Abukar v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0104

SALAH ABUKAR	Applicant
v
THE QUEEN	Respondent

S EAPCR 2020 0105

DAWUUD ABDI	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	KYROU, McLEISH and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 August 2021
DATE OF JUDGMENT:	31 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 238
JUDGMENT APPEALED FROM:	[2020] VSC 225 (Tinney J)

---

CRIMINAL LAW – Appeal – Conviction – Applicants tried jointly with two other co‑accused – No application for separate trials – Each applicant charged with intentionally causing serious injury and affray – Co-accused charged with murder – Co-accused’s record of interview played to jury – Co-accused subsequently pleaded guilty to lesser charge in course of trial – Applicants then applied for discharge of jury on basis co‑accused’s record of interview prejudicial to them – Whether judge erred by refusing to discharge jury — Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant Abukar	Mr S Kenny	Emma Turnbull Lawyers
For the Applicant Abdi	Mr C Pearson	Tony Hannebery Lawyers
For the Respondent	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
McLEISH JA
EMERTON JA:

Introduction and summary

The applicants, Salah Abukar (‘Abukar’) and Dawuud Abdi (‘Abdi’), were tried together before a Supreme Court judge and jury with two other co‑accused, Abdifatah Sharif (‘Abdifatah’) and Ahmed Sharif (‘Ahmed’). Abdifatah and Ahmed are brothers and Abukar is their cousin. None of the accused applied for a separate trial.

The applicants and Abdifatah were each indicted on one charge of intentionally causing serious injury (charge 2), one charge of recklessly causing serious injury (charge 3) and one charge of affray (charge 4). Ahmed was indicted on one charge of murder (charge 1). The charges arose out of the events in Castley Crescent, Braybrook on the evening of Saturday, 9 December 2017, when Paul Duncanson (‘Paul’) was killed by a Hyundai Getz hatchback being driven by Ahmed, and Paul’s brother Sean Duncanson (‘Sean’) was seriously injured.

The jury was empanelled on 7 October 2019. On 28–29 October 2019, the prosecution played to the jury Ahmed’s record of interview (‘Ahmed’s ROI’), without objection from the applicants or Abdifatah. The transcript of Ahmed’s ROI became an exhibit and was provided to the jury. The Crown case concluded on 1 November 2019. On 6 November 2019, in the fifth week of the trial, Ahmed pleaded guilty to the lesser charge of manslaughter and the trial continued without him.

On 7 November 2019, each of the applicants, but not Abdifatah, applied for the jury to be discharged. The applicants argued that certain passages of Ahmed’s ROI, which were now irrelevant to any facts in issue at trial, were highly prejudicial to them. On the same day, the judge refused the applications. The transcript of Ahmed’s ROI and all other exhibits which only concerned the case against him were withdrawn from the jury on 8 November 2019.

The jury commenced its deliberations on 15 November 2019. On 21 November 2019, the jury found the applicants guilty on charges 2 and 4. On 22 November 2019, the jury found Abdifatah not guilty on charges 2 and 3 and an alternative charge to charge 2 (intentionally causing injury). On 25 November 2019, the jury was discharged in relation to Abdifatah, without verdict on charge 4 and another charge which was an alternative to charge 3.[1]
[1]Abdifatah was scheduled to face a re-trial in the County Court in relation to the charges in respect of which the jury failed to reach a verdict, but those charges were discontinued on 19 February 2020.

On 30 April 2020, each of the applicants was sentenced by the judge to 6 years’ imprisonment for intentionally causing serious injury[2] and to 2 years’ imprisonment for affray.[3] In each case, 9 months of the sentence for affray was cumulated, resulting in a total effective sentence of 6 years and 9 months’ imprisonment. A non-parole period of 4 years and 6 months was fixed for each applicant.[4]
[2]Crimes Act 1958 s 16. The maximum penalty is 20 years’ imprisonment.
[3]Crimes Act s 195H. The maximum penalty is 5 years’ imprisonment.
[4]R v Abdiand Abukar [2020] VSC 225 (‘Sentencing remarks’).

The applicants have sought leave to appeal against their convictions on the proposed ground that the judge erred by refusing their applications to discharge the jury.

For the reasons that follow, the applications for leave to appeal will be refused.

Prosecution and defence cases at trial
Broad outline of prosecution case of lead up to, and circumstances of, offending

At 8:26 pm on 9 December 2017, Ahmed drove the Hyundai west on Ballarat Road, Braybrook and stopped at the carpark of an apartment complex at 233 Ballarat Road. Footage from a CCTV camera in the carpark shows Ahmed and five passengers exit the Hyundai, interact with each other and eventually leave in the car at 8:50 pm. The passengers were the applicants, Abdifatah, Yasir Duale (‘Duale’) and Abdigani Mohamed (‘Abdigani’).

The CCTV footage shows that Ahmed, Abukar, Abdifatah and Abdigani were wearing dark clothing and that Abdi and Duale were wearing lighter clothing. The footage also shows Ahmed mingling with the other men, including the applicants, in a familiar and friendly manner. During the interval that the car was in the carpark, some of the men, including the applicants, moved outside the camera frame from time to time. The jury could infer from the footage that the six men were between about 15 and 25 years of age.

After it left the carpark at 233 Ballarat Road, the Hyundai stopped outside a house at 237 Ballarat Road, at which Tony Yuksek and Sally Roach resided. Paul, who was visiting Ms Roach, was attacked by one or more of the men from the Hyundai in the front yard of the house. He was punched in the nose, causing it to bleed. No one was charged in relation to Paul’s injuries; the evidence of the attack on him was adduced to provide context for the offending that occurred later in the evening.

Following the attack on Paul, the Hyundai was driven a short distance to 91 Melon Street, Braybrook. Paul returned to his nearby home, which he shared with Sean (‘victims’). Shortly afterwards, Paul, followed by Sean, left the house on foot to find the group that had attacked him. In his sentencing remarks, the judge stated that ‘the overall evidence indicates that one or both of the Duncanson brothers were armed with weapons at the time’.[5]
[5]Sentencing remarks [4].

At about 9:30 pm, as the victims walked in a northerly direction on Castley Crescent, they came upon the Hyundai. Paul recognised the car from the earlier incident. Ahmed was driving and the applicants, Abdifatah and Duale were passengers. The victims smashed the car’s two rear passenger windows and rear windscreen. Ahmed drove a short distance north towards Ballarat Road, then turned the car around. The applicants and Abdifatah exited the car and approached the victims. As discussed at [36] below, the prosecution case was that Duale did not leave the car.

Ahmed then drove south and struck Paul (and possibly Sean) with the vehicle. He drove a short distance further down Castley Crescent, turned the car around and parked outside 33 Castley Crescent. Paul staggered across the road and sought refuge outside the home of Vi Kit Chung at 32A Castley Crescent.

Both applicants and Abdifatah assaulted Sean outside 33 Castley Crescent (charge 2 — intentionally causing serious injury). The prosecutor submitted to the jury that the three men acted pursuant to an agreement to inflict serious injuries upon Sean and that each was complicit in each other’s conduct.

The charge of affray comprised the conduct of the applicants and Abdifatah from the time they exited the Hyundai and commenced engaging with the victims until they ceased engaging with the victims and returned to the car (charge 4). Once again, the prosecutor submitted to the jury that the three men had acted pursuant to an agreement and that each was complicit in each other’s conduct.

Evidence of eyewitnesses

Jose Munoz gave evidence that, from his front garden at 39 Castley Crescent, he saw a vehicle do a three-point turn and then accelerate ‘with a lot of speed’ south along Castley Crescent. He described four people walking down the middle of the road also heading southwards. He said that the two in the middle were struck by the vehicle — one was thrown into the air and the other was thrown into a van that was on the road. Mr Munoz’s evidence was that, at the point of impact, the speed of the vehicle was ‘[m]aybe 50, 60 kilometre[s] an hour’. Mr Munoz did not see anybody get out of the car.

From upstairs in his home, Mr Chung heard two men yelling at each other outside and went to a window to see what was going on. He heard a car engine ‘rev up’ and then saw the car attempt to run over the two men. He observed ‘a few people’ get out of the car, run towards the two men outside 33 Castley Crescent and start fighting with them. He saw one of the men from the car was wearing a ‘brighter colour top’. Mr Chung saw that man had a metal weapon raised in his right hand as if he was going to strike someone. Mr Chung said that the weapon was ‘like a silver object’ and 30 or 40 cm in length. Mr Chung said that, at one point, he saw a man sitting down near the fence outside 33 Castley Crescent, and he then saw a man wearing darker clothes run up and kick the seated man. Mr Chung said that he heard what he thought were five voices in total over the course of the incident and saw four men.

From her bedroom window at 1 King Street, which is on the corner with Castley Crescent, Kathleen Barnard saw a group of four or five people punching and kicking a man while he was on the ground in the foetal position in front of the fence at 33 Castley Crescent. Ms Barnard watched the attack for up to half a minute before deciding to telephone the police. Having done so in a different part of her house, she returned to her bedroom window and witnessed ‘a couple more kicks and punches, maybe for about five seconds’ before seeing the attackers get into their car and leave the scene.

DNA evidence

At trial, Mark Gallatly, a forensic officer of Victoria Police, gave evidence in relation to DNA samples collected from Castley Crescent.

Mr Gallatly stated that Abukar and Paul had both contributed to a DNA sample found on the handle of a golf club with the club head removed. The golf club shaft was collected by police from the nature strip outside 33 Castley Crescent. In response to questions from counsel for Abukar, Mr Gallatly said that the DNA evidence did not prove that either Abukar or Paul had held the handle and that the DNA sample could have been transferred from another person or other object. Mr Gallatly also said that Abukar’s DNA was found on a wooden-handled pocketknife, as well as a black ‘Toronto Raptors’ baseball cap, which were both collected by police from outside 37 Castley Crescent.

Abukar admitted that the baseball cap was his and that he was wearing it on the night of 9 December 2017.

Mr Gallatly gave evidence that there was no evidentiary support that Abdi’s DNA was on any of the weapons collected from Castley Crescent, namely, the golf club shaft, a machete, a black-handled kitchen knife, a metal pipe and the wooden‑handled pocketknife. He stated that Paul’s blood was found on the handle of the machete and the shaft of the golf club and that Sean’s blood was found on the black-handled kitchen knife and the metal pipe. He also stated that Abdi’s blood was found on the exterior of the Hyundai.

