Cottrell v The Queen

[2012] NSWCCA 117

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Cottrell v R [2012] NSWCCA 117
Hearing dates:	22 November 2011
Decision date:	04 June 2012
Before:	McClellan CJ at CL at [1] Blanch J at [2 ] Hislop J at [3 ]
Decision:	Leave to appeal granted; appeal dismissed.
Catchwords:	Criminal law - conviction appeal - jury verdict - unreasonable or cannot be supported having regard to the evidence - quintessentially jury questions - no miscarriage of justice.
Legislation Cited:	Criminal Appeal Act 1912 Evidence Act 1995
Cases Cited:	Rasic v R [2009] NSWCCA 28 SKA v R [2011] HCA 13; (2011) 243 CLR 400 M v R (1994) 181 CLR 487
Category:	Principal judgment
Parties:	Christopher Paul Cottrell v R
Representation:	M. Smith (Applicant) J. Girdham (Crown) Crimlaw NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2009/10917
Decision under appeal	Date of Decision: 2010-07-06 00:00:00 Before: Norrish QC DCJ

Judgment

1. McCLELLAN CJ at CL: I agree with Hislop J.

1. BLANCH J: I agree with the conclusion reached by Justice Hislop that the applicant has not demonstrated the verdicts of guilty were unreasonable or were not supported by the evidence or that there has been a miscarriage of justice and I agree with the orders he proposes. Having reviewed the evidence of Mr Roberts, Ms Papafilopoulos and Mr Federico I have formed an assessment of their evidence that it is compelling and although they might be criticised for earlier untruths, I believe their evidence proves the guilt of the applicant beyond a reasonable doubt.

1. HISLOP J:

Introduction

The applicant was charged on indictment on the following counts:

"1. Between 4 November 2004 and 30 November 2004 at Sydney in the State of New South Wales, he did cause Christopher Roberts to make a written statement containing a false description of events with the intent thereby to pervert the course of justice contrary to s 319 Crimes Act 1900.

2. Between 4 November 2004 and 30 November 2004 at Sydney in the State of New South Wales, he did cause Betty Papafilopoulos to make a written statement containing a false description of events with the intent thereby to pervert the course of justice contrary to s 319 Crimes Act 1900.

3. On 12 September 2004 at Sydney in the State of New South Wales, he did cause Anthony Federico to make a notebook entry containing a false description of events with the intent thereby to pervert the course of justice contrary to s 319 Crimes Act 1900.

4. Between 4 November 2004 and 17 March 2005 at Sydney in the State of New South Wales, he did persuade Betty Papafilopoulos to give false testimony in proceedings at the Downing Centre Local Court on 17 March 2005, the giving of which false testimony was perjury contrary to s 333(1) Crimes Act 1900.

5. Between 4 November 2004 and 17 March 2005 at Sydney in the State of New South Wales, he did persuade Anthony Federico to give false testimony in proceedings at the Downing Centre Local Court on 17 March 2005, the giving of which false testimony was perjury contrary to s 333(1) Crimes Act 1900.

1. The applicant pleaded not guilty to each count. A District Court jury found him guilty on each count.

1. The applicant received an overall sentence of 12 months imprisonment which commenced on 8 September 2010 with a balance of term of 12 months. He was released to parole on 7 September 2011. There is no appeal against sentence.

1. The applicant seeks leave to appeal against conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912. The ground of appeal is -

"The verdicts of guilty are unreasonable and cannot be supported by the evidence."

Outline facts

1. Mr Casserly was at Central Railway Station with his friends, Messrs Kite and McNamara, at about 8.00am on Sunday 12 September 2004. He and his friends were taking a shortcut from one part of the station to another and went through the ticket barriers. Mr Casserly had a return train ticket but was aware that neither of his friends had tickets. They were approached by Uniformed Transit Officers Federico and Papafilopoulos and asked to show their tickets. They did not do so. A dispute arose between Mr Casserly and the officers.

1. The applicant was the chief transit officer with the security division of Railcorp NSW. He was responsible for directing, initiating and supervising the operation of his team, which included transit officers Federico, Papafilopoulos and Roberts.

1. On 12 September 2004 the applicant was rostered from 6.00am to 2.00pm. He was paired with Mr Roberts and they were both in plain clothes, patrolling the country platform at Central Railway Station. Shortly after 8.00am the applicant heard what sounded like people arguing coming from the direction of the escalators. He and Mr Roberts walked over and saw Ms Papafilopoulos and Mr Federico at the bottom of the escalators with the three young men.

