Fareed v Hales - [2001] NTSC 28

Fareed v Hales [2001] NTSC 28
PARTIES:AHMED FAREED

v
PETER WILLIAM HALES

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM COURT OF SUMMARY JURISDICTION exercising Territory jurisdiction
FILE NO:JA 32 of 2000 (9924201)
DELIVERED:  20 April 2001
HEARING DATES:  23 February 2001
JUDGMENT OF:  THOMAS J
CATCHWORDS:

APPEAL - APPEAL AGAINST CONVICTION AND SENTENCE
Appeal from Court of Summary Jurisdiction – appeal against conviction and sentence – evidence of complainant – contradictory nature – differing versions - character evidence – evidence of witnesses – evidence of co-accused
Criminal Code Act 1983 (NT), s 188(2)
Melbourne v The Queen (1999) 198 CLR 1; R v Trimboli (1979) 21 SASR 577; R v Roissetter [1984] 1 QdR 477; Nessel v The Queen (1980) 5 A Crim R 374, cited.
REPRESENTATION:
Counsel:
Appellant:P Loftus
Respondent:  A Fraser
Solicitors:
Appellant:John McCormack
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200105JA
Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Fareed v Hales [2001] NTSC 28
No. JA 32/2000 (9924201)

BETWEEN:
AHMED FAREED

Appellant
AND:
PETER WILLIAM HALES

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 20 April 2001)

This is an appeal against conviction and sentence imposed by the Court of Summary Jurisdiction on 23 June 2000.

The appellant pleaded not guilty to a charge that on 21 October 1999 he:
1.unlawfully assaulted Amy Macpanas AND THAT the said unlawful assault involved the following circumstance of aggravation, namely;
(i)that the said Amy Macpanas was a female and the said Ahmed Fareed was a male.
(ii)that the said Amy Macpanas was indecently assaulted.
Contrary to s 188(2) of the Criminal Code 1983 (NT).
The matter proceeded to hearing and on 30 May 2000, the learned stipendiary magistrate found the offence proved. On 1 June 2000, the learned stipendiary magistrate proceeded to conviction and imposed a fine of $800.
On 23 June 2000, the matter was brought back before the learned stipendiary magistrate and his attention was drawn to the provisions of s 78BB of the Sentencing Act 1995 (NT) which requires the imposition of a gaol sentence for a person found guilty of a sexual offence. Pursuant to s 112 of the Sentencing Act the learned stipendiary magistrate then revoked the sentence imposed on 1 June 2000 and imposed a sentence according to law. The appellant was convicted and sentenced to the rising of the court; at the end of the court’s business for the day. The learned stipendiary magistrate further imposed a fine of $600 plus a $20 Victim Assistant Levy.
The grounds of appeal as amended are as follows:
“1.That the said adjudication was unsafe and unsatisfactory in that no reasonable properly instructed jury viewing the totality of the evidence could properly have adjudged the appellant guilty of assault with the circumstances of aggravation charged.
2.That in reaching a determination that the appellant was guilty as charged the learned Stipendiary magistrate failed to give any or any proper regard to the contradictory nature of the evidence of Amy Macpanas.
3.That in adjudicating the question of guilt the learned Stipendiary Magistrate failed to give any or any proper regard to the character evidence filed with the said Court on behalf of the appellant.
4.That in reaching a determination that the appellant was guilty as charged the learned Stipendiary Magistrate failed to give any or any proper regard to the evidence of the witness McKiernan.
5.That in reaching a determination that the appellant was guilty as charged the learned Stipendiary Magistrate failed to give any or any proper regard to the evidence of the witness Watts.
6.Alternatively to the foregoing, that, in reviewing, upon 23 June 2000, and in so doing, varying his final decision and Order made on 30 May 2000, by recording the conviction, the learned Stipendiary Magistrate exceeded his authority under the Sentencing Act.”
It is relevant to note that the appellant was jointly charged with Mohammad Khalid who was acquitted of the charge.
In the Crown’s opening address to the Court of Summary Jurisdiction it was alleged as follows (t/p 8):
“. . . and that’s when the second assault begins, and her evidence will be that the other man, the tall man, this is Ahmed Fareed, more or less puts his arms around her and grabs her, as in a hugging form and then attempts to try and kiss her.