One of the inferences that was available to the jury from the presence of Abdi’s blood on the exterior of the Hyundai was that he exited the car and engaged in an activity — such as assaulting Sean — which caused him to bleed, before he returned to the car.

The prosecutor alleged that the location of Abukar’s pocketknife and baseball cap were consistent with Abukar exiting the car urgently at about the time that Ahmed turned the Hyundai around. However, Abukar’s counsel submitted that Abukar losing those items was also consistent with his defence that he got out of the Hyundai in a state of disorder, fell over and hit his head.[6]
[6]Abukar’s defence is discussed at [33]–[34] below.

The prosecutor submitted that the golf club might have been the weapon seen by Mr Chung and it might have caused the injuries to Sean’s head.

Evidence of Mustafa Sharif regarding admissions by the applicants

Mustafa Sharif (‘Mustafa’), the brother of Ahmed and Abdifatah, gave evidence of a conversation he had with Abukar in a park on 11 December 2017. Mustafa said that Abukar told him that the applicants had weapons. Mustafa said that Abukar described the weapons as a knife, and as ‘something that cuts trees’ in Somali. Mustafa stated that he asked Abukar whether the latter weapon was a machete or axe and that Abukar replied it was an axe. When asked by counsel for Abukar, Mustafa said that he did not speak conversational Somali and he could not repeat the word for ‘something that cuts trees’. Mustafa also gave evidence of a subsequent telephone call he had with Abukar. Mustafa stated that he told Abukar that ‘the boys’ were going to the police station. Mustafa said that Abukar asked that they not refer to him if they went to the police station.

Mustafa gave evidence of two telephone calls he had with Abdi on 11 December 2017. Mustafa stated that Abdi told him that the applicants fought a guy and that Abdi held the guy and Abukar hit the guy’s head three times with ‘the thing you cut trees with’. Mustafa also stated that Abdi told him that Abdi did not want to hand himself in because the police would not know who he was. Mustafa said that he tried to convince Abdi to hand himself in, but he would not listen.

Mustafa’s evidence of his conversations with Abukar and Abdi was tentative and the prosecutor obtained leave under s 32 of the Evidence Act 2008 for Mustafa to revive his memory from the statement he made to police on 12 December 2017. The prosecutor also obtained leave under s 38 of that Act to cross-examine Mustafa on one aspect of his telephone conversations with Abdi. However, when Mustafa was cross-examined by each of the applicants’ counsel, he did not materially deviate from his evidence in chief.

Evidence of incriminating conduct

Following the incident with the victims, Ahmed, the applicants, Abdifatah and Duale departed in the Hyundai. Ahmed drove to St Albans, removed the number plates and items in the car linking him to the car and abandoned the car. The prosecution relied upon this evidence as ‘incriminating conduct’ which was said to evince a consciousness of guilt by the accused for the purposes of div 1 of pt 4 of the Jury Directions Act 2015. As against the applicants, the prosecution also relied upon the following evidence as incriminating conduct:

(a)Abdi told Mustafa that he was not going to hand himself in because the police did not know anything about his identity.
(b)Abukar asked Mustafa to not mention his name when ‘the boys’ go to the police.
(c)Abukar lied in his police interview that he was knocked out in Castley Crescent.

Evidence of victims’ injuries

An ambulance transported Paul to the Royal Melbourne Hospital, where he died. Dr Malcolm Dodd, a forensic pathologist, conducted an autopsy on Paul’s body on 10 December 2017. He opined that Paul had sustained some injuries from an assault which would have been survivable. He was of the view that the motor vehicle impact was the primary cause of death.

Sean was transported by ambulance to The Alfred Hospital. After multiple surgeries, he was discharged to the Caulfield Hospital’s rehabilitation centre on 22 December 2017. He was discharged from the rehabilitation centre on 24 January 2018 with ongoing cognitive problems. Dr Maaike Moller gave the following evidence about Sean’s injuries:

[H]is injuries were life-threatening. He had … bleeds in multiple parts of his brain, he had fractures in multiple parts of his skull, he had swelling of his brain such that there was a shift of his brain from one side to the other and he required emergency brain surgery, including drilling of holes into his skull in two sites, and that was lifesaving surgery.

Applicants’ defences at trial

The applicants did not give evidence at trial. Their records of interview were tendered. They admitted that they were present during the incident at Castley Crescent but denied that they struck Sean or that they used weapons. They also denied that they had acted pursuant to any agreement. Both applicants contended that, if they struck Sean, they did so in self‑defence.

Abukar’s case was that he fell over when he got out of the Hyundai, hit his head, became unconscious and did not regain consciousness until he was woken up by the others at the time that they returned to the car in order to leave the scene.

Abdifatah’s defence was that he exited the Hyundai and, in self-defence, swung a bag he was carrying at one of the men who had attacked the car, without making any contact with that man. He contended that he was not involved in any altercation with the victims or any agreement to engage in fighting.

The prosecution case was that Duale remained in the Hyundai during the incident in Castley Crescent and did not participate in the affray or the assault on Sean.

Ahmed’s record of interview

Ahmed was interviewed by police on 12 December 2017. As we have already stated, the prosecution played Ahmed’s ROI to the jury on 28–29 October 2019 without objection from any accused. The transcript of Ahmed’s ROI became an exhibit and was provided to the jury. The ROI comprised a total of 1,978 questions and answers, spanning 224 pages.

In the course of Ahmed’s ROI, still CCTV images of the four accused, Duale and Abdigani were shown to him. Initially, he identified himself, Abdifatah, Duale and Abdigani, but stated he did not remember the applicants’ names. Following a break in the interview, he volunteered the names of the applicants.

With some minor exceptions, both applicants rely upon the following questions and answers in Ahmed’s ROI in support of their applications for leave to appeal:[7]
[7]It appears that not all of the questions and answers set out in the quote that follows were expressly drawn to the judge’s attention. However, nothing turns on this for the purposes of the current applications. We have italicised some of Ahmed’s answers in the quotes that follow, as they are relevant to the discussion later in these reasons.

Q1048    Yep. So this was the front passenger. Who’s that one?
AI don’t know that dude’s name straight-up.
Q1049    You know him though? Like ‑ ‑ ‑
ABy face maybe, by name association I don’t know him. Obviously, you know ‑ ‑ ‑
Q1050    Yep.
A‑ ‑ ‑ we may have met each other at Linda’s and then went to that alleyway to — like I always do.
Q1051    Oh, so this — this man was at Linda’s?
AMaybe, yeah. Maybe he could be from there sometimes, you know, we’re not friends, just drive some of them, not really, you know what I mean ‑ ‑ ‑
Q1052    Yep.
A‑ ‑ ‑ familiar with me or to them.
Q1053    Mm’hm.
AYeah.
…
Q1076    Yep. And then we’ve got male 2 who was also a passenger and you’re not sure who that was ‑ ‑ ‑
AYep.
Q1077    ‑ ‑ ‑ but you would have or may have met him at Linda’s.
AYep.
…
Q1086    All right. In relation to the — the two men that are in the images that you haven’t identified, can I ask you are you being honest with us?[8]

