Bshara Fram v The Queen , Charbiel Fram and the Queen
[2013] VSCA 96
•3 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0260
S APCR 2012 0261
| BSHARA FRAM | Applicant |
| v | |
| THE QUEEN | Respondent |
| and | |
| CHARBIEL FRAM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY, HARPER and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16, 22 April 2013 |
| DATE OF JUDGMENT | 3 May 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 96 |
| JUDGMENT APPEALED FROM | R v Bshara Fram; R v Charbiel Fram (Unreported, County Court of Victoria, Judge Chettle, 30 April 2012) |
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CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Fresh evidence – Recantation by principal witness – Whether substantial miscarriage of justice established – Applications for leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicants | Mr D Grace QC with Ms S Leighfield | Theo Magazis & Associates |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
The applicants, Bshara and Charbiel Fram, were found guilty after trial in the County Court of intentionally causing serious injury to Tony Kabalan (conveniently, ‘K’). The incident in consequence of which the Frams were charged occurred on 21 January 2010 at the ‘Q Room’ in Thomastown, it being a bar and pool room. The trial commenced on 6 February 2012. Verdict was returned on 9 February 2012. On 30 April 2012 Bshara Fram was sentenced to three years and six months’ imprisonment, with a non parole period of two years and six months. Charbiel Fram was sentenced likewise.
Circumstances
The principal witness against the applicants was K, who had previously been married to the applicants’ sister. The breakdown in their relationship had been acrimonious. There was also CCTV footage of the incident, introduced through the informant. Other witnesses included the owner of the Q Room, a doctor whom K consulted on 25 January 2010, and a prosthodontist whom he consulted on 5 February 2010.
K gave evidence that he was approached by Bshara Fram, who struck him heavily to the face and knocked him to the floor. The blow caused him to lose frontal teeth – in fact, implants; and considerable damage to other teeth. Then, he said, he was attacked by two other men, one of whom was Charbiel Fram. He was kicked and punched. Punches thrown by Charbiel Fram were to the left side of his head.
K said that he suffered the loss of six teeth (I will continue to call them teeth, having already noted the witness’ evidence that they were implants), bruising or soreness to the left side of his head and face, bruising to the right jaw, neck and lower back.
CCTV footage showed K being attacked. According to remarks made by the sentencing judge, it was difficult to identify the attackers from that footage. The footage did show the applicants and a third man leaving the Q Room shortly after the incident.
The owner of the venue saw K after the attack. K was bloodied around the mouth. He told the witness that he had lost teeth, but the witness didn’t see the loss for himself.
The general practitioner gave evidence that K attended him on 25 January 2010 – that is, four days after the incident. The complainant told him that he had been assaulted by three people four days ago on the street. Examination showed swelling and a scabbed area on the lower lip, a bruise behind the left ear, seven broken teeth in the upper jaw and a bruise on the left shoulder. The doctor gave him painkillers, and advised him to see a dentist.
A prosthodontist’s report was read into evidence. It said that K consulted the witness on 5 February 2010. K gave a history of having been assaulted, this resulting in the loss of six upper teeth. Examination showed the missing upper front teeth and also two fractured pre-molar teeth on the upper right side. The witness opined that the injuries were consistent with K having been assaulted.
Neither applicant gave evidence.
It was admitted that each was at the venue at the critical time.
It was denied – through cross-examination of K – that either was involved in the assault.
The defence put in issue the question whether the injuries alleged amounted to serious injury.[1] In that connection, I should say, the Crown identified the injuries as:
(1) pain to K’s neck and shoulders;
(2) swelling to his lips and a wound to his inner lips;
(3) a bruise behind the left ear;
(4) loss of six teeth and damage to two other teeth.
[1]For that reason, the judge left statutory alternatives to the jury.
Although the question whether injury was serious was put in issue, no question was raised whether damage to K’s teeth had been caused by the assault.
