Brown v The Queen

[2019] NSWCCA 269

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Brown v R [2019] NSWCCA 269
Hearing dates:	15 July 2019
Date of orders:	08 November 2019
Decision date:	08 November 2019
Before:	Payne JA at [1]; Davies J at [58]; Hidden AJ at [59]
Decision:	(1) Application for leave to appeal on ground 1 refused under Rule 4 of the Criminal Appeal Rules; (2)   Leave granted in respect of ground 2; (3)   Ground 2 dismissed; (4)   Appeal dismissed.
Catchwords:	CRIME – appeals – appeal against conviction – identification evidence – warnings – unreasonable verdict
Legislation Cited:	Crimes Act 1900 (NSW), ss 35(1), 59(1), 59(2), 61 Crimes (Administration of Sentences) Act 1999 (NSW) 1999, s 158(1) Criminal Appeal Rules, r 4 Evidence Act 1995 (NSW), ss 116, 165
Cases Cited:	ARS v R [2011] NSWCCA 266 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Greenhalgh v R [2017] NSWCCA 94 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Nguyen (2010) 242 CLR 491; [2010] HCA 38 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Category:	Principal judgment
Parties:	Brendan Brown (Applicant) Regina (Respondent)
Representation:	Counsel: S Russell (Applicant) H Roberts (Respondent)   Solicitors: Penrith Criminal Law (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2015/00210752
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Crime Date of Decision: 24 April 2018 (Verdict) 19 July 2018 (Sentence) Before: Hunt DCJ File Number(s): 2015/00210752

Judgment

1. PAYNE JA: On 24 April 2018 Mr Brown, who I will refer to in these reasons as the applicant, was found guilty by a jury and convicted of the following offences:

1. Common assault upon Emmanuel Giannopoulos, contrary to s 61 of the Crimes Act 1900 (NSW).

2. Assault occasioning actual bodily harm upon Hassan El Kazwini, contrary to s 59(1) of the Crimes Act.

3. Common assault upon Jaafar Al Shafii, contrary to s 61 of the Crimes Act.

4. Common assault upon Santosh George, contrary to s 61 of the Crimes Act.

5. Affray, contrary to s 93C(1) of the Crimes Act.

2. On 19 July 2018, Hunt DCJ sentenced Mr Brown to an aggregate sentence of imprisonment for 3 years with a non-parole period of 18 months, each to commence on 19 July 2018. As a result of s 158(1) of the Crimes (Administration of Sentences) Act 1999 (NSW), Mr Brown will be released on parole on 18 January 2020. The following indicative sentences were identified:

1. 3 months imprisonment for the common assault upon Mr Giannopoulos;

2. 2 years, 6 months imprisonment for the assault occasioning actual bodily harm upon Mr El Kazwini;

3. 6 months imprisonment for the common assault upon Mr Al Shafii;

4. 9 months imprisonment for the common assault upon Mr George; and

5. 12 months imprisonment for affray.

Brief facts

3. The physical altercation that formed the background to this case occurred at the intersection of Ward Avenue and Bayswater Road, Potts Point, shortly after 3am on 19 July 2015. Prior to the altercation, Mr El Kazwini had been to a nearby nightclub in Kings Cross called “The Club”. He had driven there with his friends Mr Giannopoulos, Mr Al Shafii and someone known as “Sam”. The group were at The Club from about 10:30pm until about 3:00am when they decided to leave. The group started walking towards Mr El Kazwini’s car. At the intersection of Ward Avenue and Bayswater Road, Mr El Kazwini was hit from behind and fell straight to the roadway where he was motionless for a short period of time. Mr El Kazwini had little memory of the events.

4. Mr El Kazwini was taken to hospital by ambulance. He had injuries to his face. He had surgery in November 2016 to deal with ongoing problems with a bleeding nose and breathing difficulties. Further surgery was required for Mr El Kazwini’s problems with his breathing and crookedness of his nose. The applicant was acquitted of recklessly inflicting grievous bodily harm in company but convicted of assault occasioning actual bodily harm with respect to the assault upon Mr El Kazwini.