[8]The context indicates that the reference to ‘the two men’ is to the applicants.
AI hope, seriously, honestly, yeah, from what I can remember.
Q1087    Just in relation ‑ ‑ ‑
AI’m being honest.
Q1088    ‑ ‑ ‑ to these two — two men.
AYep.
Q1089    Just purely in relation to them ‑ ‑ ‑
AMm.
Q1090    ‑ ‑ ‑ are you being honest when you tell us that you don’t know what their names are?
AYes.
Q1091    Are you afraid of these two men?
ARight now so I don’t think I should answer that question straight-up, yeah, I don’t know, possibly not.
Q1092    O.K. So you do have concerns about these two?
A Concerns? Well, ’cause they were with me there maybe — yeah.
Q1093    Why?
ABecause you have concerns as well so ‑ ‑ ‑
Q1094    Well ‑ ‑ ‑
A‑ ‑ ‑ that’s why I was concerned straight-up.
Q1095    We’re — we’re concerned with just identifying each of the people ‑ ‑ ‑
AO.K.
Q1096    ‑ ‑ ‑ that — that are — are in these images.
AAll right.
…
Q1146    These other two men that are in your car ‑ ‑ ‑
AYeah.
Q1147    ‑ ‑ ‑ can you explain to me how you don’t know them but they’re in your car and you appear to be talking with them and associating with them?
AO.K. As — as far as that, yeah, we were chatting, you know what I mean? From Linda’s house, they can speak to me, I can speak to them and every time they want a lift somewhere I — I don’t feel discomforted from saying yes to these people.
Q1148    Mm’hm.
AFrom — you know what I mean? Visualisation, you know what I mean? Straight-up, by name and all that — yeah.
Q1149    O.K.
AYeah — , straight-up, bro.
…
Q1301    Mm’hm.
A… [Dawudd] had received a phone call from Tony at Ballarat Road, asking about some property damage. He said, ‘You smashed my thing in my house,’ or something, I never heard it, we were both in Linda’s house, and he received the phone call. He had asked me, ‘Bro, come, let’s go, we’ll go to — back to Tony’s or something, ’cause, like, he’s home now and he wants to see me.’ They’re really good with each other, I assume, Tony and [Dawuud] — well, to the best of my knowledge. …
…
Q1337    Yep.
AAnd then Abdifatah, that’s when he jumped out, you know what I mean? So this car only has two doors. It took a while for the back passengers to attempt to jump out, Salah and [Dawuud]. [Duale] is still in the car with me, you know. He, at that time, pretty much felt pain in the back of his head, and later that night we found out it was bleeding … So what happened was Abdifatah jumps out, the last person to get out the car was Salah, who ‑ ‑ ‑
Q1338    Yes.
A‑ ‑ ‑ who I noticed exited in a really — not a good way, ’cause I — I’m still, like, you know what I mean, I’m doing a U-turn, I’m not stopping, I have to go back now. My brother’s already jumped out.
Q1339    Mm.
AAbdigani’s still there, and ‑ ‑ ‑
Q1340    Why do you wanna go back?
A’Cause now my brother’s, straight up, you know what I mean, just in case, man. I just realised what happened. Everything here’s been smashed, and it’s just, like, straight up, a matter of, like, five, ten seconds, you know what I mean, like, I wasn’t allowed, bro, straight up, and they said, you know, ‘Go back.’ This guy jumped out. I’m noticing everyone falling out ’cause I’m not stopping, I’m trying to go back. I believe they all said, straight up, they may have said, ‘Stop, stop, stop, we jump out.’ Straight up, it wasn’t — it wasn’t meant to be like that, you know what I mean, be — beyond my power, my choice, I don’t know, and then it was to be me to return with my car, and not jump out of the car.
Q1341    Mm.
AYou know, Salah jumps out of the car, I see him flying, bang, ’cause it’s when I was popping that three turn, I was in reverse. So I go forward, reverse, he’d been out, so he’s gone, flew out, bang. [Dawuud] probably had jumped out before him, he’s inside the thing that’s going on, right, with the two gentlemen, straight up.
Q1342    Mm, mm.
ASo now it’s Abdigani who was on the floor. Straight up, he fell on the ground and, you know what I mean, he straight up told me after that he had two machetes to his face and all that, they smacked him on the leg, he was bleeding.
Q1343    Mm.
AAnd he fell, so one scar was the fall and one scar was the smack from some weapon ‑ ‑ ‑
Q1344    Mm.
A‑ ‑ ‑ which we later saw, you guys are hopefully gunna see for yourselves ‑ ‑ ‑
Q1345    Mm.
A‑ ‑ ‑ once he’s contacted. And then basically or if youse don’t want to it’s all good and then what had happened was now, I’ve gone back to where I just left. Everybody’s down now except me and [Duale], you know what I mean, and Salah, who had just fallen to the floor, ’cause he was the last one to try to jump out.
Q1346    When you say ‘to the floor’, do you mean the ground?
ASorry ‑ ‑ ‑
Q1347    Not the floor of the, car, the ground?
ANuh, nuh, nuh, the ground.
Q1348    Yeah.
AAsphalt.
Q1349    Yes, gotcha.
AHe fell behind me, ’cause I’m reversing, he probably put his leg out, the door hit him, sent him flying.
Q1350    O.K.
AHe’s down on the ground.
Q1351    Mm’hm.
ASo I’m looking at him, I saw him. I just — I’m still on — like, I’m not in drive mode, so I’m going forward.
…
Q1357    Go on.
ABang, now, straight up, in front of me — to my right, I see my brother ‑ ‑ ‑
Q1358    Mm.
A‑ ‑ ‑ Abdifatah Sharif, you know what I mean, in the middle, I see the — the — straight up, they were right next to each other, the gentlemen that had been assaulted out the front of Tony’s.
Q1359    Yep.
AAnd [Dawuud] Abdi, who’s running away from this gentleman.
Q1360    Mm.
AAll right, maybe — maybe, like, straight up, that’s who I see, three people. As — as soon as Salah falls to the ground ‑ ‑ ‑
Q1361    Yep.
A‑ ‑ ‑ and I turn my head back around forward, that’s who I notice for instance, but ‑ ‑ ‑
Q1362    How far in front of you are they, from your car?
AStraight up, like, one to two metres, you know what I mean?
Q1363    One to two metres is maybe from me to you.
ABang, bang, bang, right there in front of my car, they were there, man, to — right at the door. Say the car — the driver’s seats here.
Q1364    Mm.
AAs I popped that three turn, and Salah’s just there, laying on the ground, the boys there in front of me — the people that are in front of me are just there.
Q1365    O.K.
ARight there.
Q1366    Yep.
ASo I get to drive for another, maybe, five seconds or something, till I stop again, and then that’s when I see my brother under the car.
Q1367    Mm’hm
ALike, you know what I mean, what happened was I drove forwards ‑ ‑ ‑
Q1368    Yep.
A‑ ‑ ‑ I may have accidentally hit someone or something. Straight up, I may have accidentally, straight up, the gentleman who was assaulted out the front of Tony’s home ‑ ‑ ‑
Q1369    Yep.
A‑ ‑ ‑ may have been hit by my car.
Q1370    Mm’hm
ABecause, straight up, [Dawuud is] here, and this guy’s here, and Abdifatah’s here.
Q1371    O.K.
AThat’s all three of ’em.
Q1372    Yep.
AAnd then it’s just like this, they’re not far from each other, they’re probably this room width. Abdifatah there, and that gentleman’s here, and [Dawuud] right here. They were the two that were closest to each other, they’re on my left. Salah’s also on my left, behind me ‑ ‑ ‑
Q1373    Yes.
A‑ ‑ ‑ laying on the ground.
Q1374    Yep.
AI just drive, and then I, straight up, possibly hit the gentleman that was assaulted outside of Tony’s home, and [Dawuud] Abdi. I went forward, did another U-turn again, went forward and then he was on the right side, but, like, behind Abdifatah and out of danger. Abdigani, you know, waiting on his bike right out the front of that driveway where I had left him, still close to each other and I just stop in front of him again. At that point in time, that’s when I realise Abdifatah, under my car, after I had popped a third return. Like, all right, so this is what’s happening, right. The boys are jumping out ’cause they gotta jump out, and then they’re all jumping out, everyone’s falling. I’m driving, then I hit that gentleman, straight up, with the white jumper, he was next to [Dawuud]. That gentleman fell down, you know what I mean, he fell down. [Dawuud] possibly just still standing. I just keep — that’s it — forward and towards Abdigani, and then I reverse to face, you know, everybody again back towards Ballarat Road.
Q1375    Right, yep.
ATo — you know, obviously I’m not going back that way or something. My original destination was there, you know what I mean. So I popped a U-turn back towards that way, and that last reverse I see Abdifatah under my car, straight up.
Q1376    So — so your car went over Abdifatah after ‑ ‑ ‑
A’Cause he’s ‑ ‑ ‑
Q1377    ‑ ‑ ‑ you had already hit the gentleman with the white jumper?
AStraight up. Abdifatah was on my right-hand side, he completely missed my car when I was getting away or whatever.
Q1378    Mm, mm.
APopped that thingy, he had ended up like this, come towards the back of my car, not paying attention obviously or something, I reversed again, you know, and then, bang, he’s under my car, looking at me, and I’m just there on my driver’s seat, and I was shocked a bit and I don’t know how to explain it, seriously and then it wasn’t even shock, he seemed pretty normal because he — he seemed pretty normal, Abdifatah, but he’s stuck under my car, which is hard to believe. So I put on a little bit more of a reverse, I freed him, bro, straight up, you know what I mean? He got back up instantly, he was free, and then that’s when I had jumped out the car, right. That’s the only point in time that night that I jumped out the car.
Q1379    Mm.
ANow, what do I see? Abdifatah Sharif, who had — who had just been under my car, he’s up now, upright. He’s all right. And then when I jump out, out jumps Yasir Duale, the third — the last passenger in the backseat.
Q1380    Yep.
AHe was with me this whole time in the car, right, and he just jumps out. Sorry, I’ll just take another drink. Basically, [Duale] jumps out and now he’s, he’s really asking everybody, you know, ‘We’ve gotta go.’ That’s the same thing I’m doing. I pulled Abdifatah — I really can’t remember, but Abdigani was on his bike and I’m just noticing, to the side of me, ’cause he didn’t get involved in anything, he’s free, still holding onto his bike, you know what I mean, just holding onto his bike on the side there. Me, middle of the night, what ever happened has happened now, things are all over the place. Well, at that point in time, my memory’s a bit phased. That gentleman who, straight up, I believe was hit by my car, was there, like, on his knees and all that, he was on his knees and, straight up, the person closest to him when I saw him on the ground you know on his knees, was holding his hand like this. Straight up, swear it, he was holding his hand like that. He looked into my eyes as well, we really saw each other, man, and then ‑ ‑ ‑
Q1381    This was the other gentleman that was with him?
ANuh. This is that same gentleman that had been assaulted.
Q1382    That — yeah.
AThis other man took — what’s his name? That shorter gentleman, who I saw close to [Dawuud], and then he’s holding his hand, injured. I didn’t see him any more.
Q1383    Mm.
AHe wasn’t there any more. Once I saw Abdigani with his bike, once I saw [Duale] outside of the car, once I saw Abdifatah get up from — you know what I mean, he was all right, I did not notice that gentleman any more, the shorter one, and — what’s it called? Didn’t notice him on the scene anywhere around, I was asking, ‘Let’s go.’
Q1384    So who — sorry, just before you go on, who was the one that you looked at the eye? Was that the gentleman ‑ ‑ ‑
AThe short gentleman who ‑ ‑ ‑
Q1385    ‑ ‑ ‑ you hit with the car?
A‑ ‑ ‑ had been assaulted, possibly was probably hit by my car ‑ ‑ ‑
Q1386    O.K.
A‑ ‑ ‑ on my way there the second time.
Q1387    Yep.
AYou know what I mean?
Q1388    Yep.
ASo I saw him, he was on the ground, you know what I mean, he looked shocked or something, and then, that’s when I decided to jump out the car, ’cause I can see him holding his hand. I pretty much had no intention to approach the gentleman, straight up, I didn’t have any intention to approach him, just my friends. I just said, ‘Hey, let’s go, let’s go.’ To the best of my ability, I believe we successfully all got back in the car and we drove off. Now, in — in that drive off, what I noticed was ‑ ‑ ‑
Q1389    What about Abdigani with the bike?
AAbdigani with the bike jumped in the car.
…
Q1399    Mm.
AI don’t know right now either, straight up, they say he had cuts or something.[9] What I had noticed, upon me and [Duale] trying to get everybody back in, what I had noticed straight up was he was up against the little green fence as well, the green gate of some dude’s house or something, holding the both of Salah and [Dawuud], right, so he was, like, that. So he’s — he’s back against the little fence.
[9]The context indicates that the reference to ‘he’ is to Sean.
Q1400    Is this at Tony’s house?
ANo, bro.
Q1401    No, in Castley Crescent?
AThis is Castley Crescent, this is the incident.
Q1402    Mm.
AAt Tony’s house, there’s only one man.
Q1403    Mm.
AThe one that was possibly hit by my car.
Q1404    Yep.
AThis second man, I see he’s got a dark hoodie on.
Q1405    Mm.
AHe may have been bald, I’m not sure.[10] Really, of course, white and all that. And he was, you know, probably trying to — I don’t know. He had — I think he had them by the jumper, I don’t know, then he’s — and he didn’t any more, but they were still there. So these two, that was the last thing I saw, and I grabbed — what’s his name? [Dawuud]. With the right hand. That was my last attempt of the night, being outside of the car and all that. Grabbed [Dawuud] and Salah and, you know what I mean, ‘Let’s go.’ I was — I think I was very distraught, screaming, off my head really badly. Pulled ’em into the car and then we had (demonstrates verbally) left on Ballarat [Road], and the last thing which pretty much I noticed was the gentleman in the dark hoodie.[11] The other thing I noticed was the other gentleman not around any more, right, the other gentleman — who I just grabbed these two, back to the car — that gentleman, straight up, looked — what’s it called? Like he had fallen on the ground, you know what I mean, his legs gave up on him or something, straight up, that’s what it looked like, and then we were all in the car. I see him ………. everyone’s in the car, we just drive.
[10]See n 9 above.
[11]The context indicates that the reference to ‘the gentleman in the dark hoodie’ is to Sean.
Q1406    O.K.
AStraight forward, left on Ballarat Road.
…
Q1414    So what part of your car ‑ ‑ ‑
AThis side.
Q1415    ‑ ‑ ‑ collided with the man?
AYep.     They ended up on — [Dawuud] and the man were on my left ‑ ‑ ‑
…
Q1425    And did you see him go ‑ ‑ ‑
AAnd maybe [Dawuud].
Q1426    And [Dawuud]?
ABut I’m not sure.
…
Q1431    Did you try and brake before you hit the man?
AStraight up, yeah, I believe I tried to brake, and then impact, straight up, hit him, and then I must’ve drove — continued to drive. I felt a bump, straight up, only on the front-left passenger side, there was no-one there but I’m on the right side, felt that little bump, whatever. Straight up, kept driving a metre forward, stopped the car, or two metres, I got away from both of them, [Dawuud] and — and — and the gentleman who was hit by my car, chasing [Dawuud] ‑ ‑ ‑
Q1432    Mm’hm.
AAs he was chasing [Dawuud], whatever, just crossing my thing and two cars that are parked, up, he’s gone back, probably trying to evade getting hit, most likely, and then bang, straight up, my car hit him. Went for another metre, metre and a half, go this way and then I’m facing Abdigani, pop it — on the third return — reverse, and then I do that. Now, I see Abdifatah, who was before on my right-hand side, he — straight up, he’s under my driver’s seat wheel, like, just the wheel.
Q1433    O.K., yep.
A’Cause what had happened was he was like that, so I — he ended up under it while I was reversing, and then when I braked I was still on him, so to speak, and then that’s when me and him had connected eyes. And then he looked at me, like, ‘What are you doing, man, get off my foot.’ And then I got off his foot, put it on reverse, that’s what it looked like, straight up. He said he was all good after that, so nothing broke or anything, and then what had happened was I saw him get up from under my front driver wheel, and that’s when I jumped outside of the car. I noticed the short dude in the white hoodie[12] was now on his — like, he’s on the floor, but on his knees, holding his hand.
[12]The context indicates that the phrase ‘the short dude in the white hoodie’ is a reference to Paul.

