Derbas v R - [2007] NSWCCA 118

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: DERBAS v R RUSTOM v R [2007] NSWCCA 118

FILE NUMBER(S):
2005/2564
2006/870

HEARING DATE(S): 4 December 2006

JUDGMENT DATE: 30 April 2007

PARTIES:
Iyman Derbas (Appl)
Mohamed Rustom (Appl)
The Crown

JUDGMENT OF: McClellan CJ at CL Simpson J Hidden J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2003/188

LOWER COURT JUDICIAL OFFICER: Dunford J

LOWER COURT DATE OF DECISION: 1 April 2005

LOWER COURT MEDIUM NEUTRAL CITATION:
NSWSC 244

COUNSEL:
R J Button SC (Derbas)
S J Odgers SC (Rustom)
L M B Lamprati SC (Crown)

SOLICITORS:
William O'Brien Solicitors (Derbas)
Kiki Kyriacou Lawyers (Rustom)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
Appeal against conviction
murder and assault
attack by inmates
reliability of evidence
unofficial questioning
whether section 165 warning required
video link evidence admitted
delay between receipt of image and spoken words
whether transmission imperfections resulted in a miscarriage of justice
oral and written directions on accessorial liability
deficiency in written direction
whether correct oral direction sufficient to overcome deficiencies in second oral and written direction
interference with a juror
juror approached by a person attempting to discuss trial

LEGISLATION CITED:
Evidence Act
Evidence & Procedure (New Zealand) Act 1994 (Cth)

CASES CITED:
Brown, Barwick, Brown v R (2006) NSWCCA 69
Osland v The Queen [1998] HCA 75; 197 CLR 316
R v Fowler (2003) NSWCCA 321; 151 A Crim R 166
R v Stokes & Difford (1990) A Crim R 25

DECISION:
Both appeals dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2564
2006/870
McCLELLAN CJ at CL
SIMPSON J
HIDDEN J
MONDAY 30 APRIL 2007