5. When the young men with Mr El Kazwini left The Club and reached the intersection, Mr Al Shafii and Sam walked ahead and crossed the intersection first. They were talking to some women. Mr El Kazwini and Mr Giannopoulos were walking behind them in the same direction. As Mr Giannopoulos reached the western edge of the intersection, he heard a voice say “come here”. He turned and took a few steps backwards and saw a Caucasian male and a Middle Eastern male come towards him. The Caucasian male “grabbed me by the shirt, put m[e] towards the wall, seemed quite aggressive, and at that stage I was quite – quite fearful for my safety”. The Middle Eastern male was standing next to the Caucasian male as he was being held against the wall within approximately an arm’s length. Mr Giannopoulos called out to Sam and Mr Al Shafii.

6. Mr Giannopoulos described the Caucasian male as having sandy blonde hair, an athletic build and quite muscular, average height, 180 cm tall. He was wearing a buttoned up white shirt, a tie, brown shoes and chino pants. His hair was short on the sides and top. In contemporaneous photographs which were in evidence at the trial, the applicant is a Caucasian male with short hair wearing a blue and white button up shirt, light brown chino pants and brown shoes.

7. The assault upon Mr Giannopoulos was witnessed by Mr Al Shafii. Mr Al Shafii gave evidence that he and Sam had crossed Ward Avenue and stopped to talk to some women. He heard Mr Giannopoulos yell out “Jaf, Sam, help me”. Mr Al Shafii saw Mr Giannopoulos being held against the fence by two men. One of the men was of Middle Eastern appearance and was wearing a “white button up shirt and [a] chain”. He recognised him as a man with whom Sam had interacted earlier. He could not describe the other man. Mr Al Shafii was about 10 metres away across the road. It was the Crown case at trial that Mr Al Shafii was mistaken in his recollection that it was the man of Middle Eastern appearance holding Mr Giannopoulos against the wall.

8. Mr Giannopoulos saw the Caucasian male and Middle Eastern male who had assaulted him at the wall, start walking or running towards the other side of the road. Mr Giannopoulos saw Mr El Kazwini get hit in “the back of the head” by the Caucasian male on the other side of the road almost as he reached the footpath. He used his fist in a hook motion, and then proceeded to kick Mr El Kazwini who was on the ground until Mr Al Shafii and Sam arrived and pushed him away. Mr Giannopoulos also ran over. The Middle Eastern male threw a punch at him. He thought there were two or three people “at the least” that were also present throwing punches, pushing and shoving. There was only one man present who was Caucasian. When the police arrived, Mr Giannopoulos said to one of the officers, “those are the guys over there, the Middle Eastern and the Caucasian, get them”.

9. Mr Al Shafii gave evidence that he saw a Caucasian male punch Mr El Kazwini from behind. He watched this from about five metres away from the eastern side of the road. He did not see where the Caucasian male came from before he punched Mr El Kazwini. Mr El Kazwini fell forward on to the roadway and then lay there motionless. The Caucasian male and Middle Eastern male then kicked Mr El Kazwini. The Caucasian male was “built”. He was wearing a grey button up shirt and brown pants and was aged 23-27 years old. There was only one Caucasian man involved in the fracas. Mr Al Shafii said that another “random guy” approached the Caucasian male and pushed him and the Caucasian man tried to run away. The Caucasian man then stood up and “ran at” Mr Al Shaffii, attempting to hit him by swinging his right arm trying to punch him “like a hook, not just a jab, using all of his body force”. Mr Al Shafii threw a punch at the Caucasian man and the Caucasian man grabbed him by his shirt around the collar.

10. Another man in a “long blue sleeve” then walked up to Mr El Kazwini and pulled out his phone to make a call. The Caucasian man ran 4-5 metres towards the man with the “long blue sleeve” and punched him in the face. This was Mr George, who had been socialising that evening near Kings Cross. Mr George saw Mr El Kazwini lying on the ground, and went and approached him and said he would call an ambulance. As he was on the phone to the ambulance, he “heard a grunt, turned around and then got punched in the head”. He dropped his phone. He only saw the man who punched him for a split second. He was wearing brown pants and a blue shirt.

11. Senior Constable Kitchener gave evidence that he was in a marked police sedan with Constable Anderson in Kings Cross, travelling along Ward Avenue near the intersection of Bayswater Road and saw some people gathered as though they were “involved in a bit of a scuffle”. As he stopped the police car the people began to separate. SC Kitchener agreed that the incident must have occurred between 3:09am when Mr El Kazwini can be seen in CCTV footage walking down Bayswater Road with Mr Giannopoulos behind him, and 3:14am when the flickering lights from his police vehicle can be seen on the CCTV footage. SC Kitchener saw a man sitting up with obvious injuries to his face in the eastern gutter of Ward Avenue. Mr Al Shafii approached SC Kitchener and said “it was them, it was them, don’t let them get away, they’re over there, he’s the one that king hit him”. He was pointing to Ward Avenue, to two men who were walking away. SC Kitchener went over to them and told them not to get into a taxi they had hailed and directed them to sit on a brick ledge and wait.