Ground of Appeal, conviction
Now each applicant seeks leave to appeal against conviction on a single ground, as follows:
Ground 1: Fresh evidence is available that gives rise to a substantial miscarriage because had the evidence been available at trial, there is a significant possibility that the jury acting reasonably would have acquitted the applicant.
Particulars of fresh evidence
(a)On 21 June 2012, the applicant’s solicitor received a statutory declaration made by the complainant [George] Kabalan on 12 June 2012 before a policeman, in which he declared inter alia that:
(i)he had not lost the teeth as a result of the alleged assault but rather had lost them in a car accident approximately a week prior to the assault;
(ii)on the night of the assault, he was ‘angry, confused and in shock’ and that is why he told the police he has lost his teeth as a result of the assault when he did not; and
(iii)he made the statutory declaration of his own free will to clear his conscience.
(b)On 18 September 2012, Mr Kabalan advised the applicant’s solicitor in conference that the statutory declaration had been signed by him and that its contents were true and correct.
Principles
If leave is to be granted, and their appeals against conviction are to be allowed, the applicants must demonstrate that there has been a substantial miscarriage of justice in their being convicted.[2]
[2]Criminal Procedure Act 2009, s 276, Baini v R (2012) 293 ALR 472, 476 [17]-[19], Andelman v The Queen [2013] VSCA 25.
Speaking generally, where an applicant relies upon fresh evidence, then, assuming that it meets the fresh evidence criteria, the court must consider whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might have led the jury to return a different verdict;[3] or, to put it another way, the court considers that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial’.[4]
[3]Gallagher v The Queen (1986) 160 CLR 392, 395 (Gibbs CJ).
[4]Gallagher, supra, 402 (Mason J), cited by Winneke P in R v AHK [2001] VSCA 220 [8], and R v Nguyen [1998] 4 VR 394, 400-401 (Kenny JA).
Where the fresh evidence involves a recantation by the complainant, the following observations by Winneke P are in point:
The evidence with which this Court is confronted is evidence of a different kind; namely evidence of a recantation by the Crown’s principal witness of significant parts of the evidence which she gave at the trial. Although evidence of this sort has been treated by the courts as a species of fresh evidence, the courts have treated it as ‘fresh evidence’ in respect of which the ordinary tests cannot be applied without qualification. The reasons, enunciated by the courts, for the qualification are clear. If appellate courts were to act without extreme caution upon a declaration by a witness that he has committed perjury at trial ‘the whole administration of both civil and criminal justice would be undermined’. Furthermore, the fact that a witness, following the trial, has given a new version of events might show that he or she is ‘now unreliable’ but ‘it is a fallacy to assume from this that he (or she) was also unreliable at the trial. Witnesses may have second thoughts for a variety of different reasons’. However, as the courts have been at pains to point out, every case must depend upon its own facts but much depends upon the reason or reasons assigned by the witness for having recanted his or her testimony. Much also depends upon the significance of the witness’s evidence given at trial and whether the other evidence, not impugned, supported the conviction.[5]
[5]R v AHK [2001] VSCA 220 [9] applied in The Queen v DD [2005] VSCA 308 [39]. Citations omitted.
It is relevant, in a case of recantation, to consider whether an acceptable explanation has been given for the change in story.
On an application for a new trial on a fresh evidence ground, the court should
hear the evidence itself and have it tested by cross-examination.[6] That is what happened in this case.
[6]Lawless v The Queen (1979) 142 CLR 659, 665 (Barwick CJ), cited by this Court in DPP v Curran; Curran v The Queen [2012] VSCA 244 [68].
The statutory declaration
On 12 June 2012, K made a statutory declaration.[7] It was relevantly as follows:
In regards to an incident (sic) that happened on the 21/01/10 in Q room venue on settlement Rd, thomastown where I was assaulted by 2 people known to me as Bshara Fram & Charbelle (sic) Fram, I made a complaint to police about the incident in which I stated that I lost six of my false teeth as a result of that assault. I would like to clear up that I had lost my teeth in a car accident approximately a week prior to that incident because they are false teeth and are very weak. At the night of the assault I was angry, confused and in shock and that is why in my complaint to the police I said I lost my teeth as a result of the assault when I didn’t. I have made this statutory declaration on my own free will to clear my own conscience.