DERBAS, Iyman v REGINA
RUSTOM, Mohamed v REGINA

Judgment

McCLELLAN CJ at CL: I have had the opportunity of reading the judgment of Simpson J in draft. I gratefully adopt her Honour’s account of the Crown case. I agree with her Honour’s conclusion in relation to the grounds she has considered and with her Honour’s reasons. I propose to deal with ground 2 in each of the appeals by Derbas and Rustom. The grounds of appeal are otherwise common to each appellant.
Ground Two: the trial judge erred in the directions he gave in respect of the evidence of Roy Butler (Rustom appeal)
Roy Butler was a drug and alcohol counsellor at Parklea Prison. He gave evidence at the trial. He said that he had spoken to Rustom on 10 January 2002 and, as best he could recall, Rustom used words similar to:
“it’s their fault not mine. It took some one to die to get me out of here, but I am moving. They’re responsible not me.”
In his written report compiled within 15 minutes of his conversation with the appellant Mr Butler wrote that the appellant first said:
“well I am moving, it took someone to die to get me out of here. But I am going”
And then “a few minutes” later the appellant said:
“I keep being told to take responsibility for my actions, they are responsible, not me. I told them to get me out of here.”
Mr Butler said that he replied:
“there are better ways to move, you know”
and the appellant said:
“I chose this way. It was better than one of them.”
As the appellant said the latter words Mr Butler said he gestured towards two prison officers.
When cross-examined, referring to Rustom’s demeanour at the time, Mr Butler said that “flippant is a word that could be used to describe the way he was being.” It was put to Mr Butler in cross-examination that the appellant had said “it took someone to die to get me out of here” but that he had not “precisely” said “take responsibility” or “I chose.” Mr Butler responded “anything is possible.” The possibility was also raised with Mr Butler that the appellant had said something more along the lines of “that is the way it happened” or “that is the way it is happening” but Mr Butler rejected those suggestions.
Mr Butler also confirmed that a psychologist, Miss Isabelle Stepanik, was present during this conversation. Miss Stepanik was called to give evidence but said that she had no recall of the conversation. She said that if she had heard the words she would have considered them to be important and believed that it would be likely that she would have noted them.
Defence counsel asked the trial judge to give a warning to the jury in relation to Mr Butler’s evidence. Counsel indicated that he had in mind s 165(1)(f) of the Evidence Act. However, his Honour ruled that because Mr Butler had not been engaged in official questioning of Rustom, he was in fact conducting a survey of inmate facilities, s 165(1)(f) did not require a warning.
The warning which counsel sought at the trial had two foundations. Firstly, it was submitted that because Mr Butler had not responded to Rustom at the time and had not told him what he believed he heard Rustom say, Rustom was denied an opportunity to respond to Mr Butler’s version or make his own note of the conversation. Secondly, it was submitted that the trial judge should draw the jury’s attention, in the form of a “standard type of direction”, to the fact that Miss Stepanik did not corroborate Mr Butler’s evidence.
The issues at the trial
The submissions on the appeal put the need for a warning and its content on quite different basis to those advanced at the trial. Before considering the appeal it is necessary to appreciate the issues in relation to Mr Butler’s evidence which were raised at the trial.
When Mr Butler was cross-examined by Rustom’s counsel he was asked to confirm that the note he made of the conversation was made fifteen minutes after the conversation. He confirmed that it was. As I have indicated he also agreed that Rustom’s demeanour during the conversation could be described as “flippant.”
Counsel then asked Mr Butler about the precise words Rustom used. The following exchange took place:
“BEALE: Q.          Now the dealings that you had had with him, did they cause you to believe that his vocabulary was not a particularly big one, by the standards of an educated man like yourself?
A.I had never questioned or worried about the extent of his English vocabulary, I didn’t know what other vocabulary he had.
Q.Is it possible that the notes that you made, both shortly afterward and in the officer’s report, were your, just your best recollection of what had been said in the context that it was said but not the precise words?
A.           I suppose anything is possible --
Q.           Can I take you to the first part of it --
HIS HONOUR: Q. Did you finish your answer?
A.I was going to say anything is possible but I made notes immediately after the conversation because I didn’t intend to be able to recall the information this far down the track. To the best of my knowledge the words that I wrote were the words used.
BEALE: Q.            Well, may I suggest to you that the expression “it took someone to die to get me out of here” were words that he said?
A.           Yes.
Q.           That is the sort of language the he would use?
A.           That is the language he did use.
Q.But as to the words “take responsibility”, is it possible they were not the precise words that were used by him?
A.Again, it is possible but I did make notes immediately afterwards.
Q.The expression “I chose”, is that possibly not the precise word that he used in response to your question?
A.Again anything is possible but they are the words to the best of my knowledge at that point in time I believe he used.
Q.Is it possible the words were more along the lines of “that is the way it happened”?
A.           No.
Q.           Or “that is the way it is happening”?
A.           No.”
It is apparent from the cross-examination that defence counsel never asserted that Mr Butler had not had a conversation with Rustom. Although there was debate about the precise words used it was never suggested that Mr Butler had been entirely mistaken about the conversation. As a consequence the evidence of Miss Stepanik was largely irrelevant. She had no recollection of any conversation and accordingly, could neither confirm nor deny Mr Butler’s account.