12. One of the men was the applicant and the other was the co-accused, Mr Idris. To address ground 2 of the appeal it will be necessary to examine the evidence in relation to Mr Idris further but suffice to say for present purposes that the identification evidence about Mr Idris as a perpetrator was confused and confusing. Each of Mr Giannopoulos and Mr Al Shafii gave evidence that was difficult to reconcile with Mr Idris’ guilt beyond reasonable doubt. In particular, Mr Giannopoulos appeared at times in his evidence to confuse Mr Idris with another man, Mr Zayat. These errors were acknowledged by the Crown at the trial. Mr Idris was acquitted by the jury.

13. When arrested, the applicant appeared “agitated and worked up”. He was breathing heavily and his fists were clenched. The applicant said, “I haven’t done a thing” and later when he was being cautioned and placed in the police vehicle, “I didn’t do shit”. At Kings Cross police station the applicant became agitated and aggressive during a strip search. He was placed in a cell until the morning when he participated in an ERISP. In his ERISP the applicant indicated that he understood the caution. He said he could not remember anything from the events of the evening. The applicant gave evidence at the trial and told the jury he did have a recollection of events. He said he was not involved in any altercation that morning outside The Club. The applicant’s girlfriend gave evidence that she spoke to the applicant by telephone for “about a minute” sometime after 3am and they arranged to meet later that morning.

Notice of appeal

14. The notice of appeal, filed on 4 April 2019, contained the following grounds:

1. The trial judge failed to adequately warn the jury as to the weaknesses in the identification appropriate to the particular circumstances of the case.

2. The verdict of the jury is unreasonable, or cannot be supported, having regard to the evidence.

Applicant’s submissions

Ground 1

15. The applicant submitted that the trial judge was bound to “isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence”: Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 at [11]. The warnings about identification evidence and the isolation of relevant evidence must be cogent and effective. Such a warning must specifically relate to the circumstances of the particular case. Accordingly, his Honour was bound to identify the flaws in the identification evidence and explain to the jury, with the weight of judicial authority, how these flaws may create a doubt in the minds of the jury.

16. It is insufficient to simply refer to counsel’s arguments or, in this case, a concession that the Crown made. It was submitted that this is all that occurred here.

Ground 2

17. The applicant submitted that the mistake made by the witnesses Mr Giannopoulos and Mr Al Shafii in the identification evidence regarding Mr Idris infected the case against the applicant. The demonstrably weaker case against Mr Idris may have made the case against the applicant appear stronger, particularly in the light of the flaws in identification and the failure of the trial judge to isolate and explain those flaws to the jury.

18. It was submitted that the jury may have dismissed the error of Mr Giannopoulos in originally identifying Mr Idris as a reasonable mistake and assumed that the applicant must have therefore always been in the company of Mr Zayat. However, the applicant submitted that this conclusion would have been both illogical and against the evidence that the applicant was seen walking away from the area with Mr Idris and arrested with him shortly thereafter.

19. The applicant provided a “schedule of contradictions” in the evidence in support of ground 2 which it will be necessary to address below.

Crown Submissions

Ground 1

20. It was submitted that the trial judge directed the jury about identification in the terms sought by trial counsel. Leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) to raise this ground should be refused. The Crown submitted that the applicant was unable to demonstrate that the directions to the jury constituted a miscarriage of justice. Plainly, identification was the central issue in this trial. The weaknesses in the identification evidence were the subject of the application for a directed verdict and a Prasad direction. The issue was placed by the trial judge at the forefront of the jury’s consideration.

Ground 2

21. The Crown accepted that there were a number of differences in the detail of the evidence given by Mr Giannopoulos on the one hand and Mr El Shafii on the other. It was submitted that those differences were not of such significance as to create a reasonable doubt about the evidence identifying the applicant as one of the assailants. It was submitted to be an overstatement to describe the evidence of Mr Giannopoulos and Mr Al Shafii as “completely contradictory”. Mr Al Shafii, who observed events involving the assault on Mr Giannopoulos from 10 metres away looking towards a darker area, gave evidence that it was the Middle Eastern male who had Mr Giannopoulos against the wall. He could not describe the other man. It was logical for the jury to prefer the account of Mr Giannopoulos who was actually being assaulted. While Mr Giannopoulos did not give a clear description of the Middle Eastern man, he did give a clear description of the appearance of the applicant.