[7]For some reason, it was made pursuant to the Commonwealth Statutory Declarations Act 1959.
The applicants’ solicitor becomes involved
The statutory declaration was sent to the applicants’ solicitor, Mr Theo Magazis – who was not the applicants’ solicitor at the time of trial – on about 21 June 2012. Mr Magazis had been engaged by the applicants on about 4 May 2012. Later in these reasons I deal with the question how K came to know that this solicitor was acting.
According to his affidavit sworn 16 November 2012, Mr Magazis relevantly took these steps:
9.On 31 August 2012, I wrote to Mr. George Kabalan advising him that my office had received by mail a Statutory Declaration sworn by him on 12 June 2012. I requested that Mr. Kabalan contact me in relation to the contents of the Statutory Declaration. I advised Mr. Kabalan that he should seek independent legal advice prior to any contact with my office.
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10.On 18 September 2012, I conferred with Mr. George Kabalan in my offices for approximately 7 minutes in the presence of another solicitor from my office Mr. Stephen Parker. Prior to conferring Mr. Kabalan was advised that he did not have to speak to me if he did not wish. Mr. Kabalan was again advised that he should seek independent legal advice but did not wish to do so.
11.Mr Kabalan then confirmed that the Statutory Declaration was signed by him and that the contents of the Statutory Declaration were true and correct. Mr. Kabalan was then advised that the Statutory Declaration may be used to pursue an Appeal on behalf of the Applicant and he acknowledged that he understood. I did not discuss with Mr. Kabalan anything further in relation to the case or the contents of the Statutory Declaration. Upon concluding the conference Mr. Kabalan was again advised that he should seek his own independent legal advice about the matter.[8]
[8]It appears that at some stage K did receive advice from Victoria Legal Aid.
Oral evidence before Court of Appeal
K gave evidence viva voce. He did so after objecting to give evidence which might tend to incriminate him of offences against Australian law,[9] after the Court had determined that there were reasonable grounds for his objection, and after the witness had undertaken that he would give evidence willingly subject to being given a certificate under s 128(5) of the Evidence Act 2008 (Vic). The Court indicated that a certificate would be given.
[9]Most evidently, perjury. But counsel raised at least one other possible offence in discussion with the Court.
K was taken by counsel for the applicants to police statements which he had made on 22 January 2010 and 7 March 2012, the history given by him to the general practitioner on 25 January 2010 and to the prosthodontist on 5 February 2010, to his evidence at the committal hearing on 14 October 2010, to his evidence given at trial on 6-7 February 2012 and to a victim impact statement made on 5 April 2012. On each occasion K had said that he had teeth knocked out when assaulted. Not only his evidence at the committal proceeding and at trial, but also his statements to the police and his victim impact statement, laid him open to penalty for perjury if deliberately false.
K gave evidence that in each instance his statement that he had lost teeth in the assault was false. He explained what he had done by saying, variously, that -
(1) he was very upset with the applicants;
(2) he was furious and angry with them;
(3) ‘everything was happening’;
(4) he was ‘all confused’;
(5) he feared for his safety;
(6)it all happened so quickly and he had to do something to put them in gaol for what they had done to him.
The themes which K most repeated were feelings of anger and confusion. On his account, those feelings persisted in the period of more than the two years between the assault and trial.
I should next refer to some parts of K’s cross-examination by counsel for the Crown:
(1)The car accident: the witness said that it occurred at a place which he could not recall, but which was not far from his home. He was alone at the time. It might or might not have been raining, but the road was wet. He could not say how fast he was driving, but in any event he lost control of his vehicle, and it ran into a concrete pole. The pole was not a light post. He did not otherwise describe the collision.