Q        1434    Mm’hm.
AAnd so he’s like this — going like that or something, and then I jumped out. That’s when [Duale] jumped out as well. Now, me and [Duale] were asking everybody to jump back in. Abdifatah attempts to grab the two gentlemen, [Dawuud] and Salah, who had the other gentleman against a fence right there, right.[13] So my car’s just gotten off Abdifatah, he got up, I jumped out. I approached them, I do this before I could really make any move on them, or, you know, force them to make any moves. You know, you — you — what had happened was I noticed Abdigani still holding his bike, [Duale] had just jumped out of the car, and then — [Duale] had just jumped out of the car and Abdifatah, to my left, he’s pretty much trying to stop the boys as well, trying to grab their attention, and then — yep. Before I grabbed them both for the last time, that last action to go back in the car, ’cause, straight up, they were not hearing me or whatever.
[13]The context indicates that the reference to ‘the other gentleman’ is a reference to Sean.
Q1435    Mm.
AEverybody else jumped in the car, including myself. So Abdifatah was back in the car, [Duale] was back in the car. Abdigani, I’m not sure. Then, when I jumped back in, I still see — I still gotta make another attempt to jump out and go grab ’em, that’s when I can clarify that the gentleman that had been hit by my car, straight up, was no longer there, on the floor or whatever. He just wasn’t there.
Q1436    Where was he?
AI don’t know, man, straight up. I did not see him after that.

Q1437    O.K.
AThen I had saw — so Salah and [Dawuud], that’s when I grabbed the back of their shirts, you know, and pulled them off, straight up.
Q1438    O.K.
APulled, like, with my body strength, I pulled ’em.
Q1439    All right.
A[Dawuud] ended up jumping in to the front seat and everybody else into the back seat.
…
Q1470    O.K. At what stage did you see the — the man in the white hooded jumper ‑ ‑ ‑
AMm’hm.
Q1471    ‑ ‑ ‑ and [Dawuud]?
AThe last second, just a flash of white. They were both wearing white as well.
Q1472    Mm.
ASo I have my — maybe high beams on, or headlights on at the least, I saw a flash just run, bang, both of them, they just ran to the side, right. They may both have been trying to evade getting hit by my car or, straight up, [Dawuud] could’ve been possibly running away from this dude, the short guy.
…
Q1504    You mentioned later, that when you then did another U-turn and you got out of the car to try and get all the boys ‑ ‑ ‑
AGet everyone out.
Q1505    ‑ ‑ ‑ to get back into the car ‑ ‑ ‑
AIn — in the car.
Q1506    ‑ ‑ ‑ you said you saw him ‑ ‑ ‑
AYeah.
…
Q1512    Mm.
ALike, so — so I saw him with his hand, I jumped out of the car upon me and him making eye contact, straight up, at that time, and he had [Dawuud] next to him.
Q1513    Mm.
AYou know what I mean, that — that — that proves who it was him and [Dawuud] who were right there when I hit something, which was him, because when I went back, reversed, seen [Dawuud] next to the guy while he’s on his knees, [Dawuud was] standing up. So that’s when I jump out. Abdifatah, he got freed, I reversed it a bit, jumped out, ’cause that was the last thing — before — as soon as I saw him on his knees, going like that, and I reversed, then I saw Abdifatah, you know what I mean, straight up, and I was like, ‘Oh fuck,’ then put it in reverse. Sorry for my language again, excuse me. And then I put it in reverse, and he got up. I opened my door at that time, jumped out. The car was probably still running.
Q1514    Mm, O.K.
AWhatever, headlights are still on and ‑ ‑ ‑
…
Q1859    O.K. Both of these gentlemen have sustained a number of injuries, O.K., being consistent with being hit with a car but also being hit with multiple weapons, you know, including the poles and knives.
AStraight up, that’s nothing to worry about me ‑ ‑ ‑
Q1860    So. I’m not — Yeah I’m asking you whether you saw anything though.
ARight now besides the young bloke who looked like he was walking with a long, black stick ‑ ‑ ‑
Q1861    Mm’hm.
A‑ ‑ ‑ no other weapons, straight up or anything of that sort.
Q1862    Did you see any physical fight or altercation between anybody?
APhysical fight? Towards that last part before I — my car hit the gentleman hit by the car ‑ ‑ ‑
Q1863    Mm’hm.
A‑ ‑ ‑ there was maybe a physical altercation between him and maybe [Dawuud], maybe. I did not see it. After that on my last reverse when Abdifatah was under my car and he got up, the last physical and probably the only physical people were touching each other of the night thing that I saw ‑ ‑ ‑
Q1864    Mm’hm.
A‑ ‑ ‑ was, yeah, the man that was against the fence ‑ ‑ ‑
Q1865    Mm’hm.
A‑ ‑ ‑ and the two boys that were, you know, had their backs turned to me but they were facing him.
Q1866    Yeah.
AHe’s got his face turned to me and then I did not notice anything ‑ ‑ ‑
Q1867    What two boys were they?
A‑ ‑ ‑ that may have been physical. That possibly may have looked physical. They had their hands on each other.
Q1868    What two boys were they?
A[Dawuud] and Salah. Possibly even Abdifatah but I can’t say right now honestly. Once he got up from under the car he probably jumped straight back in at my request. I dunno what he did, you know what I mean, I told you the other gentleman was no longer around as well.[14] And then what had happened was the physical part of the thing where … were touching each other was the two boys had their back towards me.
Q1869    Yeah.
AYou know, maybe had their hands on him.
Q1870    Yeah.
AOr out to him and he had his hands out to them like that and stuff or something. That’s the most physical of that night that I pretty much witnessed. I didn’t, you know, the man that was on his knees holding his hand, I didn’t witness him getting physical with anyone. Nothing like that. [Duale] didn’t get physical with anyone. Abdifatah hopefully, I didn’t see him getting close with anyone or anything, you know what I mean, straight up.

[14]The context indicates that the reference to ‘the other gentleman’ is to Paul.

In addition, Abukar relies upon the following questions and answers in Ahmed’s ROI in support of his application for leave to appeal:

Q1871    What about out the front of Tony’s [at 237 Ballarat Road]?
AOut the front of Tony’s.
Q1872    Yeah.
AYeah. There was physical there.
Q1873    Who?
AWell, Salah had approached that man from behind and punched him. That was physical there. [Dawuud] pretty much wasn’t touching him there out the front of that house. From a visual inspection I saw Salah, you know what I mean, hit him.
Q1874    Mm’hm.
ADid that man also return any — I believe so he got up and Salah didn’t strike him again. Now, whoever was behind the door of the security door I could hear screams, you know what I mean, somebody thought, maybe Sally, it sounded like. She said, ‘Tony’s not home. What are you doing?’ or something. That’s pretty much it, that was physical there — yeah.
Q1875    Yeah. So when you said that the bloke that got hit ‑ ‑ ‑
AYep.
Q1876    ‑ ‑ ‑ he got up, was he knocked to the ground when he was hit?
AStraight up, he was — he was facing the security door ‑ ‑ ‑
Q1877    Yeah.
ASalah had walked up behind him.
Q1878    Yeah.
ASo he had his back turned towards the dude that hit him.
Q1879    Yeah.
AHe — he became invisible to me at one point but then he was instantaneously up right there and Salah who were there. Some screams were exchanged which I pretty much now, pretty much comfortable to say Sally maybe was asking him, ‘What are you doing?’ or something. I’m not sure.
Q1880    Yeah.
AAnd yeah they jumped back in the car. That was physical — yeah.

As is apparent from [39]–[40] above, in the course of the ROI, Ahmed stated that Duale stayed with him in the Hyundai during the incident in Castley Crescent.

Relevant legal principles
Principles for discharging a jury

It is well established that an accused seeking an order that a jury be discharged must demonstrate that there is ‘a high degree of need for such discharge’.[15]
[15]Crofts v The Queen (1996) 186 CLR 427, 432 (‘Crofts’).

