El Hassan v R - [2007] NSWCCA 148

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: El Hassan v Regina [2007] NSWCCA 148
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/702

HEARING DATE(S): 11 September 2006

JUDGMENT DATE: 6 June 2007

PARTIES:
Borhan El Hassan (Appellant)
Regina (Respondent)

JUDGMENT OF: Hunt AJA Johnson J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0834

LOWER COURT JUDICIAL OFFICER: Acting Judge Andrew

LOWER COURT DATE OF DECISION: 12 July 2004

LOWER COURT MEDIUM NEUTRAL CITATION:
---

COUNSEL:
Mr AJ Bellanto QC with Mr C Moschoudis (Appellant)
Mr PJ Barrett, Crown Prosecutor (Respondent)

SOLICITORS:
Morgan Ardino & Co, Petersham (R Cummins) (Appellant)
Solicitor for Public Prosecutions (S Kavanagh) (Respondent)

CATCHWORDS:
Whether jury should have been discharged because of television programme telecast when trial commenced — jury must be accepted to have faithfully applied directions given by judge until contrary is established.
[ ] [ ]
Circumstantial case that appellant entered into conspiracy — directions required — propriety of comment by judge that circumstantial evidence not necessarily less reliable than direct evidence and in some cases can be more convincing — suitability of expression “hypothesis consistent with innocence”. [ ] [ ]
Necessity for trial judge to apply legal directions to facts of the case — no requirement that a summing-up must give equal time to case of each party.[ ] [ ]
Unreasonable verdict not established by “lurking doubt” as to whether justice has been done. [ ] [ ]
Sentencing — special circumstances — Regina v Kama (2000) 110 A Crim R 47 followed.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Sentencing Act 1989
Criminal Appeal Rules

CASES CITED:
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Grant v Regina (1975) 11 ALR 503
House v The King (1936) 55 CLR 499
Ilioski v Regina [2006] NSWCCA 164
Kanaan & Ors v Regina [2006] NSWCCA 109
Murphy v The Queen (1988) 167 CLR 94
Regina v Ball (1960) 61 SR 37
Regina v Cable (1947) 47 SR 183
Regina v Kama (2000) 110 A Crim R 47
Regina v Kilbourne [1973] AC 729
Regina v Ngo [2003] NSWCCA 82
Regina v Savvas (No 2) (1991) 58 A Crim R 174
Regina v Spencer [1987] AC 128
Regina v Walters (1992) 62 A Crim R 16
Regina v Wilson (2005) 62 NSWLR 346
Regina v Zorad (1990) 19 NSWLR 91
Shepherd v The Queen (1990) 170 CLR 573
Stevens v Regina (2005) 222 ALR 40
The Queen v Hoar (1981) 148 CLR 32

DECISION:
1. The appeal against conviction is dismissed. 2. Leave to appeal against sentence is granted, the appeal is allowed, the sentence is quashed, and in lieu thereof the following sentence is imposed: A term of imprisonment for five years commencing on 15 February 2005 and concluding on 14 February 2010, with a non-parole period of three years and four months commencing on 15 February 2005 and concluding on 14 June 2008. The appellant is to be subject to supervision by the Probation and Parole Service whilst on parole. The Form 1 matter has been taken into account.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA2006/702
HUNT AJA
JOHNSON J
LATHAM J
6 June 2007