When counsel addressed the jury he took a similar approach to Mr Butler’s evidence. He never suggested that the jury should conclude that a conversation between Mr Butler and Rustom did not occur. Rather he argued that Mr Butler had not accurately remembered the conversation and recorded it in a manner which did not adequately reflect the context. Instead of submitting that Miss Stepanik did not recall the conversation because it did not happen, counsel suggested that the jury may think that “some of the words used and the juxtapositioning are more those of an educated man, like Mr Butler. Miss Stepanik did not recall it because it happened in little bits and pieces and part of the note was made at one time and part was made some time later on. Perhaps he is (sic) just putting down what he thought, what he thought he should have.” Counsel did not suggest that if the jury accepted Mr Butler’s evidence as to the words said by Rustom they did not constitute a relevant admission.
When summing up his Honour referred to Mr Butler’s evidence on more than one occasion. At an early stage his Honour, although counsel had not himself raised the matter, invited the jury to consider whether Mr Butler was lying and, if not, consider whether his recollection was accurate. The complete discussion was:
“One other preliminary matter before I go on. In relation to what the Crown claims is an admission or confession by the accused Rustom to the welfare officer Mr Butler, and you will recall there were submissions made about the manner of cross-examination, let me just say this: It is possible to draw appropriate conclusions from counsel’s conduct of cross-examination, but it is a process of reasoning which is fraught with peril, and it should, therefore, be used only with much caution and circumspection.
There may be many explanations for the omission to put in cross-examination some matter as to which counsel subsequently relies on. Counsel may have misunderstood his instructions witnesses may not have been fully cooperative in providing statements, there may have been some delay in an allegation being communicated to the accused such as to render his instructions limited by lapse of memory or the passage of time. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. Information on which a witness’ credibility can be challenged might have arrived late in the day and therefore it is difficult to use the conduct of counsel as a basis for drawing inferences of fact, in particular because a barrister is not merely some kind of mouthpiece for his client conducting the case in accordance with the client’s directions. In fact, a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted, including the calling and cross-examination of witnesses and deciding what points to take. With regard to all matters that properly relate to the conduct of the case, counsel has unlimited authority to do whatever he considers best in the interests of his client.
In other words, you should not draw an adverse inference against Rustom from the fact that counsel did not accuse Mr Butler of lying and made the suggestion that he had confused or mistaken the evidence, and it may be that the fact that it was suggested that he had confused or mistaken the evidence, rather than that he had lied, may be based on the fact that the accused Rustom was not shown his notes at the time and not given an opportunity to comment on it at the time. There may be many other reasons why counsel put the questions in cross-examination in the way that he did and you should not speculate on that.”
His Honour concluded this discussion of Mr Butler’s evidence with a clear instruction as to the approach which the jury should take to the evidence suggested to be “confessional material”. His Honour said:
“What I do say in relation to any confessional material or any form of admission, before you can convict by acting on an oral confession, you must be satisfied, firstly, that the confession was made and, secondly, that it was both truthful and accurate.”
Later, in the summing up his Honour reminded the jury, in some detail, of the evidence of Miss Stepanik. Amongst other matters his Honour read from the transcript where Miss Stepanik stated that she had no recollection of a conversation between Mr Butler and Rustom. His Honour concluded that discussion with the following:
“In fact she couldn’t recall any of the conversation. She agreed she made a habit of making detailed notes of important events. She had made detailed notes of a meeting she had on 7 January with Mr Lehn and Mr Butler. She had made a note and it was a detailed note but the conversation that had been put to her allegedly between Mr Butler and the accused Rustom she had no note of that. If she had heard that she would have considered it quite important and she made notes of anything that was important.”
A short while later when dealing with the Crown case his Honour referred to the evidence of Mr Butler saying:
“Then you have the evidence of Mr Butler who is familiar with Rustom. He made two records of the conversation, not one, but within 15 minutes he had made two records of the conversation and noted the words ‘I chose this way, it is better than one of them.’ The Crown submits that is evidence of an admission by Rustom of his guilt in relation to these matters.”
Finally when addressing the defence case his Honour reminded the jury of counsel’s submissions saying:
“In relation to what was said by the accused to Mr Butler, he points out that it was six days later, and says that Butler cannot vouch for the sequence in which the things were said, and he though it was a flippant remark. Also, he relies on the evidence of Miss Stepanic and she did not recall it, although Butler said she was there and she would have recorded it if it had have been said because she would have regarded as important. She did not record it. We know Butler did record it twice.”
The submissions on and resolution of the appeal
Counsel for the appellant in the appeal did not press the basis for the suggested warning argued by counsel at the trial. It is clear that Mr Butler was not engaged in official questioning and accordingly s 165(1)(f) did not require that a warning be given.
However, it was submitted that once an application had been made for a warning under s 165(2) the section was engaged and if any subsection of s 165 applied the trial judge was required to give a warning, unless there were good reasons for not doing so (ss (3)). It was submitted there were many reasons why a “warning” that the evidence may be unreliable or, at least, directions beyond those which his Honour gave in relation to Mr Butler’s evidence were required. They included the following:

his Honour should have provided further directions in relation to the apparent conflict between Mr Butler’s account and that of Miss Stepanik.
his Honour should have drawn the jury’s attention to the fact that the words relied upon by the prosecution could have been spoken for reasons other than an acceptance by Rustom of his guilt and may merely have been said out of a desire to “big note” himself or be “flippant.”
his Honour should have warned the jury of the need to exercise caution in determining whether to accept the evidence and the weight to be given to it: R v Fowler (2003) NSWCCA 321; 151 A Crim R 166; Brown, Barwick, Brown v R (2006) NSWCCA 69 at [40] and [45].

Section 165 of the Evidence Act is in the following terms:
“165       Unreliable evidence
(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a)evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,
(b)          identification evidence,
(c)evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,
(d)evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,
(e)evidence given in a criminal proceeding by a witness who is a prison informer,
(f)oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,
(g)in a proceeding against the estate of a deceased person—evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.
(2)          If there is a jury and a party so requests, the judge is to:
(a)warn the jury that the evidence may be unreliable, and
(b)inform the jury of matters that may cause it to be unreliable, and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3)The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)It is not necessary that a particular form of words be used in giving the warning or information.
(5)This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6)Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B.”
The obligations of a trial judge when asked to give a warning pursuant to s 165 were comprehensively considered by this Court in Fowler – a joint judgment of Tobias JA, James and Howie JJ. At 204 [186] their Honours said:
“Where a party has requested a warning under s 165 about a particular witness or a particular piece of evidence, the trial judge must consider what issues (if any) were raised during the course of the trial about the reliability of the witness or the evidence, in order to determine whether a warning is required by the section and what the content of any such warning should be. If there was no issue raised about the reliability of any aspect of the evidence, then no warning should be given, notwithstanding that it might otherwise have fallen within the ambit of the section.”
Their Honours also said at 204 [187]:
“A warning is not required where, even though it falls with [sic] the ambit of s 165(1)(a), the evidence is not “of a kind that might be unreliable” (applying Clarke (2001) 123 A Crim R 506), or where there are good reasons for not giving a warning (applying s 165(3)). If the accused denies making the statement relied upon by the Crown, the question of whether a s 165 warning is required will depend upon the nature of the attack made upon the evidence of the making of the disputed statement.”
The court concluded (at 205 [190]):
“We are of the opinion that, applying Clark, the evidence was not “of a kind that might be unreliable” within the terms of the section, notwithstanding that it was an admission under s 165(1)(a). We note that her Honour appropriately told the jury that the issue was one of Mr Doran’s credibility.”
It is important to appreciate that although evidence may fall within one of the categories identified in s 165(1) it does not follow that a warning is necessarily required. The evidence must be of a kind that may be unreliable. Although in some cases confessions allegedly made to police officers have, regrettably, been shown to be unreliable (necessitating legislative response to ensure they are recorded) evidence of the type given by Mr Butler is of a different character. Evidence of an alleged confession made to someone with an “interest” in the matter, a police officer with an interest in obtaining a conviction, a friend or relative who may be seeking vengeance – there will be other interests - may justifiably be categorised as potentially unreliable. However, Mr Butler had no identifiable interest which could justify a conclusion that, because he gave evidence of an alleged confession by the appellant, his evidence may be unreliable.