22. The witnesses’ accounts varied in detail concerning how many people were involved at each point and precisely where and how events commenced and ended. The variations did not go beyond what would be expected with an event of this nature, involving numerous people moving around quickly in the context of the serious and unprovoked assault upon Mr El Kazwini.

23. The Crown submitted that both Mr Giannopoulos and Mr Al Shafii described a man, clearly fitting the applicant’s description, running and punching Mr El Kazwini from behind. Both nominated the applicant to the police who arrived on the scene within moments of the incident unfolding. Both men had a good opportunity to view the applicant.

24. The Crown submitted that Mr Zayat and Mr Idris look quite similar. By contrast, the applicant was the only Caucasian male involved in the incident. The Crown accepted that after Mr El Kazwini had been struck, another man of Caucasian appearance, Mr Joel Ryan, arrived at the scene but pointed out that Mr Ryan was wearing a white tuxedo jacket. The Crown submitted that by reason of his distinctive dress and time of arrival, the evidence about Mr Ryan did not detract from the identification of the applicant as the Caucasian male involved in the fracas. It was submitted that the mistakes made about the identification of Mr Idris and Mr Zayat take on much less significance in the context of the evidence as a whole.

25. The Crown submitted that it cannot be known what view the jury took of the error made by Mr Giannopoulos in pointing out Mr Idris to police at the scene as one of his assailants. It would have been open to the jury to acquit Mr Idris on the basis that they were simply not persuaded beyond a reasonable doubt that there was evidence clearly identifying him as participating in the assault upon Mr El Kazwini. This may have been because there was a reasonable possibility that Mr Giannopoulos had confused him with Mr Zayat at various points, or because they regarded the evidence of his participation as insufficient to establish a joint criminal enterprise between Mr Idris and the applicant. Neither of these conclusions undermined the evidence that the applicant was the person who hit Mr El Kazwini from behind.

Consideration

Ground 1

26. In order to succeed under this ground, it is necessary for the applicant to demonstrate that the directions of the trial judge with respect to the identification evidence resulted in a miscarriage of justice: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [13].

27. The applicant’s submissions made no reference to ss 116 or 165 of the Evidence Act 1995 (NSW) which governed this question. Section 116 provides:

116    Directions to jury

(1)    If identification evidence has been admitted, the judge is to inform the jury:

(a)    that there is a special need for caution before accepting identification evidence, and

(b)    of the reasons for that need for caution, both generally and in the circumstances of the case.

(2)    It is not necessary that a particular form of words be used in so informing the jury.

28. It is clear that in this case the trial judge warned the jury that there was a special need for caution before accepting identification evidence. His Honour identified the reasons for that need for caution, both generally and in the circumstances of the case. There is no doubt that the trial judge also warned the jury about the potential unreliability of the identification evidence and the matters that may cause it to be unreliable and the special caution required before deciding to accept that evidence as required by s 165 of the Evidence Act.

29. The trial judge commenced his identification directions early in the summing up. The first series of directions were as follows:

“I have already foreshadowed briefly, and I am now proceeding to give, apart from the directions about onus, presumption of innocence, standard of proof and so on, for the purposes of this trial what are probably the most important directions that relate to the factual matrix that you are considering and the charges that you are considering. I am obliged by the law to give you a direction that, in relation to identification evidence, this is a class of evidence where you need to exercise special caution and there is a reason for that.

In giving you these directions, you should not think that I am giving you any indication about what I think about the reliability of the particular evidence. As I told you at the beginning of the trial, that is not my task and I work very hard not to make those evaluations because they are not part of my task. My task is to make sure that you consider everything that is relevant to an assessment of the reliability of the evidence. That assessment is your function, not mine. Of course, the directions that I have already given you or the suggestions that I have already given you about the way that you might assess honesty and reliability have application alongside these particular warnings.

Judges have experience with the law that members of the community generally do not have. Judges have come to know that identification evidence may be unreliable and there are a variety of reasons why that is so. In the circumstances of this case, even though their evidence might diverge one from the other on certain points, each of Emmanuel Giannopoulos and, importantly, given the emphasis that the Crown places on his evidence, Jaafar Al Shafii, purport to identify persons who were strangers to them before the evening in question. You might think it is a much easier exercise to identify somebody that you already know than somebody that you have never had any association with.