EL HASSAN v REGINA

Judgment

HUNT AJA: The appellant (Borhan El Hassan) was found guilty by a District Court jury of a charge of having conspired with his brother (Marwan El Hassan) over a period of twelve months during 2001–2002 to dispose of stolen property, at that time knowing that the property had been stolen: Crimes Act 1900, s 188(1)(a). The trial judge, Andrew ADCJ, imposed a sentence of imprisonment for six years with a non-parole period of four years, pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 as that section stood at the time of the offence.
The appellant has appealed against his conviction, and he has sought leave to appeal against his sentence.
The property stolen consisted of motor vehicles and motor vehicle parts. Three shipping containers were obtained, packed with goods of which a substantial quantity had been stolen — including motor vehicles and parts, motor cycles, a boat and a Bobcat (a mobile loader) — and shipped to Lebanon. The Crown relied on the part played by the appellant in organising, disassembling, packing and the shipping of the stolen property, including organising and paying for shipping containers when his brother was overseas.
The defence case was that the appellant had his own busy and time-consuming business of buying motor vehicles, repairing them and selling them. He was merely helping his brother by buying things on his behalf and loading containers for shipping those things overseas. He did not know, and he had no cause to know, that some of the items he dealt with had been stolen.
Much of the Crown case was directed to establishing that the appellant's brother Marwan was involved in receiving stolen motor vehicles and disposing of them, knowing them to be stolen. It was ultimately conceded by the defence that that fact had been established, but it was denied that the appellant had the guilty knowledge required for the conspiracy charge against him to succeed. The appellant's argument was that he made no profit from this enterprise for himself, the whole criminal enterprise was the work of his brother Marwan, and he was an innocent party to the arrangements he made on his brother's behalf.
According to the evidence in the Crown case, the appellant participated with his brother in the loading of a shipping container destined for Lebanon with motor vehicles and vehicle parts, including stolen motor vehicles. The appellant was the director of one company, MC Racing Group Pty Ltd, and a director (together with his three brothers including Marwan) in another company, Mr CRX, which were both involved in his brother Marwan's illegal activities. He was an owner (as a tenant in common) with Marwan and another brother of the property in which Marwan carried out those illegal activities. The appellant contested the effect of this evidence.
There was a multitude of grounds of appeal filed by the appellant. Senior counsel now appearing on behalf of the appellant very wisely relied on only some of those grounds. This judgment refers only to those grounds on which reliance is now placed.
The first ground of appeal is concerned with a programme telecast on the evening of the first day of the eleven day trial. This programme dealt with the "re-birthing" of stolen motor vehicles, a method whereby such motor vehicles are given a false identity by affixing to them compliance plates obtained from other vehicles — often those written off by an insurer and disposed of as scrap — which include a vehicle identification number unique to the vehicle to which it had originally been fixed. For some unknown reason, the producer of the television programme had been supplied (by an unknown person) with film taken by the police of various aspects of their investigation in this case. It included a very short extract from that film showing a blurred, but nevertheless recognisable, view of the interior of the workshop in the premises associated with the appellant, and outside which his brother Marwan stored the stolen vehicles. The Crown case included photographs of the interior of this workshop, although these were not to be tendered until later in the trial, showing a red car which can also be seen in the telecast material. There was also a mention in the telecast of Bankstown, where the appellant's premises were located.
An application was made to the judge on behalf of the appellant the following morning for the discharge of the jury. The material actually telecast was not immediately available to be tendered, and the judge agreed to adjourn the hearing until it was obtained. Before he did so, the Crown prosecutor said that the easiest response would be to sacrifice the previous day's hearing and start with a fresh jury. He did not direct his remarks to the necessary delay of such a new trial in order to avoid empanelling a new jury which might include jurors who had also seen the programme the night before.
When the telecast material was obtained later in the day and played, counsel then appearing for the appellant very properly conceded that the identification of his client's premises was not as clear as he initially thought, but he submitted that the public discussion of the re-birthing of motor vehicles — whether or not the premises were identified with the appellant — was still prejudicial to his client, and he maintained his application for the jury's discharge. The Crown prosecutor submitted that a direction to the jury to disregard anything they may have seen and to focus on the evidence in the case would be sufficient in the circumstances. The judge agreed, and gave the jury the following direction:
Thank you for your patience members of the jury. I wish to direct you as follows: There may have been some reports on the news last night about the re-birthing of cars and the law. I wish to direct you that that has no relevance whatsoever to this case. There is no reference to the accused and you should ignore any such record [sic] in relation to this trial.
It was submitted by the appellant in this Court that a direction should have been given to the jury along the lines of the direction given by the trial judge recorded in Murphy v The Queen (1988) 167 CLR 94 at 100, in which material had been published during the course of the trial prejudicial to the accused, and where the judge said, in his summing-up at the conclusion of the trial, that the jury's duty —
[...] to act with complete impartiality, detachment and without letting matters of sympathy, prejudice, sentiment or emotion play any part, applies to matters extraneous to this court room and matters to which I have already referred to and from which I will now depart, those matters of publicity which you have read about, seen or heard purveyed per medium of the media and I feel quite confident that you need no further directions in that regard.
No such direction was sought in this trial. Nor would the elaboration of the duties of a jury as so often given in a summing-up have been appropriate in the circumstances of this case.
We were shown the telecast material of which complaint was made in the present case. The relevant portion is very short — very little longer than it would have taken the judge to give the direction I have quoted. In my opinion, the application for a discharge was correctly refused. The whole of the Crown case was that the appellant's brother Marwan was using the premises in question to dispose of the stolen motor vehicles, motor vehicle parts and the other things referred to by shipping them to Lebanon. These facts were accepted by the appellant at the trial, his defence being (as I have already said) that the appellant did not know that the goods were stolen. In the course of the evidence on that issue, relevant evidence was legitimately given that, for example, loose compliance plates were found in the appellant's premises that had no legitimate purpose and that could be used for the re-birthing of stolen motor vehicles.
Even if the jury were to recognise the premises as those being shown in the television programme, the programme did nothing more than show the place where the appellant's brother was using the premises to dispose of stolen motor vehicles, the very fact that the appellant conceded at the trial. The telecast did nothing to reinforce the Crown case that the appellant knew the illegal nature of what was happening any more than the evidence that was admissible at the trial. The complaint that the telecast made the contents of the appellant's premises "more graphic" does not take the matter any further. The detailed evidence given by the Crown's expert witnesses relevant to the Crown case may not have been pictorial in nature, but it was no less graphic a description of what was had been going on.
