Baquayee v Regina

[2006] NSWCCA 103

CITATION:	Baquayee v Regina [2006] NSWCCA 103
HEARING DATE(S):	3 April 2006
JUDGMENT OF:	Grove J at 1; Simpson J at 29; Howie J at 30
EX TEMPORE JUDGMENT DATE:	04/03/2006
DECISION:	EXTENSION OF TIME TO APPEAL GRANTED; CONVICTION APPEAL DISMISSED
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - TRIAL - "IN-COURT" IDENTIFICATION - EVIDENCE NOT OBJECTED TO - ABSENCE OF TRUE IDENTIFICATION ISSUE - ALTERNATIVE COUNTS DO NOT PLACE ACCUSED IN "DOUBLE JEOPARDY" - SILENCE OF ACCUSED AT TRIAL - SUFFICIENCY OF WARNING TO JURY - ADEQUATE TO CIRCUMSTANCES - RITUAL INCANTATION OF ALL DESIRABLE WARNINGS IN AZZOPARDI v THE QUEEN NOT NECESSARY
LEGISLATION CITED:	Criminal Procedure Act 1986 Evidence Act 1995
CASES CITED:	Azzopardi v The Queen (2001) 205 CLR 50 R v Macris [2004] NSWCCA 26 R v Park [2003] NSWCCA 203 R v Richards 2002 128 A Crim R 204 R v SMR [2002] NSWCCA 258 R v Wilson (2005) 62 NSWLR 346
PARTIES:	Mohammed Tamin Baquayee v Regina
FILE NUMBER(S):	CCA 2005/2273
COUNSEL:	In person (Applicant) P. Miller (Crown/Respondent)
SOLICITORS:	S. Kavanagh (DPP)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/21/1200
LOWER COURT JUDICIAL OFFICER:	Coorey DCJ

2273/05

GROVE J
SIMPSON J
HOWIE J

3 April 2006
MOHAMMED TAMIN BAQUAYEE v REGINA

Judgment

1 GROVE J: This is an application to extend time and, if granted, to appeal against conviction on two counts of maliciously wounding with intent to do grievous bodily harm.

2 The applicant was indicted on two counts charging wounding with intent to murder - counts 1 and 3 in the indictment - upon which the jury returned verdicts of not guilty, and in the alternative, on counts 2 and 4, to the offences upon which he was convicted. The two victims were brothers, Ahmed Marnosh Zikria and Mustafa Zikria.

3 The trial was heard before Coorey DCJ and a jury at Campbelltown District Court beginning on 21 May 2002 and concluding on 5 June 2002. The Crown case was that the victims were part of a group of people in an area of a cinema complex at Mount Druitt on 22 April 2001. There was an existing animosity borne, at least by the victims, towards the applicant and his brother, Matin Baquayee. A fight broke out and it can be noted that his Honour found, on ample supporting evidence, that the Zikria brothers, particularly Ahmed Marnosh Zikria, were the aggressors. Matin Baquayee gave evidence that the latter addressed threats to him followed by the delivery of a kick whereupon he heard two loud bangs.

4 These were, on the Crown case, shots from a pistol produced by the applicant which wounded both the Zikrias. Ahmed Marnosh Zikria was shot in the thigh causing a fracture to his femur and the lodgement of bullet fragments in his flesh. Mustafa was shot in the epigastric region and damaged his liver and lung. His injuries were life-threatening and he was in a coma for two weeks following the wounding.

5 Coorey DCJ imposed concurrent sentences on each count of six years with non-parole periods of two years nine months on 17 March 2003.

6 A Crown appeal complaining of the manifest inadequacy of the sentences was heard by this court (differently constituted) and on 19 December 2003 the appeal was allowed and increased sentences were imposed, the overall effect of which was to set terms expiring ultimately on 4 June 2012 with non-parole periods setting the earliest date of eligibility for parole at 4 June 2008.

7 An application for special leave to appeal against that judgment was refused by the High Court of Australia on 30 November 2004.

8 Leave to appeal against the convictions was filed in this court on 4 May 2005. In an affidavit sworn on 7 February 2006 the applicant asserted that a notice of intention to appeal was allowed to lapse by Legal Aid but this was contrary to his instructions. He is not now legally represented and states that he has prepared written submissions in relation to challenging conviction with the assistance of another inmate, it being at all times his intention to appeal as he considers that he has been unfairly convicted. The delay, it is implied, is a result of cumulating factors including having directed his attention primarily to the sentence appeal process and the difficulties encountered in acting as his own legal representative.