So, she will give evidence that she’s struggling and trying to turn her head from side to side but he is attempting to kiss her and at one stage, his hand go – his right hand will go down on to her breast and squeezes it. So that’s the substance of the second allegation. And of course we do have Amy MacPamas (sic) and Kim Legend who will dispose of this evidence and, anyway it’s then that Amy pulls back, says a few words to him and that they then leave.
And the evidence will then progress on to who she then makes complaints to. There’s her boyfriend, her employer and they are also to be called. . . .”
Mr Loftus on behalf of the appellant submitted that the complainant gave two differing versions of the incident during her evidence in chief and both these versions differed from the Crown opening.
During examination in chief the complainant gave the following evidence (t/p 16):
“Okay, and what did you do next?---He started kissing me, he kissed me on the cheek, and tried to kiss me on the mouth. I was moving my head from side to side, trying to get him away from kissing me on the lips. And then I pushed him away and moved with my back towards him, to try to squeeze between him and the counter. Then he put his hand down the front of my top, just his fingers down. I knocked his hand away and pushed him away.
MR LOFTUS: Just have that description sir, where she’s just indicated where the hands were.
HIS WORSHIP: Note, did she make a (inaudible) – sorry did she make a movement with your hand, do it again please?---Over my shoulder.
Indicates fingers going down over the right shoulder, pointing down towards the top of the right breast.
MS MUSK: Okay. Take a step backwards now. You said, and this is if you go backwards to when he put his arms around you, and you said he was trying to kiss you?---Yes.
Was there contact between the two of you, I mean in terms of the face?---Yes, he was kissing me all over my face. As I was moving my face from side to side.”
and at t/p 17:
“Okay, so you pushed him away from you, did you say anything to him?---No, I just wanted to get behind the counter.
What did you do next?---I went to go behind the counter and he put his right hand under my arm and put his hand on my breasts, over my clothes.
How hard or how lightly did he do this?---Between hard and light. He just – he didn’t hurt me. But it was placed on my breast.
Which one was it on?---My right breast.
Did you – could you tell which hand it was he used?---Yes, his right hand because he was behind me.”
It is submitted for the appellant that these versions of the incident are contradictory.
The learned stipendiary magistrate in the course of his reasons for decision stated (t/p 140):
“I find on the evidence that I am satisfied beyond all reasonable doubt that the defendant, Fareed, did in fact put his arms around MacPamas, that he held her close, that he attempted to kiss her on the face, that she was struggling and moving her face from side to side to avoid him, was trying to push him away and get away from him and that the defendant, Fareed, put his hand down the front of her dress and touched her breast in a deliberate action.”
I agree with the submission made by Mr Loftus, counsel for the appellant, that this finding does not accord with the evidence given by the complainant although it is substantially in accord with the matters alleged in the Crown opening.
Ms Kim Legend, a witness called by the Crown, gave evidence as follows (t/p 43 - 44):
“And what happened next, who did what?---As the gentlemen went to leave, the tall one of the two stepped forward and gave Amy what looked like it could be a bear hug, and he tried to kiss her on the face and he grabbed her breast.
Okay, when you said bear hug, could you more or less describe where his hands were in relation to her?---Well they went right around her and then his right hand came around and grabbed her on the breast and his left arm was still around the back of her, which made it difficult for her to move, or get away.
When you said that, I think you said he was trying to kiss her, did he kiss her?---Yes, it appeared that way, on the face he kissed her.
What was Amy doing?---She was struggling to step backwards and get away from him and she was turning her head away from him, trying not to be kissed, and she looked really uncomfortable and upset.”
and (t/p 45):
“And you said the he grabbed her. How did he grab her – on the, you said on the breast?---Yes.
How?---Slid his hand below her dress and grabbed her breast and just for a couple of seconds, until she shoved him away.
Do you recall which hand that was?---His right hand.
Do you recall what breast of hers it was?---Left.”
Under cross examination Ms Legend gave the following evidence (t/p 56):
“Yes. And do you say you saw him touch her breast?---I saw him sliding his hand below the top of her dress.