In Carson v The Queen, T Forrest JA (with whom Niall and Ashley JJA agreed) summarised the principles governing the exercise of a trial judge’s discretion to discharge a criminal jury as follows:

•The discretion to discharge the jury can only be exercised when there is a ‘high degree of need for such discharge’.
•The discretion to discharge the jury is to be exercised only when that course is necessary to prevent a miscarriage of justice.
•Ordinarily, a trial judge will be in a better position than an appeal court to assess whether, having regard to the course and atmosphere of the trial, any prejudice may be dispelled by a clear warning to the jury.
•An appeal predicated upon a trial judge’s failure to discharge a jury is not an appeal against that failure, but an appeal against the conviction. The applicant bears an onus of demonstrating that the exercise of his Honour’s discretion was infected by error. In Victoria, if the applicant is able to do this, then the respondent must demonstrate that the error did not make a difference to the outcome of the trial.
•An appellate court will not lightly interfere with the discretion to refuse an application to discharge a jury.[16]

[16][2019] VSCA 317, [90] (citations omitted).

In Crofts v The Queen, Toohey, Gaudron, Gummow and Kirby JJ stated the following:

No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
[T]he duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is [to] decide for itself whether, in those circumstances, the result of the refusal … occasioned the risk of a substantial miscarriage of justice.[17]

[17](1996) 186 CLR 427, 440–1.

Their Honours continued as follows:

[I]t was specially difficult in this case for the judge to fashion a direction to the jury which would help them to eradicate from their minds the highly prejudicial statement of the complainant. It is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts. But in the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account. The difficulty in this case was that the judge could not, and did not, refer specifically to the evidence which was so prejudicial because to do so would have reinforced the prejudice.[18]
[18]Crofts (1996) 186 CLR 427, 441.

Principles for ordering separate trials for co-accused

In general, it is in the public interest that two or more accused persons be tried together where they are charged with offences arising out of an incident in which it is alleged they have jointly participated.[19] However, the court has the power to order separate trials for co-accused named in an indictment if the court considers that a joint trial would prejudice the fair trial of the accused.[20] An order for separate trials may be made before or during a trial.
[19]Young v The Queen [2015] VSCA 265, [29], [37] (‘Young’).
[20]Criminal Procedure Act 2009 s 193(3)(b).

In R v Demirok, the Full Court of the Supreme Court of Victoria explained that the following matters of public interest must inform a decision as to whether to grant separate trials of co-accused:

The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.[21]

[21][1976] VR 244, 254.

More recently, in Young v The Queen, this Court summarised the principles for determining to order separate trials for co-accused as follows:

[T]he general rule in cases such as the present is that the accused should be tried jointly. It may be appropriate to depart from that rule if evidence admissible in respect of the trial of one accused but inadmissible against the other is unfairly prejudicial against the other in at least one of two senses. First, it may be that such evidence may create unacceptable collateral prejudice in the sense of establishing bad character or other prejudicial connotations that cannot be cured by judicial direction. On the other hand, it may be unfair in the sense that there is a real possibility that evidence which is powerful in the case in which it is admissible impermissibly bolsters what is otherwise a relatively weak case against another accused in which the same evidence is inadmissible and that this cannot be cured by judicial direction.[22]

[22][2015] VSCA 265, [37].

In a joint trial, the jury is sometimes exposed to prejudicial evidence which is admissible against one accused but not against another accused. If the latter accused is convicted and seeks to appeal against the conviction on the basis that the prejudicial evidence rendered the trial unfair, this Court must decide whether the trial judge’s directions regarding the prejudicial evidence were adequate to prevent the risk of unfair prejudice to that accused.[23] That decision must be made in the light of the whole of the evidence as it emerged at trial.[24]
[23]Young [2015] VSCA 265, [38].
[24]Young [2015] VSCA 265, [41].

Principles relating to accused’s entitlement to fair trial

In Jago v The District Court of New South Wales, Deane J stated that an accused’s right to a fair trial is more accurately expressed as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.[25] Brennan J acknowledged that perfect justice cannot always be attained and suggested that the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it.[26]
[25](1989) 168 CLR 23, 56–7 (‘Jago’).
[26]Jago (1989) 168 CLR 23, 49, 54.

In Jarvie v The Magistrates’ Court of Victoria at Brunswick, Brooking J said the following:

A fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused. The possible detriment or disadvantage to which an accused may on occasions be required to submit … may result from the rules of criminal procedure, whether the suggested disadvantage flows from the confinement of the accused in the dock or from the subjection of the accused to a trial jointly with others in a case in which a joint trial is allowed in accordance with the applicable principles.[27]
[27][1995] 1 VR 84, 90 (citations omitted) (‘Jarvie’).

Application for discharge of jury before judge

As we have already stated, on 7 November 2019, the day after Ahmed pleaded guilty to manslaughter and ceased participation in the trial, the applicants applied for the jury to be discharged on the basis of some passages from Ahmed’s ROI.[28]
[28]See [39]–[40] and n 7 above.

Defence counsel for Abdi submitted that the impugned passages of Ahmed’s ROI were not available evidence in the trial of Abdi and that, had Ahmed pleaded guilty prior to the empanelment of the jury, those passages would not have been before the jury. He contended that the practical effect of the impugned passages was as follows:

(a)The applicants were people whom Ahmed was initially reluctant to involve. When asked whether he was scared of them, his reply was ‘possibly not’, which left open the possibility that he was in fact scared of them.
(b)The applicants were the two people who had hold of the bald man — namely, Sean — in circumstances where he was up against ‘the little green fence’ — being the fence on the perimeter of 33 Castley Crescent.
(c)The applicants were reluctant to desist in what they were doing to Sean and to leave the area.

In response to questions from the judge, defence counsel for Abdi conceded that there was no basis upon which there could have been an application for a separate trial before Ahmed’s matter was severed from Abdi’s trial, describing any such application as ‘forlorn’. He argued that it was artificial to say that the jury was likely to have forgotten the detail of Ahmed’s ROI, which was highly prejudicial to Abdi. He contended that, in order to ensure the fairest possible trial, a new jury, which would be unburdened by extraneous considerations such as Ahmed’s ROI, should be empanelled for Abdi’s trial. He stated that, if a new trial were ordered, Abdi would not oppose the playing of relevant portions of the video and audio recorded evidence that had been adduced in the present trial.

Defence counsel for Abukar submitted that the passages of Ahmed’s ROI which were impugned by Abdi were equally prejudicial to Abukar. In addition, he contended that the passage set out at [40] above was prejudicial to Abukar because its effect was that Abukar was the only person who assaulted Paul at 237 Ballarat Road, by punching him in the back of the head. He argued that there was a real risk that the jury would remember the passages which had been played to them.

In response to questions from the judge, defence counsel for Abukar submitted that, whilst he always ‘had difficulties’ with Ahmed’s ROI, an application for a separate trial could not have been properly made on an assessment of the law and the facts as they then stood, given the presumption that the matters be tried jointly. However, he contended that the application to discharge the jury should not be determined on the basis of the absence of an application for a separate trial because there are distinct tests for granting the different applications.

The prosecutor submitted that there was no high degree of necessity to discharge the jury after five weeks of evidence. He emphasised that Ahmed had been charged with the murder of Paul, whereas the other three co-accused were charged with serious assaults on Sean. He contended that there was therefore no risk of prejudice to the applicants, or a low risk which could be adequately addressed by directions to the jury.

The prosecutor argued that, had Ahmed remained in the trial, the jury would have been directed that Ahmed’s ROI was only admissible against Ahmed. He submitted that the jury would also be directed that the records of interview of each of the remaining three accused — and the admissions they allegedly made to Mustafa — were only admissible against the relevant accused. He contended that these directions would reinforce the inadmissibility of Ahmed’s ROI against the three remaining accused.

During the hearing, the judge informed the parties that, if the jury was discharged, the matter would be refixed for some time in 2020. He stated that it would be highly unlikely for the jury to remember what Ahmed said in his ROI, which it knew, in any event, was not admissible against the other accused.

Judge’s ruling

In the ex tempore ruling made on 7 November 2019, the judge noted that the Crown had closed its case and remarked that it would be no small step for the jury to be discharged after five weeks of a joint trial of four accused. He also noted that he had raised with defence counsel for Abdi the unlikelihood that the jury would remember what Ahmed said in his ROI.[29]
[29]Transcript of Proceedings (7 November 2019) 2502.6–2502.9, 2508.28–2509.2, 2510.31–2511.2.

The judge remarked that, until the charges against Ahmed were severed from the trial, it had not been submitted that there would be anything unfair to any other accused arising from Ahmed’s ROI. He said that he found it hard to see how what was going to be a fair trial could become an unfair one just because one of the co‑accused would be absent for the remainder of the trial.[30]
[30]Transcript of Proceedings (7 November 2019) 2509.5–2509.14.

The judge stated that the jury had been informed numerous times throughout the trial — including after Ahmed’s ROI was played — that anything said by an accused to the police or any other person was admissible only in relation to that accused. He said that that direction is very easy for a jury to understand, and that it is an integral part of any joint trial that a jury will receive such directions and will be considered to be willing and able to follow them. He found that, as a matter of common sense, there was no prospect that the jury would think it could use anything Ahmed said against any of the other accused. Accordingly, he held that there was no need — let alone a high degree of need — for the jury to be discharged.[31]
[31]Transcript of Proceedings (7 November 2019) 2509.24–2511.9.

Judge’s directions to jury relevant to use of Ahmed’s ROI

On 7 October 2019, shortly after the jury was empanelled, the judge informed the jury that there were, in effect, four trials being heard together. He stated that each accused was entitled to have the case against him considered separately, only in the light of the evidence which applied to that accused.[32] The judge gave the jury similar directions on two occasions on 18 October 2019, the first day that Mustafa gave evidence about his conversations with a number of the accused. On that day, the judge also gave directions to the jury that anything said by any of the accused was only evidence in the case for or against that accused.[33]
[32]Transcript of Proceedings (7 October 2019) 335.16–337.13.
[33]Transcript of Proceedings (18 October 2019) 1284.8–1285.26, 1298.13–1298.25.

On 29 October 2019, after Ahmed’s ROI was played to the jury, the judge gave the jury similar directions to those he gave on 7 and 18 October 2019. He also informed the jury that what Ahmed said in his interview was only admissible for or against Ahmed and was not admissible for or against the other accused.[34]
[34]Transcript of Proceedings (29 October 2019) 1902.15–1903.15.