The fact that there was a television programme dealing generally with the re-birthing of stolen motor vehicles telecast on the first day of the trial was insufficient of itself, or in combination with the other matters to which reference has been made, to warrant the discharge of the jury in this case. It has long been accepted that jurors are able to exercise a critical judgment of what they see, read and hear in the media, and to put such material out of their minds. It must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the directions given to them by the trial judge. It is a frequently recognised phenomenon that any criminal trial, by its very nature, causes all involved in it to become progressively more inward looking, with the capacity to study the evidence given and the submissions made in the courtroom to the exclusion of other sources of information. The many authorities supporting those propositions — from the High Court, this Court and the Court of Appeal — are collected in Kanaan & Ors v Regina [2006] NSWCCA 109 at [24]-[30]. The judge in the present case gave the jury a firm direction to ignore the material which had been televised, adding that the appellant had not been referred to in that material.
The decision as to whether a jury should be discharged is a discretionary one. The trial judge is usually in a superior position to that of this Court in determining what should be done when material alleged to be prejudicial is brought to the knowledge of the jury. The trial judge is alive to the temper and the atmosphere of the trial, and this Court must make due allowance for that fact in determining — in accordance with House v The King (1936) 55 CLR 499 at 504-505 — whether there has been an error in the exercise of that discretion; see Kanaan & Ors v Regina at [50], where this Court followed Regina v Ngo [2003] NSWCCA 82 at [49] (reported on other matters at (2003) 57 NSWLR 55) in adopting what had been said by Brereton J in Regina v Ball (1960) 61 SR 37 at 41-42.
I see no error in the exercise of the trial judge's discretion in the present case. Accordingly, I would reject the first ground of appeal.
The second ground of appeal concerns the directions given by the judge on the issues of inferences and circumstantial evidence. He dealt with them one immediately after the other. He gave illustrations to explain those directions. Omitting the illustrations, the judge said:
Members of the jury, I wish to direct you now in relation to the matter of inferences. You may in your role as judges of the facts draw inferences from the direct evidence. There is nothing extraordinary about that. We all do it consciously or otherwise in our everyday lives. Inferences are conclusions of fact, rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
[...]
In a criminal trial, you must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means you should be extremely careful about drawing any inference. You should examine any possible inference to ensure that it is a justifiable inference.
[...]
In the context of a criminal trial where proof is required beyond reasonable doubt, you should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
Members of the jury, I now direct you in relation to circumstantial evidence. Circumstantial evidence involves the drawing of an inference from facts that you are satisfied have been proved. Circumstantial evidence is different to direct evidence such as where a witness says, I saw the accused commit the crime. For example, in relation to the first element [of the crime alleged], there is no direct evidence from a witness who states he heard the alleged agreement in this case being made. However, circumstantial evidence is not necessarily any less reliable than direct evidence. Indeed, in some cases it can be more convincing. Whether of course it is in this case is a matter entirely for you.
[...]
As I directed you earlier, inferences are conclusions of fact rationally drawn from a combination of facts you are satisfied have been proved, and you have already been given some directions on the drawing of inferences.
Before considering whether you draw the inference that the Crown wishes you to draw, you have to determine first whether the Crown has proved the circumstances from which that inference could be drawn. That does not mean that every circumstance relied upon by the Crown to prove the inference must itself be proved beyond reasonable doubt. You should not reject a circumstance simply because, considered alone, the inference the Crown seeks you to draw cannot be drawn. You should decide whether you accept the evidence of a particular fact or circumstance, not by considering the evidence relating to it in isolation, but in the light of the whole of the evidence. You can draw an inference establishing the guilt of an accused from a combination of facts, none of which when viewed alone would support that inference, and in doing so you may find that one piece of evidence resolves your doubts as to another. However, where the Crown is in this case relying in part on circumstantial evidence to prove an element of the offence as a step in establishing the guilt of the accused, you cannot draw the inference that the element of the offence has been established, unless you are satisfied beyond reasonable doubt that that inference is the only rational inference to draw from the facts you are satisfied have been proved.
If there is any other rational inference or possible explanation open on the evidence which is inconsistent with the guilt of the accused whose case you are considering, then you must find that accused not guilty. In other words, unless the Crown disproves beyond reasonable doubt that any such rational inference or possible explanation that is inconsistent with guilt, then you must find the accused whose case you are considering not guilty. This is simply an application of the obligations of the Crown to prove its case beyond reasonable doubt.
Some of the directions in the last paragraph proceed on the assumption that there is more than one accused standing trial, but it has not been suggested that this particular matter caused any confusion in this case. (The phrase "that is" in the second sentence of that paragraph has a tendency to disrupt its meaning to some extent when read in the transcript; however, it no doubt did not do so when hearing it spoken. No complaint has been directed to its inclusion in that sentence.)
The judge then turned to the offence charged — that the appellant was a party to an agreement between two or more persons to do an unlawful act with the common intention showed by each of those persons to carry out that act. The judge identified the Crown case as follows:
In the present case, the Crown alleges that the accused and his brother Marwan formed an agreement to dispose of stolen property, in this case by exporting stolen vehicles and parts overseas, knowing that the property had been stolen.
[…]
The Crown may seek to prove an agreement in a variety of ways. In some cases, it may seek to prove the agreement by direct evidence, for example, by calling the person who actually heard the agreement being made; in other cases, and by far the most usual case as is alleged here, the Crown may seek to prove the agreement by asking the jury to infer its existence from the evidence tendered before the Court.
In the present case, the Crown seeks to prove the agreement and the nature of the agreement by the roles played by Marwan and the accused in the whole process of their acquiring stolen property and what was done to the property, preparing it for shipping, loading of containers, the arrangements of the shipping of it to Lebanon. That there is direct evidence of this, that is from telephone intercepts, loading of containers, evidence from the exhibits together with inferences and circumstantial evidence that prove the agreement and the nature of the agreement.
[…]
The Crown seeks to prove that the accused participated in the agreement in a variety of ways, by direct evidence of the witnesses, the accused by his conduct, including statements that he made indicated that he was a participant. The Crown may also seek to prove such an agreement by inferences from acts done or statements made by the accused in apparent furtherance of the purpose or objective of the alleged agreement.
The judge also made what appears to be a reference to the co-conspirator rule, whereby the evidence of statements or conduct by other members of the conspiracy are admissible to establish the existence of that conspiracy. There has been no complaint made in relation to that particular part of the summing-up, and it need not be referred to further.