Yes?---And - - -
So are you saying then you did not see his hand touch her breast?---Her dress was in between his hand and my eyesight, so therefore I didn't see his hand upon her breast, but I did see him put her – his hand down her dress, obviously grabbing her breast.
Down the front of her dress?---Yes.
And how far away you say you were when you saw that?---No more than two metres.
Right. Look, you just make – just make that up for the purpose of giving evidence about seeing his hand going down the top of her dress?---Pardon?
You didn’t just make that up did you?---No, I’m [not] making it up.
You never mentioned that in your statement to the police. Have a read of it?---It doesn’t say anything in the statement no.
No. And I suggest to you that you never saw it. Because it didn’t happen?---Oh well that’s your suggestion, no more than that is it?”
The statement of Kim Louise Legend declared on 23 October 1999 which was Exhibit P2 in the proceedings before the Court of Summary Jurisdiction states inter alia:
“I went across the road to have a look in the shops opposite where I work and went in a place called Festival Clothing where I met a girl called Amy. We had been talking for about five to ten minutes and were standing near the entrance to the shop when two Pakistani males came into the shop. As Amy and I were standing near the door she asked me to keep an eye on them, I got the impression she was referring to shop lifting.
The males were looking at shorts and Amy moved inside the doorway, after they had looked and they were on their way out they got into a conversation with us where they started talking about how they had come from Timor and they were from Pakistan and worked for the UN.
The conversation lasted only a short time and at one point the shorter of the two pointed at a tattoo that Amy has on the top of her left breast. He said ‘that’s a strange place to have a tattoo’ as he touched her tattoo with the tips of his fingers although I can’t remember with which hand he did it. Amy got all embarrassed and moved away bringing her right arm in a protective way across her chest and said ‘Oh I was just young and stupid.’ The top of the tattoo was only slightly visible over the neck line of her dress, it was not a low cut dress.
The conversation continued for a couple more minutes and at that point the second male the taller one of the two suddenly moved forward to Amy placed both of his arms around her and started hugging her. I could see that he was also trying to kiss her and I saw that she was turning her head away from me and him trying to avoid him. I saw him give her what looked like one big sloppy kiss. When I saw this, I thought to myself ‘that’s a bit full on, we have only just met.’ I then moved further away onto the pavement my full intention was to move away and to make sure that he did not grab me next. I did this because I had spoken to him as much as Amy had and there was just as much reason for him to do the same to me as he did to her and I did not want that or feel that it was appropriate.
I saw the men leave within approximately 20 seconds, I only saw the back of them as they walked off down Mitchell Street. I went straight into the shop and Amy said, ‘did you see that?’ I said ‘what?’ and Amy said ‘He grabbed me on the boob.’ Amy appeared very distressed and shaken at what had just happened. Amy then explained what happened also saying ‘I pushed him away and told him to get out of the store right now.’”
In his reasons for decision (t/p 140) the learned stipendiary magistrate stated:
“. . . In coming to those conclusions I have considered the evidence of all the witnesses and I accept the evidence of MacPamas (sic) and Legend.
In relation to Legend’s evidence I have cautioned myself because of that absence of any touching of the breast in her statement, exhibit P2, and I have been very careful in relation to analysing that and analysing her answers as to why that is not in that statement. In the end, given the fact that Legend and MacPamas (sic) were not known to each other before this night, there had been no opportunity for collusion between them and no suggestion of any. And given her evidence and the manner in which she gave her evidence, I accept the evidence which she gave on oath before me.
I also accept the evidence of MacPamas (sic). Her evidence was forthright and she was clearly distressed at various stages during her evidence, yet she gave her evidence in a clear way and I was impressed with her as a witness, as I also was with Legend.”
I accept the submission made by Mr Loftus for the appellant that the learned stipendiary magistrate makes no reference to the differing versions of the incident given by Ms Macpanas and Ms Legend.