1. The applicant approached the group. An altercation ensued in which, inter alia, Mr Casserly was brought to the ground by the applicant and handcuffed.

1. Mr Casserly was released later whereupon he attended at a police station and subsequently lodged a complaint against the applicant. On 9 November 2004 a court attendance notice issued charging the applicant with the assault of Mr Casserly. That charge was heard in the Local Court on 17 March 2005. The applicant was convicted of common assault. The conviction was overturned on appeal to the District Court.

1. It was the Crown case at trial that the applicant was aware that Mr Casserly may make a complaint to police about his treatment. In consequence of that possibility, the applicant prevailed upon Ms Papafilopoulos, Mr Roberts and Mr Federico to make statements or notebook entries that contained descriptions of events which were false in a material particular. He further prevailed upon Ms Papafilopoulos and Mr Federico to give false evidence at the Local Court proceedings brought against him.

1. Each of the counts required the Crown to establish beyond a reasonable doubt a false description of events which the applicant knew to be false. Central to the case were allegations that Mr Casserly had "shoulder barged" the applicant and that Mr Casserly made reference to a knife.

1. A number of witnesses were called in the Crown case. They included, principally, Messrs Casserly, Kite, Roberts, Federico, O'Rourke and Ms Papafilopoulos. Mr McNamara was not called. The applicant also gave evidence.

The evidence

Mr Casserly

1. Mr Casserly gave evidence that the applicant approached him. He did not produce any identification but he and Mr Roberts introduced themselves as City Rail staff. Mr Casserly denied the applicant showed him his badge at the time. The applicant asked Mr Casserly "Where's your ticket?". Mr Casserly said he and his friends had not done anything wrong. He was then grabbed by the applicant and thrown to the ground by him and Mr Roberts. Mr Casserly's wrist was pulled up against his back and he called out to Mr McNamara to call his father. Mr Casserly said he wanted the police to attend but the applicant laughed and said "The police will not be coming". Mr Casserly was told he would be let up if he calmed down, so he calmed down because the pain was quite bad. He was allowed to get up but after complaining about his treatment was shoved against a wall. He denied he was swept to the floor.

1. Mr Casserly said he ultimately produced his train ticket to the applicant and was issued fines. The penalty notices related to not making his ticket available for inspection, using offensive language and refusing to comply with a requirement of an authorised officer. Mr Casserly denied using the words attributed to him in the penalty notice namely "haven't got a fuckin ticket, don't need a fuckin ticket, not showing you shit. I'm not hopping on a train so fuck off. If you come next to me I'll fuckin slash you". Mr Casserly told the officers "We are not catching a train so get lost" and "If you touch me I will react". He denied saying anything about a knife or threatening to "slash" anybody. He denied shoulder barging or lunging the applicant. His father was not a police officer and he denied claiming he was. The only time he swore was after being subjected to excessive force.

1. Mr Casserly told the officers, including the applicant, that he was going straight to the police station about this matter. He may well had added "I'm going to have your job". The applicant laughed and said "Go for it".

1. Mr Casserly agreed in cross-examination that he had been drinking the night before and that his last drink would have been at about 5.00am. However, he did not feel intoxicated when he got to Central Railway Station; "just felt tired". He agreed the applicant went through his wallet and found his train ticket while he was still handcuffed. He could not recall the applicant saying "You're under arrest for not complying. Do you have anything on you that could harm me?". He denied replying "Yeah a fucking knife" or that the applicant said "Where's the knife?" to which he responded "I was fucking joking. I don't have it".

Mr Kite

1. Mr Kite gave evidence that Mr Casserly was handled roughly by the applicant who pushed him against the glass and had him on the ground. He could not recall any reference to a knife. Mr Casserly said he wanted police officers to attend. He could not recall if Mr Casserly swore during the incident but thought "there would have been" swearing. He was "intoxicated but not overly intoxicated".