A brief complaint was made on appeal that the judge failed to direct the jury as to which were the indispensable intermediate facts on which proof of the conspiracy depended and which thus had to be established beyond reasonable doubt. This issue had not been raised at the trial, and it was not pursued further on appeal. I am satisfied that this was a circumstantial case of the "strands in the cable" variety rather than of the "links in the chain" variety. In the former, there is no need for the trial judge to deal with such intermediate facts: Shepherd v The Queen (1990) 170 CLR 573 at 579.
The judge identified the defence case as conceding that the property was in fact stolen, but denying that there was any agreement between the appellant and his brother Marwan, and asserting that the illegal activity was carried out solely by Marwan without the knowledge of the appellant that the goods were stolen. The goods were, the appellant said, stacked outside his premises. Although the appellant had helped his brother out from time to time in relation to the shipping of those goods, he said, he did not have any interest in his brother's business and he was not overly interested in what his brother was doing.

The judge gave very detailed directions to the jury concerning the factual material in support of the Crown case, and he informed the jury, again in a detailed manner, of the arguments put in relation to that material on behalf of the appellant. The appellant had conceded that the compliance plates had been cut out of other vehicles, but had explained that this was to avoid the incidence of import duty in Lebanon. The judge emphasised the fact that the appellant had given sworn evidence in his defence, and he outlined the detail of that evidence. There has been no complaint in relation to any of these matters.

The judge concluded his summing-up in relation to the appellant's case by repeating the appellant's argument on circumstantial evidence:
Defence put to you that in relation to circumstantial evidence you may not find the accused guilty unless satisfied beyond reasonable doubt that there is no other reasonable explanation other than the guilt of the accused. Has the Crown proved beyond reasonable doubt that there is no reasonable explanation consistent with the innocence of the accused? Defence put to you there remains other reasonable explanations and the accused must be given the benefit of the doubt, that whilst he was involved to some degree, he did not know of the stolen goods and was not involved in any agreement with Marwan.
At the conclusion of the summing-up, the judge asked counsel whether there were any matters arising out of the directions he had given. There were no complaints made in relation to the directions I have quoted. At some time after they retired, the jury asked for transcripts of the evidence given by the accused and of the summing-up. The judge explained to the jury that there was no transcript of his summing-up available and asked them to identify the particular part of the summing-up they required. The jury were then discharged for the day. The following day, the jury made the following a request:
We would like more details of the points of law, specifically regarding inferences and circumstantial evidence.
Counsel then appearing for the appellant stated that he was "content" with the directions given in relation to inferences, but he suggested a "little bit fuller" version of the directions relating to circumstantial evidence. He produced a document in which he identified the directions he sought. There was some discussion with both counsel at the trial as to the proposed directions. We have not been shown that document, and no argument has been directed on appeal to its particular terms. The Crown objected that the directions sought were in some respects unclear, and that they introduced a concept of the theory of the evidence which would not assist the jury. The judge concluded that the proposed directions were already incorporated in the directions he had given, and he ruled that he would repeat the elements of the offence and the relevant directions he had already given.
The judge then defined the crime of conspiracy for the jury, referred briefly to the facts on which the Crown relied, and continued:
The Crown seeks to prove that the accused participated in the agreement in a variety of ways. By direct evidence of witnesses, of the accused by his conduct, including statements that he made, indicated that he was a participant. The Crown may also seek to prove such an agreement by inferences from acts done or statements made by the accused in apparent furtherance of the purpose or objective of the alleged agreement. I shall shortly direct you again as to inferences and circumstantial evidence.
The judge next repeated the directions which I have already quoted — not in their precise terms, but clearly to the same effect. He went on to direct the jury as to the basis on which the Crown sought to prove its case:
Returning to the first element of the offence, in considering whether the Crown has proved that there was an agreement in existence as alleged, the Crown asks you to draw the inference from the separate acts of each of the alleged parties to the agreement, committed during the period specified in the indictment, that there must have been in existence such an agreement on the basis that, when the separate acts are considered together, there is such a concurrence of time, character and result that the inevitable conclusion is that the separate acts were the outcome of an agreement to take part in an enterprise to achieve the object alleged in the indictment.
The judge again asked counsel whether there were any matters arising from the direction he had given, and both counsel replied in the negative.
The jury returned a little over an hour and a half later with a verdict of guilty.
The first complaint made by the appellant under this second ground of appeal is that the judge incorrectly stated the proper weight to be attached to circumstantial evidence when he said, in the context given in par [17] supra:
However, circumstantial evidence is not necessarily any less reliable than direct evidence. Indeed, in some cases it can be more convincing.
In his written submissions, the appellant has quoted at length from a number of leading decisions concerning circumstantial evidence given since (and including) Chamberlain v The Queen (No 2) (1984) 153 CLR 521, but nothing he has quoted denies the propriety of the statement made by the judge in the present case.

