Fadel v The Queen

[2017] NSWCCA 134

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Fadel v R [2017] NSWCCA 134

Hearing dates:

10 March 2017

Decision date:

16 June 2017

Before:

Simpson JA at [1]; Button J at [160]; N Adams J at [161]

Decision:

(1)  Appeal against conviction dismissed;

 

(2)  Leave granted to appeal against the sentence;

 (3)  Appeal dismissed.

Catchwords:

CRIMINAL LAW – appeal – evidence – witnesses – in-court identification – whether in-court identification evidence in circumstances where the witness had previously identified the accused required the discharging of the jury – whether direction by trial judge advising the jury to disregard in-court identification was adequate to cure prejudice – no error established

 

EVIDENCE – appeal – absence of DNA evidence – where counsel invited the jury to draw an exculpatory inference from an absence of DNA evidence – whether trial judge erred in directing the jury to treat the absence of DNA evidence as neutral – no error established

 

CRIMINAL LAW – appeal – conviction – assault occasioning grievous bodily harm – whether conviction unreasonable and unsupported by the evidence – discrepancies in identification evidence – evidence of another person making an admission – verdict of guilty open on the evidence

  CRIMINAL LAW – appeal – sentence – assault occasioning grievous bodily harm – whether sentencing judge erred in assessing objective seriousness – whether sentence manifestly excessive – appeal dismissed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A
Crimes Act 1900 (NSW), s 33
Evidence Act 1995 (NSW), ss 55, 56, 116, 137, 165

Cases Cited:

Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17
Aslett v R [2009] NSWCCA 188
Davies v The King; Cody v The King (1937) 57 CLR 170; [1937] HCA 27
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Domican v R (No 3) (1990) 46 A Crim R 428
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Raumakita v R (2011) 210 A Crim 326; [2011] NSWCCA 126
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Vuni v R [2006] NSWCCA 171

Category:

Principal judgment

Parties:

Mohamed Fadel (Appellant)
Regina (Respondent)

Representation:

Counsel:
J I Ghabrial (Appellant)
S Hughes (Respondent)

  Solicitors:
Oxford Lawyers Pty Ltd (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2012/268557

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

04 March 2016

Before:

Culver DCJ

File Number(s):

2012/268557

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was convicted in the District Court after jury trial of one count of intimidating a person with the intention of causing physical or mental harm, and one count of intentionally causing grievous bodily harm. The trial judge sentenced the appellant to a total sentence of 6 years and 10 months, with a non-parole period of 4 years and 4 months. The sentences for the offence of intimidation was imprisonment for 6 months. The sentence for the offence of causing grievous bodily harm was imprisonment for 6 years and 8 months, with a non-parole period of 4 years and 2 months.

The offences were committed within the context of a larger incident involving the appellant’s family and their neighbours, the Ghunaim family. The incident commenced following a verbal disagreement and then escalated. As a result, other members of the Ghunaim family were called and attended the area. Police were called, but most left when the situation appeared to be under control.

When one member of the Ghunaim family, Mr Meqdadi, arrived at the Ghunaim residence, the appellant yelled “I want to shoot you” twice in Arabic and gestured with his thumb and index finger in the shape of a gun. This behaviour constituted the intimidation offence.

Another member of the Gunhaim family, Ala Ghunaim (the victim of the grievous bodily harm offence), arrived at the front yard of the Ghunaim residence. A member of the Fadel family called to him to come toward him, in an attempt to calm the situation. He was then called to by his father, Samih Ghunaim, and the sole police officer remaining in attendance, Sergeant Silva, who was talking to Samih at the time. Both asked him to come toward them. Ala Ghunaim gave evidence that at this time he noticed a person to his right-hand side. He lost consciousness. His father, Samih, and sister, Hala, gave evidence that they witnessed Mohamed Fadel kick Ala Ghunaim in the right-hand side of his jaw while wearing steel-capped work boots. Ala Ghunaim suffered multiple fractures of his jaw and the displacement of multiple teeth. This constituted the offence of causing grievous bodily harm.

Other police officers arrived and Sergeant Silva instructed them to arrest Mr Fadel. When he was arrested both his brother, Maher, and a female claimed to have been the perpetrator of the assault on Ala Ghunaim. Mr Fadel was then transported to a police station where he participated in an electronically recorded interview, had his work boots seized for testing, and agreed to a photo being taken of him to use in an identification parade.

The identification of the appellant as the person who attacked Ala Ghunaim was the principal issue in the trial.

Samih Ghunaim gave evidence at trial that at the time of the attack, while he could recognise the six Fadel brothers, he did not know their names. When pressed on how he could have positively identified Mr Fadel given this lack of knowledge, Samih Ghunaim stated that “At the time, I know he is one of the boys of the next door family. I can recognise him. I am positive it is that man there.” An objection was raised by defence counsel at trial, and the trial judge gave the jury a direction to disregard the gesture as an in-court identification. The appellant submitted that this was an in-court identification and should have resulted in the discharge of the jury, or, alternatively, that the in-court identification was not adequately addressed by the trial judge’s direction to the jury.

Hala Ghunaim, Ala Ghunaim’s sister, also witnessed the attack and identified Mohamed Fadel. Ms Ghunaim gave evidence that she could describe the six Fadel brothers, noting Mohamed Fadel had tattoos on his forearm and side. A witness called by Mr Fadel described his tattoos at that time as being on his chest and right shoulder. A photograph depicting this was tendered.

At trial, Detective Senior Constable Brandon gave evidence that the appellant’s boots had been seized at the scene and forensically tested for biological material. No biological material, blood or DNA, was found. In her closing address to the jury, counsel for Mr Fadel suggested that the absence of biological material may have helped the jury consider that the Crown had not proven its case and that it was consistent with Mr Fadel’s version of events. The trial judge directed the jury to the effect that this evidence was neutral and did not prove or disprove the offence. In the Court of Criminal Appeal, the appellant submitted that the trial judge misdirected the jury in this regard.

The appellant also submitted that the verdict was unreasonable and unsupported by the evidence.

In appealing sentence, the appellant submitted that the sentencing judge erred in her assessment of the objective seriousness of the grievous bodily harm conviction, and also that the sentence for that offence was manifestly excessive.

Held

Simpson JA at [1] (Button J at [160] and N Adams J at [161] agreeing) dismissing the appeal against conviction and sentence:

(1)   The trial judge was not in error in failing to discharge the jury on the basis of Samih Ghunaim’s identification of the accused in court.

Davies v The King; Cody v The King (1937) 57 CLR 170; [1937] HCA 27 considered; Domican v R (No 3) (1990) 46 A Crim R 428 considered; Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 considered; Evidence Act 1995 (NSW) ss 55, 56, 116, 137, 165 considered; Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17 considered; Festa v The Queen (2001) 208 CLR 593 at 601; [2001] HCA 72 applied; Aslett v R [2009] NSWCCA 188 distinguished

(2)   The trial judge gave an adequate direction to the jury in relation to the identification of the accused by Samih Ghunaim during his evidence.

(3)   The trial judge made a factual error in her direction to the jury regarding the evidence of Ala Ghunaim; however, the error did not amount to a miscarriage of justice.

(4)   The trial judge did not err in her direction to the jury regarding the use of the DNA evidence.

(5)   The verdict was not unreasonable or unsupported by the evidence.

M v The Queen (1994) 181 CLR 487; [1994] HCA 63 applied; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 applied; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 distinguished; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 distinguished; Raumakita v R (2011) 210 A Crim 326; [2011] NSWCCA 126 distinguished; Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 distinguished; Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 distinguished

(6)   The sentencing judge did not err in characterising the objective seriousness of the offence of causing grievous bodily harm.

(7)   The sentence imposed for the offence of causing grievous bodily harm was not manifestly excessive.

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 applied; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 applied; Vuni v R [2006] NSWCCA 171 applied

Judgment

1. SIMPSON JA: On 3 November 2015 in the District Court the appellant pleaded not guilty to an indictment that contained four counts (the fourth pleaded as an alternative to the third). The counts were in the following terms:

“1  on 28 August 2012, at Bexley North in the State of New South Wales, did intimidate Abdellatif Meqdadi, with the intention of causing Abdellatif Meqdadi to fear physical or mental harm.

…

2  on 28 August 2012, at Bexley North in the State of New South Wales, used unlawful violence towards Abdellatif Meqdadi, by conduct that would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.

…

3  on 28 August 2012, at Bexley North in the State of New South Wales, did cause grievous bodily harm upon Ala Ghunaim, with intent to cause grievous bodily harm to Ala Ghunaim.

… [alternatively]

4  on 28 August 2012, at Bexley North in the State of New South Wales, did cause grievous bodily harm upon Ala Ghunaim, and was reckless as to causing actual bodily harm to Ala Ghunaim.

…”

The second offence charged is the offence shortly known as “affray”.

2. After a jury trial that ran over 12 days, the jury returned verdicts of guilty in respect of counts 1 and 3, and not guilty in respect of count 2. Since count 4 was an alternative to count 3 it was unnecessary to return a verdict on that count.

3. On 4 March 2016 the appellant was sentenced. In respect of the intimidation offence, he was sentenced to a fixed term of imprisonment for 6 months, commencing on 4 March 2016. In respect of the offence of causing grievous bodily harm, he was sentenced to imprisonment for 6 years and 8 months, to commence on 4 May 2016, and therefore accumulated by two months on the previously imposed sentence. A non-parole period of 4 years and 2 months, expiring on 3 July 2020, was specified. The total sentence was therefore imprisonment for 6 years and 10 months with a non-parole period of 4 years and 4 months.

4. The appellant now appeals against the convictions, and seeks leave to appeal against the sentence.

Background

5. All counts arose out of an incident that occurred in the middle of the afternoon of 28 August 2012, in New Illawarra Road, Bexley North. The incident involved a large number of members of two families, the Fadel family who lived in 94 New Illawarra Road, and the Ghunaim family who lived next door in No 96.

6. The premises at No 94 were occupied by a very large number – as many as 20 – of the extended Fadel family. Occupants included the parents (Jamile and Ibrahim Fadel), at least six of their sons (of whom one is the appellant), and at least four daughters and a number of grandchildren. The sons were named Mustafa, Mohamed (the appellant), Youssef, Maher, Ali, and Hassan (who was about three years of age).