The car was a write-off. It was towed away, but he could not remember the name of the tow truck company. The vehicle was sold for scrap. He was picked up at the scene by his father. He cancelled the registration, which had nearly expired, because the vehicle was a write-off. He lost his teeth in the collision, but he couldn’t say how it happened. His lip was a bit bruised.
(2)The period between the car accident and the assault: in the period of a week between the car accident and the assault, the witness said that he was in discomfort for a time – ‘a couple of hours or so’, or ‘just the first two days’ – was not able to eat properly and had difficulty speaking. The loss of the teeth affected his appearance. But he did not consult a doctor or a dentist. He had decided to see a dentist, but had not called to make an appointment. On 21 January 2010, before attending the Q Room, he acted as a DJ at a wedding for five-and-a-half hours. There he said hello and goodbye to persons attending, ‘but that’s from a far distance’. Then he went to the Q Room. All this with six upper front teeth missing and with the disabilities which I have mentioned.
(3)The comparative force of the blows to his mouth and damage done:according to the witness, the car accident was so serious that his car was a write-off. It caused him to lose the six teeth, but only slight bruising to his lip and no cut. He could not say how he had suffered the damage to his teeth. The first blow struck at the Q Room was a heavy one. It knocked him to the floor. Whilst in his evidence he initially denied that the blow struck his mouth as distinct from his jaw, he eventually resiled from that account and admitted that the blow was to his mouth as well, and caused a deep cut to his lip which produced plenty of blood. This heavy blow, however, had not damaged his teeth, which had already been lost in the car accident, although in that accident there had been minimal damage to his lip.
(4)The truth about everything except the loss of teeth:despite the continuing anger and confusion which he described, the witness agreed that in his statements to the police (the second of which corrected the first in several respects) and in his evidence he could not recall having told any lie other than in respect of the loss of his teeth. His anger and confusion, and his fear of the applicants – it had predated the assault – had not caused him to improve his account in any other way in order to see that the applicants got what he regarded as their just desserts. Nor had his fear of the applicants prevented him alleging that they had assaulted him.
(5)Correction to the first statement to the police: in his first police statement the witness said that when Bshara Fram punched him ‘I felt my teeth fall out at this stage but I wasn’t sure how many had come out’. In his second police statement, made about six weeks later, he said that as a result of the assault he had lost six teeth on the top and a number of others were broken. He agreed in cross-examination in this Court that he had attended the doctor and prosthodontist in the interim. Why he was unable to say how many teeth he had lost in his first statement, if the teeth had been lost a week before the assault, was not explained.
(6)The immediacy of K’s statements that the assault had caused the loss of teeth: K said that an ambulance had attended the Q Room. He told an ambulance officer that he had lost his teeth in the assault. That is also what he told the Q Room’s owner, according to the evidence of that witness at trial. Again, it is what he told the police when he took himself to a police station soon after the assault.
(7)The victim impact statement: K made a victim impact statement, dated 5 April 2012. By then the applicants had been found guilty. In that statement the witness said, inter alia, that he’d had ‘8 teeths knock out and [he’d] lost a lot of weight’. He had been to see the prosthodontist about his teeth. According to K’s evidence in this Court, his anger and confusion had still persisted at that time, and explained what he had written.
(8)Anger, confusion and shock. The statutory declaration and the viva voce evidence: in his statutory declaration of 16 June 2012, the witness said ‘on the night of the assault I was angry, confused and in shock and that is why in my complaint to the police I said I lost my teeth as a result of the assault which I didn’t’. In his viva voce evidence the witness averred, in substance, that he had remained confused and angry for more than two years.
(9)The envelope: The statutory declaration was posted to the applicants’ present solicitor. As I have already said, he was not their solicitor at trial. He was only retained on or about 4 May 2012.