You need to consider carefully the conditions in which each witness made observations which include matters such as any affectation by alcohol that you find, the general circumstances prevailing, including whether there were multiple events happening at the one time, whether there were a large number of people either actually involved in the incidents or in the vicinity. You need to give careful consideration as to whether any witness has made a mistake on other issues concerning identification. You need to exercise particular caution in relation to identifications that are based on clothing rather than on features of any individual that are particular.

That probably makes sense to you because clothing is transportable and clothing is something that can be common to a group of people. You need to give consideration to the ability or inability of a witness to describe other key players. Issues of the lighting, the location, the standpoint of particular witnesses relative to events, all of those things are matters that you need to weigh carefully. Joint identification of people that are together at a particular stage may be unreliable, particularly if those people have been seen together either after the events in question or prior to the events in question, whether that creates some challenge to the reliability of the identification.

I want to say something to you about the displacement effect. It has been the experience of judges and appeal courts that identification evidence can be rendered unreliable because of a phenomenon where some witnesses have shown a propensity to substitute observations of a particular person at one point in time and use those impressions to influence their identification of people involved at a different point in time. At its starkest, a witness seeing a person, say, in police custody might, through the displacement effect, become convinced that they observed those features of that person on a person at an earlier relevant time. Similarly, if such a person had been seen in different circumstances earlier in the sequence of events but not at the time an offence is alleged, that also can give rise, in certain circumstances, to the displacement effect.

These warnings are given because these experiences have been formed by judges over time and they will not necessarily be matters on which there is expert evidence led in a particular trial, but the understandings about caution with identification evidence are important for juries to understand. You must give consideration to the matters that I have raised. An examination of the evidence without proper caution as to any of those circumstances may possibly lead to error. In conclusion, and I reiterate, the directions are not my personal view about this particular case. These kind of directions are given time and again in cases where identification is an important issue or in a case like this where, really, it is a central issue in the case.

This means the special caution exists because of the potential unreliability of the evidence and I have told you the reasons why that might be so. I want you to clearly understand this so that you can make your decision about the reliability of the evidence by taking into account all those matters that are relevant to your task. I repeat that I am not expressing a personal view about the evidence. I have not been giving you any hints about how I think you should decide this case. My task, as I have told you, is limited to giving you legal directions that you have to comply with so that there is a fair trial for all the parties concerned.”

30. Even at this early stage in the directions it is clear that the trial judge was astute to isolate and identify for the benefit of the jury the matters of significance which may reasonably be regarded as undermining the reliability of the identification evidence in accordance with Domican. After concluding these directions, the trial judge then proceeded to summarise in considerable detail the addresses of counsel, again emphasising in accordance with Domican the matters of significance which may reasonably be regarded as undermining the reliability of the identification evidence. His Honour then addressed the jury in the terms sought by the applicant’s counsel as follows:

“Then I just want to say a little bit more to you about this topic of the need for caution in relation to identification. What I did when I was giving you warnings about the things that you need to think carefully about that might cause unreliability in relation to identification, what I sought to do was summarise certain topics that have come up in the evidence without going to particular examples. So I talked to you about the possibility of the displacement effect of either seeing people earlier on the evening or seeing people later, particularly if you form the view that they were in police custody, lighting conditions, effect of alcohol, vantage point, movement of people, number of people involved and, indeed, what witnesses were doing at the time or engaged in at the time that they could say that they could make observations of other things.

In terms of some particular examples, you will remember that Mr Crown quite fairly pointed out that Mr Giannopoulos must have been wrong when he nominated the person in the white shirt as being involved with him because he clearly then provided a description - the person in the white shirt who turns out to be Mr Idris who was in the company of police when he clearly described somebody who must have been Mr Zayat, and he took you to a couple of other variations or what he said were errors in the evidence of those two witnesses, and then Mr Brezniak and Mr Russell went to what they say are some quite stark examples of things that would give you trouble about identification. As an example, Mr Al Shafii saying that the people that he observed moved off in a totally different direction to what the balance of the evidence is about where Mr Brown and Mr Idris ultimately moved and then were moved. They are just some examples that I want you to think about in each of the addresses that I have just so recently summarised as being the kind of issues that you would examine very carefully with a need for special caution.