It has been my experience that a circumstantial case can in some cases produce almost conclusive evidence of the accused's guilt. Circumstantial evidence does not usually depend to any great extent on the evidence of witnesses who could be either mistaken or maliciously false in their testimony: Regina v Cable (1947) 47 SR 183 at 184. Those cases I have in mind have all been of the "strands in the cable" variety of circumstantial evidence case (see par [19] supra). It is a matter of common sense that the more strands in the cable, the stronger the cable is. The more circumstances pointing to the guilt of the accused, the less likely it is that there could be any reasonable explanation for those circumstances other than the guilt of the accused, and thus the stronger is the circumstantial case against him. As McHugh J pointed out in Shepherd v The Queen (at 582):
There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances. As Lord Simon of Glaisdale pointed out in Regina v Kilbourne [1973] AC 729 at 758:
Circumstantial evidence [...] works by cumulatively, in geometrical progression, eliminating other possibilities.
A circumstantial case may, of course, be quite strong even when it is based on only one circumstance. Robinson Crusoe lived as a castaway for a long period on a little island in the Caribbean Sea, in the secure belief that he was the only human being there, and that the cannibals and savages who lived on the islands nearby had never come to his island. Yet, when he walked out on the beach one day and saw a fresh print of a naked foot in the wet sand, he knew immediately that he was not alone on the island, even though he had seen no-one. It was obviously enough a very strong circumstantial case that another human being had been on the beach only a short time before him.
On the other hand, it may not always be appropriate to give the direction in issue here where it is necessary for the jury to reach a conclusion on one piece of evidence before considering another piece of evidence — that is, in a "links in the chain" variety of circumstantial evidence case.

In my view, the statement made by the judge that a circumstantial case may in some cases be more convincing that one based on direct evidence from witnesses was an appropriate one in the present case. I would therefore reject the appellant's complaint concerning the judge's statement.

The other complaint made in the written submissions relating to this second ground of appeal is that the judge failed to clarify properly the use to be made of inferences and circumstantial evidence after a request was made by the jury for "more details of the points of law, specifically regarding inferences and circumstantial evidence". I have already referred to the discussion which took place when this request was made, in par [23] supra.

In his written submissions, the appellant has submitted that it may be necessary in the particular case for the judge to direct the jury that they were entitled to acquit unless they were able to exclude every hypothesis on the evidence which was consistent with innocence. No such request was made (unless it was in the handwritten document we have not seen, and referred to in par [23] supra). Reliance was placed on Grant v Regina (1975) 11 ALR 503, where Barwick CJ (at 505) said that in some cases such a direction was proper or necessary. The Chief Justice said, however, that it was an issue for the trial judge to resolve for him or herself, as in some cases it might confuse more than assist the jury.

In my respectful view, the phrase "hypothesis consistent with innocence" is expressed in decidedly non-jury friendly language: Regina v Walters (1992) 62 A Crim R 16 at 20. The submissions made on behalf of the appellant (both written and oral) have not persuaded me that it was either necessary or appropriate that the direction now sought should have been given in this case. The direction given by the judge in the last paragraph quoted in par [17] supra, which was repeated the next day, made exactly the same point and in language more readily understood by a jury:
If there is any other rational inference or possible explanation open on the evidence which is inconsistent with the guilt of the accused whose case you are considering, then you must find that accused not guilty.
(See also the passage quoted in par [22] supra.) In that situation, to give the direction now sought would have done nothing but confuse the jury. I would reject this complaint also.
In his oral submissions, counsel now appearing for the appellant submitted that these directions were nevertheless inadequate, in that the judge did not assist the jury as to what he meant by "direct" evidence. That submission is not correct. The judge made it very clear what he meant by direct evidence in the fourth paragraph quoted in par [17] supra, where he said:
Circumstantial evidence is different to direct evidence such as where a witness says, I saw the accused commit the crime. For example, in relation to the first element [of the crime alleged], there is no direct evidence from a witness who states he heard the alleged agreement in this case being made.
The judge gave similar directions as to what was meant by direct evidence in the second, third and fourth paragraphs quoted in par [18] supra, and in the first paragraph quoted in par [24] supra.
Counsel also complained that the judge did not relate the circumstantial evidence directions to "the case at hand". Counsel also complained that the judge spent far more time in describing the evidence supporting the Crown case than he had spent on the evidence supporting the defence case. Another complaint is that the judge gave what he himself described as a "comparatively short summary" of the defence case.
It is not a requirement of a summing up that the trial judge must give equal time to the case of each party. In the present case, there was a very much greater quantity of detailed evidence in the Crown case than in the defence case. This evidence was relevant to proof that the appellant knew that the goods were stolen. The amount of detail in the Crown case required more elaboration than the evidence which favoured the appellant, which was largely a case of a denial on his part of any knowledge that the goods were stolen.