7. The premises at No 96 were occupied by Mariam Ghunaim and her adult daughter, Hala Ghunaim. Other members of that extended family lived nearby and were frequent visitors. That included Mariam Ghunaim’s former husband, Samih Ghunaim, their sons (Ala and Ahmad), their daughter (Sharook), Sharook’s nine year old daughter (Amira), Sharook’s husband (Abdellatif Meqdadi) and another daughter of Mariam and Samih, Jomana Ghunaim, and her husband Hussam.

8. Prior to August 2012, a number of disputes between the two families had arisen, and a degree of hostility (or at least antipathy) existed.

9. At about 3.30pm on 28 August 2012 a dispute over a parking space involving members of the two families erupted. Sharook Ghunaim was physically assaulted. As a result, telephone calls were made to various members of the families, who made their way to New Illawarra Road. Police were called. One of the police involved was Sergeant Rod Silva, who arrived on the scene at about 4.15pm. Other police were already present. Sergeant Silva observed approximately 10 to 15 persons of various ages in the front yard of No 94 New Illawarra Road, and 5 to 10 persons of various ages in the premises at No 96 New Illawarra Road. Those present included Samih Ghunaim, Abdellatif Meqdadi and his father Ibrahim, and a number of women (Janette Abdou and Randa Fadel among them).

10. After some discussion with other officers, Sergeant Silva decided that no police action would be initiated against any of the participants. He directed other police officers to answer a call to another, urgent, job, but himself remained at the scene.

11. Rather than subsiding, the dispute escalated. Samih Ghunaim berated Sergeant Silva for his decision to take no action against any of the participants. As Sergeant Silva attempted to explain the decision, a heated argument, in Arabic, took place between members of the two families, which was quickly followed by physical violence, directed by two female members of the Fadel family towards Samih Ghunaim. A number of pavers were thrown from the Fadel residence towards the Ghunaim residence. Sergeant Silva described the scene variously as a “melee”, and “mayhem”. He called for more police assistance. While he waited, further violence occurred. Jomana Ghunaim was assaulted. Some abuse was directed towards Sergeant Silva, and, allegedly, a threat made to Abdellatif Meqdadi. This was the foundation for the first count. Ala Ghunaim was seriously assaulted. He fell to the ground, and suffered serious injury. This was the foundation for the third count.

12. Ala Ghunaim was taken by ambulance to St George Hospital. He there spoke to a police officer, Detective Senior Constable Brandon, who took a statement from him. The statement was recorded in Detective Brandon’s notebook.

13. The appellant was arrested at the scene and taken to St George Police Station, where he was interviewed and charged. With some vigour, he denied any involvement in the assault on Ala Ghunaim. He agreed to making available the shoes and clothes he had been wearing, but declined to take part in an identification parade. He did agree to having his photograph taken with a view to its use in a photographic identification process.

14. The above brief account is framed as neutrally as possible. It was alleged that the appellant was the person who threatened Abdellatif Meqdadi (giving rise to the intimidation count on the indictment) and that he was the person who seriously assaulted Ala Ghunaim. Having regard to the issues raised by the grounds of appeal, it will be necessary to examine in considerable detail the evidence by which the Crown sought to prove the case against him. Identification of the appellant as the perpetrator, particularly of the assault of Ala Ghunaim, was the key and, indeed, only, real issue in the trial and was the primary issue in the appeal. There was, and could realistically have been, no issue that Ala Ghunaim was assaulted and suffered grievous bodily harm; the issue was, and is, whether the prosecution evidence was sufficient to establish to the requisite standard that the appellant was the assailant. Equally, it was not seriously contested that a threat was made to Abdellatif Meqdadi. Again, the issue was whether the prosecution established that it was the appellant who made the threat.

The grounds of the appeal against conviction

15. Five grounds of appeal against conviction were pleaded. Grounds 1, 2 and 4 were directed, in one way or another, to the issue of identification. Ground 3 complained of a factual error in the directions given by the trial judge concerning the evidence of Ala Ghunaim (also concerning identification evidence). By Ground 5 it was asserted that the verdicts of guilty are unreasonable (although the submissions in relation to this ground were confined to the verdict in relation to Count 3). This ground also depended essentially upon an attack on the identification evidence.

The course of the trial

16. Evidence in the Crown case was given by four members of the extended Ghunaim family – Hala Ghunaim, Abdellatif Meqdadi (the victim of the intimidation count), Ala Ghunaim (the victim of the grievous bodily harm count) and Samih Ghunaim (the father of Hala and Ala), and by five police officers – Sergeant Silva, Senior Constable Stuart Davies, Senior Constable Jonathan Scipione, Detective Senior Constable Hugh Brandon, and Senior Constable Daniel Oliver, plus a medical practitioner and a dentist.

17. The appellant did not give evidence. He called one witness, Christopher Benatos.

The evidence in the Crown case

Count 1

18. The evidence in support of the count of intimidation was in a short compass, and was principally (if not solely) given by the alleged victim, Abdellatif Meqdadi. Mr Meqdadi said that he went to New Illawarra Road because he had received a telephone call from his children’s school advising him that his children had not been picked up. After speaking to his sister, Jomana, he drove to New Illawarra Road and parked in a service station adjacent to No 96. As he walked towards the house at No 96, he saw the appellant who was screaming in Arabic “I want to shoot you” or “I’m going to shoot you”. He said words to this effect twice. As he did so, he gestured with his hand across his chest, the right index finger extended horizontally, the thumb perpendicular, and the remaining fingers folded. He was facing directly towards Mr Meqdadi. It was accepted that the gesture represented a hand gun.

19. He said that after that, women from the Fadel house were attacking the Ghunaim house and entered the Ghunaim property. A group of Fadel men, including the appellant, began throwing rocks. This was evidence going to the charge of affray, of which the appellant was acquitted. Its significance for present purposes is that Mr Meqdadi was asked what part of the appellant he could see, to which he replied that he could see “almost all of him”. Asked if he could see the appellant’s head, he replied:

“Yes I could see, that is almost all his body, he was not wearing a top.”

Mr Meqdadi said that he knew that it was the appellant because he already knew him from his daily visits to the Ghunaim family home.

Count 3

20. The evidence in respect of Count 3 was more complex.

The evidence of Ala Ghunaim

21. The victim, Ala Ghunaim, said that at about 4.30pm on 28 August he drove to New Illawarra Road. He saw a lot of people there, “a lot of mess”. A police officer was talking to his father, Samih. Samih called Ala to him. He then heard Ibrahim Fadel call him, saying he (Ibrahim Fadel) wanted to talk to Ala Ghunaim and “let’s calm things down”. Ala Ghunaim walked towards Ibrahim Fadel. As he did so, he saw a man standing to his right. He then “went down” and lost consciousness. His next consciousness was of the presence of the ambulance. He was able to give only a brief description of the man he had observed. He was taken to hospital and later questioned by Detective Brandon, who took a statement from him. The statement recorded by Detective Brandon was read on to the transcript (it is set out in full at [67] below). Ala Ghunaim said that the person who kicked him was one of Ibrahim Fadel’s sons. He gave a description of the person as:

“… about 18 to 20 years old, short black hair, thin build. His hair is receding a little on the side. He is wearing a navy blue jacket and I think a yellow shirt. He has a thin little beard.”

He said that he believed that he would recognise the man if he saw him again.

22. In cross-examination Ala Ghunaim was asked about the statement he had made at the hospital. The following passage appears in the transcript:

“Q.  You believed that it was one of the sons of Ibrahim that injured you this day, is that correct?

A.  No.

Q.  You had no idea?

A.  In the hospital, I didn’t know them. I didn’t know them. It could be anybody who kicked me. I don’t know them. You can ask me many times. That moment, I don’t know who Fadel. I don’t know them. I didn’t even recognise them now. I don’t know most of them.”

23. Five days after the incident, on 3 September 2012, Ala Ghunaim took part in a video recorded “computer photographic identification” process. He was shown computer photographic representations of 16 persons. He was given, in clear terms, appropriate instructions to the effect that the persons depicted had not necessarily been convicted of criminal offences, that they were not necessarily persons in custody, and that the person or persons who committed the offence against him may or may not have been depicted in the photographs, and that he was not obliged to select any of the 16. After looking once through the entire array, without selecting any image, Ala Ghunaim began his examination again. This time he paused on the photograph numbered 11.

24. Since there is a lack of clarity in the oral evidence, it is best to set out extracts from the transcript of the procedure (the accuracy of which was not in issue). Initially, after Ala Ghunaim’s first search, Detective Constable Brandon said:

“Q21  OK. You haven’t made a selection.

A  No. I don’t see in there.

Q22  You don’t want, ok. Have a look again.

A  I guess number 11 but I’m not sure because.

Q23  Uh huh. If you would like to see it again.

A  Press yes.

Q24  Yeah, press yes. You’re indicating number 11.

A  Yeah.

Q25  And where do you think you have seen him before.

A  Next to me on the right hand side. He’s the one who kicked me I think. I’m not sure though.

Q26  OK. Go through again and have a look.

A  Definitely not this one … Only one is 11 but I’m not 100 per cent sure.

Q27  Ok. So what did you say? Sorry, say it out loud for the camera.

A.  Um, it’s number 11 but not 100 per cent sure.

Q28  How sure are you?

A  Like 80 per cent. 85 per cent.

Q29  Ok. Well, if you’re hap- if you’re not happy to select anyone then we will finish. Or if you’d.

A  Uh I don’t know like, about selecting, I’m not sure.

Q30  You’re not sure, so that’s fine. But you’re 80 per cent sure that he’s the person – say out loud again for the camera.

A  I’m sure about 80, 85 per cent. I’m sure it’s him.

Q31  Who did what?

A  Uh, kick me in the teeth. Cause he was next to me coming towards me. Then when his dad called me when he kicked me. He the closest one to me.”

25. Ala Ghunaim then signed a document which indicated that he had not made a selection. He then said something which was unable to be transcribed, and the transcript records the following further conversation:

“Q37  Sorry, Al, what did you, prior – prior to signing this one, what did you say?

A  It is number 11. (Points at photo 11)

Q38  It is number 11?

A  Just because usually I look them from far away but.

Q39  Ok. Are you sure it’s number 11.

A  Yeah.