The complainant’s employer, Ms Debra Hobdell aka Watts, gave evidence (t/p 61 - 62) as to a telephone conversation she had with Amy Macpanas who had telephoned her on the night of the incident at about quarter past 10. Ms Hobdell gave the following evidence:
“Okay and you recall word for word, or words to the effect, what did you recall – what she said?---She rang me. Her voice sounded shaky. I was immediately concerned. She asked me straight away if she could close the shop early, which was supposed – was set down to be closed at 10.30. I asked her why and she said that that she had – had been an incident, where she had been talking to two soldiers who were going for the peace keeping force in East Timor, and that there had been just general discussion, she was wishing them luck, and then one had attempted to grab her and kiss her and touch her on the boob. I was very concerned about it, but she assured me that she was okay, and that all she wanted to do was shut the shop and go home. And I said absolutely, and I asked her several times if he needed my assistance, because her voice did sound shaky, and she said, and she sounded in control, knew that she was – she was going to be okay, that she was going to shut the shop and go straight home to her boyfriend. So, I agreed of course.”
Ms Hobdell gave evidence that the following day she had a further conversation with Ms Macpanas. Ms Hobdell gave the following evidence (t/p 62):
“. . . She then went onto elaborate on what the details of the case were. She then said that there was two, of the two people that she’s speaking to, that one of them had not only lunged at her and tried to kiss and grab her boob, but the other one as she walked inside had done the same thing, so there was actually two of them - alleged attacks. . . .”
Mr Loftus on behalf of the appellant complains this was a different version again. The difference in the versions given to Ms Hobdell is also consistent with Ms Macpanas going into more detail in the second conversation with Ms Hobdell than she had given in the first conversation. In cross examination, Ms Macpanas states (t/p 28) that she was very brief in her description of the incident when she spoke to her employer on the night of the incident. Ms Macpanas went on to explain in cross examination that she did not in that first telephone call tell her employer everything that happened. She was upset at the time of the incident and at t/p 29 gave evidence that she had told her employer that two men were in the shop and one had “grabbed me on the tit, like hugged me and grabbed me on the tit” and that she was scared and just wanted to close the shop.
I do not accept the submission made by Mr Loftus that the complainant told her employer two different versions. The complainant gave a very brief description of what occurred in the first telephone call to her employer. The following day Ms Macpanas did not give a differing version to her employer, rather she described the incident in greater detail.
Mr Loftus refers to the evidence of Constable Walsh, who stated (t/p 68) that she had received a communication to go to the Festival Clothing Company store in Mitchell Street, Darwin on the night of 21 October 1999. She had attended the premises and spoke with Ms Macpanas who told her that she had decided to close the store early when two gentlemen entered the store, she entered into a conversation with them and one of them touched her on the chest. She managed to make them leave and called the police after they left the store.
I do not attach any significance to the brevity of this evidence as from my reading of the transcript at p 68 immediately after Constable Walsh had given the evidence there was an objection to Constable Walsh referring to her notes as defence counsel had not been provided with a copy of her statement. The matter was adjourned to another date for the Crown to provide copies of the statement. Constable Walsh withdrew at this point and it would appear was not called to give further evidence. On the adjourned date being 30 May 2000, the Crown called Constable Crawley who had been on duty with Constable Walsh on 21 October 1999 and had also attended upon the Festival Clothing Company store. Constable Crawley’s evidence is that Ms Macpanas did give a more detailed statement to Constable Walsh. Constable Crawley gave evidence of overhearing Ms Macpanas tell Constable Walsh that she had been locking up the shop when a couple of male persons had come into the store. One of them took her to the rear of the store to look at some clothes. Ms Macpanas had said she was looking at the rack and felt a hand go over her shoulder down the front of her dress and this male person attempted to kiss her. She then said she fought this person off, kicked and screamed. The other male was at the front of the store when she put up a struggle, both men left the store.
Mr McKiernan gave evidence. He was at the relevant time the boyfriend of Ms Macpanas. He had spoken to her outside the Festival Clothing Company store on the night of 21 October 1999. Ms Macpanas was distraught and told him that a couple of guys had attacked her. She had stated to him that she had been grabbed and dragged back into the shop that she had punched one of them and started screaming while the other was blocking the door and they subsequently both ran away.
In his reasons for decision (t/p 140) the learned stipendiary magistrate found as follows:
“In relation to McKiernan, he gave me the impression of a person who perhaps wasn’t as careful with his evidence as he might be. The relationship between himself and MacPamas appears to have broken down since the incident; I don’t know why. But his evidence and his demeanour was not such that I found him to be a reliable source of fulsome information. He appeared to be somewhat lackadaisical in his manner of evidence.”