Mr O'Rourke

1. Mr O'Rourke was a State Rail customer service attendant at the time of the incident. He did not know the applicant, Ms Papafilopoulos or Mr Federico. He could recall the name of Christopher Roberts. He did not know Mr Casserly. He was working at the relevant time. He saw uniformed transit officers speaking to Mr Casserly who looked a bit stand-offish and was patting himself on the chest on his pockets. He then saw a man in a red shirt (the applicant) "come up and take over the situation", "being aggressive towards [Mr Casserly]". He did not see the applicant identify himself by presenting his badge and could not hear what was said. In cross examination he agreed he heard the applicant say "I am a senior transit officer." The voices got louder and he heard the applicant say words to the effect of "Stand there or you'll be placed under arrest." Mr Casserly tried to leave and the applicant grabbed his shirt and pushed him up against a glass partition. Mr O'Rourke did not see anything to cause the applicant to do what he did. The applicant then tried to handcuff Mr Casserly and he was resisting so he was pushed to the ground. Mr Casserly yelled out and grimaced in pain. He was handcuffed and brought to his feet, then began to yell that he was being attacked and asked that the officers call the police. The officers laughed and said they were not going to call the police. Mr Casserly asked his friend to call his father. He was released after about ten minutes. Mr O'Rourke had no discussion with Mr Casserly and saw him walk away.

Mr Roberts

1. Mr Roberts in his evidence said he did not hear either Mr Casserly or the applicant say anything about a knife. At no stage did Mr Casserly threaten to cut or slash anyone.

1. Following the incident Mr Roberts accompanied the applicant to the Transit Office where the applicant made an occurrence pad entry in which he stated, inter alia, "...asking if the POI had any weapons on his person. He stated that he had a knife. CTO Cottrell then searched the POI and found no weapons. POI then stated he was only joking regarding the knife. POI's details were obtained and three infringement notices were issued. POI was then released and left the station." Mr Roberts read the entry and asked why there was reference to a conversation about a knife. The applicant said it was to justify the search. Mr Roberts said it did not happen. He did not think the applicant replied. The occurrence pad entry did not refer to any shoulder barge.

1. The first time Mr Roberts heard any mention of the knife was when the applicant prepared the occurrence pad entry. Mr Roberts denied that he answered in the affirmative when asked if anyone heard Mr Casserly say he had a knife.

1. Mr Roberts said that Mr Casserly did push into the applicant a few times while he was handcuffed and Mr Roberts thought he was aggressive and felt he was in danger. He said Mr Casserly used offensive language.

1. The applicant telephoned him two or three days before 5 November 2004 stating that he (Roberts) had to make a statement and include the conversation regarding the knife. Telephone charge records of calls from the applicant to Mr Roberts on 2,3,4 and 5 November 2004 were produced though Mr Roberts did not recall the content of the calls. Mr Roberts was then requested by David Carroll (SRA manager) to attend at Central Railway Station. In response, on 5 November 2004 Mr Roberts went to an office on Platform 1 at Central Railway Station with Ms Papafilopoulos. The applicant entered the office while they were there. Mr Roberts thought he saw the applicant sitting at Ms Papafilopoulos' computer. The applicant read his statement as he was typing it and commented on some changes some of which Mr Roberts typed in and others which were included by the applicant.

1. The statement was dated 5 November 2004 and was given to the investigating police.

1. The statement of Mr Roberts referred to in Count 1 is the statement dated 5 November 2004. It contains the following:

"8 Then [Mr Casserly] said to Federico 'Get out of my way or I'm going to fucken smash you cunt'. At this point Cottrell and myself identified ourselves as transit officers by showing our badges and our identification.

9 Casserly said 'Fuck off. I will slash you cunts too'.

10 I said 'He may have a knife'.

11 Cottrell said 'Calm down just calm down, show me your hands'.

12 Casserly said 'Fuck off or I will cut you open'.

...

18 Cottrell said 'do you have anything on you that is dangerous and could harm us'.

19 Casserly said 'A fucking knife'.

20 Cottrell proceeded to search Casserly and placed his personal items a wallet and a phone in front of him.

21 No knife was found.

22 Casserly said 'I was joking about the knife'.

...

31 Casserly pushed forward into CTO Cottrell towards Kite. CTO Cottrell then pushed Casserly back, shortly after, Casserly calmed down and Cottrell then removed the handcuffs.

...

35. At the time Casserly threatened to slash me I thought my person was in danger and I did not give permission to threaten me."

1. Mr Roberts gave evidence these comments were false. He said he included them in his statement at the request of the applicant.