Q40  Ok. If you’re happy…

A  Cause he was wearing the – a jacket or a jumper or some shit so I really don’t know if. What took me off was the beard. He didn’t have any beard when or like he didn’t, he was clean shaven.

Q41  On the sides? Yeah.

A  And this is why it was, uh confusing, I didn’t know.

Q42  Are you sure it’s number 11, yes?

A  Yeah.

Q43  If you are happy to sign that and indicate that number 11 was the person who kicked you in the mouth, I’m happy for you to sign it there.

A  Not sure to sign.”

It was common ground that the person depicted in photograph 11 was the appellant.

26. The following passage appears in the transcript of Ala Ghunaim’s cross-examination:

“Q.  Those pictures you were looking for someone from number 96, weren’t

you?

A.  No I was looking for the man who kicked me.

Q.  You knew or you thought at the time that the person who kicked you, who you believed kicked you, was from that house number 96, is that correct?

A.  No.

Q.  You didn't know that?

A.  No.

Q.  So you thought it might have been someone from your household who kicked you?

A. No

Q.  It might have been a complete stranger?

A.  Yes. Could be anyone.

Q.  So you had no, is it your evidence that you had no recognition at all when you saw that man that you put on to that map that that person was from house number 96.

A.  No I didn’t have any idea.

Q.  Any idea?

A.  Yes.

Q.  So that is zero idea?

A.  No, I had some idea but not like, focussing on it.

Q.  You weren’t focussing on it?

A.  No.

Q.  But you thought it was someone from 96?

A.  96, that is my family.

Q.  Sorry, 94?

A.  Yes.

Q.  You did?

A.  Yes.

Q.  So when you went to look at these pictures you were looking for someone from 94, is that correct?

A.  No.

Q.  Because you believed that it was one of the sons of house 94 that had

kicked you, didn’t you?

A.  I thought about it but, I was looking for the man who kick me.

Q.  You were very aware - you believed that it was one of the sons of Ibrahim that injured you this day, is that correct?

A.  Today?

Q.  No, back then?

A.  No back then I don’t know him.”

The evidence of Hala Ghunaim

27. Hala Ghunaim is Ala Ghunaim’s sister. She had lived at No 96 all her life. As at 2012, the Fadel family had lived at No 94 for about three years. Hala Ghunaim said that she knew all the Fadel family, and gave a description of various of the brothers and sisters. She said that the appellant had a tattoo on his forearm and on his side. In cross-examination she was more specific, saying that the tattoo on his side near his ribs was “a numbered tattoo”, she thought the number 313. There was also a tattoo with writing, that took up most of his forearm. She was not aware whether at that time any other of the brothers had a tattoo similar to the “313” tattoo of the appellant. Of the incident in which her brother was injured, Ms Ghunaim said (as recorded in the transcript):

“And as my sister [Jomana] was laying down in my lap and I had her head cradled, my brother Ala pulled up in his ute on the opposite side of the street and on my left hand side I could see Mohamed putting on his safety boots, kneeling down on the footpath putting on his safety boots and I was there thinking he’s just pumping himself up, he’s not going to do it, he’s just, you know, parading himself, he won’t do it, and then as my brother Ala was coming out of the ute there were officers standing on my right hand side like in front of me on my right hand side and the Fadel[s] were standing on my left hand side after Mohamed. My brother Ala came out of the ute. The Fadels, mostly Ibrahim the Dad was saying to my brother ‘Come on Ala we just want to talk a minute, come over here’. My brother Ala was looking at them but he was walking towards us because the police officer that was standing with my Dad was staying [sic – saying] ‘No Ala couple [sic – come], over here’. So Ala was walking towards my Dad and amount [sic] the policeman but looking at the Fadels as he was walking, and then Mohamed put on his safety boots, no shirt as always and just bolted towards my brother on the right hand side of my brother and then jumped up in the air and swung and kicked him in the chin.”

28. She was asked what she observed about the appellant after his arrest. She said:

“Not much. He was wearing his jeans, no shirt and still wearing his safety boots.”

29. She was then asked about the arrest of the appellant. She said:

“They [police officers] constrained Mohamed so after his kick he did like a U turn and ran back towards his garage and the police ran towards him.”

30. Cross-examination of Hala Ghunaim was directed to two aspects of her evidence. The first was the appellant’s tattoos, a topic that will be addressed below. The second was her assertion that she had seen the appellant putting on his safety boots at about the time that Ala Ghunaim arrived at the scene. It was put to her that this was a fabrication, because it had not been included in her original statement. She rejected that, saying that she was focussed on her brother being kicked, and considered that the most important thing was who did it, not how he did it.

The evidence of Samih Ghunaim

31. Samih Ghunaim had lived at 96 New Illawarra Road until the breakdown of his marriage in 1999, before the arrival of the Fadel family. He remained, however, a frequent visitor, and was aware of the Fadel family. On the afternoon of 28 August 2012 he was called by Mr Meqdadi, who told him that Sharook Ghunaim had been bashed by the neighbours. He drove to New Illawarra Road. Police were present. Members of the Fadel family began throwing rocks at the Ghunaim family.

32. Samih Ghunaim said that he could recognised the persons throwing rocks as:

“… the boys of the family living in number 94. I can recognise them as the boys of the neighbours but I could not tell you their names at that point. I don’t know who is who.”

33. Samih Ghunaim agreed that Ibrahim Fadel had asked Ala Ghunaim to join him to talk. His evidence then was:

“That is when I said, ‘Ala, don’t go there. Come back here. Come here’. Sergeant Silva asked me, ‘Who is that?’ I said, ‘That is my son’. Also, Sergeant Silva yelled at him, ‘Ala, come down here’. So Ala started to walk towards us, towards me and Sergeant Silva. Mohamed passed me, next to me. I thought he was going to the other side. I never imagined he would hit Ala. Ala was already in the middle of street, and Mohamed passed on my left, on the right of Ala. When he got to next to him, he jumped into the air, and with his foot, he hit him in the chin. Ala fell down. His head hit the street. He fell unconscious. And Mohamed run back to the house, to their house, number 94.”

34. He said that he did not know the names of the Fadel boys, and he did not know the name of the appellant at the time he observed what he had just described. At that point in his evidence (in chief), he said:

“A.  No. At that time, I know he is one of the boys of the next-door family. I can recognise him. I am positive it is that man there.”

35. There followed some further questions by the Crown prosecutor about Samih Ghunaim’s familiarity with the Fadel brothers, and he was asked to describe the man that he saw kick his son Ala Ghunaim. He said:

“A.  He was a young, fit man. When he did that, he was topless. He was wearing pants and shoes.”

36. He repeated that the person who kicked Ala Ghunaim was “topless”, and was then asked to describe the pants that he was wearing. His answer was:

“A.  I think it is like jeans, light blue, grey jeans, something like that. I didn’t concentrate on what he was wearing, I was looking at his face when he passed me.”

37. He was then asked if he was able to describe the face of the assailant. At that point counsel representing the appellant objected. The objection was based upon what counsel described as the “in-court identification” by Samih Ghunaim. She asked that the jury be discharged. The trial judge declined to take that course, but invited counsel to formulate an appropriate direction to deal with the situation that had arisen. Counsel did so, and the trial judge accepted that the proposed direction was “well crafted”, but said that she would in fact go further than had been proposed by counsel, and be “more strident about the very real need for them to disregard that evidence”.

38. During the course of the discussion, the Crown prosecutor placed on the record a disclosure he had earlier made to defence counsel. This concerned a conversation he had had with Samih Ghunaim. He said that he pointed out to Samih Ghunaim that, in his statement, he had said that the assailant was either Mohamed or Youssef Fadel, whereas during his conversation with the Crown prosecutor, his position was that it was the appellant, Mohamed. He asked why and how Samih Ghunaim had changed his position. Samih Ghunaim told him that he had not originally known the name of the attacker, but that Hala had told him. This prompted a line of cross-examination, to which I will come.

39. There was then some evidence taken from Samih Ghunaim on the voir dire, the jury returned, and the trial judge gave a direction based upon the proposal by counsel, but in more forceful terms. The direction is set out below ([88]). The answer ([34] above) given by Samih Ghunaim, and the direction, are the foundation for the first and second grounds of appeal.

40. The evidence of Samih Ghunaim continued in the presence of the jury:

“Q.  Sir, when you were giving evidence this morning, before the lunch break, and I was asking you some questions about the man who kicked your son, Ala, you said that you could recognise him but at the time you did not know his name, is that correct?

A.  Yes, sir.

Q.  You also said that he was wearing shoes?

A.  Yes, sir.

Q.  What I want to ask you is about the type of footwear that you have described. What type of shoes were they?

A.  It was working shoes, people who wear short boots. It is not the long one, it is the short one, that people wear for work.”

41. A little later, still in evidence in chief, Samih Ghunaim was asked further questions about his observations of his son’s attacker. The transcript records the following:

“Q.  What did you actually see of this person you say was the man who kicked Ala?

A.  The policemen were taking him to the police car.

Q.  Where were they taking him from?

A.  I saw he was on the footpath in the front of the driveway of the house, not the driveway of the garage. The other side of the house.

Q.  Which house is this?

A.  Number 94.

Q.  What did you observe of this man who had been arrested by police?

A.  That he was the same man who kicked Ala.

Q.  Did you see his face?

A.  Yes, sir.

Q.  Now, before you described this man was wearing pants, shoes, which you have clarified to be working-type boots and no shirt on. What about at the time you say this man was being arrested, what he was wearing?

A.  He was wearing a shirt, a T-shirt. A sort of a T-shirt.

Q.  What colour was that T-shirt?

A.  I’m not sure, really. It is a light colour, but I can’t say it is grey or light blue. I can’t say, really. A T-shirt.”

42. He said that he learned the name of the attacker later that day, when he met other members of his family at the hospital. His son-in-law, Hussam, asked if he (Samih Ghunaim) knew who had hit Ala Ghunaim, to which he replied:

“The police took him. They arrested him. They took him but I do not know his name.”

It was then that Hala told him that the person who was arrested was the appellant, Mohammed Fadel. A little later, however (in cross-examination), he said that it was Hussam who had told him the name.