I consider the learned stipendiary magistrate was the person in the best position to make the assessment as to the credibility of Mr McKiernan and to draw the conclusions he did about the effect of Mr McKiernan’s evidence. I agree with the submission of Mr Loftus that there does not appear to be evidence to support an assumption that Mr McKiernan’s relationship with Ms Macpanas had broken down since the incident and in making such an assumption the learned stipendiary magistrate may well have been incorrect. However, I do not consider this detracts from the other findings by the magistrate in respect of Mr McKiernan’s evidence. From a reading of the transcript of evidence given by Mr McKiernan, Mr McKiernan gives no evidence of what he was told by Ms Macpanas about the detail of the attack upon her. The learned stipendiary magistrate was entitled to find he was not “a reliable source of fulsome information”.
The appellant, Ahmed Fareed, gave evidence. He denied that he had touched the complainant in the way that she alleged. Major Fareed gave evidence that he tried on a number of hats in the shop. He described a conversation that he could hear between Major Khalid and the two ladies. Major Khalid introduced them as Pakistani Majors working with the United Nations in East Timor and said that they were leaving for East Timor on Saturday 23 October. There was further discussion about East Timor. Major Khalid had asked Ms Macpanas where she got the tattoo on the left side of her chest. Ms Macpanas had replied that she got it from Adelaide, that she was silly and stupid once and that she once was sixteen and smiled as she said this. Major Fareed’s evidence is that Ms Macpanas stepped forward as he was about to leave the shop and showed him a tattoo on her left foot. She leant her head forward and the appellant stated he interpreted this as a gesture which required him to reciprocate, put his right cheek and then his left cheek against hers. Ms Macpanas said goodbye and good luck in East Timor. Major Fareed’s evidence is that he turned sideways so that Amy could move into the shop and he and Major Khalid departed from the shop. Major Fareed denied that when he left the shop Ms Macpanas was exhibiting any signs of distress. He stated he did not rush out but that he and Major Khalid walked slowly. The appellant was not broken down in cross examination. A number of character references were tendered in his case.
Major Khalid gave evidence that he went into the shop called Festival Clothing Company with Major Fareed. Major Khalid’s evidence is that he wanted to purchase rucksacks and that he had a conversation with Ms Macpanas and told her that they were Pakistani military officers working with the United Nations and were due to go to East Timor on 23 October. Major Fareed then joined in the conversation. Major Khalid said he asked Ms Macpanas where she got the tattoo that was on her chest. She had replied from Adelaide and that she was silly and stupid and once was 16. Major Khalid stepped out of the shop. He looked back and observed Major Fareed and Ms Macpanas joining cheeks. Major Fareed then followed him out of the shop. It is the evidence of Major Khalid that there was no struggle as described by Ms Macpanas in her evidence.
The evidence of Major Khalid so far as it relates to the appellant, supports the version of events given by Major Fareed in his evidence. Major Khalid was not broken down in cross examination.
A total of nine references were tendered in Major Fareed’s case and marked Exhibit D1 in the proceedings before the Court of Summary Jurisdiction. Mr Loftus stated at the time they were tendered as references of general reputation.
The learned stipendiary magistrate did not in his reasons for decision make any reference to the evidence as to the good character of the appellant. At t/p 142 the learned stipendiary magistrate did indicate that he was conscious of the fact that the finding of the offence proved would have drastic consequences in respect of the appellant’s future and stated he had borne this in mind in weighing up the matter. This does not in my opinion amount to the same thing as considering evidence of good character when deciding an issue of credibility. This is a case where it seems to me it would have been appropriate to consider evidence of prior good character when determining the issue of the credibility of Major Fareed (see Melbourne v The Queen (1999) 198 CLR 1). See R v Trimboli (1979) 21 SASR 577 King CJ at 578:
“1. It is desirable in all cases in which there is evidence as to the accused’s good character that a direction be given as to the use to which that evidence should be put.