1. Mr Roberts made a further statement to SRA Transport Complaint Unit investigators ("SRA") on 26 November 2004 which included false information regarding the knife and an assertion that the applicant did not discuss his statement with him on 5 November 2004. He lied to the investigators because he was told to stick to his earlier statement.

1. Mr Roberts gave evidence in the Local Court on 17 March 2005. There he was shown a copy of his statement dated 5 November 2004 and asked whether the contents of the statement were true and correct. When he replied affirmatively he was not telling the truth.

1. Mr Roberts said he lied when he was interviewed by Det. Pianta on 1 June 2007. On 10 June 2008 he made a statement under inducement. He agreed that, when he identified the false aspects of his statement of 5 November 2004, he failed to refer to para 35 ("Casserly threatened to slash me").

1. Mr Roberts agreed that the applicant chastised him over an incident at the wedding of Mr Federico but denied that he thereafter bore the applicant a grudge for interfering in his domestic affairs.

Ms Papafilopoulos

1. Ms Papafilopoulos had undertaken a three month induction training course and as at 12 September 2004 was on probation, having worked in uniform for approximately two weeks. She agreed she had signed a probation report on 31 August 2004 and 31 October 2004 and that her permanent appointment was confirmed by letter dated 23 November 2004. She said she did not know her appointment had been confirmed as at 5 November 2004 when she prepared her statement.

1. Ms Papafilopoulos gave evidence that after the incident there was a discussion between her, Mr Federico, Mr Roberts and the applicant. The applicant said "You heard him say he had a knife". Ms Papafilopoulos said "No" but Mr Federico and Mr Roberts said "Yeah" and appeared to go along with it.

1. About 10-15 minutes after the incident Ms Papafilopoulos and Mr Federico went to a room to write up the incident in their official notebooks. The applicant had not told Ms Papafilopoulos what to put in her notebook. In her notebook entry Ms Papafilopoulos made no reference to a knife or shoulder barge.

1. The applicant told Ms Papafilopoulos to prepare a statement and send it to him. She prepared a statement dated 12 September 2004. She attempted to email it to him but the email was recorded as "Undeliverable". Telephone records for 3 November 2004 indicate a call made by Ms Papafilopoulos to the applicant though Ms Papafilopoulos could not remember the call.

1. On 5 November 2004 Ms Papafilopoulos was told by Mr Roberts that David Carroll wanted Mr Roberts and Ms Papafilopoulos to prepare statements in an office on platform one at Central Railway Station. She attended as requested and spent an hour or two writing her statement. When she completed her statement, the applicant helped her print it out, took the statement from the printer and made changes to it on the computer Ms Papafilopoulos had been using. At one point the applicant said "You heard him say he had a knife didn't you?", to which Ms Papafilopoulos replied "No". Her revised statement was printed out.

1. Ms Papafilopoulos had given the revised statement dated 5 November 2004 to the investigating police on that date.

1. The revised statement of Ms Papafilopoulos is the statement referred to in Count 2. It contains the following:

" ... Casserly appeared agitated and looked to me that he had taken some substance apart from alcohol.

10 Casserly was still raising his voice and being aggressive and still seemed to be agitated. While I was dealing with POI Number 3 I returned my attention to Casserly, Chief Cottrell and Officer Roberts. I saw Casserly push into Chief Cottrell a couple of times and Chief Cottrell pushed him back out of his personal space".

1. Ms Papafilopoulos gave evidence that these comments did not accurately reflect her memory of the events and were false.

1. The incident was subsequently investigated by SRA. The applicant told Ms Papafilopoulos that if asked whether she had spoken to him by telephone or had emailed him to say no and to stick to the truth, the truth being her statement dated 5 November 2004. Ms Papafilopoulos was interviewed by SRA investigators on 25 November 2004. A statement from that interview was provided to her for review and she gave it to the applicant so he could make changes to it. The applicant told her not to tell anyone she had given him the document to review. She agreed that she had included information in her first statement which was not in her notebook and which were not matters she was told to include by the applicant but based on her memory of the incident.

1. She gave evidence in the Local Court in relation to a charge of assault against the applicant on 17 March 2005. The applicant spoke to her about the hearing many times before that date, always telling her to stick to the truth which truth was the statement. Ms Papafilopoulos gave evidence in accordance with her statement of 5 November 2004. The evidence she gave which was not truthful was that the applicant showed his badge after introducing himself to Mr Casserly, Mr Casserly pushed into or shoulder barged/charged the applicant a couple of times. The applicant had told her to give this false evidence.