K gave evidence that the writing on the envelope in which the statutory declaration was sent to the solicitor was not his. Initially, he said that he had delivered the envelope to the solicitor personally; but then it was pointed out to him that it had been posted. Later, asked by me how he had come by the empty envelope, he said that it had been sent to him in the mail. Asked how he knew that the statutory declaration was to be enclosed in it, he said that ‘apparently when I went to – down the station for the declaration and all that, I was asking to see who’s their lawyer’. Then he said that he had been ‘asking the relatives of [the applicants], friend, relative … and then it clicked in my mind that at the … County Court, I knew the gentleman’s name’. He knew that the solicitor was representing them. When I pointed out that the solicitor had only been recently engaged, the witness seemed to be temporarily at a loss to explain how he knew that the name on the envelope was that of the applicants’ then-current solicitor. Then he said that he had learned of the solicitor’s name by discussion with some of the applicants’ family friends – not relatives. One of them had said that ‘they’ll send it to me by either hand or in the mail’.
(10)The domestic situation: K gave evidence that he had separated from his wife before the assault took place. His wife and children now live in Sydney. For some time past, he said, they had been living with the parents of the applicants. There had been problems with access. Those problems had now been resolved.
The witness initially said that the problems of access had resolved themselves a few months ago. Then he said that it was ‘not that long, and its not that short either’. He denied that his recantation was motivated by a desire to resolve the access problem, and probably denied that it bore a temporal relationship to that problem being resolved.
(11)Cancellation of motor vehicle registration: the witness, having given evidence that he cancelled the registration of his motor car after the accident because it was a write-off, was briefly recalled when it emerged that the registration of a possibly relevant motor vehicle had been cancelled in December 2007 for want of payment of the registration fee – this being more than two years before the asserted time of the accident which resulted in the vehicle being written off. The witness then changed his evidence, saying that he had been driving the vehicle unregistered ‘and that was the first time I actually broke the law because I usually drive the car with registration’. He said that he could now ‘actually remember’ that the vehicle had been unregistered at the time of the accident.
Submissions
Counsel for the applicants submitted that K’s new account satisfied the test of being credible, plausible, or at least capable of belief. His credibility raised questions, but if he had lost teeth in the assault, why had he not consulted a doctor for some days – and then only at the suggestion of a police officer? Why were the teeth not found at the Q Room? No witness at the Q Room had seen evidence of recent damage to K’s teeth. The observed blood loss was compatible with the deep cut to the witness’s lower lip. K’s asserted motivation for his recantation – to clear his conscience – was plausible. He wished to achieve peace, do the right thing. He had maintained that his recantation was unrelated to the issue of access to his children. There was no evidence of pressure put upon him by the applicants or anyone on their behalf. He was apparently willing to face a charge of perjury – although, I interpolate, he did seek a certificate of immunity.
Counsel for the Crown cited the passage in the judgment of Winneke P in AHK which I set out at [16] above. He emphasised the need for caution to which the President referred, and his Honour’s observation[10] that unreliability now does not mean unreliability at trial. He referred to the number of occasions upon which the recanted account had been given, an account persisted in long after the immediacy of the assault had gone; and, indeed, persisted in after trial. The new account, he submitted, had been given despite there having been no change in any of the circumstances given to explain the discarded account. On K’s account, anger, confusion and fear of the applicants persisted. No legitimate reason had been given for the recantation. The original account fitted the matrix of facts which the evidence of the witness and others had established; that is, of a hard blow to the face and then much blood. The new explanation for the loss of teeth lacked detail and was unsupported by attendance on a doctor or dentist before the assault. K had given an unsatisfactory account as to how he knew of the engagement of the applicants’ present solicitor. K’s evidence that he had cancelled the registration of the car because it had been written-off in the alleged accident was shown to be false. In all, his evidence lacked plausibility and cogency.
[10]By reference to a cited passage.