In the present case only two questions arose for the jury. Should they accept Mr Butler’s account of the conversation and, if they did, the inference which it supported.
His Honour’s directions were given having regard to the manner in which the issues relating to Mr Butler’s evidence had developed during the trial. They had the effect of clearly identifying for the jury the fact that Mr Butler’s evidence was not corroborated by Miss Stepanik. They also raised for the jury’s consideration the precise terms of the statement by Rustom of which Mr Butler gave evidence and counselled the jury that, before they could convict by acting on an oral confession, they must be satisfied “that the confession was made” and that it was “both truthful and accurate.”
As I have recorded, his Honour also reminded the jury of the defence case with respect to Mr Butler’s evidence, including the challenge made to the sequence of the conversation and the description of Rustom’s remarks as flippant.
It is true that his Honour did not direct the jury in terms that they could not use Rustom’s evidence as a confession to murder, unless they were satisfied that he was admitting to an intention to kill or cause grievous bodily harm to Assad Barakat. This is explained by the fact that his Honour was not asked to give a direction in these terms. It was never suggested that, if Mr Butler’s evidence was accepted, Rustom was doing other than confessing to the murder.
In these circumstances I am satisfied that a warning pursuant to s 165(2) was not required and his Honour otherwise appropriately dealt with the evidence of Mr Butler and Miss Stepanik. The jury were made aware of the potential deficiencies in Mr Butler’s evidence and were directed as to the care they should take before accepting and using it as evidence of a confession. No more was required.
Ground two – the evidence by way of the video was wrongly admitted (Derbas appeal)
Evidence was admitted at the trial from Mr Arryn Smith who was an inmate at the Parklea Correctional Centre when the relevant events occurred. At the time he was giving evidence he was held in custody in New Zealand, pending sentence on a number of charges. Application was made to the trial judge for his evidence to be taken by video link from New Zealand.
The application was apparently made in accordance with Pt 4 of the Evidence & Procedure (New Zealand) Act 1994 (Cth). Pursuant to that Act the trial judge determined that he was satisfied that the only manner in which the evidence of Mr Smith could be received was by video link in view of the fact that he was in custody in New Zealand (see s 25(2)(b) of the Act). His Honour was also satisfied that the necessary facilities were available for the evidence to be given from the High Court of New Zealand building in Auckland. This in fact occurred. The power to make the appropriate order for receipt of the evidence was not challenged at trial or on this appeal.
However, before the evidence was received the parties were made aware that because of technical difficulties there would be a delay between the receipt of the picture image and receipt of the words spoken by the witness. Because of these problems the trial judge was asked to deny the Crown the opportunity to provide Mr Smith’s evidence by video.
His Honour rejected the submission and said:
“These imperfections in the process are unfortunate but, in my view, of minimal significance. The delay between image and sound can be explained and easily understood by the jury, and they can take any delay into account in assessing the witnesses’ credibility.”
On the hearing of this appeal this determination by his Honour was challenged. It was submitted that because Mr Smith gave evidence which identified Derbas’ role in the relevant events his evidence was critical and the identified deficiency in the transmission had resulted in a miscarriage of justice.
There may be circumstances where imperfections in a video transmission will have the consequence that evidence which is proposed to be received by a video link should be excluded. However, I am satisfied that this was not such a case. His Honour was careful to explain the potential difficulty in the transmission to the jury before Mr Smith was called. A short delay between the receipt of the picture image and the words was readily capable of being accommodated by the advocates and the witness. I do not believe it would have caused a relevant distortion of the evidentiary process nor allowed the witness an advantage in cross-examination. I also do not believe it would have caused any difficulty for the jury in assessing Mr Smith’s credit.
Although the objection was taken before Mr Smith was called, no further complaint was made about the process by which his evidence was received and no further submission was made that the process had in fact resulted in any unfairness to the appellant.
The fact that no further complaint was made is testament to the fact that his Honour was correct to conclude that the minor problem with the video reception did not cause the trial to miscarry.
In my opinion this ground of appeal fails.
Orders
In my opinion both appeals should be dismissed.
SIMPSON J: On 28 September 2004, after a lengthy trial, each of the appellants, Iyman Derbas and Mohamed Rustom, was convicted by a jury of one count of murder and one count of assault. Each was sentenced on the murder charge to imprisonment for 24 years, commencing 24 June 2004 (Derbas) or 9 June 2004 (Rustom), with a non-parole period of 17 years, which will expire on 23 June 2021 (Derbas), or 1 June 2021 (Rustom); and, on the assault count, to a wholly concurrent fixed term of imprisonment for two years. Each now appeals against the convictions. Neither seeks leave to appeal against the sentences.
The Crown case
The Crown case may be stated with relative brevity. It alleged that, on 4 August 2002, each appellant was an inmate in Parklea Correctional Centre. On that date cousins Nader and Assad Barakat were transferred to the Parklea Correctional Centre. Within ten minutes of their being released into the prison population they were attacked by a group of 12 to 15 inmates, which included both appellants, who were previously known to the Barakats. The attack lasted only a few minutes. A prison officer, Michael Johnstone, assisted Nader Barakat into a back office. He then went to try to assist Assad Barakat. He was unable to afford significant assistance. Assad Barakat was killed in the incident. He was later found to have sustained a number of blunt force injuries and two deep stab wounds, one to the pulmonary artery and one to the lower abdomen. The wound to the pulmonary artery was found to be the cause of death.
Nader Barakat was not injured. He is the victim of the second count, of assault. He gave evidence in the trial.
No murder weapon was ever found. A medical practitioner who performed a post-mortem examination of Assad Barakat was of the opinion that his wounds were caused by a knife or bladed instrument.
There was evidence in the Crown case that directly implicated Derbas in the injury. Nader Barakat said that he saw Derbas pull out from under his shirt a long straight dark-coloured object, about 10 to 15 cm in length, approach Assad Barakat, try to kick him and then stab him in the upper chest and arm. Both he and a Corrective Services officer also identified Rustom as having struck Assad Barakat with a pool cue.
Notwithstanding the evidence that was clearly capable of permitting an inference that Derbas was the person who had wielded the weapon that inflicted the fatal blow, in respect of the charge of murder, the case against each appellant was presented in three alternative ways. They were:
(i)that he was a principal in the first degree and caused the death of Assad Barakat by stabbing him in the chest with the intention of killing him or inflicting upon him grievous bodily harm (obviously, this could succeed against one or other, but not both, of the appellants);
(ii)that some other person (whether one of the appellants or another person) actually stabbed Assad Barakat and that the appellant was a principal in the second degree, present, aiding and abetting the person who did the stabbing;
(iii)that the appellant was a participant in a joint criminal enterprise at least to inflict grievous bodily harm upon Assad Barakat, and Assad Barakat’s death was a consequence of that joint criminal enterprise.
The trial
On 9 August 2004 an indictment was presented naming each appellant, charging the two offences I have already mentioned, that is, murder (of Assad Barakat) and assault (of Nader Barakat). Also arraigned on the same indictment were Ahmed Cheikho (on a charge that he was an accessory after the fact of murder) and Shan Zreika (on the same two charges as the appellants). The trial proceeded over several weeks. In this short outline I propose only to mention that part of the evidence, and certain events that occurred after verdict, that are relevant to the specific grounds of appeal. There are four aspects of the trial, two of them evidentiary and two procedural, raised by the grounds of appeal. Two of these – evidence given by Mr Roy Butler, and evidence given by video link from New Zealand – are dealt with in the judgment of McClellan CJ at CL, which I have read in draft, and with which I agree.
The remaining matters concern directions given on accessorial liability, and events which occurred in the court following the delivery of the verdict, but which gave rise to a suggestion that there may have been some form of interference with a juror during the course of the trial. I will deal with each of these.
1. directions on accessorial liability
The trial judge gave the jury both oral and written directions with respect to the Crown case on accessorial liability. These pertained only to the charge of murder. It will be remembered that the Crown presented its case against each appellant in this respect in three alternative ways. At an early stage in the summing up the transcript records his Honour as saying this:
“In the context of this case, an accused can being (sic) guilty of murder in any one of three ways. Firstly, as the principal; secondly, as an aider and abettor; and thirdly, as a participant in a joint criminal enterprise.
The first alternative is as the principal, and the principal is the person who actually did the stabbing which caused the fatal wound. That is a very simple proposition and requires no further explanation.
A person may also be guilty of a crime if he is an aider and abettor. An aider and abettor is a person who is present at the time a crime is committed by another person and who intentionally aids or gives encouragement to that other person in the commission of the crime. The law regards such an aider and abettor as just as guilty of the crime as the person who actually committed it. The mere presence of an accused at the scene of a crime is not sufficient to make him an aider and abettor. It must be shown that there was also intentional aid or encouragement of that other person in the commission of the crime. Such encouragement is established if the Crown satisfies you beyond reasonable doubt that the accused was both present and ready to give aid to the person actually committing the crime, if required. Such readiness to give aid, if required, amounts to an encouragement to that other person to commit the crime and makes the accused an aider and abettor.
First of all, you must be satisfied that the crime of murder was committed before you can be satisfied that an accused was an aider and abettor to its commission. If the Crown has satisfied you that the crime of murder was committed, you must then consider whether at the time when the crime was being committed the accused was both present and intentionally giving either aid or encouragement to its commission. Before you could find that an accused intentionally gave either aid or encouragement in the commission of the crime, you must be satisfied beyond reasonable doubt that such accused knew all the essential factual circumstances that have to be proved by the Crown to show that the crime was committed by the principal offender, including that the particular accused knew that the principal was intending to kill or do really serious physical injury to the deceased.
The third way in which an accused may be guilty of the murder is if that accused was part of a joint criminal enterprise. The law is that if two or more persons set out upon some joint criminal enterprise then each of them is legally liable for everything done in the furtherance of that joint criminal enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by each of the accused. A joint criminal enterprise exists when two or more persons reach an understanding or arrangement amounting to an agreement between then that they will commit a crime…” (SU 45 – 46, italics added)
A little later, his Honour continued this theme. He is recorded as saying:
“So what does all that mean in the present case? It means that the accused Derbas, Zreika and/or Rustom are guilty of murder if you are satisfied beyond reasonable doubt by evidence or admission that the particular accused stabbed the deceased, that is, as a principal; or secondly, if you are satisfied that the particular accused was an aider and abettor, that is a person present at the time encouraging the person doing the stabbing and ready to assist if required with the intention that the deceased should be killed or receive grievous bodily harm, that is really serious physical injury; or thirdly, if you are satisfied beyond reasonable doubt that the particular accused was a participant in a joint criminal enterprise to assault the deceased and kill him or cause him really serious physical injury; and in relation to that, the joint criminal enterprise is an agreement to take part in criminal activity. … Secondly, that the object of the joint enterprise was to kill or cause really serious physical injury may be established by the nature, ferocity, extent or other surrounding circumstances of, or the numbers involved in, the attack, or by you being satisfied that the particular accused contemplated that a knife or other weapon capable of inflicting grievous bodily harm would be used, or foresaw the possibility that such a knife or weapon might be used.
Thirdly, the Crown must establish that the particular accused contemplated death or grievous bodily harm as part of a joint criminal enterprise or saw the possibility that it may result…” (SU 53-54, italics added)
Shortly after, his Honour handed to the jury written directions which he described as “a checklist of the various elements of the various offences”. That part of the document concerned with the count of murder was in the following terms:
“The Crown must establish:
1.that the stabbing was a deliberate and voluntary act
2.that it was done with intent to kill or cause really serious physical injury
3.that each particular accused either:
(a)was the principal offender, i.e. did the stabbing, or
(b)was aiding and abetting, i.e. present encouraging the principal offender and ready to render assistance if required, or
(c)was a participant in a joint criminal enterprise to kill or cause really serious physical injury to Assad Barakat.”
The following day, again referring to the document as “checklists of the essential ingredients of various of the charges”, he directed the jury to add to paragraph 3(c) the words:
“… and had that subjective intent.”
Thus, in its final form, the direction with respect to joint criminal enterprise was as follows:
“3.that each particular accused … :
…
(c)was a participant in a joint criminal enterprise to kill or cause really serious physical injury to Assad Barakat and had that subjective intent.”
2. interference with a juror
On 28 September 2004 the jury foreman advised the trial judge that the jury was unable to agree upon verdicts in relation to the two charges against Shan Zreika. The trial judge discharged the jury in respect of that accused. The jury then delivered a verdict of not guilty with respect to the single count against Ahmed Cheikho, and a guilty verdict in respect of each of the two charges against the two appellants.
It seems that, on delivery of the verdicts, a disturbance occurred in the public gallery of the court. Exactly what happened does not appear to have been fully recorded. A transcript of proceedings on 28 September records that the judge remanded Zreika for further trial and discharged Cheikho. There was then some discussion about the further proceedings in relation to the two appellants. The transcript records that, as the court was about to adjourn, a person identified in the transcript as Omar Rustom said:
“I am asking questions about the murder.”
The judge then formally convicted each appellant and remanded them in custody. The transcript then records (the appellant) Rustom as saying:
“Thanks [female first name]. Thank you very much [the same female first name].”
It then records Omar Rustom as saying:
“[Same female first name], did you or did you not ask me about my brother being guilty of the murder? Yes, you did [the same female first name]. Look at me in the light and tell me yes or no. Please, [the same female first name], this is my brother’s life. Did you? At least give me the benefit of the doubt and tell me, [the same female first name]. Look at me, look at me, thank you. Thank you.”
and a person identified in the transcript as “Mrs Derbas” saying:
“[The same female first name], please, [the same female first name].”
There followed some discussion concerning these events. Mrs Derbas is recorded as protesting at the verdicts, and proclaiming Derbas’ innocence. Omar Rustom appeared (represented by a lawyer who happened to be in the court complex), and apologised for the outburst. Omar Rustom was charged with contempt but was not required immediately to enter a plea. His Honour expressed concern that both Omar Rustom and Mrs Derbas apparently called out the first name of a juror.
As a consequence of these events the trial judge sought the assistance of the Sheriff in investigating whether anything untoward had occurred with respect to any member of the jury.
On 30 November 2004 an officer of the Sheriff interviewed a female member of the jury, who was identified by her jury panel number. This juror told the officer that, at about the sixth week of the trial, she recognised, as somebody with whom she had been acquainted, a woman who on two or three occasions was present in the public area of the court. The juror gave the woman’s name as Donna Saad. The juror thought Ms Saad’s boyfriend might have been a friend of one of the accused. The juror knew Ms Saad because they had, as teenagers, worked together in a takeaway restaurant.
The juror told the Sheriff’s officer that, during the course of the trial, Ms Saad had telephoned her, and then called at her home. She said that the two initially engaged in small talk, and that then Ms Saad said to her:
“They’re not guilty, they didn’t do it, the guilty ones are walking the street”
and that the juror said to Ms Saad:
“Stop there, I don’t want to hear it, I am going to make my own decision”
and:
“I am taking this seriously, if they were my family members, then I would want justice done as I wouldn’t be able to sleep at night if I didn’t do the right thing.”
The juror said that Ms Saad made further efforts to contact the juror by mobile phone. This was unsuccessful because the juror refused to take the calls. Ms Saad then sent about ten or fifteen text messages, some of them, apparently innocuous, enquiring after the juror’s family; others, however, were inquiries such as:
“Which way are you going?”
and:
“I need to know which way it is going.”