Just bear with me a moment. You will remember when I gave you directions yesterday afternoon I talked about issues that were to do with honesty and then issues that were to do with accuracy and how those matters made up reliability. The issues that I have been going to about identification now go to reliability, not to honesty. So a witness may be honest but that does not necessarily mean that the witness will give reliable evidence. Because the witness who gives evidence of identification honestly and sincerely believes that his evidence is correct, that evidence will often be quite impressive, even persuasive.

So even here if you thought that, say, Mr Al Shafii was being totally honest and earnest in his belief about identification but you thought that there were some matters that go to the potential reliability of that identification, you would take that into account. No matter what view you had about his honesty, you still must approach the task of assessing the reliability of the identification evidence and particularly that of Mr Giannopoulos and Mr Al Shafii with special caution.

So special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted. You must carefully consider all the circumstances and all the evidence and the warning that I have given you before moving on the identification evidence to be satisfied to that high criminal standard beyond reasonable doubt. This ground of appeal should be rejected for the following reasons.”

31. First, the applicant’s counsel at the trial expressly invited the trial judge to deal with the matter by reference to counsels’ arguments. He submitted:

“RUSSELL... The second part, which principally relies on the decision in Domican’s case, requires your Honour to point out the particular matters in the case by virtue of reference to identification evidence and its unreliability that may cause that evidence to be unreliable. I’d be content if your Honour simply dealt with that in a global way because it’s going to take too long. It could be dealt with in a global way for my part by saying, ‘I pointed out certain matters that [counsel for Mr Idris] addressed you on in relation to identification, that [counsel for the applicant] identified to you in identification and’ –

HIS HONOUR: And that Mr Crown did too.

RUSSELL: Yes, your Honour, ‘and Mr Crown and you need to consider that, because of those matters that were pointed out, the particular matters in the case may cause it to be unreliable.’”

32. The trial judge adopted counsel for the applicant’s submission that he deal with identification by pointing out “certain matters that [counsel for Mr Idris] addressed you on in relation to identification [and] that [counsel for the applicant] identified” about identification.

33. Secondly, the trial judge expressly clarified with the applicant’s counsel that what he proposed to say to the jury was what was being sought:

“HIS HONOUR: … Just to be clear, what I aimed to do, without dissecting it witness by witness was to go to topics that were challenges in terms of, you know, locations events, displacements both before and after. So I did try and go to the evidentiary topics and that was my intention but I accept that I didn’t say ‘Mr Al Shafi says this and Mr Giannopoulos says that’.

RUSSELL: No, I understand your Honour, but there is a distinction which-

HIS HONOUR: You don’t have to persuade me of it. I’m just saying that I hadn’t intended not to deal with it.

RUSSELL: No, I’m trying to give your Honour perhaps a short route to deal with it.”

34. Thirdly, the trial judge gave the further directions expressly requested by the applicant’s counsel. The jury retired following the trial judge’s further directions. The applicant’s counsel did not seek any further direction, despite being given the opportunity to do so.

35. Fourthly, the trial judge clearly and explicitly warned the jury about features of the evidence which might cause identification evidence to be unreliable, with a focus upon those matters applicable in the present case including:

1. the fact that both Mr Giannopoulos and Mr Al Shafii were purporting to identify strangers and not persons known to them;

2. the fact that a large number of people were in the vicinity and multiple events were happening at the same time;

3. the unreliability of identification of people based on clothing;

4. the relevance of a particular witness making a mistake on other issues concerning identification

5. the unreliability of a “joint identification” of people together at a particular event who have been seen together either before or after the event in question; and

6. the risk that a witness seeing a person in police custody might become convinced they had seen that person at an earlier time.

36. Fifthly, when the trial judge summarised the addresses of counsel, he dealt with all of the possible problems with the identification evidence given by the Crown witnesses. His Honour emphasised the “special caution” with which identification evidence should be approached.

37. Sixthly, the trial judge gave specific examples of the unreliability of identification evidence and highlighted the error that the Crown conceded Mr Giannopoulos made in identifying during cross-examination Mr Zayat as one of his attackers (rather than Mr Idris) and Mr Al Shafii’s evidence that the applicant and Mr Idris moved off in a different direction from where the balance of the evidence showed they moved. The trial judge made it plain that the matters he referred to were “just some examples that I want you to think about in each of the addresses that I have just so recently summarised as being the kind of issues that you would examine very carefully with a need for special caution”.

