours said shortly thereafter there were shots.  A security man in a car nearby heard the shots and very shortly after saw a man who – of general appearance, it was no more than that, medium build, but wearing a lightish top with dark pants walk away from the immediate vicinity and go to the adjoining street, Moore Street, which was where the applicant lived. 

The Crown put that in the context of all of that it would be amazing, to say the least of it, if at that very time when all these things happened someone else set about shooting the deceased.  Weighing all that in the balance – and that is important, I submit, your Honours, because the proposed fresh evidence has to be assessed in the context of the evidence given at the trial, the evidence given below.  There was also the evidence of the police constable that the day after the events, the day after the death, he had been told by the applicant that he was at work at the relevant time.  That was cross‑examined by counsel for the applicant at the trial, reinforcing it, as it were, with Constable May and also the witness Hadid, as his Honour pointed out, was cross‑examined to similar effect, which meant of course this new evidence was completely contradictory to the line taken by Mr Steirn, which effectively was that at the relevant time the applicant was at work.

So bearing in mind all of those things, including the assessment made of Mr Balbarki at the court, the court came to the conclusion it simply was not plausible and credible.  In my submission, whichever tests one uses, this evidence certainly would not pass.  For those reasons, your Honour, and the other reasons in the application book, we submit that this is not a matter in which special leave should be granted.

GUMMOW J:   Yes, Mr Odgers.

MR ODGERS:   Firstly, on the questions of timing, my friend has argued that Balbarki’s uncertainties about timing legitimately undercut his evidence about phone call 25, but the Crown in their written submissions has conceded at page 239, line 42:

that call 25 was the only phone call made from the applicant’s home to Balbarki’s landline that evening –

It was the only call made from the applicant’s home to Balbarki’s landline that evening.  So it reinforces the point that if it was call 25 it was inconsistent with guilt.

My friend has referred to the lateness of Balbarki in coming forward.  He gave evidence that he was in fear.  Your Honours will see at page 153 of the application book, line 5:

A.       I fear every day for my family’s wellbeing.  I’m not concerned about myself.  We live in a community all amongst each other and to get on anybody’s bad side or start something wouldn’t be a good idea because you wouldn’t be able to make it to the corner shop without bumping into anybody else that you knew and avoid complication.

He told the applicant’s solicitor at 126, line 25:

“I am concerned about my safety and my family’s security and safety.  I live in the same area where Romeo’s –

that is, the deceased –

family live”.

So he explained why he was reluctant to give evidence to assist the applicant.

His Honour Justice Kirby thought it was discreditable that he had only come forward after the conviction.  It may be morally discreditable, even despite his fear of retribution, but so what, your Honours?  To say it is discreditable not to give evidence showing someone is not guilty of murder logically accepts that he can give such evidence.  It does not undermine in any way the truthfulness or credibility of the evidence.  It assumes the truthfulness or the credibility of the evidence.

Your Honours, Justice Kirby referred to the context of the evidence given at the trial.  He referred to how prosecution witnesses were cross‑examined.  My friend has referred to how Constable May was cross‑examined.  That is true.  The defence tried to run an argument that he might have been at work, not with Balbarki, but he was forced into that position – he felt he was forced into that position by the fact that Balbarki had been unwilling to assist.

CALLINAN J:   Did the applicant’s instructing solicitor ever ask the prosecution to obtain a statement from Balbarki?

MR ODGERS:   Your Honour, there is evidence at the trial that police spoke to Balbarki, asked him for a statement and he said, “I absolutely refuse.  I’m not talking to you.”  The Crown did not subpoena him,

obviously.  And there was evidence that the family of the applicant had asked him before the trial to give evidence and he had refused. 

But can I go back to Constable May, your Honours.  In Pendleton it was the very fact that the trial would have been run completely differently which supported the appeal being allowed.  Here Justice Kirby and the Court of Criminal Appeal have used how it was run to – and there is an argument for not allowing the appeal.

Now, as for the strength of the prosecution case, the single identification witness, Fadi Nasr, he initially told the police it was too dark, he could not see anybody, he could not identify anyone.  He only changed his account two days later after the family had complained because the applicant had been released from custody.  The next most important witness was Bakhousse Hadid.  The judge described him in sentencing as an unreliable witness who changed his version depending on what he thought best suited his own interests.  Another prosecution witness was said to be clearly unreliable.

As for the circumstantial case, what did it come down to?  There was a fight a few hours before, a gun was present but it was described very differently from the way that Mr Nasr described the gun that was used, and the victim was shot in the vicinity of the applicant’s house where he lived with the father.  Now, I am not saying that the father did it, but the father was involved in the fight, the father lived at the house.  The circumstantial case pointed just as much to him as it did to the applicant; that is assuming that it was not just entirely a coincidence that the shooting had occurred there.

So, your Honours, in those circumstances, if Balbarki is capable of belief, if he essentially emerges unscathed from cross‑examination and all that happens is he is doubtful as to times of events three years before, he gives an account which must, on the telephone records, mean that the applicant is not guilty, the accused told his lawyers he was with Balbarki all along, he has never changed his story.  In those circumstances, your Honour, how can there not be a significant possibility that the jury would find him not guilty?

GUMMOW J:   Now, this application was lodged out of time, was it not?

MR ODGERS:   Your Honours, there was an affidavit – it was three weeks out of time, but I understand the Crown does not take the point.

GUMMOW J:   Is that right, Mr Lamparti?

MR LAMPRATI:   No, I do not take the point, no, your Honour.

GUMMOW J:   Thank you.  Yes, thank you, Mr Odgers.  We will take a short adjournment.

AT 2.27 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.29 PM:

GUMMOW J:   There are insufficient prospects of success in demonstrating that the Court of Criminal Appeal erred in its fact finding and in its ultimate conclusion that there had been no miscarriage of justice, to warrant a grant of special leave.  The application for an extension of time is granted, but special leave is refused.

AT 2.29 PM THE MATTER WAS CONCLUDED