Whilst it is generally necessary for a trial judge to assist the jury with the application of the legal directions given to the facts of the case they have to decide (Regina v Zorad (1990) 19 NSWLR 91 at 105; Stevens v Regina (2005) 222 ALR 40 at [85]), it is not immediately apparent how the judge in the present case could have assisted the jury more than by giving them the directions in question and identifying the principal strands in the cable on which the Crown relied. It will often be different in a "links in the chain" variety of circumstantial evidence case, particularly in any case where indispensable intermediate facts are involved (see par [19] supra). That was not this case.

I am not persuaded that the second ground of appeal has been made out, and I would reject it.

The third ground of appeal is that the judge's treatment of the Crown case was more favourable to the Crown than his treatment of the defence case was favourable to the appellant. Complaint is made that the judge referred to the Crown prosecutor's submission that the evidence outlined in par [18] supra was "overwhelming". The context of that reference made it clear that the judge was referring to the Crown prosecutor's submission, and that he was not expressing his own view.

Complaint is also made that the judge encapsulated part of the Crown case as being —

(a)that the appellant was reluctant to talk about certain matters on the telephone,
(b)that, when something sensitive was said on the telephone, the appellant would speak in Arabic rather than English, and
(c)that the appellant had requested someone to use the "McPhee" telephone "and, as we know, it is not registered to the accused".

That was indeed the Crown case. The jury could not have understood the judge as doing otherwise than what he said he was doing, which was to inform them of the Crown case. It is not suggested that the Crown had not sought to describe the appellant's behaviour in that way.

Next, complaint is made that, when repeating his directions concerning inferences and circumstantial evidence, the judge referred to the Crown case but not to the defence case. There was no complaint at the trial or application to the judge to remind the jury of the defence case. That may well have been because counsel then appearing for the appellant at the trial recognised that it was only the Crown case that relied on inferences and circumstantial evidence, and that the jury would have understood that that was the purpose of referring only to the Crown case. It would have been a simple thing for the judge to give another short summary of the defence case if counsel had thought otherwise. But no application was made. I would refuse leave pursuant to Rule 4 of the Criminal Appeal Rules to enable the appellant to rely on this point on appeal, on the basis that, even if error were demonstrated, no miscarriage of justice has been established by the appellant: Regina v Wilson (2005) 62 NSWLR 346 at [24].
Complaint is finally made of the judge's statement:
There are conversations which, again covert, for example, "don't use my name", and reversion to indirect and imprecise language. You can only conclude that things being discussed are not lawful. Further in that context the applicant discusses "I've got the thing", further evidence of illegality and again in that context there are discussions about a hot CRX and the vehicle being hidden until the next day".
The appellant suggests that this was evidence of the appearance of a lack of impartiality on the part of the judge. That suggestion is mistaken. The part of the summing-up from which this passage has been extracted makes it plain beyond any doubt that the judge is referring to the Crown case as it had been put to the jury by the Crown prosecutor. In no way could the jury have misunderstood what was said in that context as the judge's own views in relation to that case.

It is also submitted that there was insufficient evidence to support the submissions that had been made by the Crown prosecutor. The appellant's written submissions are not specific as to which particular submission lacked such evidence. It is a matter of common knowledge that persons involved in illegal transactions seek to avoid their telephone conversations being used as admissions against them in the not unlikely event that those conversations are being recorded by the authorities. This endeavour was clearly established by the stratagems adopted by the appellant to which the judge referred.

Then it is submitted that the judge failed in his summing-up to refer to all the witnesses called to give evidence in the trial. There is no necessity for a judge to do so. Complaint of any such omission may be made where a witness not referred to has given evidence of significance to one or other party's case. No complaint was made at the trial of such a failure. No detail is provided in this appeal. I would refuse leave pursuant to Rule 4 of the Criminal Appeal Rules to enable the appellant to rely on this complaint on appeal also.

The seventh ground of appeal is that there has been a miscarriage of justice demonstrated by the collective effect of the previous grounds of appeal — even though individually not successful — which warrants judicial intervention. No specific submission was made in support of this ground either orally or in writing, except reliance on the statement by Lord Ackner in Regina v Spencer [1987] AC 128 at 146, that he had a "lurking doubt" that justice may not have been done in that case, and that the verdict of guilty was therefore unsafe.

The circumstances in which Lord Ackner made that statement have no relationship to the circumstances of the present case. That case involved a number of Crown witnesses who were suffering from some form of mental disorder and who were inmates in a mental hospital. The jury were directed that the evidence of each of them could not corroborate the evidence of the others, and that their evidence had to be treated with great caution. It was discovered on the tenth day of the trial that one of the jurors — whose demeanour throughout the trial had demonstrated his belief in the guilt of the accused — was the husband of an employee of one of the mental institutions which featured in the case. When this was discovered, he was discharged as a juror, a decision which he made it clear he did not like. This juror had at the end of each day of the trial driven three other jurors home. The judge declined to discharge of the remainder of the jury panel because of that fact, a decision which was based to a very large extent on the unfortunate consequences for the witnesses should they have to be recalled in a new trial. The remaining jurors were, however, directed not to discuss the case with the juror who had been discharged. After the accused had been convicted, it was discovered that the discharged juror did indeed discuss the case with his three former colleagues after his discharge, for whom he had waited to drive them home again. He had informed them of his wife's association with the other mental institution. Lord Ackner, with whose speech the other law lords agreed, concluded that he could not exclude the possibility that the discharged juror had communicated to his former colleagues his opinion that the accused was guilty. The appeal by the accused to the House of Lords was upheld.