43. In cross-examination Samih Ghunaim agreed that, when he had made a statement to police the day after the assault, he had said (of the person who he saw kick his son):

“I think it was either Mohamed or Youssef Fadel”

44. He said, however, that he did not tell police that he had reached the realisation of the name of the attacker after a conversation with Hussam and Hala. He said:

“A.  Yeah but I was answering the officer’s question. At that time he asked me - Do you know who hit him, at that time of the incident, I said at that time I don’t know, but I reckon, I gather it could be Mohamed or Youssef.

Q.  And did you tell the police officer at that time that you had a conversation with someone else and they had told you who it was?

A.  No, he didn’t ask me, he said at the time of the incident, do you know who hit, I said I know he is one of the boys of the Fadel, but I do not know if he is Mohamed or Youssef.”

45. The following evidence then appears in the transcript:

“Q.  So the reason that you think that, sorry Mr Ghunaim, I am suggesting to you that you have made a mistake in thinking that the person that passed you by whose face you saw for a short space of time was the person that was arrested by police?

A.  No I didn’t make any mistake, I am positive the one who kicked Ala was the same person arrested by the police.

Q.  I am suggesting to you that you have come to give evidence that it is Mohamed because people have told you that they believed it was Mohamed?

A.  No that is not true miss.”

The evidence of Sergeant Silva

46. At the time of the assault, Sergeant Silva was still present at the scene, having directed other officers to attend to other duties. He was talking to Samih Ghunaim.

47. Sergeant Silva gave his evidence in chief by reading from his statement. He gave a detailed account of events preceding the assault on Ala Ghunaim, events which resulted in an assault on Jomana Ghunaim. He became aware that Jomana Ghunaim appeared to have been assaulted and was lying, moaning, on the ground. He attempted to assist her. As he did so, he said:

“… a male from 94 wearing no shirt was taunting me saying ‘you’re a dog, you’re a dog. You’re helping them’.”

At the time, Sergeant Silva did not know the appellant, nor any members of the Fadel family. He said in his statement that he now knew this man to be the appellant. At this point, his reading of his statement was interrupted. He was asked how he knew the man was the appellant, he gave an unresponsive answer. It is apparent that Sergeant Silva learned the name of the appellant after his arrest.

48. Sergeant Silva then resumed reading his statement. He said that another “melee” then erupted on the verandah of No 96, with several females from No 94 attacking occupants of No 96.

49. At the precise time of the attack, therefore, Sergeant Silva’s attention was on Jomana Ghunaim, and the other “melee”. He went onto the footpath, where he saw Ala Ghunaim lying on the road, bleeding profusely from the mouth, and one of his teeth on the ground. Ala Ghunaim was non-responsive to questions. The appellant was close by, still without a shirt, but wearing dark work pants and steel capped boots “bouncing around, tensing up”, in close proximity to Ala Ghunaim. Sergeant Silva requested an ambulance, and lost sight of the appellant for a short period. When he next saw the appellant he was wearing a grey shirt. He was asked about the appellant’s appearance at the time he first saw Ala Ghunaim lying on the ground. The transcript records the following answer:

“I noticed that he had, I think he had work boots on, white pants and he [had] no shirt. From my recollection, at the time, he kind of stood out because of that.”

(It is clear, in my opinion, that “white pants” as recorded in that answer is a mistranscription for “work pants”.)

50. Sergeant Silva was asked how confident he was that the man he saw wearing the grey shirt was the same man he had seen in close proximity to Ala Ghunaim when he was lying on the ground. He said that he was “one hundred per cent” confident.

51. Sergeant Silva directed Constable Scipione to arrest the appellant, which he did.

The evidence of leading Senior Constable Stuart Davies

52. Senior Constable Davies also gave his evidence in chief by reading from his statement.

53. He attended New Illawarra Road in response to Sergeant Silva’s call for assistance. He arrived at about 4.35pm. He could see about 30 people “spilling out” from the two houses. People were yelling at other police who were already present. He said:

“As I exited the police vehicle I could see an elderly man laying face down on the middle of the road and Sergeant Silva was talking to him. It appeared to me that he had blood coming from his mouth and he was holding a piece of blanket or cloth against his face.”

He said that he then approached a group of about 10 persons outside No 94 who appeared to be yelling at police. He recognised the appellant, who, he said, was wearing a grey t-shirt and light blue jeans and had short brown hair. He also recognised Maher Fadel, who, said, was wearing a red baseball cap and was not wearing a shirt.

54. Sergeant Silva told Constable Scipione to arrest the man in the grey shirt. Constable Scipione told the appellant to “come over here”. As the appellant walked towards the police officers in compliance, Maher Fadel stepped in front of him and began to yell, while waving his hands in the air in such a way as to block the appellant’s approach. The appellant pushed him aside and walked towards the police officers. Constable Scipione then arrested him.

55. Maher Fadel said:

“Arrest me. I hit him … That’s my brother. Arrest me.”

He did not respond to a question by Constable Scipione asking why he should be arrested.

56. The appellant said:

“If I hit him, I would admit to it. I have been out of trouble for four years.”

57. Senior Constable Davies handcuffed the appellant to prevent his escape. A female approached, saying:

“Arrest me, I hit him too. Arrest me.”

58. By this time Maher Fadel was standing in the front yard of No 94; he appeared angry, and was yelling and “tensing his body”. In cross-examination Senior Constable Davies described Maher Fadel as “quite aggressive”, “tensing his body and making fists out of his hands” and “puffing his chest out”.

The evidence of Senior Constable Scipione

59. Senior Constable Scipione also read from his statement. He responded to Sergeant Silva’s call for assistance, and arrived with Senior Constable Oliver. He saw Ala Ghunaim lying on the road, bleeding heavily from the mouth and nose. An extremely hostile crowd of Middle Eastern men and women near No 94 were behaving aggressively towards the police officers and the neighbours at No 96. Senior Constable Scipione saw the appellant (whom he already knew) sitting on the footpath outside No 94, staring at Ala Ghunaim. He described him in the following way:

“He had dark coloured hair, was rough shaven and was wearing a grey T-shirt and light coloured full length jeans.”

He said that he approached the appellant in an attempt to disperse the crowd and that the appellant took a few steps backwards from the footpath onto his driveway and said:

“I’m on my property. I’ll break all these guys’ jaws.”

60. He said that Sergeant Silva then directed him to arrest the man in the grey t-shirt. As that arrest was in progress, Constable Scipione said Maher Fadel (whom he also already knew) stood between him and the appellant. He described Maher Fadel as being around 20 years of age, six feet tall, of athletic build and wearing a bright red hat. Notably, he did not say anything about any other clothing that Maher Fadel was or was not wearing at the time. He said that he told Maher Fadel to get out of the way, an instruction which Maher Fadel ignored. He said:

“However Maher ignored me and began to yell unknown words to his brother Mohamed and I while being extremely aggressive. Maher was clearly enraged and continued screaming extremely loud while preventing me from walking towards his brother. At this point Mohamed walked towards me and pushed Maher out of the way in order to pass him. I then asked Maher [sic – Mohamed] to walk with me up the street away from his brother and his house. As Mohamed began to walk with me his brother continued to be aggressive yelling at police while trying to hold on to his brother’s arm.”

61. Senior Constable Scipione agreed that, when the appellant was arrested, he said:

“Yeah but I didn’t do it. I have behaved myself for the past four years. If I hit him I would tell you.”

62. Senior Constable Scipione confirmed the evidence of Senior Constable Davies that as the latter handcuffed the appellant Maher Fadel stood around 10 metres away and screamed:

“Arrest me. I’m the one who hit the guy. Arrest me … Arrest me, that’s my brother, arrest me.”

63. He then saw Maher Fadel climbing over a small gate in an attempt to reach the appellant. He was prevented from doing so by another police officer, took a few steps backward and kicked a steel fence extremely hard causing a significant dent in the fence.

The evidence of Senior Constable Oliver

64. Senior Constable Oliver attended the scene in company with Senior Constable Scipione. Reading from his statement, he also gave a description of the appellant in the following terms:

“… about 170cm in height, slim build and of Middle Eastern appearance. He had short wavy brown hair and some stubble like facial hair. He was wearing a grey shirt with some type of print on the front and light blue jeans. As I approached the accused he was standing in his driveway and appeared to be in an angry mood. He was pacing left and right with clenched fists and continually stated words to the effect of, ‘I’ll break all their fucking jaws’.”

65. Prior to these events, Senior Constable Oliver knew Maher Fadel, but did not know the appellant. He came to know his name through the arrest process.

66. Senior Constable Oliver also observed Maher Fadel kick the fence, and appearing to be “very aggravated” at the appellant’s arrest.

The evidence of Detective Senior Constable Brandon

67. Detective Senior Constable Brandon’s role at the scene was to take photographs of what he understood to be relevant locations. He did not observe the attack on Ala Ghunaim. He later attended the St George Public Hospital where he spoke to Ala Ghunaim and took a statement, which I now set out in full:

“When I pulled up I parked my ute across the road from my mother’s house on the opposite side of the street. When I pulled up I noticed two or three cops separating people that were pushing and shoving each other. This was happening out the front of mum’s house and also out the front of 94 New Illawarra Road. I got out of my car and walked across the street. The father of the family that lives at 94 New Illawarra Road Bexley called out to me and started walking toward me.

He yelled ‘Ala just come here’. He said this in Arabic. We walked towards each other and one of his sons was on my right-hand. As the father approached me the son kicked me to the mouth. I felt a large amount of pain to my mouth and I think I blacked out. I fell.

I blacked out for a number of seconds and I woke up. I was sitting on the road. I was spitting up blood. Large amounts of blood were coming from my mouth. The back of my head was sore. I think I hit it on the road when I fell. The son that kicked me is about 18 to 20 years old, short black hair, thin build. His hair is receding a little on the side. He is wearing a navy blue jacket and I think a yellow shirt. He has a thin little beard. I wasn’t really focussing on him as I was looking at the father. I believe I would recognise him if I saw him again. I did not give any person permission to assault me and my front teeth are damages [sic] and my jaw is aching. I think it could be broken.”

68. Detective Brandon then returned to the police station, where he took possession of the boots that the appellant was wearing. He submitted the boots for testing for the presence of blood or other biological material. The test results were negative.

69. The other witnesses in the prosecution case were a medical practitioner and a dentist. Their evidence did not advance the case in respect of identification and need not be summarised.