1. Ms Papafilopoulos was interviewed by Det. Pianta on 1 and 19 June 2007 and maintained that her earlier statements were truthful. She signed a statement to that effect on 16 August 2007. This was untrue. She was reinterviewed by Det. Pianta on 22 May 2008 and gave truthful information. She was subsequently interviewed by SRA and in that interview stated "Mentally I'm everywhere due to the fact I don't know the truth. I don't know the lies. I don't know what I saw. I'm totally confused." This was due to her depression and anxiety.

1. Ms Papafilopoulos agreed that she had lied about what had occurred on 12 September 2004 many times but maintained she was now telling the truth.

Mr Federico

1. Mr Federico had been employed as a transit officer for approximately 12 months as at 12 September 2004.

1. He observed the applicant perform a leg sweep taking Mr Casserly to the ground and the applicant and Mr Roberts handcuffing Mr Casserly. Just prior to that Mr Federico did not see any gesture by Mr Casserly towards the applicant and his hands were either down by his side or in his pockets. Mr Federico said he did not see Mr Casserly do anything which made it necessary for the applicant to take him to the ground.

1. A notebook entry completed by Mr Federico on 13 September 2004 is the subject of Count 3.

1. The notebook contains the following entry:

"... POI shoulder barges Chris (Chief) twice. ... He pushed Chris with his shoulder ... Chris asked if he had anything on him that he shouldn't and he states that he has a knife. POI searched. No knife..."

1. Mr Federico gave evidence the entry was false. He said it was made at the request of the applicant. There was a debrief meeting after the incident in which the applicant told Mr Federico what to put in his notebook. Specifically, the applicant told Mr Federico to state that the applicant had shown Mr Casserly his badge and that Mr Casserly had shoulder barged him. Mr Federico had seen neither of these events. The applicant also told Mr Federico to say that he heard Mr Casserly say that he had a knife. Mr Federico had not heard Mr Casserly say this.

1. Mr Federico next saw the applicant at a debrief with Ms Papafilopoulos and Mr Roberts when the applicant went over the matters to be recorded in their notebooks: his badge being produced, Mr Casserly's aggression, that Mr Casserly had a knife, then said he was only joking when no knife was found. Telephone call records indicated Mr Federico had spoken with the applicant between 12 September 2004 and 4 November 2004 including a lengthy 16 minute call. Mr Federico could not remember that call but it was at a time when he was on annual leave.

1. Mr Federico was contacted by David Carroll and told he was required to make a statement about the incident. In the statement Mr Federico recounted:

"do you have anything on you that could harm anyone here? Casserly said: Yeah, I have a knife! I saw Cotterill then search Casserly, but no knife was found. In the search Casserly's wallet was taken out of his pocket and placed on the ground in front of him. I heard Cotterill say: 'Where is the knife' Casserly said 'I was only joking'."

1. In cross examination he agreed the applicant said "Where is the knife?". He had initially agreed with the applicant when asked whether he heard Mr Casserly say he had a knife but said that was because he had confused that with the applicant's question about a knife. He agreed that Mr Casserly made general threats of assault against the officers.

1. Mr Federico was interviewed by SRA on 25 November 2004. He said he had been threatened with losing his job if he did not back up the applicant.

1. Mr Federico said that he had given evidence in the Local Court proceedings on 17 March 2005 in accordance with the note book entry. He had been told to lie in the court by the applicant and also other people in management.

1. Mr Federico was interviewed by Det. Pianta on 13 December 2007 and provided a statement under inducement. He agreed he did this to avoid the risk of being prosecuted for perjury but denied he would say anything to save his own skin. He agreed he had never been a truthful witness but maintained that the applicant told him what to put in his notebook and told him to give false evidence in the Local Court proceedings.

CCTV

1. Some aspects of the incident were captured on CCTV, the DVD of which was tendered in evidence. At the request of the parties, the Court has viewed the DVD. It depicts the initial physical contact between the applicant and Mr Casserly but thereafter much of the physical contact between Mr Casserly, the applicant and Mr Roberts is wholly or partially out of screen though the persons who were involved otherwise are shown in the DVD. It is noted that the applicant was a burly, thick-set man, as were the other male transit officers. Mr Casserly and his companions were of relatively slight build. No reason for the applicant's aggression toward Mr Casserly is apparent from the footage. After Mr Casserly had departed, the applicant remained at the scene talking to transit officers. There was no soundtrack for any part of the DVD.