38. Seventhly, the trial judge drew a distinction between honesty and reliability about evidence of identification. His Honour concluded his directions by repeating the need for special caution. This extensive identification evidence warning was the final legal direction in the summing up before the jury retired. The effect of his Honour’s address was clearly to “identify the flaws” in the evidence for the consideration of the jury in conjunction with a very strong identification evidence warning. The applicant’s submission that the trial judge failed to emphasise the matters of significance which may reasonably be regarded as undermining the reliability of the identification evidence in accordance with Domican must be rejected.

39. It is of importance that trial counsel considered the identification directions appropriate and did not seek any further directions from his Honour. In ARS v R [2011] NSWCCA 266, in the context of addressing the operation of Rule 4 of the Criminal Appeal Rules, Bathurst CJ observed at [148]:

“A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done.” (citations omitted)

40. The latter part of the Chief Justice’s observation is particularly apposite in the present case. The fact that trial counsel for the applicant was content with the directions given by the trial judge provides strong reason for thinking that he did not believe, in the atmosphere of the trial, that there was any deficiency which affected the interests of the applicant adversely: see also Greenhalgh v R [2017] NSWCCA 94 at [42] per Basten JA.

41. I would refuse leave to appeal under Rule 4 on ground 1.

Ground 2

42. When considering whether a verdict is unreasonable, the Court is to make its own independent assessment about the sufficiency and quality of the evidence. The question for this Court is whether, notwithstanding that there is evidence upon which a jury might convict, it would nonetheless be dangerous in all the circumstances to let the verdict of guilty stand: M v The Queen (1994) 181 CLR 487 at 492; [1994] HCA 63; R v Nguyen (2010) 242 CLR 491; [2010] HCA 38; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.

43. The principles which inform the exercise of the review to be undertaken by an appellate court where it is contended that a verdict is unreasonable were explained by Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30. After noting that the evidence adduced at trial in that case did not all point to the applicant’s guilt, Hayne J found at [113] that:

“… the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.” (footnote omitted)

44. In answering the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, this Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, or the consideration that the jury has had the benefit of having seen and heard the witnesses: M v The Queen at 492. More recently in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65], the High Court stated that:

“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.” (footnotes omitted)

45. I have read the record of the trial. My own independent assessment of the sufficiency and quality of the evidence at the trial does not leave me with a doubt about the applicant’s guilt. As I have explained at length in relation to ground 1 of the appeal, on the central issue of the case, identification of the applicant as the assailant, the trial judge gave extensive directions to the jury about the “special caution” with which they should approach identification evidence. The determination of that issue was quintessentially a matter for the jury who saw the evidence and assessed the critical evidence of Mr Giannopoulos and Mr Al Shafii. The jury’s verdict was not unreasonable.

46. The critical matter which emerges about the central issue of identification is that there was only one Caucasian male involved in the central events the subject of the indictment. I accept the Crown’s submission that the limited evidence about the only other Caucasian male, Mr Ryan who arrived after the initial assaults had occurred and who was dressed in a distinctive white tuxedo, can safely be put to one side for those reasons. Both of the critical Crown witnesses clearly identified the applicant as one of the assailants. The fact that the evidence was that there was only one Caucasian male involved in the assaults for which the applicant was convicted was not challenged at the trial. It was, however, identified on the appeal as an issue the Crown had not proved:

“PAYNE JA: Where’s the best place in your submissions where you give a reference to there being multiple Caucasian gentlemen involved in this fracas?

RUSSELL: Your Honour I didn’t say multiple Caucasian gentlemen I said that there’s no evidence, there is no evidence to say that there was not more than one Caucasian male, males at the scene.

PAYNE JA: But you told me a moment ago that the Crown had evidence that there was only one.

RUSSELL: Yes.”

47. Mr Giannopoulos gave evidence that there was only one Caucasian man in the group involved in the fracas:

“Q. Did you see anyone else including these two or three more people, did you see anyone else that was a Caucasian male that was involved in what happened?

A. No.”

48. That evidence was not challenged in cross-examination.

49. Mr El Shafii gave evidence that four to five men were involved, “including the Caucasian male and the [male in] the white button up shirt”. Mr El Shafii also gave evidence that, while he could not describe all of the males, “there was only one Caucasian”:

“Q. Can you describe those two to three other males?