The evidence in the defence case

70. The appellant did not give evidence. He called one witness, Christopher Benatos. Mr Benatos said that he was a very close family friend of the appellant. He produced a photograph of the appellant that he had taken on 10 March 2011. The photograph showed, on the appellant’s right shoulder area, a tattoo from the top of his shoulder and down half of his arm. Mr Benatos thought it said “prophet” or something like that. He said the tattoo went all the way around the appellant’s arm. He said that the appellant had another tattoo across his chest, which read “only God can judge me”.

The grounds of appeal

Grounds 1 and 2: identification of the appellant in court

71. By Ground 1 it is asserted that the failure of the trial judge to discharge the jury following the “in-court identification” of the appellant by Samih Ghunaim occasioned a miscarriage of justice. By Ground 2, pleaded alternatively to Ground 1, it is asserted that inadequate directions were given in relation to that evidence.

72. The grounds arise out of the answer given by Samih Ghunaim extracted above in his evidence in chief which may be considered to have been partly unresponsive. The question asked was whether, at the time he observed the man that kicked his son, Samih Ghunaim knew his name. His answer was:

“No. At that time, I know he is one of the boys of the next door family. I can recognise him. I am positive it is that man there.”

It is the last sentence in this answer that is the focus of these grounds of appeal.

73. The argument in support of these grounds, particularly Ground 1, proceeded on the basis that the answer given by Samih Ghunaim amounted to an “in-court identification” of the appellant.

74. It has long been recognised that evidence of identification carries with it specific dangers to which the jury must be alerted: see Davies v The King; Cody v The King (1937) 57 CLR 170; [1937] HCA 27; Domican v R (No 3) (1990) 46 A Crim R 428 (in this Court); Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 (on appeal to the High Court – although the High Court reversed the decision of this Court, it did so on the basis of erroneous application, not erroneous statement, of relevant principles).

75. Since 1995, in NSW, the admissibility of evidence of identification has been governed by the Evidence Act 1995 (NSW), in particular ss 55 and 56 (relevance) and s 137 (unfairly prejudicial evidence). The warnings and directions required to be given where identification evidence is admitted are spelled out in ss 116 and 165. The common law that predates the Evidence Act is not, however, rendered redundant, and is of particular utility in explaining the rationale of the caution that must be exercised with respect to identification evidence. Particular caution is required in respect of that specific category of identification evidence known as “in-court” identification: Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17; Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72.

76. What gives “in-court identification” evidence its especially dangerous quality is that:

“… all the circumstances conspire to compel the witness to identify the accused in the dock” (Alexander, at 426-7, per Mason J)

77. It was described by Gleeson CJ in Festa as “one of the most notoriously dangerous” forms of identification evidence because it is usually given in circumstances that strongly suggest the answer that is ultimately given (Festa, p 601).

78. These propositions may be accepted as well established. The submissions on behalf of the appellant proceeded on the basis that the evidence given by Samih Ghunaim fell into the dangerous category of “in-court identification”, and that, as a consequence of its having been given, the trial judge ought to have acceded to the application for discharge of the jury, and that her failure to do so caused a miscarriage of justice.

79. Counsel sought to show that, until he was confronted with the appellant in court, Samih Ghunaim had been unable to identify the man he had seen attack his son, and that, therefore, his identification of the appellant in the court fell into the “notoriously dangerous” category.

80. A preliminary question arises. That is whether the identification of the appellant by Samih Ghunaim was properly to be called “in-court identification” evidence. Samih Ghunaim had already given evidence in explicit terms that he had observed the appellant walk or run past him, approach Ala Ghunaim, jump in the air and kick Ala Ghunaim, and run back to the Fadel house. Earlier, in relation to the brick throwing incident, he had said:

“Really they were the boys of the family living in number 94. I can recognise them as the boys of the neighbours but I could not tell you their names at that point. I don't know who is who.”

That remained his position throughout, and, indeed, was his position in the fragment of evidence relied upon as “in-court identification” evidence. When his evidence is taken as a whole, it is clear that his position was that, while he recognised the assailant as one of the Fadel brothers, he was not able to put a name to him until given the name by either Hala or Hussam. He was unshaken in his evidence that the man he saw arrested was the man who had kicked Ala Ghunaim.

81. The passage from the judgment of Mason J in Alexander was referable to cases where the witness has no prior knowledge of or familiarity with the accused person and is asked, in one form or another, if he or she recognises, or can see, the offender in the court. Where the alleged offender is seated in the dock, there is one obvious and compelling answer to that question. That is what Gleeson CJ was referring to in his observation in Festa. (Alexander was not a case of “in-court identification” evidence; the accused had been identified by a number of witnesses from a photographic array, and the fairness of the admission of evidence resulting from that process was the issue in that appeal. Mason J made the observations quoted above as obiter.)

82. Festa was a case of “in-court” identification. Ms Festa was charged in Queensland with a number of offences of armed robbery of banks involving the unlawful use of motor vehicles, committed over a period of 2-3 months. A number of witnesses at relevant locations had observed individuals who may have been suspected to be perpetrators of the offences. At least some of those witnesses gave descriptions of the individuals they had seen. Four of the witnesses were shown a photographic array, which included a photograph of Ms Festa. None was able to make a positive identification, although one selected a number of photographs as “similar to the woman he had seen”. More than four months after the robberies, three of the witnesses were taken by police to a courthouse where Ms Festa was to appear. The witnesses were asked, if they saw anyone who looked like the female they had observed, to let the police officer know (p 608). Each identified Ms Festa, in the precincts of the court, either by appearance, gait, voice or a combination of those. It was accepted that Ms Festa was the only female present at the court in the age range of the female who had been observed as a participant in the offences.

83. The High Court rejected grounds of appeal that challenged the admission of the evidence. It upheld a ground that the directions given were inadequate, but nevertheless dismissed the appeal on the ground that no substantial miscarriage of justice had occurred.

84. One thing that emerges from the decision in Festa is that “in-court identification” evidence, while to be treated with circumspection and caution, is not necessarily inadmissible. Admission of such evidence therefore does not mandate discharge of the jury, although it does call for careful, firm and clear directions.

85. That, in my opinion, is sufficient to conclude the issue in relation to Ground 1. This was a case far removed from Festa. This was not a case in which the evidence of identification was given by a witness previously unacquainted or unfamiliar with the person identified. This was evidence given by a person who had frequented the premises next door to those of the appellant, who knew and recognised (although not by name) members of the appellant’s family (including the appellant), and who had observed at close quarters the commission of the offence and its immediate aftermath, including the arrest of the appellant. If it is “in-court identification”, it is of an unusual and special kind, not subject to all of the same weaknesses as, for example, the evidence in Festa, which, notwithstanding its weaknesses, was held not to have been inadmissible.

86. On behalf of the appellant, heavy reliance was placed upon a decision of this Court: Aslett v R [2009] NSWCCA 188. Mr Aslett was charged with kidnapping and indecent assault, arising out of an incident in which the complainant was abducted and assaulted in her car by two men, and driven to a hotel where there was an ATM. She never saw the face of either man and was in no position to identify either of them. The evidence the Crown proposed to call to implicate Mr Aslett as one of the two men came from CCTV footage, and from a photograph identification card that one of the men had accidently left in the complainant’s purse. However, a security guard at the hotel had seen the two men, and had the opportunity to observe them. He gave a description of one of the men to police. Five weeks later, he was shown a photographic array, which included a photograph of Aslett. He was not able to identify the man he had seen in any of the photographs in the array. However, when he gave evidence he (plainly unexpectedly) identified Aslett, who was then in the dock. Counsel immediately sought discharge of the jury, which was refused. No directions concerning “in-court identification” evidence were given. Kirby J (with whom Allsop P and Johnson J agreed) concluded:

“57  I believe that the jury should have been discharged. I would find error. The evidence was inadmissible. It had little probative value. It was highly prejudicial. It went to the heart of the matter in contest, namely the identity of Mr Aslett. The evidence changed the entire complexion of the case from a circumstantial case to a case with direct evidence of Mr Aslett’s involvement. There was, I believe, the risk of a substantial miscarriage of justice unless the jury was discharged.”

Kirby J added some additional observations, relevant to the discretionary aspects of a decision to discharge the jury in that case. One was that little inconvenience would have been caused by discharge, since the trial had just begun and the security guard had given evidence on the first day. Further, the Crown appeared to have taken (possibly unfair) advantage of the unexpected turn of events in order to change the parameters of the Crown case. Kirby J also considered that the directions given by the trial judge were inadequate. It is unnecessary here to consider those directions.

87. The ground that a miscarriage of justice was occasioned by the refusal of the trial judge to discharge the jury can only be sustained if the evidence is held to be inadmissible, and that the effect of its admission is incurable by directions. The effect of Alexander, and, particularly, Festa, is that the evidence was admissible (notwithstanding the views of this Court in the particular circumstances of Aslett), even if properly characterised as “in-court identification”. It may be noted that this was not a case, as in Aslett, where the evidence changed the direction of the Crown case. The Crown case here was always that Samih Ghunaim recognised the appellant as the perpetrator of the attack on Ala Ghunaim. He consistently maintained that he knew the Fadel brothers by sight, though not by name. What was unexpected was Samih Ghunaim’s positive and somewhat forceful identification of the perpetrator as the man in the dock in the court. That may have added emphasis to the Crown case, but it did not change it in any material fashion, as was the case in Aslett.

87. The next question is whether an appropriate direction was given in response to the evidence and the application for discharge. As indicated above, trial counsel was invited to formulate the direction for which she contended. She did so, and the trial judge not only gave that direction in the terms suggested by counsel, but strengthened it by an addition of her own. In the result, the direction given was recorded in the transcript as:

“… You have previously seen the current witness, Mr Samih Ghunaim identify in the courtroom the accused as the person who kicked Ala Ghunaim. This Court does not allow an identification made in the courtroom, because there are so many problems connected with a procedure of identification in the courtroom. This identification of the accused person in the courtroom is not considered reliable in any way, because of the real danger that the identification might have been based, consciously or subconsciously, on the sole fact that the accused is seated here as the person charged with the alleged offence.