The "lurking doubt" test adopted by Lord Ackner may have been an appropriate one to be applied in relation to the highly irregular breach of propriety by the discharged juror, but it is not an appropriate test to apply in determining whether there has been a miscarriage of justice when no error has been established in relation to the evidence or the judge's summing-up. Insofar as it was the intention of the author of the written submissions to argue that the evidence in this case was such that the verdict of guilty was unreasonable, and so establishing a miscarriage of justice (Criminal Appeal Act 1912, s 6), the appellant must persuade this Court that, notwithstanding that as a matter of law there was evidence to sustain that verdict, it was nevertheless not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty, paying full regard to the circumstances that the jury is the body entrusted with the primary responsibility of determining the issue of guilt and that they had the benefit of having seen and heard the witnesses. It is only where the evidence lacks credibility for reasons which are not explained by the manner in which the evidence was given that this Court is entitled to act on its own assessment of the nature and quality of that evidence, and then only where it is satisfied that, even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. The authorities for those propositions are collected in Ilioski v Regina [2006] NSWCCA 164 at [11]. That is a somewhat more stringent test than the "lurking doubt" test applied by Lord Ackner in relation to what may be described as a procedural error.

I am not persuaded that there is a significant possibility that an innocent person has been convicted in the present case. The collective ground of appeal does not, in my opinion, have any greater strength than the sum of its individual parts. In my opinion, the appeal against conviction should be dismissed.

I turn now to the application for leave to appeal against the sentence imposed.

The judge described the conspiracy involving the appellant and his brother to dispose of stolen property as having covered a period of months and some twenty-nine stolen items, including motor vehicles, motorcycles and motor vehicle parts. The offence involved multiple criminal acts and affected multiple victims. The stolen property was, the judge said, "clearly highly valuable".

The judge found that the appellant was a principal offender and as much involved as his brother had been in the disposal of the stolen property, and that the appellant himself had a direct financial interest in the conspiracy. The offence was, the judge said, objectively a serious one, well-organised, sophisticated and committed for financial gain.

The judge remarked that the appellant had a criminal record, but not a bad one, and nothing involving dishonesty. The appellant had a close relationship with his family, and had recently married and was expecting his first child. His legitimate business had been successful, and the appellant had been hard working. This business had now been lost, to the disadvantage of those who had been employed in it. The judge acknowledged that the appellant suffered from a range of psychological problems, including depression and low self-esteem. There was, however, no indication of any psychosis.

The judge accepted that the willingness of the appellant to simplify the issues at the trial, and to save time in the way the evidence was to be presented, should count in his favour on sentence. The judge also accepted that the appellant's wife and his extended family would suffer some hardship as a result of the appellant being sent to jail. He accepted that the delay in the trial should count in the appellant's favour on sentence.

The judge quite properly laid some emphasis on the fact that the appellant had committed an offence of disposing of a stolen motor vehicle knowing it was stolen whilst he was on bail for the current charge, and had asked that this further offence be taken into account on sentencing for the conspiracy.

The judge said that he was unable to find any special circumstances warranting a change in the statutory ratio between the non-parole period and the term of the sentence. By reference to the maximum sentence of imprisonment for twelve years for the substantive offence of disposing of stolen property relating to a motor vehicle knowing it to be stolen (Crimes Act, s 188(1)(a)), the judge imposed a sentence of six years with a non-parole period of four years.

Once again: there was a multitude of grounds of appeal filed by the appellant in relation to his sentence appeal, but senior counsel now appearing on behalf of the appellant very wisely relied on only some of those grounds. Again, this judgment refers only to those grounds on which reliance is placed.
Complaint is made that the judge failed to act in accordance with the decision of the High Court in The Queen v Hoar (1981) 148 CLR 32 when he took into account the acts done by the appellant pursuant to the conspiracy. It is also alleged that the judge sentenced the appellant on the basis that he was involved in stealing each item that was packed into the container and exported to Lebanon. The second of those complaints is not borne out by anything the judge said, and I reject that complaint.
In relation to the first complaint, this court held in Regina v Savvas (No 2) (1991) 58 A Crim R 174 (at 176—178) that, in sentencing for the crime of conspiracy, the sentencing judge may take into account the overt acts performed by the offender in furtherance of the conspiracy insofar as those acts bear on the content, the duration and the reality of the conspiracy charged. That judgment also makes it clear, however, that before doing so the judge must be satisfied beyond reasonable doubt as to such acts of the offender before taking them into account.
In performing that task, the judge made the following findings:
The evidence disclosed that some three containers were involved and they were packed with complete or near complete stolen motor cars, motorcycles, numerous motor vehicle parts including engines and a Bobcat. There were some 29 such stolen items.
The evidence disclosed that the offender was directly involved in the ordering, packing, and removal of the containers and their trans-shipment to Lebanon. The accused's brother Marwan had travelled to Lebanon to receive the containers and to sell their contents. Much of the stolen property had been dismantled and packed into the containers. The evidence disclosed that the offender had relationships with people who had stolen the property. By their verdict the jury must have been satisfied of these facts beyond reasonable doubt.
To these findings against the appellant there must be added those findings made by the judge referred to in pars [50]—[51] supra.