A. I, I wouldn't be able to describe them.

Q. Can you tell the jury whether you saw all three of them kick Hassan?

A. I did, they were Middle Eastern, so there was only one Caucasian and the rest of that were all like Middle Eastern appearance.”

50. That evidence was not challenged in cross-examination.

51. The fact that the evidence was that there was only one Caucasian male involved in the assaults upon which the applicant was convicted is a critical matter of context for the jury’s acceptance of the identification by Mr Giannopoulos and Mr Al Shafii of the applicant as one of the assailants. Having read all of that evidence I am in no doubt about the identification of the applicant as involved in each of the counts upon which he was found guilty.

52. There were a number of other matters about the evidence of Mr Giannopoulos and Mr Al Shafii raised by the applicant as relevant to this ground which were contained in a document described as a “schedule of contradictions”. I have considered each of those matters carefully. I have reached the following conclusions:

1. differences between Mr Giannopoulos’ and Mr Al Shafii’s evidence about the “Scuffle outside The Club” before Mr Giannopoulos was assaulted up against the wall are differences in detail about matters of insignificance;

2. differences between Mr Giannopoulos’ and Mr Al Shafii’s evidence about the incident against the fence are more significant but readily explicable by the distance Mr Al Shafii was from the events. In any case, the differences in the accounts do not affect their identification of the applicant as the only Caucasian man present;

3. what were asserted to be differences in the identification by Mr Giannopoulos and Mr Al Shafii of the applicant as the Caucasian man did not even rise to the level of discernible or relevant differences in recollection. To describe that evidence as a “contradiction” is a vast overstatement;

4. the different recollections about the number of people “present during Giannopoulos Incident” is a matter of relatively unimportant detail;

5. the differences between Mr Giannopoulos and Mr Al Shafii in relation to the involvement of the applicant in the assault on Mr El Kazwini are matters of minor detail;

6. the differences in recollection about who was present when Mr El Kazwini was kicked on the ground, the “[o]thers involved in the fight” and the alleged assault on a bystander relate back to differences about the number of people present. What is consistent throughout the evidence, however, is that the applicant is identified in much the same manner by both witnesses as the only Caucasian man present at the assault;

7. the differences in recollection about the direction in which the assailants started to leave the area and the descriptions given by Mr Giannopoulos and Mr Al Shafii to the police raise no real areas of conflict.

53. My overall conclusion about the evidence the subject of the applicant’s “schedule of contradictions” is that the differences identified are ones I would expect from witnesses who have just been involved in a late night melee at Kings Cross. Such discrepancies as there were within and between the witnesses’ accounts were understandable given they were observing a sudden outbreak of violence which occurred over a short period of time. Importantly, all of the matters of complaint were clearly brought to the attention of the jury by the trial judge. They were highlighted in the addresses of defence counsel and repeated in the summing up in the context of a strong identification evidence warning. Those matters do not cause me to have any doubt about the applicant’s guilt, much less convince me that the jury must have had such a doubt.

54. I have reached the same conclusion about the telephone call between the applicant and his girlfriend. The fact that the applicant called his girlfriend around the time of the incident and spoke for about a minute was submitted by the applicant to preclude his involvement in the offending. I reject that submission. There was ample time for the incident to occur between the phone call and the arrival of the police.

55. Finally, the jury was correctly directed by the trial judge to consider the cases against each accused separately. Their verdicts indicate that they did so. I do not consider that the jury engaged in an improper comparison of the cases against each accused nor that the jury somehow impermissibly strengthened the Crown case against the applicant by reference to the weakness in the case against Mr Idris.

56. The applicant has not demonstrated that the verdicts were unreasonable or unable to be supported by the evidence and this ground of appeal should be dismissed.

Conclusion and proposed orders

57. For the foregoing reasons I propose the following orders:

1. Application for leave to appeal on ground 1 refused under Rule 4 of the Criminal Appeal Rules;

2. Leave granted in respect of ground 2;

3. Ground 2 dismissed;

4. Appeal dismissed.

58. DAVIES J: In relation to ground 1, I agree with Payne JA’s reasons. In relation to ground 2, my assessment of the evidence given at the trial does not leave me with any doubt about the applicant’s guilt. Like Payne JA, I consider that the critical matter is that the applicant was the only Caucasian male involved in the assaults as an aggressor. I agree with Payne JA’s analysis of the evidence.

59. HIDDEN AJ: I agree with Payne JA.

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Decision last updated: 08 November 2019