I direct you to disregard any gestures or words used by the witness, Samih Ghunaim to identify the accused in the courtroom today. I’m emphasising the words ‘in the courtroom’. Much of the evidence is concerned with identification evidence. But, insofar as any witness is giving evidence in court, you can imagine it is very tempting when even trying to do the best you can, it is very tempting, when you know someone is seated there as the accused, to point to that person as the person that you are identifying. By [sic – but] that does not mean that such a procedure identifies the person on the day in question. Because, as I said, it can be very tempting to point to that person, based on the fact you know they are seated there as the accused person of the offence. So, it is just, insofar as there is any in-courtroom identification, that you cannot rely on that evidence. Mr Crown was not seeking to adduce that from the witness, the witness volunteered that information, and you can imagine that it is tempting to be able to present evidence in that simple way. But the court experience over many, many, many years is that that cannot be a reliable form of evidence, because it does not really cogently demonstrate the memory of the witness as at the point in time when the alleged events occurred. So you must disregard any in-courtroom identification, because it is simply not reliable. Thank you.”

89. The criticism made in Ground 2 is that the trial judge did not repeat this direction in the summing up. It was acknowledged that trial counsel did not seek a further direction. That may well have been a forensic decision, made to avoid drawing again the jury’s attention to the answer that Samih Ghunaim had given. The direction given was forceful. The jury were told, immediately after the evidence had been given, to disregard it. No more was required.

90. I would reject Grounds 1 and 2 of the appeal.

Ground 3: factual misdirection

91. The Crown concedes that a factual error was made by the trial judge in directing the jury. The success of this ground of appeal depends upon the significance of that factual error in the overall context of the trial.

92. The error occurred in the course of directions given concerning what Ala Ghunaim said when interviewed by Detective Brandon at the hospital on the day of the incident. What Ala Ghunaim said was recorded in Detective Brandon’s notebook and read onto the transcript. It is set out in full above at [67]. At no stage in that statement did Ala Ghunaim name any person, including the appellant, as his assailant.

93. The relevant direction given by the trial judge in the summing up is recorded as follows:

“The Crown relies upon what Mr Ala Ghunaim said to the police in the time shortly after the alleged offence. The Crown relies upon what Mr Ala Ghunaim said about the alleged assault by the accused upon him as evidence that such an assault did occur at the hands of the accused.

You will recall the evidence that was given about that complaint; at the time when Mr Ala Ghunaim first spoke to the police he gave a description of the person that he says kicked him. It is for you to decide whether the complaint was made and what its contents were. If you find that the complaint was made substantially to the effect that a person as described by Ala Ghunaim kicked him, then you can use evidence of what was said in the complaint as some evidence that such an assault did occur by a person described in that way. That is, you can use it as some evidence independent of the evidence given to you of that incident by Mr Ala Ghunaim in the witness box.

If you recall, the Crown relies on that early version of what Mr Ghunaim said to the police by way of obtaining a description of the person who kicked him and the circumstances in which Mr Ala Ghunaim was kicked, to then put to you evidence which the Crown relies upon as suggesting a reliability of identification and a consistency with the accused. I will turn later to the evidence of when it was that Mr Ala Ghunaim was able to give a name to the person who kicked him. It was in the witness box that Mr Ghunaim said it was Mohamed Fadel who kicked him. When he spoke to the police at the hospital, he presented a name, or some names, and I will turn to the detail of that evidence, because those matters are of significance to each case before the Court.” (italics added)

94. The error occurred in the two italicised sentences, in a rather lengthy passage, in which some emphasis was placed upon Ala Ghunaim having given a description of his attacker. It passed unobserved by either counsel. That in itself suggests that it was of little consequence in the overall atmosphere of the trial, and in the comprehension of the directions as a whole.

95. Detective Brandon had given his evidence the day before the summing up. Before the summing up, both counsel addressed, neither, of course, making any reference to nomination of the appellant by Ala Ghunaim in his statement to Detective Brandon. Indeed, the Crown prosecutor referred to the statement, in this submission as recorded:

“On that day, about 5.50pm, Mr Ghunaim gave a notebook statement to Senior Constable Brandon. You have heard the relevant parts or the substance of that being read out to you in evidence. You might think that is the first occasion that Mr Ghunaim had, some hour to an hour and a half after this event, of telling the police what had happened to him. And one thing you might bear in mind is that he describes the man as having a receding hairline, a little on the sides. It is also clear he gives this man clothing on his top, which is not consistent with any of the eye-witnesses, and that [he] describes him as wearing a navy blue jacket and yellow shirt. That is not the evidence of either Samih Ghunaim or Hala Ghunaim. What you might think is interesting about that is that when you look at the photographs that were taken by the Maritime and Road Services in June and December that year, you might think it shows the accused with receding hairline along the sides.”

96. Defence counsel also made some, although brief, reference Ala Ghunaim’s statement. She is recorded as saying:

“You have also had read out to you what my friend - complaints evidence, contents of a notebook made at the time at the hospital that the police officer took the statement and in that he said that the man that kicked him had a blue jacket and a yellow shirt on. ‘He had receding hair at the side, a thin little beard ...’

When asked, when I confronted him with the contents of that first statement, particularly about the receding hairline he backed away from that. I asked him that person in that photo exhibit F does not have a receding hairline and he answered ‘not this one but the computer one’.”

(Exhibit F was an enlarged print of the photograph numbered 11, selected by Ala Ghunaim in the computer photographic identification process. The last sentence of the submissions accordingly reflects the answer given by Ala Ghunaim in cross-examination, but the issue was not pursued.)

Counsel went on to address on the computer photographic array.

97. Although the error made by the trial judge was regrettable, it is apparent that it was of little moment. It did not cause a miscarriage of justice. I would reject this ground of appeal.

Ground 4: DNA

98. The evidence concerning DNA was also given by Detective Brandon. It was brief. Detective Brandon said that he seized the boots the appellant was wearing, and had them forensically tested for blood or other “biological material” (for the purposes of DNA testing). The tests were negative.

99. There was no cross-examination of Detective Brandon on the subject. In her final address, defence counsel said (as recorded in the transcript):

“DNA results will not help you. There is no science and help to this.

The lack of DNA results however may help you consider that the Crown haven’t proved their case against Mohamed and that is consistent with his version.”

100. During a break in proceedings, the trial judge took up this submission with counsel, who agreed that she had made a mistake. The trial judge is recorded as saying:

“It is not available for the jury to speculate about that. I have to redirect them.

It is just wrong.

The lack of DNA is at the most a mutual [sic – neutral] fact that neither supports nor refutes liability for the offence.

It needed expert evidence to make that submission to the jury and there was none.

And it is significant in terms of inviting the jury to speculate about that in circumstances where it is impermissible for them to do so and I am conscious of the DNA issue in the trial in identification.

It is just so misleading and confusing and potentially leading them into –”

Counsel then withdrew the submission.

101. The direction given by the trial judge is recorded in the following terms:

“There was a reference to DNA. The fact of the matter here is, ladies and gentlemen, that there is not [sic] DNA, but that is a neutral factor. The absence of DNA neither proves nor disproves that the offence was committed. It is possible to have someone’s DNA located in an incident without them being an offender. It is possible for a person to commit a crime without there being DNA present. There is no evidence before you in that respect that would assist you saying, well, the lack of DNA means it is more likely that it was not the accused or that it was less likely. It is just not logically available in that way so the lack of DNA is a neutral factor; it means nothing.”

102. The complaint now made is that the trial judge:

“impermissibly directed the jury to effectively not take such evidence into account and that it was not evidence which could suggest that the appellant did not kick Ala.”

It was contended that the direction “completely ignored” the evidence that no blood was detected on the boots. It was submitted that the direction that the evidence “means nothing” was a grave misdirection which potentially cost the appellant the chance of an acquittal. Finally, it was submitted that the error was of such a fundamental character that it caused a miscarriage of justice.

103. I cannot accept those submissions. While, as Crown counsel on the appeal conceded, the original submission was open to counsel, it was then necessary for the trial judge to explain how the jury could use the DNA evidence. The direction given was in accordance with the evidence in the trial. It would have been open to trial counsel to cross-examine Detective Brandon (if he was shown to be suitably qualified) about the likelihood that, after kicking a person, blood or other biological material might have been expected to have been found on the assailant’s boots. And it would have been open to trial counsel to have called expert evidence on that subject. Although a plastic and reconstructive surgeon, who saw Ala Ghunaim on the day after his injury, gave evidence, no questions were asked of him to establish that his injuries were such that it might have been expected some DNA residue would have been left on the footwear of the attacker. That was not done. Rather, counsel appears to have intended to rely only on a negative inference. There was an evidentiary vacuum. Given the state of the evidence, the direction was adequate.

104. I would reject this ground of appeal.

Ground 5: unreasonable verdict?

105. The final ground of appeal against the convictions asserts that they were unreasonable and could not be supported on the evidence. Although the ground is framed in the plural, and therefore challenges the convictions on both Counts 1 and 3, no submissions were directed to the intimidation count. Argument was limited to the guilty verdict in respect of the assault of Ala Ghunaim.

106. The task of an appellate court confronted with such a ground is well established. It was stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ (in a judgment intended to be definitive) as:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (at p 493, internal citations omitted)

Their Honours said:

“In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1) [of the Criminal Appeal Act 1912 (NSW)]. The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.” (at pp 492-3)

107. Their Honours dealt expressly with the role of the jury and the recognition to be accorded to its sometimes superior position in having seen and heard the evidence and the manner in which it was given, and said:

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence … the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (pp 494-5, internal citations omitted, italics added)

108. These tests were endorsed in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The task of the appellate court is not confined to determining whether the verdict of guilty was open to the jury. The court must make its own independent assessment of the sufficiency of the evidence to sustain the conviction (see [20]-[22]). That is what I proceed to do.

109. In written submissions, counsel for the appellant made extensive reference to authorities specifically related to an assertion that a verdict of guilty was unreasonable where an accused was convicted of one or more offences, and acquitted of another or others: reference was made to MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151; Raumakita v R (2011) 210 A Crim 326; [2011] NSWCCA 126; Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75; see also Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56. However, the submissions went on to state that it is not here contended that the acquittal of the appellant on the affray count in any way bore upon the assessment of the verdicts of guilty. The test to be applied therefore remains that stated in M and SKA.

110. In support of the ground, counsel relied upon three aspects of the evidence as such as to give rise to the significant possibility that an innocent person has been convicted. The thrust of the submissions was directed to supporting an unstated thesis: that the evidence left open the reasonable possibility that another person (specifically Maher Fadel) was the perpetrator of the assault on Ala Ghunaim.