On 8 November 2019, after Ahmed ceased being involved in the trial, the judge directed the jury that there were now three trials within a trial. He reiterated that the jury’s duty was to decide the case against the remaining three accused on the evidence admissible against each of them. He advised that the evidence that was relevant solely to Ahmed’s trial — including Ahmed’s ROI — would no longer be part of the cases the jury was considering. He emphasised that it was important for the jury to ‘just completely forget about [Ahmed’s ROI]’ because what Ahmed said in his interview had only been admissible against him and had never been admissible against the other accused.[35] As we have already stated, the transcript of Ahmed’s ROI was withdrawn from the jury on 8 November 2019.
[35]Transcript of Proceedings (8 November 2019) 2551.18–2553.18.

In his charge to the jury delivered on 13–15 November 2019, the judge reminded the jury that there were three trials being heard together and that it must consider the case against each accused separately, only in the light of the evidence which applied to that accused. He reiterated that what one accused said to police or any other person was not admissible for or against any other accused. He stated that that direction had particular application to Ahmed’s ROI, which had nothing to do with the case against the remaining co-accused.[36]
[36]Transcript of Proceedings (13 November 2019) 2892.15–2895.15; (14 November 2019) 2913.18–2913.23, 2923.6–2923.15.

In his charge to the jury, the judge stated that the evidence of the events at 237 Ballarat Road, where Paul was assaulted, was led for the limited purpose of providing background to the events in Castley Crescent. He told the jury that it must not use that evidence to reason that, because an accused may have been involved in the incident in Ballarat Road, that accused may have behaved in a violent fashion in Castley Crescent.[37]
[37]Transcript of Proceedings (13 November 2019) 2871.17–2872.2.

Proposed ground of appeal

The applicants seek leave to appeal on substantially the same proposed ground. Abukar’s proposed ground of appeal is in the following terms:

The Learned Trial Judge erred by refusing the application to discharge the jury made on 7 November 2019 by [Abukar].

Abdi’s proposed ground of appeal is in the following terms:

The Learned Trial Judge erred by refusing to discharge the jury upon the application of [Abdi] on 7^th November, 2019, and the resultant conviction of [Abdi] represents a substantial miscarriage of justice.
Particulars:
(i)At Trial, [Abdi] was jointly indicted with [Ahmed], [Abukar] and [Abdifatah].
(ii)Ahmed was indicted on a charge of Murder, while both Abukar and Abdifatah were indicted on precisely the same charges that [Abdi] faced at Trial.
(iii)In his [ROI], Ahmed provided the Police interviewers with extensive details about [Abdi] and also what he — Ahmed — said about the involvement of [Abdi] in the offending [the impugned passages in [Ahmed’s ROI]].
(iv)The impugned passages in [Ahmed’s ROI] were highly prejudicial to [Abdi] at Trial since:
(a)They provided the jury with a basis to conclude that [Abdi] was a person who Ahmed feared.
(b)They provided the jury with an untested version of that which [Abdi] had done while at Castley Crescent.
(c)They provided the jury with support for the central allegations that were made at Trial in the Prosecution case against [Abdi].

(v)The jury in the Trial of [Abdi] both saw and heard the entirety of [Ahmed’s ROI], including the impugned passages.
(vi)Ahmed pleaded guilty to the lesser charge of Manslaughter on 6^th November, 2019, after his [ROI] had been played to the jury in the Prosecution case, and thereafter he took no further part in the Trial process involving [Abdi].
(vii)On 7^th November, 2019 [Abdi] applied for a discharge of the jury in order that he could then face Trial without the impugned passages of [Ahmed’s ROI] being before the jury.
(viii)The Learned Trial Judge erred in refusing the application to discharge the jury.
(ix)The conviction of [Abdi] represents a substantial miscarriage of justice, in that:
(a)The jury in [Abdi’s] trial heard the ‘admissions’ that Ahmed had made to Police, in circumstances where those ‘admissions’ were irrelevant to any facts in issue at Trial and were prejudicial to [Abdi].
(b)The prejudice in [Abdi’s] Trial was incapable of being adequately addressed by judicial directions.
(c)There was therefore a high degree of need or necessity for the jury to be discharged in order that [Abdi] received the fairest Trial possible, having regard to the interests of justice.

Parties’ submissions

Abukar submitted that the judge’s discretion miscarried in his refusal of the application to discharge the jury. He contended that the jury in his trial heard inadmissible and prejudicial evidence in the form of Ahmed’s ROI which, as a result of Ahmed’s plea of guilty, no longer had any relevance to any task of the jury. According to him, Ahmed’s ROI was prejudicial because it:

(a)suggested that Ahmed was afraid of the applicants;
(b)described Abukar as the only person who assaulted Paul at 237 Ballarat Road;
(c)described the applicants as assaulting a man against a fence in Castley Crescent and being reluctant to desist and leave, and was therefore arguably inconsistent with the applicants’ defences of self-defence; and
(d)was inconsistent with Abukar’s record of interview and thus had potential to affect the credibility of Abukar’s denials of involvement in the offending.[38]

[38]The fourth ground of prejudice was not included in Abukar’s written case, but was raised by his counsel in oral submissions.

Abukar argued that there was a high degree of need for a discharge of the jury because, in circumstances where Ahmed’s ROI played no role in the jury’s task and the reliability of Ahmed’s ROI was no longer in issue, the risk that the jury would rely upon the ROI could not be cured by directions. He submitted that the only way that the prejudice could be cured was by discharging the jury.

Abukar contended that the judge erroneously conflated the test applicable to an application for a separate trial with the test applicable to an application for the discharge of a jury. According to him, the former test is whether there is a real risk of positive injustice arising from a joint trial, such as to overcome the presumption of joinder, whereas the latter test is whether there was a high degree of need for the discharge of a jury. Abukar argued that those tests are materially different and therefore the absence of an application for a separate trial should not affect the assessment of whether to grant a discharge of the jury.

In oral submissions, counsel for Abukar submitted that it was impossible for the jury to forget the contents of Ahmed’s ROI, as they had the transcript for eight days and must have paid close attention to this ‘significant and dramatic piece of evidence’ in the context of the murder trial. He also submitted that a direction to simply ignore Ahmed’s ROI was not easier for the jury to comply with than a direction that it could be used in relation to Ahmed but not the three other accused. This was said to be because, if the evidence relating to each accused was filed into four separate drawers in a filing cabinet, the latter direction allowed the jury to file Ahmed’s ROI in Ahmed’s drawer, but the former direction left no drawer for it to go into.

Counsel contended that, in the absence of Ahmed’s ROI, there was little evidence conclusively identifying Abukar as a protagonist in the melee and that, although open to the jury, Abukar’s conviction was far from inevitable. Counsel argued that Mustafa’s evidence was very unreliable because Mustafa could not speak conversational Somali nor repeat the word for ‘something that cuts trees’ to the jury. Counsel submitted that the DNA evidence of the golf club handle did not prove that Abukar held it because the possibility of secondary or tertiary transfer of the DNA could not be excluded. Counsel contended that the number of men said to have participated in the affray and the assault on Sean was inconsistent and it was not clear that Duale never got out of the Hyundai.

Counsel for Abukar submitted that the incriminating conduct alleged by the prosecutor — that Abukar departed the scene, lied in his police interview and requested his name not be mentioned to police — was entirely explicable. He contended that those acts were natural things to do for someone who had been in a state of confusion or unconsciousness, or acted in self-defence, when there had been a homicide.

In response to questions from the Bench, counsel for Abukar acknowledged that Ahmed and Abdifatah were Abukar’s cousins. However, he argued that Abukar was not particularly close to those brothers and that it may have been more attractive to Ahmed during his police interview to deflect the blame onto a cousin he barely knew and Abdi who was not a relative, than onto his brother Abdifatah.

In oral submissions, counsel for Abukar stated that he did not recall whether he considered making an application for the excision of the impugned passages from Ahmed’s ROI under s 137 of the Evidence Act.

Abdi submitted that the judge incorrectly exercised his discretion by refusing Abdi’s application for discharge of the jury, and that Abdi’s resultant conviction represents a miscarriage of justice. He contended that, once Ahmed entered his guilty plea, there arose a high degree of need for the jury to be discharged and for a retrial to be held before a freshly empanelled jury, in order that he received the fairest trial possible.

Abdi argued that the judge applied an unnecessarily restrictive view of what ‘need’ or ‘necessity’ amounted to within the circumstances of this particular trial.

According to Abdi, it is apparent from comments made by the judge during the hearing of the application and from his ruling that, in exercising his discretion, the judge placed undue emphasis upon features that were of no, or limited, relevance. Those features were said to include:

(a)The fact that no application had been made by the applicants at the commencement of the trial for a trial separate from Ahmed. He submitted that such a consideration was entirely irrelevant because the tests to be applied for the two types of applications were different.
(b)The belief the judge apparently had that the jury would not have paid much, if any, attention to what Ahmed had said in his ROI. He contended that such a consideration involved speculation, was almost certainly incorrect and, in any event, was entirely irrelevant to the proper exercise of the discretion.
(c)Practical considerations, such as the fact that the trial had been proceeding for an extended period of time, that the jury was shortly to commence deliberations, and that if the jury was discharged a new trial would not commence in 2019. He argued that, if such considerations had any weight at all, then it was slight, especially when placed alongside the requirement that a criminal trial be conducted in the fairest way possible.

In oral submissions, counsel for Abdi accepted that a direction to the members of the jury to completely put Ahmed’s ROI out of their minds was conceptually simpler to understand than a direction that the ROI could be used for some purposes, but not other purposes. However, he submitted that, in practical terms, the former was an impossible direction to follow. He contended that it was not possible for the jury to ignore Ahmed’s ROI, having watched all three hours of it and having had access to the transcript for eight days. He also contended that Ahmed’s ROI was ‘entirely compelling’ and therefore it would have been ‘difficult, if not impossible’, for the jury to disregard it.

Counsel for Abdi submitted that there were two pieces of evidence upon which the prosecution relied to establish that Abdi participated in the incident at Castley Crescent, namely, Mustafa’s evidence of his telephone calls with Abdi and Mr Chung’s account of the assault on Sean. Counsel contended that Abdi’s conviction was far from inevitable in the absence of Ahmed’s ROI.