9 The issue of extension of time can remain in abeyance whilst examining the grounds of appeal against conviction upon which the applicant wishes to rely.

10 Ground 1 asserts that the trial judge erred in law under s 114 of the Evidence Act in admitting “in-court” identification evidence.

11 Section 114 makes provision against the admissibility of identification evidence where, in effect without good reason, an identification parade is not held.

12 There was no issue at trial concerning the identity of the applicant as a person present at the incident in the theatre complex. Matin Baquayee gave evidence that he was behind his brother, the applicant, when he heard two loud bangs (T298 of 21 May 2002).

13 The appellant draws attention to the content of various statements which manifested some possible confusion and contradictory allegations about which Baquayee brother was responsible for the wounding. Fairly plainly, at one point at least, Ahmed Marnosh Zikria had nominated Matin Baquayee. These matters were legitimately explored during cross-examination of both the victims. Properly ventilated trial issues are not matters for reconsideration on appeal.

14 The complaints now sought to be made can be addressed in the context of what the applicant was asserting through counsel. He elected not to give evidence himself but counsel advanced the proposition that it was Ahmed Marnosh Zikria who produced the gun. This was explicitly put to him when cross-examined at trial. I set out some relevant cross-examination (T174 of 24 May):

“Q. Maybe you were the cause of your own injuries Mr Zikria? Maybe that is why you are so angry and upset?
A. No. I blame myself because I didn’t take the other bullet for my brother. That is why.

Q. You were the one in fact who pulled the gun out of the front of your pants weren’t you?
A. I beg your pardon?

Q. You were the one who pulled the gun out of the front of your pants weren’t you?
A. I don’t pull out weapons. I never pulled out a weapon in my life.

Q. And as you were pulling the gun out of your pants the accused went for your gun, didn’t he?
A. No. No. Nothing like that.

Q. And then you started struggling with the accused, didn’t you?
A. No. I don’t pull out weapons on no one, on no one.

Q. That is what happened, isn’t it?
A. No. No, no, no.

Q. And then you and the accused both started struggling for the gun and it was during the struggle, the gun went off?
A. No, nothing like that happened.

Q. And you were shot, and your younger brother were shot almost immediately afterwards?
A. Nothing like that happened, no.”

15 Mustafa Zikria was also cross-examined to the same effect (T247 of 24 May):

“Q. So what was the reason you got involved in this fight?
A. There was no reason and there was no fight, an argument was happening and someone decides to pull out a gun and shoot away.

Q. That’s it, someone decides to pull out a gun?
A. No when I say ‘someone’ I mean the accused sitting right there.

Q. No, that’s your word Mr Zikria?
A. Yeah it’s my word.

Q. Someone decides to pull out a gun?
A. When I say someone I mean as in the accused, right there.

Q. You didn’t say the accused--
A. That’s what I mean--

Q. ‘Someone decides to pull out the gun’, who is that someone Mr Zikria?
A. That someone is sitting right there, I’m looking at him right now.

Q. That someone wasn’t the accused at all, was it?
A. Yes he was.

Q. That someone was your own brother?
A. Excuse me?

Q. Do you want me to put it to you again?
A. Yeah I would like that.

Q. That someone was your own brother wasn’t it?
A. My brother would shoot me, I don’t think so, I know who shot me okay, I’m not stupid, I (w)as looking at him.
Q. He may have done it by accident Mr Zikria?
A. No, no accident, my brother has never held a gun in his life, he did not have no gun that night.”

16 There was no objection at trial to the evidence concerning the applicant. It was, of course, disputed but it was not inadmissible. His Honour made no error by reason of s 114 or at all in admitting the evidence.

17 Ground 2 complains of what the applicant refers to as double jeopardy. In addition to the written submissions we have this morning received an elaboration which essentially advances the same things.

18 The applicant has extracted from reported judgments, statements relating to the doctrines of autrefois convict and autrefois acquit. He has also referred to s 23 of the Criminal Procedure Act 1986. The only part of that provision which is presently relevant is the affirmation of the entitlement of the Crown to insert alternative counts in an indictment.