111. The three aspects of evidence were:

• the identification evidence;

• the conduct of Maher Fadel, including his statement to police officers claiming responsibility for the assault; and

• the absence of any DNA evidence.

I will deal with these in reverse order.

112. The point concerning the DNA evidence may be disposed of shortly, in much the same way as Ground 4 above, complaining of the direction given in relation to the DNA, was disposed of. As the extracted final submission (which was, in any event, withdrawn) of defence counsel above (at [99]) demonstrates, little was made at trial of the absence of evidence of DNA on the appellant’s boots, for the very good reason that there was little evidence upon which to found a submission. In the circumstances of this trial, the absence of DNA evidence was, as the trial judge directed the jury, neutral. It does not assist in the assessment of the present ground of appeal.

113. The next aspect of the evidence to consider is the evidence of the conduct of Maher Fadel. The evidence showed that, at the scene, he was behaving in an aggressive fashion. To this may be added his claim for responsibility for the assault made apparently spontaneously at the time the appellant was arrested.

114. That, no doubt, was a matter for the jury’s consideration. It is also, in accordance with SKA, a matter to be considered by this Court in assessing the sufficiency of the evidence to support a conviction. In considering the evidence, I bear in mind that Maher Fadel was not the only person present to claim responsibility for the assault. So also did a female participant in the events (see [57] above). Maher Fadel was not called to repeat in evidence his claim to responsibility. Nor was it directly suggested to or by any of the identifying witnesses that the attacker was another member of the Fadel household.

115. Essentially, Ground 5 stands or falls on the identification evidence. There were undoubtedly, in the identification evidence, discrepancies. Whether those discrepancies were such as to give rise to a significant possibility that the appellant was not the attacker is the question this Court must resolve. I am not of the opinion that the advantage of the jury in seeing and hearing the witnesses outweighs the capacity of this Court to make its own assessment based upon the record of the trial. Counsel for the appellant made three principal points. She referred to:

• conflicting evidence concerning who was or was not wearing a shirt;

• Hala Ghunaim’s evidence concerning the appellant’s tattoos, contrasted with the evidence of Mr Benatos in the defence case; and

• the other clothing worn by the appellant.

116. The last matter concerned the transcript of the evidence of Sergeant Silva, which records him, at one point, as saying that the appellant was wearing white pants. As I have indicated above, I am satisfied that this was a mistranscription and the evidence given was “work pants”. That being so, there was no significant discrepancy in the description of the appellant’s attire, although witnesses described the pants he was wearing, variously, as jeans or dark work pants.

116. Counsel made much of two items of evidence concerning the appellant’s upper body clothing. A number of witnesses (Mr Meqdadi, Hala and Samih Ghunaim, Sergeant Silva and Senior Constable Scipione) gave evidence that, initially, the appellant was not wearing a shirt, although all except Hala Ghunaim agreed that he obtained a grey t-shirt at some time prior to his arrest. Senior Constable Davies, however, said that when he (Senior Constable Davies) arrived on the scene, the appellant was wearing a grey t-shirt and light blue jeans, but Maher Fadel was wearing a red baseball cap and not wearing a shirt. Since Senior Constable Davies arrived on the scene at a time after Ala Ghunaim had been assaulted, his evidence concerning the appellant’s clothing is not inconsistent with other evidence in the trial. No other witness, however, describes Maher Fadel as not wearing a shirt. That may be explained by the fact that the focus of the trial was not upon Maher Fadel or his clothing, and, apart from the evidence of Senior Constable Davies, there was simply no evidence of what he was wearing. Counsel argued, accordingly, that, since Senior Constable Davies’ evidence was that Maher Fadel was “shirtless”, and that the evidence tended to suggest that the person who assaulted Ala Ghunaim was shirtless, the reasonable possibility that it was Maher Fadel who was the assailant could not be excluded.

117. In my opinion, the obvious explanation for the discrepancy in the evidence is that Senior Constable Davies was mistaken in his description of Maher Fadel as wearing no shirt. Alternatively, it may be that Maher Fadel, too, was not wearing a shirt, but that that fact escaped comment because of the relative unimportance of Maher Fadel in the context of the trial. Counsel argued that it ought not be seen as a reasonable possibility that two men were present without shirts, but that is not clear on the evidence. The fact simply is that no attention was paid to the clothing of Maher Fadel.

118. A further discrepancy lies in the evidence of Hala Ghunaim. She alone gave evidence that, after his arrest, the appellant still was never wearing a shirt.

119. Another is Ala Ghunaim’s description of the clothing of his attacker as a navy blue jacket and (he thought) a yellow shirt. No other witness gave a similar account of the appellant’s clothing.

120. The next aspect of the evidence upon which counsel placed considerable store was the evidence of Sergeant Silva on the same topic. Sergeant Silva, like all police witnesses, gave his evidence in chief by reading from his witness statement. His evidence has been set out at some length above, and I will repeat only so much as is necessary to explain the way in which this argument is put. As I have mentioned above, Sergeant Silva gave his evidence in chief by reading his statement.

121. He described “a male from [No] 94 wearing no shirt” who was taunting him. He went on to say that he now knew this male to be the appellant.

122. At that point in reading his statement, Sergeant Silva was interrupted, by the Crown prosecutor asking the basis on which he asserted that the man wearing no shirt and taunting him was in fact the appellant. He answered, somewhat unresponsively:

“At the time from my enquiries and witnessing what was happening he was standing a couple of metres away from me in the front yard so after everything had been sorted out I realised at that time he was taunting me he had no shirt on but then my view of what I was thinking about got distracted for a short period before I focussed back on him and when I focussed back on him I think he had a grey shirt on.”

He then resumed reading his statement, and described his observation of Ala Ghunaim lying in the roadway, bleeding profusely. He also described the appellant as being in close proximity, wearing no shirt, dark work pants and steel capped boots. He then went on reading his statement which included:

“I noted Mohamed Fadel’s appearance at that time and maintained a presence around Ala Ghunaim who was lying on the ground … I lost sight of Mohamed Fadel for a short period before I observed him again, however this time he had put on a grey shirt.”

124. Counsel interpreted this evidence as evidence that the appellant was not wearing a shirt, then was wearing a shirt, and then was not wearing a shirt. That, I am satisfied, is a misinterpretation of Sergeant Silva’s evidence, brought about principally by reason of the interruption to his evidence when he was asked to explain how he knew that the person he observed was the appellant. The interruption had the effect of causing him to give some of his evidence out of the sequence in which it appeared in his statement. When the interruption is excised, it is clear that, in his statement, Sergeant Silva was saying that when he first saw the appellant, he was not wearing a shirt (and was taunting Sergeant Silva), that the appellant was then present, in close proximity to Ala Ghunaim (still wearing no shirt), that Sergeant Silva was distracted for a short time, and that when he next observed the appellant, he was wearing a grey shirt. There is no incongruity in this evidence.

125. In this context also, counsel sought to make something out of the transcript of the evidence that followed, in which Sergeant Silva is recorded as saying that the appellant was wearing “white pants” and no shirt. For reasons I have given above, I am satisfied that this a mistranscription for “work pants”. That conclusion is confirmed by the absence of any comment by counsel as to any asserted inconsistency when she addressed, but more particularly by a question asked shortly after that evidence, recorded in the following way:

“That you said had no shirt on, wearing dark work pants and steel capped boots, is that correct?”

126. The next point made on behalf of the appellant concerned the evidence of the appellant’s tattoos. The relevant evidence was given by Hala Ghunaim and Mr Benatos.

127. Hala Ghunaim’s evidence is of considerable significance, because she claimed to have seen the assault upon Ala Ghunaim, and also to have known, by name and by sight, the Fadel brothers. To recapitulate her essential evidence, she described the assault in the following terms:

“So Ala was walking towards my Dad and amount [sic] the policeman but looking at the Fadels as he was walking, and then Mohamed put on his safety boots, no shirt as always and just bolted towards my brother on the right hand side of my brother and then jumped up in the air and swung and kicked him in the chin.”

128. Earlier in her evidence she had given a description of several of the Fadel brothers, including Maher Fadel and the appellant. Her unchallenged familiarity with the Fadel brothers no doubt was accorded considerable weight by the jury in the assessment of her evidence, and ought to be given considerable weight by this Court in the same assessment. As outlined above, she described a tattoo on his forearm and on his side. However, in cross-examination she described the tattoos in more detail, saying that she thought that the one on his side near his ribs had the numbers “313”.

129. Mr Benatos described the appellant’s tattoos. One, he said, ran from the top of his right shoulder, and covered half of his arm. He thought it had the word “prophet” or something similar. The other tattoo, across the appellant’s chest, read “only God can judge me”. He produced a photograph taken in 2011, of the appellant that exposed his tattoos. Neither in Mr Benatos’ evidence nor in the photograph, is there any support for a tattoo with the numbers “313”.

130. However, the photograph, in my opinion, does not support discrepancy from the description given by Hala Ghunaim of the magnitude ascribed to it by counsel. It is true that Hala Ghunaim placed a tattoo on the appellant’s forearm, while the photograph clearly shows the tattoo to be on the appellant’s upper arm, but she was not asked to explain what she meant by “forearm”, and I infer that her use of “forearm” was no more than an error of language. Assuming that, by “forearm”, she was referring to the appellant’s upper arm, her description is not at major variance with what can be seen in the photograph, or the description given by Mr Benatos.

131. Her account of a tattoo on the appellant’s side, near his ribs, is not significantly discordant with the description of Mr Benatos of a tattoo across the appellant’s chest. Certainly, the photograph appears to show a tattoo running across the appellant’s chest area, but it does not appear to be of major dimensions.

132. Full weight must be given to such discrepancies as have been identified. Balanced against those must be the strength of the evidence, individually and in combination, of four Crown witnesses.

133. Hala Ghunaim was well acquainted with the Fadel brothers. This was not disputed. She observed the incident in which her brother was assaulted. This also was not challenged.

134. Samih Ghunaim also observed the assault. It is not to the point that he could not identify the Fadel brothers by name; the crux of his evidence was that, having observed the assault, he then observed the arrest of the assailant. He was in no doubt that it was the assailant who was arrested.