The last sentence of that quoted passage does not amount to a finding by the judge himself that beyond reasonable doubt the appellant had carried out those acts. As the judge made it clear in the directions which are quoted in par [17] supra, the jury were not obliged to act only on facts found by them beyond reasonable doubt in accepting a circumstantial evidence case of guilt. The only facts of which they had to be satisfied beyond reasonable doubt were those which formed the ingredients of the offence charged, which were that the appellant had agreed with his brother to dispose of stolen goods knowing that they had been stolen. The appellant complains with some justification that the judge did not expressly state that he was satisfied beyond reasonable doubt of the facts on which he relied for sentencing purposes.

I accept that the judge erred insofar as he proceeded on the assumption that the jury must have been satisfied beyond reasonable doubt of the other matters to which he referred in the passage quoted in par [59] supra. The judge did not identify the extent to which he was himself satisfied of the extent to which the appellant had been involved in the conspiracy, and his failure to do so also amounts to error on his part.

It is therefore necessary for this Court to make its own findings in relation to all those matters on which the judge relied in sentencing the appellant. We are entitled to proceed on the assumption that the jury must necessarily have eliminated any reasonable possibility that the exculpatory evidence of the appellant was true in order to convict him. Considering the evidence in the Crown case, rejecting the appellant's sworn denial, and acknowledging that we have not had the benefit of having seen and heard the witnesses, I am myself nevertheless satisfied beyond reasonable doubt that the findings made by the judge were correct. The Crown case that the appellant was part of the conspiracy was, in my opinion, an overwhelming one as the Crown had submitted at the trial (see par [39] supra). Once that fact is accepted beyond reasonable doubt, the other facts found by the judge follow almost inescapably, but in any event beyond reasonable doubt.
The appellant complains that the judge did not find special circumstances in his favour. He relies primarily on his age (he was thirty years old when sentenced), the lack of any serious criminal record and the fact that it was his first custodial sentence. As Spigelman CJ said, in Regina v Kama (2000) 110 A Crim R 47 (at [15]):
It is by no means clear that these matters are special circumstances warranting a relationship between the minimum term and the additional term other than the statutory relationship to any significant degree or at all.
Although that statement was made in relation to s 5 of the Sentencing Act 1989, it is equally applicable to the succeeding statutory provisions in s 44 of the Crimes (Sentencing Procedure) Act. The appellant also relies on the matters enumerated by the judge and referred to in pars [52]—[53] supra as amounting to special circumstances. All were matters in mitigation of sentence, but they do not necessarily lead to a finding of special circumstances either by themselves or together with the matters on which primary reliance is placed. In particular, the diagnosed psychological problems (including depression and low self-esteem) were of minor significance and they do not, in the circumstances of this case, carry any particular weight at all in considering whether special circumstances had been established. In the event, however, an error made by the judge in fixing the non-parole period renders the issue of special circumstances academic in relation to the sentence he imposed.
The sentencing regime at the relevant time required the judge to fix first the term of the whole sentence, and then the non-parole period which, in the absence of special circumstances, was not to be less than three-quarters of that term. Having fixed a term of six years, the judge could not fix a non-parole period of less than four and a half years in the absence of special circumstances. The appellant has therefore already obtained the benefit of a non-parole period six months less than it should have been.

I am, however, persuaded that the term of the sentence fixed by the judge failed to take into account sufficiently the matters in mitigation which he had accepted (other than the psychological problems). Serious as the offence undoubtedly was, accepting all the findings made by the judge in aggravation and taking into account the further offence on the Form 1 document of disposing of a motor vehicle knowing that it was stolen, a "head" sentence of six years was nevertheless in my opinion excessive in the light of all the mitigating circumstances to which reference has been made. I would substitute a sentence of imprisonment for five years. I am not prepared to deny the appellant the benefit of the effective alteration of the statutory ratio made by the judge. I would therefore fix a non-parole period of three years and four months.

I propose the following orders:

1The appeal against conviction is dismissed.

2.Leave to appeal against sentence is granted, the appeal is allowed, the sentence is quashed, and in lieu thereof the following sentence is imposed:

A term of imprisonment for five years commencing on 15 February 2005 and concluding on 14 February 2010, with a non-parole period of three years and four months commencing on 15 February 2005 and concluding on 14 June 2008.

The appellant is to be subject to supervision by the Probation and Parole Service whilst on parole.

The Form 1 matter has been taken into account.

JOHNSON J: I agree with Hunt AJA.
LATHAM J: I agree with Hunt AJA.

Orders of the Court:

1.The appeal against conviction is dismissed.

2. Leave to appeal against sentence is granted, the appeal is allowed, the sentence is quashed, and in lieu thereof the following sentence is imposed:

A term of imprisonment for five years commencing on 15 February 2005 and concluding on 14 February 2010, with a non-parole period of three years and four months commencing on 15 February 2005 and concluding on 14 June 2008.

The appellant is to be subject to supervision by the Probation and Parole Service whilst on parole.

The Form 1 matter has been taken into account.

**********
AMENDMENTS:

07/06/2007 - Typographical error in File Number in heading on page 1 of judgment. - Paragraph(s) N/A

LAST UPDATED: 7 June 2007