19 That is what happened here. The elements to be proved in respect of counts 1 and 3 were not identical in all respects to those requiring proof in counts 2 and 4, nor were the elements of the alternative counts subsumed within the principal charges. The doctrines referred to have potential to operate only when the elements are the same.

20 The references to s163 of the Criminal Procedure Act and other sections are similarly misguided. There was only one indictment and, by definition, there were no further proceedings. It does not assist the argument to extract from dictionaries (as was submitted) various meanings of the word “further”. What needs to be determined is what “further proceedings” means in the context of this statute. Verdicts on alternative counts in one indictment do not involve “further proceedings.”

21 The applicant’s submissions show a misunderstanding of the relevant principles and an attempt to misapply that misunderstanding. There is no merit in this ground.

22 Ground 3 asserts that the jury was misled. Submissions revert to complaint about the absence of an identification parade. As I have already discussed, there was no issue requiring identification of the applicant as a person engaged in the melee which left the Zikria brothers wounded, but the issue was what the applicant did. The jury were not misled.

23 Ground 4 refers to the directions given by the learned trial judge concerning the election of the applicant to remain silent at trial. His Honour directed the jury in these terms:

“Ladies and gentlemen, the other thing I want to say to you is this, that in this trial there has been reference to silence. You heard it said by Mr Amer and I think the Crown might have referred to it as well, the right to silence. Can I just say this to you, that in this case the accused exercised his right to silence in this courtroom. The accused in this courtroom pleaded not guilty and he said nothing else to you in this courtroom, but he has that right and ladies and gentlemen, the law is very clear, that you must not draw any adverse inference against the accused because he exercised his legal right to silence. You must not interpret that in some way as being an acknowledgment on his part of the Crown case or any part of the Crown case. It is not. You might be tempted to reason or argue well because he remained silent therefore he is guilty, but that would be quite wrong. Ladies and gentlemen, as a judge, you act only on the evidence, nothing else and as a judge, the fact that he exercised his right to silence means in this court, nothing more than he exercised his right to silence. It is a legal right. If you think about it there would be no point us having a legal right to silence if we cannot exercise it. But that is an important principle which you heard Mr Amer refer to again today and I repeat that for you.
Ladies and gentlemen, in the interview he could have again, when he spoke to police, he could have said, ‘I want to say nothing’, but indeed in that interview he made a statement. He gave the police officer a prepared statement which he had made and you have regard to that. That is part of the evidence which you now look at and you might think well, because he has given that statement, that might be the reason why he never gave evidence in this courtroom. You do not know. Or he might have received legal advice not to give evidence in the courtroom. You do not know. There are so many variables that you do not know about that as a judge all you can do is to say to yourself, well he exercised his right to silence. As a judge I draw no adverse inference against him. Ladies and gentlemen, I repeat that that is a very important principle.”

24 The applicant referred to what was said in Azzopardi v The Queen (2001) 205 CLR 50 to be “almost always desirable” for a judge to include in warning a jury. It might be noted that the language used does not say a judge must do so. The “desirable” warnings include a warning against using silence to fill gaps in prosecution evidence. As the above directions manifest, his Honour did not use these explicit terms.

25 The applicant asserts that the situation is the same in R v Macris [2004] NSWCCA 26 where the absence of incanting that warning was held to be an error requiring a finding that the trial has miscarried. Certainly the situations in this case and that one are analogous but it was held in R v Wilson (2005) 62 NSWLR 346 that Macris should not be followed.

26 I adhere to the views in the expression of which I participated in Wilson. Apart from the regularity of adhering to the later authority, I reiterate that the disapproved view in Macris was itself contrary to earlier judgments of this court in R v Richards (2002) 128 A Crim R 204; R v SMR [2002] NSWCCA 258; and R v Park [2003] NSWCCA 203.

27 It is not an inevitable error of law not to include every aspect of the suggested cautions mentioned in Azzopardi. The question is whether a warning was appropriate to the issues in the particular case, a question which must of course be answered with proper attention to the guidance offered by Azzopardi. The warnings by his Honour were entirely appropriate to this case.

28 None of the grounds advanced should be sustained. Whilst I am doubtful that the explanation of the applicant would justify the immense delay pursuing the appeal, in the particular circumstances I would grant the extension of time to appeal but I would dismiss the appeal against conviction.

29 SIMPSON J: I agree.

30 HOWIE J: I also agree.

31 GROVE J: The orders of the court therefore will be as I have proposed.

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