Counsel for Abdi argued that Mustafa’s evidence was not given in a compelling way. This was said to be for three reasons. First, the prosecution resorted to s 32 of the Evidence Act to refresh Mustafa’s memory. Secondly, Mustafa’s obvious allegiance was to his brothers, Ahmed and Abdifatah. Thirdly, the telephone records made the existence of the telephone calls debateable. Counsel conceded that these arguments were made before the jury. However, he did not concede that it could therefore be inferred that the jury accepted Mustafa’s evidence.

Counsel for Abdi submitted that Mr Chung’s evidence did not establish who he saw wearing a ‘brighter colour top’ and assaulting Sean. He contended that Abdi and Duale were both wearing light‑coloured clothing. He argued that, without Ahmed’s ROI, the person in the lighter clothing who was seen by Mr Chung could equally have been Duale.

Counsel for Abdi conceded that the DNA evidence established that Abdi must have been out of the car at some stage to have been injured. However, he submitted that the DNA evidence did not establish that Abdi participated in the assault on Sean or that he was a party to an agreement that Sean be assaulted.

Counsel for Abdi also conceded that, if the jury accepted Mustafa’s evidence, Mr Chung’s evidence and the DNA evidence, and ignored Ahmed’s ROI as directed, it was open for the jury to convict Abdi.

Counsel for Abdi adopted counsel for Abukar’s filing cabinet analogy. He contended that there was no shredding machine to shred Ahmed’s ROI. He argued that, after Ahmed pleaded guilty, his ROI belonged in the drawer that you ‘don’t open’, but that was problematic because the jury had already heard it in all its ‘graphic detail’.

Counsel for Abdi acknowledged that he did not make an application during the trial under s 137 of the Evidence Act for the impugned portions of Ahmed’s ROI to be excised. Counsel stated that he decided not to make such an application because he understood Ahmed’s ROI to be an important piece of evidence against Ahmed. Counsel conceded that, upon reflection, he perhaps should have made such an application at trial.

The Crown submitted that the judge’s discretion was soundly exercised in refusing the application for a discharge of the jury. This was said to be so for four reasons. First, the judge applied the correct test for an application for a discharge of the jury and, contrary to Abukar’s complaint, he did not conflate it with the test for an application for a separate trial. Secondly, having gone on for five weeks, the trial was in its last stages and all the evidence had been heard. Thirdly, there was no reason to suppose the jury would not follow basic instructions. Fourthly, the judge was well placed to evaluate any potential residual effect of Ahmed’s ROI.

The Crown contended that it was relevant to that evaluation that defence counsel had acquiesced to a joint trial; that, in the judge’s view, the jury would have paid little, if any, attention to what Ahmed said in his ROI, which was inordinately long; and that the trial had been proceeding for an extended period of time and the jury would shortly commence deliberations.

The Crown argued that, contrary to Abdi’s submission, the applicants are not entitled to the ‘fairest possible trial’, but are entitled not to be tried unfairly. It submitted that, even if some matter did occur in the trial which was arguably unfair, the applicants had to demonstrate that a substantial miscarriage of justice had occurred.

The Crown contended that the judge’s refusal to discharge the jury did not occasion a substantial miscarriage of justice. This was said to be so for two reasons. First, by the time the jury began deliberating on 15 November 2019 — 18 days after Ahmed’s ROI was played — whatever prejudice was said to arise from Ahmed’s ROI had been pushed well into the background and the ROI had been withdrawn as an exhibit. Secondly, the judge gave careful and repeated directions to the jury of the need to separately consider the case against each accused and to only use the evidence admissible against each. The Crown argued that such directions are standard, commonplace and there is no basis to conclude the jury was not capable of heeding them.

The Crown submitted that a direction to the jury to disregard Ahmed’s ROI was simpler than a direction that the ROI may be used only in the trial of Ahmed and not the trials of the other three accused. The Crown contended that, using counsel for Abukar’s filing cabinet analogy, Ahmed’s ROI was to be placed in the bin once Ahmed pleaded guilty.

The Crown submitted as follows in relation to the prejudice identified by Abukar in his written case:[39]

(a)Ahmed did not say that he was scared of the applicants — in fact, he stated the contrary.
(b)The incident at 237 Ballarat Road was led as context and was not the subject of any charge.
(c)Defence counsel for Abukar admitted that Abukar was present at the incident in Castley Crescent where the victims were seriously injured, but relied upon an absence of any agreement to commit the offences and that he had been knocked out for the duration of the incident.

[39]See [70] above.

The Crown contended as follows in relation to the prejudice identified by Abdi at the hearing of the application for discharge of the jury:[40]

(a)It was not open to convert Ahmed’s negative response that he was ‘possibly not’ scared of the applicants into a positive answer that he was ‘possibly’ scared of them.
(b)The other impugned answers were convoluted, at best, and appeared in a very long interview of nearly 2,000 questions. In the context of a case where Abdi did not deny being present at the incident in Castley Crescent and relied upon both self-defence and absence of any agreement between the co-accused to commit the offences, it is hard to see what, if any, prejudice Abdi could have possibly suffered by Ahmed’s ROI having been played to the jury.

[40]See [53] above.

The Crown argued that, even in the absence of Ahmed’s ROI, the case presented by the prosecution was very strong. It submitted that there was ample evidence — including physical evidence, circumstantial evidence and evidence of admissions — to support the convictions. In any event, it contended that Ahmed’s ROI was not a compelling piece of evidence, as it is clear that Ahmed was lying in at least a few respects.

Decision

In our opinion, the proposed ground of appeal upon which each of the applicants has relied is not made out.

The proposed ground raises two key issues, namely, the extent to which Ahmed’s ROI was prejudicial to the applicants and whether, in the light of all the evidence and other circumstances of the trial, the directions given by the judge were sufficient to avoid the trial being unfair.

Both applicants submitted that there were three aspects of Ahmed’s ROI which were prejudicial to them. The first aspect was the implication that he was afraid of the applicants. The second aspect was that he saw the applicants assaulting a man (Sean) against a fence. The third aspect was that the applicants were reluctant to disengage from the person they were assaulting and return to the Hyundai in order to leave the scene. Abukar relied upon two additional aspects, namely, Ahmed’s statement that Abukar assaulted Paul at 237 Ballarat Road and the fact that Ahmed’s ROI was inconsistent with Abukar’s record of interview.

Before examining each of these aspects of prejudice, it is necessary to place Ahmed’s statements concerning the applicants in the context of the prosecution case as a whole. As we have already stated, the prosecution case was that the applicants and Abdifatah had acted pursuant to an agreement and were complicit in each other’s conduct in relation to the offending the subject of charges 2 and 4. On this basis, the jury could convict the applicants and Abdifatah of the offences of intentionally causing serious injury and affray without the necessity of identifying precisely who caused Sean’s injuries. It follows that, on the prosecution case, it was not necessary for the jury to be satisfied of the precise engagements that either of the applicants had with Sean on the evening of 9 December 2017 in order to find them guilty.

It is also necessary to place Ahmed’s statements concerning the applicants in the context of his ROI as a whole. As we have already stated, Ahmed’s ROI comprised 1,978 questions and answers. The interview lasted around three hours. Ahmed’s answers were muddled, rambling and contradictory such that it is often difficult to work out exactly what he was saying. Many of his answers were also patently implausible. In the latter parts of the interview, the main focus of the questioning by the police was the collision of Ahmed’s vehicle with Paul — including whether Ahmed deliberately hit Paul — and Ahmed’s post-offence conduct. In the overall scheme of the ROI, Ahmed’s comments about the applicants were not prominent and their meaning was not entirely clear.

We now turn to the five aspects of potential prejudice. In our opinion, there is little substance to the first aspect, namely, that Ahmed was afraid of the applicants. Ahmed did not expressly state that he was afraid of the applicants. On the contrary, in response to a question whether he was afraid of the applicants, he said ‘I don’t know, possibly not’. We do not accept that there was any realistic prospect that the jury would have inferred from this answer that Ahmed was afraid of the applicants. That is particularly so in the light of the evidence as a whole. That evidence included the CCTV footage in the carpark at 233 Ballarat Road earlier in the evening. As we stated at [10] above, the footage showed Ahmed mingling with the applicants in a familiar and friendly manner. The jury was also aware that Ahmed and Abukar were cousins.

The second aspect of potential prejudice — that Ahmed saw the applicants assaulting Sean against a fence — has more substance. That is because, if the jury relied upon this part of Ahmed’s ROI, it would support the other evidence implicating the applicants in the injuries inflicted upon Sean.

The evidentiary support that Ahmed’s ROI was capable of providing was not particularly significant in relation to Abdi. That is because other evidence placed him with Sean at the time Sean was being assaulted outside 33 Castley Crescent. The evidence included the undisputed fact he was wearing light-coloured clothing and Mr Chung’s evidence that he saw a man with light-coloured clothing assaulting another man against the fence outside 33 Castley Crescent. Although Duale was also wearing light-coloured clothing, there was no evidence that he exited the Hyundai.

The evidentiary support that Ahmed’s ROI was capable of providing had the potential to be more significant in the case of Abukar. That is because, although there was evidence that he exited the Hyundai and the DNA evidence linked him to a pocketknife and baseball cap, none of the eyewitnesses gave evidence that placed him — as distinct from any other person wearing dark clothing — with Sean in the area of the fence outside 33 Castley Crescent. However, in assessing the potential prejudice to Abukar, it must be borne in mind that the prosecution case was put on the basis of complicity rather than on the basis of the individual acts of the offenders. The jury was also entitled to have regard to Mustafa’s evidence of what Abukar told him and the incriminating conduct upon which the prosecution relied. The reliability of the evidence against Abukar was a matter for the jury to assess.

The above observations relating to the second aspect of potential prejudice are also broadly applicable to the third aspect of potential prejudice, namely, the applicants’ reluctance to disengage from Sean and return to the Hyundai in order to leave the scene.

In our opinion, there is little substance to the fourth aspect of potential prejudice upon which Abukar alone relied, namely, Ahmed’s statement that Abukar assaulted Paul at 237 Ballarat Road. That is because Abukar was not charged with any offence relating to that assault upon Paul and the judge made it clear that the evidence of that assault was only relevant as a contextual matter to explain why Paul subsequently sought out the occupants of the Hyundai.[41] This was a clear and simple direction which the jury was capable of understanding and there is no reason to believe that the jury did not comply with it.
[41]See [67] above.