The applicant

1. The applicant gave evidence at the trial. He said that on approaching the group he produced his badge and introduced himself. He suggested they move and discuss things to which Mr Casserly replied "Don't touch me or I'll smash you". The applicant put his hand on Mr Casserly's shoulder and started moving him toward the barrier. Mr Casserly said "Don't touch me or I'll slash you". Mr Roberts said he may have a knife. The applicant told Mr Casserly to take his hands out of his pockets and pushed him to the side a bit more firmly upon which Mr Casserly said "Don't touch me or I'll slice you open". The applicant grabbed the front of Mr Casserly's shirt and pushed him back toward a wall, then brought him to the ground with a leg sweep. The applicant got the handcuff around one wrist and Mr Roberts assisted in getting it around the other wrist. The applicant told Mr Casserly he was under arrest for failing to comply with the requirements of an authorised officer and asked if Mr Casserly had anything on him that could harm him. Mr Casserly said he had a knife so he patted him down but could not feel anything. The applicant asked "Where's the knife?". Mr Casserly said "I was only joking". Mr Casserly was brought to his feet and the applicant said "You shouldn't make jokes about knives". The applicant told Mr Casserly to calm down. The applicant took Mr Casserly's wallet from his pocket. He gave his driver's licence and train ticket to Mr Federico. Mr Casserly calmed down and the handcuffs were removed. Mr Federico said the penalty notices would be posted to him but Mr Casserly said he wanted them immediately. He received one, said he was going to the police, and left.

1. The applicant initially denied stating during a debrief "You heard him say he had a knife". Ultimately in re-examination, the applicant told the court that he had asked at the final debrief if anyone had heard Mr Casserly say he had a knife because that information was required for the Incident Management Package and Occupational Health and Safety issues.

1. The applicant denied that Mr Casserly asked them to call police and denied that he responded by laughing and saying that he wasn't going to call the police. In cross-examination he said he did not hear Mr Casserly ask for the police or his father to be called.

1. The applicant said he had never altered, or caused to be altered, any officer's statement, and had not had any discussions with officers about their evidence to be given at the Local Court hearing other than to tell the truth.

Directions

1. The jury was addressed in detail by counsel. The jury received appropriate and detailed directions from the presiding judge as to matters appertaining to the assessment of the witnesses and their evidence. His Honour gave warnings pursuant to s 165 of the Evidence Act 1995 in respect of the principal Crown witnesses and referred to the s 128 certificates issued to them. He informed the jury that reliance was placed upon induced statements but that the effect of those statements was limited and provided no protection against charges of perjury in the subject proceedings. The applicant did not contend that his Honour erred in any way in his directions to the jury.

Leave

1. As the sole ground of appeal against conviction does not involve a question of law alone, the applicant requires leave to appeal against conviction: s 5(1) Criminal Appeal Act 1912, Rasic v R [2009] NSWCCA 282 at [12]. Having regard to the arguments advanced at the hearing, I would grant leave to appeal against conviction.

Specific contentions

1. The applicant contended it was not open to the jury to be satisfied beyond a reasonable doubt that the assertion by Ms Papafilopoulos that "I saw Casserly push into Chief Cottrell a couple of times and Chief Cottrell pushed him back out of his personal space" was false. The contention was based on the evidence of Mr Roberts that he thought there was "a bit of shoving" by Mr Casserly, "it was sort of coming towards Chris. Into like his personal space. So Mr Cottrell pushed him back, I think it was pushing a few times so yeah, at some stage he did make contact with Mr Cottrell a few times if I can recall" and a concession by the Crown that Mr Casserly "left open" whether or not he made a move which could be interpreted as a shoulder barge.

1. I do not accept this submission. Ms Papafilopoulos was unshaken in her evidence that she did not see Mr Casserly push or shoulder barge the applicant. There was no reference to such a matter in her notebook or in her statement dated 5 November 2004 until amended by the applicant. The applicant did not originally mention a shoulder barge, Mr Casserly denied any shoulder barge of the applicant. The evidence of Mr Roberts and the alleged concession by Mr Casserly may well be thought by a jury to have little or no weight. The question was not whether or not Mr Casserly had pushed or shoulder barged the applicant, though a negative answer to that question was open and would be sufficient. The question was whether the applicant knew that Ms Papafilopoulos had not witnessed such conduct but nevertheless prevailed upon her to assert that she had.