Ms Saad asked to have personal contact with the juror, but the juror declined. The juror did not convey any of these events to any other member of the jury until after the disturbance in the court that followed the verdicts. She then told at least one other member of the jury of the approaches, but said (as she told the Sheriff’s investigators) that she had refused to discuss the trial with Ms Saad.
At some stage the juror was told by her cosmetician that “someone” had made an approach, looking for a person by her first name. The juror had not asked for a description of that person because:
“I don’t want to know anything about it.”
When asked why she had not drawn the approaches to the attention of the authorities, the juror replied that the trial had at that time continued for six weeks, it was almost finished, and she did not feel threatened.
She said, however, that when the courtroom was disrupted after the verdict, she was in shock, but that she did not recognise the (male) person who was shouting her name. She then added:
“I thought I was doing the right thing, it didn’t affect me, and I knew they weren’t going to influence me. If there was any threat or bribe, I was going to the Sheriffs, but at that stage there weren’t any.”
The Sheriff’s officer also interviewed the jury foreperson. He/she said that, during the course of the trial, no other juror had mentioned being approached by friends or family of any accused. After verdicts had been delivered, after jury had been discharged, and after the disturbance in the court, another juror had said that she did not know any of the accused, but recounted that a person had telephoned her; as soon as the caller mentioned the trial, the juror had refused to discuss it. This juror did not give the foreperson any names. When asked which juror had made this report, the foreperson mentioned a female first name, which is the same name as that which had been used by those involved in the post-verdict events.
The grounds of appeal
The grounds of appeal concern these four aspects of the trial. Each appellant pleaded and argued the following grounds:
“1.His Honour failed to direct the jury sufficiently with regard to accessorial liability, occasioning a miscarriage of justice;
2.There has been a miscarriage of justice in that a juror was criminally influenced.”
Derbas pleaded and argued an additional ground:
“3.That the evidence by way of video was wrongly admitted.”
Rustom pleaded and argued the following additional grounds:
“4.That the trial judge erred in the directions he gave in respect of the evidence of Roy Butler”
“5.A miscarriage of justice arose from apprehended bias on the part of a juror.”
“6.A miscarriage of justice arose from the failure of a juror to inform the trial judge that she had been approached during the trial by a person who attempted to discuss with her the issues in the trial.”
I propose, firstly, to consider ground 1, concerning the directions given with respect to accessorial liability, and then with those grounds concerning the attempted interference with the juror.
Ground 1: accessorial liability
This ground is directed only to the murder convictions. Specifically, it concerns the directions given about liability as principal in the second degree, and also the directions given about liability as principal in the first degree. These directions were given on three separate occasions, twice orally, and once in writing. All have been set out above. In part, the ground focuses upon a discrepancy between the directions given orally, and those given in writing. It was submitted that the written directions omitted a critical aspect of the law with respect to aiding and abetting (that being the knowledge in the person accused as accessory of the intention of the principal offender). Further, it was submitted that, even if the oral directions, in some places at least, correctly incorporated this aspect, other errors permeated those directions.
The principles of criminal complicity were comprehensively explained by McHugh J in Osland v The Queen [1998] HCA 75; 197 CLR 316. His Honour distinguished/ identified two bases upon which a person who is present at the scene of a crime , but is not the actual perpetrator, may be fixed with criminal liability. Depending upon the circumstances, such a person may be categorised as a principal in the first degree or a principal in the second degree.
A principal in the first degree is a person who is present at the scene of the crime, by reason of “preconcert” or agreement with the actual perpetrator to commit the crime that is committed. It then does not matter which of the two or more participants does the act that constitutes the crime: all are liable because the act is done, with the knowledge of the other or others, pursuant to the common intention. This is now commonly referred to as joint criminal enterprise. It is a form of criminal complicity that is the subject of the written direction in para 3(c).
An alternative means of fixing a person who is not the actual perpetrator with criminal liability for the crime is as principal in the second degree. McHugh J described this liability as derivative, dependent upon the established guilt of the actual perpetrator. This is liability of the kind sometimes called accessorial, or constituted by aiding and abetting the principal offender. It is liability of the kind referred to in the written directions in para 3(b).
Accessorial liability was also explained by Hunt J (as he then was) in R vStokes & Difford (1990) 51 A Crim R 25. At p 37 his Honour set out the essentials of proof that a person is guilty as an accessory by aiding and abetting – in the language used by McHugh J, a principal in the second degree. The Crown must establish:
“(1)the commission of that crime by the principal offender, and
(2)that the accused was present at the time when the crime was committed, and
(3)that … the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender …, and
(4)that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that crime.”
His Honour then added:
“The accessory's intention to assist or encourage the principal offender must be based upon that knowledge. … Although some of the older authorities suggest that the accused need be aware of only the physical acts done by the principal offender, it is now clear that he must be aware also of the existence of any state of mind on the part of the principal offender which must be established by the Crown to show that the crime was committed by him.”
The focus for the purpose of the present argument is the need for the Crown to prove that the alleged aider and abettor knew, not only of the essential facts and circumstances that establish the physical commission of the crime by the principal offender, but also of that offender’s state of mind or intention – that is, that that offender intended to kill or cause grievous bodily harm. This is an essential element in proving the guilt of that offender. That element was absent from the written direction. It was not absent from the oral direction first extracted above, where (in that part of the passage that I have italicised) his Honour carefully told the jury that they had to be satisfied beyond reasonable doubt that the appellants knew all of the essential factual circumstances that had to be proved by the Crown to show that the crime was committed by the principal offender, including that the appellants knew that the principal offender intended to kill or inflict grievous bodily harm on Assad Barakat. It must here be re-emphasised that the relevant intention is that of the principal offender, not the person accused of aiding and abetting. Because liability in this sense is derivative, depending upon the established guilt of the actual perpetrator, proof of that person’s intention to kill or cause grievous bodily harm is essential; as is proof that the person charged as accessory knew of that person’s intention. That is not to say that the intention of the person charged as accessory is irrelevant: it is, of course, necessary for the Crown to prove that. But that intention is to do the act or acts that encourage, aid and/or abet the principal offender – with knowledge that the principal offender intends to kill or cause grievous bodily harm.
Whether the correct oral direction given is sufficient to overcome the deficiency in the written direction is one of the issues raised by this ground of appeal.
But the question is not as simple as that. It was also argued on behalf of the appellants that the oral direction secondly extracted above had further deficiencies, and was apt to create confusion. That is for this reason. The relevant part of this oral direction was that the appellants were guilty of murder:
“… if you are satisfied that the particular accused was an aider and abettor, that is, a person present at the time encouraging the person doing the stabbing and ready to assist if required with the intention that the deceased should be killed or receive grievous bodily harm …”
The flaw in this direction, counsel argued, lies in that part of the direction that I have emboldened, and is that when read grammatically and logically, the intention in question is the intention, not of the principal offender, but of the person accused as accessory – that is, the direction focused upon an intention in the person alleged to be an aider and abettor (or accessory, or principal in the second degree), that the victim be killed or caused grievous bodily harm, but not upon the intention of the person alleged to be the actual perpetrator and the knowledge in the alleged aider and abettor of that intention. As I have indicated above, the intentions it is necessary for the Crown to prove are not co-extensive: in the case of the principal offender, the intention is to kill or cause grievous bodily harm, in the case of a person accused as accessory, the intention necessary to be proved is to encourage, aid and/or assist the principal offender to achieve that object. A separate element, also relevant to state of mind but not directly going to intention, is knowledge of the principal offender’s intention.