135. The evidence of these two witnesses was powerful evidence implicating the appellant as the assailant.

136. The identification evidence (from the computer photographic identification process) of Ala Ghunaim was less powerful, but, in the context of the positive identification of the previously mentioned witnesses, strongly corroborative. Also tending to corroborate the identification was that of Sergeant Silva, who, while not observing the assault, saw the appellant in close proximity to Ala Ghunaim shortly after the assault.

137. In my opinion, it was open to the jury to convict the appellant of the charge of causing grievous bodily harm with intent to do so.

138. Identification issues of the kind raised in relation to that offence did not arise in relation to the intimidation count. I am satisfied that it was also open to the jury to convict the appellant of that offence.

139. Having made my own independent assessment of the evidence, I am satisfied that he was rightly convicted.

The application for leave to appeal against sentence

140. The appellant seeks leave to appeal against the sentence imposed in respect of the offence of inflicting grievous bodily harm (with intent to do so) on Ala Ghunaim. He makes no complaint about the sentence imposed in respect of the intimidation offence.

141. Section 33 of the Crimes Act 1900 (NSW) specifies a maximum penalty of imprisonment for 25 years in respect of offences of causing grievous bodily harm with intent to do so. Pursuant to Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a standard non-parole period of 7 years is specified.

The relevant facts for sentencing purposes

142. In the usual course, where an offender is to be sentenced on conviction by a jury after trial, the task of the sentencing judge is to find the relevant facts, in a manner not inconsistent with the jury verdict. That course was, for some reason, not followed in this case. Rather, the parties prepared an Agreed Statement of Facts for sentencing purposes. The agreed facts went well beyond the evidence in the trial, and, in some respects, are of dubious relevance. Nevertheless, the sentencing judge accepted the facts as agreed, and read them into her sentencing remarks. So far as the agreed facts are concerned with the immediately relevant events of 28 August 2012, they accurately reflect the evidence in the trial. The relevant sentencing facts are adequately set out above and need not be repeated.

143. The sentencing judge also had available to her some material relevant to the personal circumstances of the appellant. These were presented in the form of a Pre-Sentence Report and a comprehensive psychological evaluation. A Victim Impact Statement by Ala Ghunaim was tendered.

144. From those documents, the following relevant circumstances emerged. The appellant was born in November 1991, and was 20 years of age at the time of the offences. The psychologist reported that the assessment revealed no symptoms consistent with a diagnosable disorder, but that the appellant suffered from “subclinical symptoms” indicating mild to moderate psychological distress which was reactive and directly related to what were then pending sentencing proceedings. He suffered from anxiety, panic attacks and depressive symptoms. He took a history of an unsettled early life, the appellant having migrated with his father and seven older siblings to Australia from Lebanon at the age of 5, ahead of his mother and younger siblings. The family was then in severe financial difficulties and lived in a substantially deprived way. Circumstances improved somewhat when the appellant’s mother and younger siblings were able to join the family; however, there continued to be substantial financial difficulties. The appellant left school in Year 10, prior to completing the School Certificate. He obtained employment in construction work. He has had other forms of employment. At the time of the offence he was employed as a cement renderer. From November 2014 he was in receipt of workers compensation payments after suffering a head injury. He has no criminal history. At the time of the assessment the appellant maintained his innocence of the offences.

145. The appellant was, as set out above, arrested on 28 August 2012. He was released on bail, subject to conditions, the following day. On 1 April 2014 he was arrested on a warrant but granted bail the same day. No information was provided as to the circumstances of his arrest. He remained on bail thereafter until the verdict of the jury. There is no indication of any breach of bail conditions.

Objective gravity

146. In order to assess the objective gravity of the offence, the sentencing judge resolved one area of factual dispute. That concerned Hala Ghunaim’s evidence that she had seen the appellant putting on his work boots before approaching Ala Ghunaim and kicking him to the head. In the trial, it was suggested to Hala Ghunaim that this was a fabrication, an allegation she denied. The sentencing judge found as a fact, beyond reasonable doubt, that the appellant did put on his work boots “immediately before delivering the kick to Ala Ghunaim”, and that this fact was relevant as indicating a degree, although limited, of premeditation.

147. Her Honour then turned to an assessment of the grievous bodily harm sustained by Ala Ghunaim. She noted a submission made on behalf of the appellant that the degree of harm was “at the low end of seriousness” for such offences. After reviewing the evidence, including medical and dental evidence, Ala Ghunaim’s Victim Impact Statement, and some relevant authorities, she found that the grievous bodily harm inflicted on Ala Ghunaim “sits just under the mid-range”.

148. Having regard to the injury to Ala Ghunaim, the objective circumstances, and the fact that the appellant had put on his work boots before kicking Ala Ghunaim, she assessed the offence as “just under the mid-range level of seriousness for this category of offence”.

The proposed grounds of appeal

149. Two grounds of appeal against sentence were specified. By the first, error was asserted in the finding that the offence was just below the mid-range of objective seriousness, the correct assessment being somewhat lower. By the second, it was asserted that the sentence was manifestly excessive.

150. In support of the first ground, reliance was placed upon three propositions:

(a) that the grievous bodily harm inflicted on Ala Ghunaim was at the lower end of the range for offences against s 33(1)(b) of the Crimes Act;

(b)  the fact that the assault was constituted by a single kick; and

(c)  the fact that the assault was spontaneous in an emotionally charged situation, although unprovoked by the victim.

The first proposition is not consistent with the finding that the injury “sits just under the mid-range”.

151. The Crown challenged the third of the propositions, pointing to the evidence that the applicant had already been involved in the threat to shoot Abdellatif Meqdadi, having witnessed the violence taking place, and having put on his steel capped boots before attacking Ala Ghunaim. These, it was submitted, denied spontaneity and evidenced some significant degree of planning. The Crown also pointed to the evidence that at least one child was present at the scene, that the offending took place in a residential area, and that Ala Ghunaim suffered significant ongoing effects of the assault.

152. I accept that s 33 covers a wide range of offending, and that offences against the section can and occasionally do involve injury that might be classed as catastrophic. On the other hand, there are injuries that come within the rubric of “grievous bodily harm” that are very much less severe than the injury suffered by Ala Ghunaim. I do not perceive error in the assessment of the degree of grievous bodily harm made by the sentencing judge. It was significant, and its effects ongoing, but fell below, if only slightly below, the mid-range of injuries that fall within the category. That is precisely what the sentencing judge found.

153. I would reject the first ground of the proposed appeal against sentence.

154. A ground of appeal that a sentence is manifestly excessive must establish that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321 at 325; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [26]-[28]; Vuni v R [2006] NSWCCA 171 at [33].

155. Counsel for the appellant listed 14 factors that she contended spoke for a lesser sentence. (There is a degree of duplication in the list.) The factors cited are:

(a)  the appellant’s lack of a prior criminal record;

(b)  the appellant’s prior good character;

(c)  that the offences were out of character;

(d)  that the appellant committed no offences during the 3½ years following arrest and before trial, during which he was subject to bail conditions;

(e)  the appellant’s youth at the time of the offences;

(f)  the appellant’s favourable prospects of rehabilitation, particularly in the light of his behaviour during the remand period;

(g)  the ‘unusual circumstances’ surrounding the assault;

(h)  the appellant’s difficult childhood;

(i)  the appellant’s psychiatric history post-dating the offences;

(j)  the delay (likely to have contributed to anxiety and stress);

(k)  the appellant’s need for treatment of psychological conditions;

(l)  the absence of substance abuse issues, offering positive prospects of rehabilitation and unlikelihood of re-offending;

(m)  the principle of totality and the accumulation of the sentence for this offence on the sentence imposed in respect of the intimidation offence; and

(n)  sentencing statistics which were said to show:

“the midpoint of full terms and non-parole periods, for s 33 offences after a plea of not guilty, is 8 years and 54 months respectively.”

156. The list of considerations, while somewhat repetitive, is generally valid. However, perusal of the sentencing remarks shows that they were properly taken into account in the sentencing decision.

157. The statistics do not assist the appellant. Indeed, they demonstrate that the sentence falls precisely within the statistical range. Against a “midpoint” of 8 years for the head sentence, the sentence was imprisonment for 6 years and 8 months, falling appropriately within the range demonstrated in the statistics. The same may be said of the non-parole period of 4 years and 2 months, against a “midpoint” of 4 years and 6 months. The sentence appropriately took into account the intimidation offence.

158. I would grant leave to appeal against sentence but dismiss the appeal.

159. The orders I propose are:

(1)  Appeal against conviction dismissed;

(2)  Leave granted to appeal against the sentence;

(3)  Appeal dismissed.

160. BUTTON J: I have made my own assessment of the evidence for the purposes of ground 5. I agree with the orders proposed by Simpson JA with regard to all grounds, for the reasons given by her Honour.

160. N ADAMS J: I have had the advantage of reading in draft the judgment of Simpson JA. I respectfully agree with her Honour’s reasons and the orders that her Honour proposes.

161. With respect to ground 5, I too am not persuaded that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt on count 3. My agreement with her Honour on this ground was reached after an independent examination of the trial evidence. It is to be accepted that there were a number of discrepancies in the evidence, including as to what clothing the appellant and his brother Maher were wearing and the description of the appellant’s tattoos. Despite this, the fact remains that the assault was witnessed by Hala Ghunaim who was well acquainted with the appellant and his brothers. She recognised the appellant as being the assailant. In addition, Samih Ghunaim witnessed both the assault and the arrest of the appellant and gave evidence that the person who assaulted Ala Ghunaim was the person who was arrested at the scene. I am satisfied that it was open to the jury to convict the appellant on count 3.

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Amendments

02 February 2018 - [1] – insert “her”

[16] – “Ghumaim” replaced by “Ghunaim”

[27] – insert “[s]” after "Fadel"

[27] – insert “[sic – saying]”

[39] – “[24]” replaced by “[34]”

[60] – “[sic – Mohamed]”

[82], [84] – “at-court” replaced by “in-court”

[95] – insert “[he]”

[106] – "went on to say” replaced by “said”

[157] – “6 years and 6 months” replaced by “4 years and 6 months”

05 February 2018 -

[3] - "expiring on 3 July 2010" replaced by "expiring on 3 July 2020"

[155] - "(o)" replaced by "(n)"

Decision last updated: 05 February 2018