1. The applicant contended there were two initial aspects of the evidence which supported the conclusion that Mr Casserly in fact mentioned a knife and in consequence the jury should have had a doubt and acquitted the applicant of Counts 1, 3 and 5.

1. The two aspects were:

(a) Mr Federico gave evidence he heard the applicant say "Where is the knife?" and there was no other practical precursor for the applicant to have said this;

(b) both Mr Roberts and Mr Federico responded in the affirmative to the statement in the debrief by the applicant "You heard him say he had a knife".

1. I do not accept these submissions. As to (a) Mr Federico's evidence at trial was that he heard the applicant say "Where is the knife?" but Mr Federico nevertheless maintained that the applicant did not ask Mr Casserly if he had anything harmful on him and Mr Casserly did not say he had a knife. Whether or not Mr Casserly must have said he had a knife for the question to make sense was a matter for the jury. It was not, of itself, indicative that Mr Casserly must have mentioned a knife; it was equally consistent with the applicant seeking to introduce the topic of a knife in the absence of any reference to one by Mr Casserly. In any event, the issue with respect to the knife was not whether the threat was made but whether the applicant knew that Mr Roberts and Mr Federico had not heard any such threat. Establishing that Mr Casserly made no such threat would be sufficient but was not essential.

1. As to (b), while the applicant asserted that both Mr Roberts and Mr Federico responded affirmatively when the applicant asked whether anyone heard Mr Casserly say he had a knife, this was the evidence only of Ms Papafilopoulos, not of Mr Roberts or Mr Federico or even of the applicant, and, of course, Mr Casserly denied he said he had a knife.

Determination

1. This appeal is, in essence, a challenge to the credibility of the Crown witnesses. It is said Mr Casserly's evidence, that he did not mention a knife and did not shoulder barge the applicant, should be rejected because he untruthfully minimised the extent to which he used bad language or behaved aggressively. It is said the evidence of Ms Papafilopoulos, Mr Federico and Mr Roberts should be rejected because Ms Papafilopoulos and Mr Federico had previously given evidence, under oath, which they knew to be untrue and they and Mr Roberts had lied in written documents and interviews relating to these matters. It is said there was sufficient uncertainty and inconsistency in the evidence to preclude conviction by the jury. Reliance was placed on matters such as witnesses' recollection or lack thereof, the induced statements, the witnesses' health, concerns regarding continuation of employment, motive, domestic situation, and alleged inconsistencies, all of which were said to seriously undermine credibility. The evidence of the Crown witnesses on significant issues is in direct conflict with that of the applicant. It was said that the applicant's evidence should be preferred.

1. Reference was made to comments made in respect of the witnesses by the sentencing judge during the course of the sentencing hearing. No trial judge's report was obtained. I attach no weight to the comments of the trial judge - SKA v R [2011] HCA 13; (2011) 243 CLR 400 at [113] and [115].

1. Where a Court of Criminal Appeal is asked to conclude that the verdict is "unreasonable" or such as "cannot be supported, having regard to the evidence" the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (SKA v R at [11]).

1. In performing that task the Court of Criminal Appeal is to make "an independent assessment of the evidence, both as to its sufficiency and its quality" (SKAv R at [14]).

1. I have made an independent assessment of the evidence and have concluded that upon the whole of the evidence it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty as charged.

1. 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 "the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations" M v R (1994) 181 CLR 487 at 493; SKA v R at [45].

1. The evaluation of the demeanour of the witness and his or her manner of giving evidence is necessarily a matter for the jury. The jury was best placed to decide upon the credibility or reliability of the witnesses and thus determining the primary facts. The matters raised by the applicant were quintessentially jury questions in respect of which the jury had been appropriately addressed and directed. It is apparent from the guilty verdicts that the Crown case was accepted by the jury and that the applicant was rejected as a witness of truth.

1. In my opinion, the applicant has not demonstrated that the verdicts of guilty were unreasonable or were not supported by the evidence or that there has been a miscarriage of justice. The appropriate orders are that leave to appeal be granted but that the appeal be dismissed.

Orders

1. I propose the following orders:

1. Leave to appeal granted;

2. Appeal dismissed.

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Decision last updated: 06 June 2012