We are also of the view that there is little substance to the final aspect of potential prejudice upon which Abukar alone relied, namely, the inconsistency between Ahmed’s ROI and Abukar’s record of interview. It may be accepted that, insofar as Ahmed’s ROI contradicted Abukar’s record of interview regarding any inculpatory conduct by Abukar against the victims, Ahmed’s ROI had the potential to affect Abukar’s credibility. However, based upon the entirety of the evidence against Abukar to which we have already referred — including that of Mustafa and the eyewitnesses[42] — it is highly likely that the jury would have had serious misgivings about the credibility of his account that he was unconscious during the entirety of the incident involving the victims. Accordingly, the risk of any additional damage to the credibility of Abukar’s account arising from Ahmed’s ROI would have been marginal at best.
[42]If the jury determined that Duale did not leave the Hyundai and accepted the evidence of Mr Chung and Ms Barnard that there were four or five attackers, the jury would have concluded that Abukar was one of the attackers.

We accept, as submitted by Abukar’s counsel, that Ahmed’s statements in his ROI which suggested that the applicants were reluctant to desist assaulting the man against the fence had the potential to undermine the applicants’ defences of self‑defence. However, in the light of the evidence of the eyewitnesses and the nature of Sean’s injuries, there was no realistic prospect that the jury would find that the applicants had acted in self-defence.

Overall, we are of the view that, when they are assessed in the context of the prosecution case as a whole and the entirety of Ahmed’s ROI, those parts of the ROI which could be said to implicate the applicants in the offences for which they were convicted, did not expose them to prejudice that was particularly serious.

Whilst it is not by any means determinative, it is a relevant consideration that, prior to the commencement of the joint trial, counsel for Abukar and counsel for Abdi formed the view that the prejudice to the applicants flowing from the admission of Ahmed’s ROI was not sufficient to warrant an application for separate trials. As the test for an order that co-offenders be tried separately is whether a joint trial would prejudice the fair trial of an accused,[43] counsel must have concluded that the admission of Ahmed’s ROI, with separate consideration directions from the judge, would not result in the trial being unfair to the applicants. As counsel were familiar with the prosecution case and the manner in which the applicants intended to defend themselves, they were very well placed to make this assessment.
[43]See [46] above.

It is also instructive that neither counsel for Abukar, nor counsel for Abdi, sought any redactions to Ahmed’s ROI. Having regard to the fact that Ahmed’s ROI was only admissible in his trial, it is difficult to see how any parts of the ROI which exclusively related to inculpatory conduct of the applicants were relevant in the case against Ahmed.

In response to questions from the Bench, counsel for the Crown stated that the impugned parts of Ahmed’s ROI were relevant to the jury’s assessment of the reliability of the whole of its contents. Even if it is accepted that those parts had some probative value in Ahmed’s trial, it would have been open to counsel for the applicants to apply under s 137 of the Evidence Act for those parts of the ROI to be redacted on the basis that the unfair prejudice of those parts in relation to the applicants outweighed their probative value in relation to Ahmed. Before us, counsel for Abdi frankly conceded that it would have been open to him to make such an application and that perhaps he should have made it.[44] Counsel for Abukar informed us that he could not recollect whether he considered the possibility of seeking redactions to Ahmed’s ROI.[45]
[44]See [88] above.
[45]See [77] above.

In our opinion, it can be inferred from the fact that counsel for the applicants did not make an application under s 137 of the Evidence Act to exclude any parts of Ahmed’s ROI that counsel did not assess any parts of Ahmed’s ROI as giving rise to a danger of very strong prejudice against the applicants.

The trial, as originally constituted, comprised four accused and there were four records of interview, each of which was admissible only in relation to the accused who was the subject of the relevant interview. As set out at [63]–[66] above, the judge instructed the jury that there were four separate trials and gave conventional separate consideration directions to the effect that, for each accused, the jury must consider only the evidence that was admissible against that accused. In this context, the judge directed the jury that the record of interview of each accused was only admissible in relation to that accused and therefore it could be used in the trial of that accused but not in the trial of any other accused.

After Ahmed pleaded guilty to the charge of manslaughter and was no longer involved in the trial, the dynamics of the trial changed. There were now three separate trials within the overall trial and Ahmed’s ROI ceased to be admissible for any purpose. The judge’s direction relating to Ahmed’s ROI changed from a direction that the jury could use it in Ahmed’s trial, but not in the trial of any of the other accused, to a direction that the jury could not use Ahmed’s ROI for any purpose and therefore the jury should totally disregard it. To use the office equipment metaphor to which all counsel referred, whereas Ahmed’s ROI was initially to be confined to one of four drawers in a filing cabinet, once Ahmed’s involvement in the trial ceased, the ROI was to be consigned to the rubbish bin.

The underlying premise of the applicants’ proposed ground of appeal is that the change in the dynamics of the trial that occurred once Ahmed ceased to be involved resulted in the trial — which, until that point, was not unfair to them — becoming so unfair as to create a high degree of need for the jury to be discharged. We do not accept the correctness of that premise. In our opinion, the trial did not become unfair to the applicants; if anything, it became a fairer trial from their perspective. That is because, after Ahmed ceased to be involved in the trial, the judge’s direction to the jury in relation to Ahmed’s ROI — that they should disregard it entirely — was conceptually easier for the jury to understand and comply with than the previous direction that they could use the ROI for some purposes, but not others. Further, compliance with the new direction was facilitated by removal of the transcript of Ahmed’s ROI from the jury room on 8 November 2019.[46]
[46]See [4] above.

The applicants have not sought to impugn the content of the judge’s separate consideration directions. That is not surprising. They were conventional directions which were conveyed to the jury in a simple and clear manner. The applicants’ complaint was that, whilst the directions were appropriate, they were insufficient to overcome the prejudice to them because the directions required the jury to perform the impossible task of forgetting the contents of Ahmed’s ROI. According to the applicants, once the jury saw Ahmed’s ROI, it was impossible for the jury to forget it.

In our opinion, the applicants’ submissions misstate the import of the judge’s directions. The members of the jury were not asked to literally forget the contents of the ROI — in the sense of expunging it from their minds — but to disregard those contents in their deliberations regarding the charges against the applicants and Abdifatah. The applicants did not offer any convincing explanation as to why the jury was not capable of complying with such a direction. In our opinion, the jury was perfectly capable of doing so and there is no reason to believe that it did not do so.

There was nothing particularly vivid, striking or memorable about any of the impugned passages in Ahmed’s ROI that would make it difficult for the jury to disregard them.[47] That is particularly so having regard to the length and convoluted nature of the ROI and the time that had elapsed since it was played to the jury. As we have already stated, the ROI was played to the jury on 28–29 October 2019. That was 10 days before Ahmed ceased participation in the trial, the transcript of the ROI was removed from the jury and the judge gave his first direction to the jury to disregard the ROI in its entirety.
[47]The present case differs markedly from other cases such as Crofts and R v Halliday (2009) 23 VR 419, where the inadmissible evidence to which the jury was impermissibly exposed was highly prejudicial and of a nature that created a substantial risk that the jury would be influenced by it, notwithstanding judicial directions to disregard it.

By the time that the jury commenced its deliberations on 15 November 2019, Ahmed’s ROI would have well and truly receded in the consciousness of the members of the jury due to this significant passage of time and the large volume of additional evidence that had been adduced since 29 October 2019. Although the jury had the transcript of the ROI in the jury room between 28 October 2019 and 8 November 2019, there is no reason to believe that any members of the jury consulted the transcript during that time or, if they did so, that they specifically read the impugned passages. Further, the fact that, after 7 November 2019, Ahmed was no longer present in the dock would have made it more likely that the jury would focus on the cases against the remaining three accused in the dock and to disregard the case against Ahmed, including the contents of his ROI.

We reject Abukar’s submission that the judge conflated the test pertaining to an application for a separate trial with the test pertaining to an application for the discharge of a jury. It is evident from our summary of the judge’s ruling at [60]–[62] above that the judge applied the correct test. Moreover, it is evident from our summary of the principles at [42]–[45] above that it was appropriate for the judge to take into account the length of time that had passed since Ahmed’s ROI had been played to the jury and the fact that the applications for a discharge of the jury were made in the fifth week of the trial, after the prosecution had closed its case. Furthermore, as our analysis at [111] above indicates, it was relevant for the judge to have regard to the fact that no applications for separate trials had been made by the applicants.

As Toohey, Gaudron, Gummow and Kirby JJ stated in Crofts, a trial judge is usually in a better position than an appellate court to assess the significance of the events complained of.[48] In the present case, the judge was well placed to evaluate the extent to which the jury paid attention to Ahmed’s ROI and the extent to which the ROI would have receded in the consciousness of the members of the jury as the trial progressed. Contrary to Abdi’s submission, such an evaluation was neither speculative nor irrelevant.
[48](1996) 186 CLR 427, 440–1. See [44] above.

It follows from the above analysis that, in our opinion, the judge applied the correct test in determining the applications for a discharge of the jury and that he did not take into account any irrelevant considerations in refusing the applications.

However, the above conclusion is not the end of the matter. As the authorities make clear, our task is to decide for ourselves whether, in the light of the whole of the evidence as it emerged at trial, the directions given by the judge regarding Ahmed’s ROI were adequate to prevent the risk of unfair prejudice to the applicants.

For the reasons we have already given, the prejudice to the applicants arising from the impugned parts of Ahmed’s ROI was not particularly serious and, in any event, the directions given by the judge were capable of overcoming any such prejudice. Our system of trial by jury relies upon the assumption that juries comply with judicial directions and there is every reason to be confident that, in the present case, the jury understood and complied with the simple and clear directions given by the judge for the jury to wholly disregard Ahmed’s ROI.

Insofar as the applicants’ submissions were based upon the proposition that they were entitled to the fairest possible trial, they mischaracterised the applicable legal right. As was recognised in Jago and Jarvie, an accused does not have a right to a perfect trial, but rather a right to a fair trial according to law. What that right entails may depend on the particular circumstances of the case, including the nature of any prejudice to the accused and the capacity of judicial directions to overcome such prejudice to an acceptable extent.

In the present case, for the reasons we have given, we are satisfied that the judge’s refusal to discharge the jury did not deprive the applicants of a fair trial according to law. Accordingly, there has not been a substantial miscarriage of justice in relation to the applicants for the purposes of s 276(1) of the Criminal Procedure Act 2009.

Conclusion

For the above reasons, the applications for leave to appeal against conviction will be refused.

---

[2021] VSCA 238

31 August 2021