Resolution
In my opinion, K’s new account decisively fails to meet the requirements which would show that a substantial miscarriage of justice occurred. That is so for these reasons:
(1)K’s evidence as to the circumstances of the alleged car accident was in many ways imprecise. It was unsupported by identification of the tow truck company, or any evidence confirming sale of the vehicle for scrap. K’s father could have supported the account if it was true. He was not called and there was no evidence that he was dead or otherwise unavailable to give evidence. K’s account that he cancelled the registration because the vehicle was a write-off was shown to be false.
(2)K’s evidence that he lost his teeth in the alleged accident and not in the assault was not credible. Not only did he not know how his teeth came to be damaged, his account meant that an impact serious enough to knock out six implants and damage two natural teeth was caused despite there being only minimal bruising to his lip, whereas a blow to his face which knocked him down, split his lip and caused a fair amount of bleeding did no damage to his teeth. Moreover, it is the fact that K did not consult either a doctor or a dentist (or make any appointment to do so) until after the assault. It seems to me to be grossly improbable, had there been a car accident resulting in the loss of the implants and other teeth damage, this having left K with an inability to eat properly, an inability to speak properly, and cosmetic disability, that he would have carried on with his social life – including work as a DJ and attendance at the Q Room – as if nothing had happened.
(3)K gave evidence that on the night of the assault he was shocked, angry and confused. In his statutory declaration, he thus explained the account which he gave in his initial police statement. But that explanation does not address his repetition of critical aspects of his account (and, indeed, its elaboration in his second police statement), on many occasions over more that two years. It does not explain why, on his evidence, his initial and subsequent statements, and his evidence, were correct in all details save one. Viva voce, the witness asserted that shock, anger, confusion and fear of the applicants persisted. But if fear was a motivating factor, why implicate the applicants at all in the assault? After all, on his account he was fearful of the applicants before the assault occurred. Moreover, why persist with the false account after the applicants had been convicted – as the witness did in his victim impact statement.
(4)K’s evidence about the provenance of the empty envelope in which he sent the statutory declaration to the applicants’ present solicitor, was, in my opinion, a moving feast of improbability. I have set out the various incarnations of the account at [25](9) above, and will not repeat them.
(5)It was K’s evidence that resolution of the access dispute was unrelated to his recantation. That does not mean that his evidence must be accepted. Despite his attempt to fudge the matter, there might well have been a temporal relationship between the resolution of the dispute and his recantation. That does not mean that the recantation was necessarily false, but it provides an alternative explanation for the witness’s new account – not that an alternative explanation must be provided in order to render the account wholly lacking in plausibility.
(6)K’s evidence about the provenance of the envelope had a sub-text. It was, I consider, his determination to avoid any suggestion that there had been any contact between the applicants (or anyone who might be thought to be in the applicants’ camp) and himself. That dose not necessarily mean that his recantation was false, but it does demonstrate, I think, the lengths to which he was prepared to go on oath in giving an improbable account of events.
(7)K, according to my conclusion, lied on oath when giving evidence in this Court. But, as Winneke P pointed out in AHK, a conclusion that a witness is now telling lies does not mean that the witness lied at trial. The body of evidence adduced at trial, to a good deal of which I have
referred, strongly supports the conclusion that the witness relevantly told the truth at trial. It is true that no evidence was given at trial of implants being found on the floor of the Q Room. But that does not carry K’s present account very far, for the evidence did not address that matter at all.
Ground of Appeal, sentence
Each of the applicants seeks leave against sentence, relying upon a single ground which, omitting particulars, is as follows:
Fresh evidence is available that demonstrates that there is an error in the sentence because, had the evidence been available at trial, there is a significant possibility that the judge would have imposed a less severe sentence.
The ground, reliant upon K’s ‘fresh evidence’, must fail.
Order
I consider that each applicant’s application for leave to appeal against both conviction and sentence should be refused.
HARPER JA:
I have had the benefit of reading the draft reasons of Ashley JA and agree for the reasons given by his Honour that the applications should be refused.
TATE JA:
I have had the considerable advantage of reading, in draft form, the reasons of Ashley JA and agree with His Honour that each applicant’s application for leave to appeal against conviction and sentence should be refused.
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