Thus, the argument went, on only one of three occasions when the jury was directed on this topic was the direction without defect. (It was accepted that the oral direction that included the reference to knowledge in the accused of the intention of the actual perpetrator was correct.)
It was not suggested that either the written, or the second oral, direction was erroneous or misleading in any respect except by omission of express reference to the need for the Crown to prove the appellant’s knowledge of what was the intention of the actual perpetrator. And that was explicitly covered in the first, correct, oral direction. One question posed on behalf of the appellants is whether the correct oral direction was sufficient to fill the gap in the written direction and the gap in the later oral direction. That presupposes that relevant error has been established. That presupposition itself does not stand up to scrutiny.
It is to be assumed that juries absorb and adhere to the directions they are given, both oral and written. The jury was clearly told (orally) that they could not find the appellants guilty of murder unless satisfied that they were aware of the intention of the actual perpetrators. It was not necessary for that to be repeated. If it were necessary to decide whether the correct oral direction was sufficient to overcome deficiencies in the second oral, and the written directions, I would, in the circumstances of this case, consider that it was. But, for reasons given below, I do not think it is necessary to reach that point.
The directions must be read in the light of the circumstances of the case. The essence of the written direction on liability as principal in the second degree was that the Crown had to establish that either accused was present, encouraging the principal offender and ready to render assistance if required. That requires some attention to what, on the Crown evidence, the principal offender was doing that that accused was encouraging, and prepared to render assistance in – it was using an implement to stab Assad Barakat. It could hardly be contemplated that presence, encouraging that activity, and preparedness to render assistance if required, did not entail knowledge that the principal offender had the requisite intention, that is, to kill or cause grievous bodily harm. Put another way, proof that either accused was present, encouraging and prepared to render assistance to the principal offender in stabbing Assad Baraket necessarily (in the circumstances of this case) implied proof that that accused knew that the principal offender intended to kill or cause grievous bodily harm.
Juries must be credited, as they traditionally are, with common sense. No jury could possibly have concluded that either appellant was encouraging the stabbing of Assad Barakat, and ready to render assistance if required, without also concluding that the appellant knew that the person wielding the implement intended to kill Assad Barakat or cause him grievous bodily harm. Any technical deficiency in the directions is of no moment, and certainly could not conceivably have given rise to a miscarriage of justice.
It is now convenient to deal with an additional criticism of the summing up. That concerns the (second) oral direction, concerned with joint criminal enterprise. I repeat the relevant part of that direction. It was:
“…or thirdly, if you are satisfied beyond reasonable doubt that the particular accused was a participant in a joint criminal enterprise to assault the deceased and kill him or cause him really serious physical injury; and in relation to that, the joint criminal enterprise is an agreement to take part in criminal activity. In the absence of expressed agreement it may be inferred from the circumstances and the actions of participants. Secondly, that the object of the joint enterprise was to kill or cause really serious physical injury may be established by the nature, ferocity, extent or other surrounding circumstances of, or the numbers involved in, the attack, or by you being satisfied that the particular accused contemplated that a knife or other weapon capable of inflicting grievous bodily harm would be used, or foresaw the possibility that such a knife or weapon might be used.”
Two criticisms were made of this direction. The first was that it “conflated” the concepts of joint criminal enterprise and extended joint criminal enterprise. The second was that it “elided” the elements of criminal complicity with the means of proving those elements.
I do not accept the first of these criticisms. The concept of extended joint criminal enterprise refers to what used to be called (in NSW) common purpose: it extends the liability of a person involved in a joint criminal enterprise to liability for any crime committed by parties to the agreed joint criminal enterprise in the course of carrying out that enterprise, that go beyond the express agreement, but that was contemplated as an incident of the express agreement. There is, in reality, no reference in this direction to liability in either appellant for acts of another person going beyond the express agreement to include criminal acts not the subject of that express agreement, but contemplated as a possible incident of the execution of what was agreed.
Alternatively, on the facts alleged by the Crown, the references to the concept of extended joint criminal enterprise were superfluous. The case the Crown sought to make did not depend upon, or incorporate, the notion of the commission of an offence by one participant that was outside the parameters of the agreement, but nevertheless contemplated as a possible incident in the execution of the agreement. Similar references were made later.
It might have been neater, and more focussed on the factual issue the jury had to decide, to have eliminated references to extended joint criminal enterprise. However, to my mind, what was alleged by the Crown was clear, and the jury’s attention was adequately directed to the issues it had to decide.
The second complaint, that the directions incorporated reference both to elements of criminal complicity and means of proving those elements, also has no substance: the direction commencing with the words “in the absence of expressed agreement …” and the direction that the object of the joint enterprise might be proved by the nature, ferocity and extent of the attack are directions about inferences the jury might draw from facts otherwise established by the evidence and therefore are concerned with the means by which elements might be proved. That does not affect the validity or accuracy of the directions. Those directions were perfectly correct: it was not necessary for them to appear in that particular part of the summing up, but it was no error on the part of the trial judge that he chose to place them there.
I would reject this ground of appeal.
Grounds 2, 5 and 6
In my opinion these grounds ought to be rejected. The comprehensive statement of events above establishes that the juror in question behaved with absolute propriety and considerable strength. Her initial response to the approach from the woman who contacted her was to tell her she did not want to hear what was being put to her and that she intended to make her own decision; that she was taking the trial seriously, that if she were in the position of the members of the Barakat family she would want justice done and that she would not be able to sleep at night if she did not do the right thing. She declined further contact, despite the persistence of the caller. She made it clear that, until the eruption in the courtroom, she was unaffected by the repeated contacts. Her participation in the verdicts was uninfluenced by what had happened. She did not disclose the approaches to any other member of the jury until after the verdicts had been delivered. That assertion is corroborated by the information provided by the foreperson to the Sheriff’s officer.
In my opinion this Court should accept that the juror responded as she said she did. There can, in my opinion, be no question that the juror discharged her duty in accordance with her obligations.
I would reject this ground of appeal.
I propose that each appeal be dismissed.
HIDDEN J: I agree with the orders proposed by McClellan CJ at CL and Simpson J, and with their Honours’ reasons.
As to the ground concerning the directions on accessorial liability, the case is a timely reminder that the concepts involved are not easy for lawyers, let alone jurors. It is essential that only so much of the law on this topic as is necessary for the case at hand be conveyed to the jury, and then in plain language. As Simpson J has pointed out, the Crown did not rely upon extended joint criminal enterprise in the present case and no direction about it was called for.
Moreover, I would also question the necessity for the Crown to have relied on both joint criminal enterprise and aiding and abetting. As is apparent from Simpson J’s reasons, there is a difference between those two bases of criminal liability and both were available on the facts of this case. However, in my view, either would have been sufficient. The interests of justice did not require that both be pursued, and to do so must only have made the jury’s task more difficult.

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LAST UPDATED: 15 May 2007