2. No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.
3. The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.”
At t/p 140 – 141, the learned stipendiary magistrate dealt with the evidence of Major Fareed and stated inter alia “His evidence didn’t have a ring of truth to it and it was logically inconsistent”.
Mr Loftus complains that the only inconsistency was that it differed from the evidence of the complainant and that the learned stipendiary magistrate had not explained the logical inconsistency or why it did not have a ring of truth.
In the following paragraph of his reasons for decision (t/p 141), the learned stipendiary magistrate expands on this finding when he stated:
“If the evidence of Fareed was to be believed then nothing untoward happened between himself and Ms MacPamas at all, such that there was no reason for her to be upset other than perhaps minorly(?) annoyed by somebody perhaps kissing – brushing cheek to cheek. Certainly there was no reason – or would have been no reason at all for what was clearly a most distressed and immediate reaction after the incident. Her reaction is totally consistent with the evidence that she gave and that Legend gave as to what occurred and what was observed would be sufficient to cause a most distressed reaction.”
I agree this would seem to go no further than a finding that Major Fareed’s evidence was not logically consistent with the reactions of the complainant and her apparent distress rather than that the evidence of Major Fareed in itself was logically inconsistent.
In the course of his reasons for decision the learned stipendiary magistrate correctly cautioned himself as to the way he should treat the evidence of the complainant’s distress when he said (t/p 135):
“. . . the courts need to be careful not to elevate signs of distress to the fact of what happened – the truth of what happened beforehand, because all people react differently.”
Mr Loftus submits that although the learned stipendiary magistrate cautioned himself correctly he did not in fact apply the caution and elevated evidence of alleged distress to the status of corroboration when he said the words I have already set out in paragraph [34]. I agree with the submission made by Mr Loftus that this appears to be elevating the evidence of distress to the status of corroboration of the complainant’s version.
I agree with the submission made by Mr Loftus that the evidence of distress could also be supportive of the claim to be the recipient of an unwelcome kiss or hug which could explain her distress whether she was touched on the breast or not - see R v Roissetter [1984] 1 QdR 477.
Mr Loftus on behalf of the appellant, refers to the following passage in the learned stipendiary magistrate’s Reasons for Decision (t/p 133 – 134):
“It’s important to bear in mind that they are, in fact, just that: two separate incidents. In that regard, whatever evidence the prosecution witnesses have given against the defendant Khalid cannot be used and is not able to be used against the defendant Fareed in relation to the separate incidents.
There’s no suggestion in the charges that the two defendants have acted in concert or with any common purpose such that evidence against one should be evidence against the other. Likewise, both defendants have given sworn evidence before me. A defendant can do little else often in a criminal trial other than give sworn evidence and subject himself to cross-examination.
Both defendants have done that in this case. But it’s also necessary to bear in mind in relation to each defendant that although they may be acquainted with each other, they’re both serving officers in the Pakistani Army and were sharing accommodation at the relevant time. Whatever one has said involving the incident concerning the other is not necessarily to be used against the other.
In the instant case, both defendants have said that the – effectively, the other person did nothing wrong, either, so it doesn’t raise any problems in that regard. However it needs to be borne in mind that if I disbelieve one of the defendants, I cannot use that disbelief against the other defendant. All that does is remove some element of corroboration on the evidence from that defendant but it does not otherwise alter or diminish that defendant’s own evidence.
Each of the defendant’s evidence needs to be looked at in isolation. Also the two incidents, I bear in mind, must be looked at in isolation and in coming to my decision, I have done so.
It’s necessary due to the exigencies of time and for practical reasons to roll the evidence up together, but in coming to my final conclusions I have expressly separated the two incidents and looked at each defendant separately to decide whether I am satisfied beyond a reasonable doubt in relation to each of the elements for that defendant.”
It is the submission by Mr Loftus on behalf of the appellant that the learned stipendiary magistrate correctly stated that the prosecution evidence against one defendant cannot be used against the other (see Nessel v The Queen (1980) 5 A Crim R 374). However, it is the appellant’s argument that the learned stipendiary magistrate then misconstrued the law when he omits to state that the evidence of one may be used in favour of the other. It is Mr Loftus’ argument that the learned stipendiary magistrate carries this error forward by saying (t/p 133):
“…. However it needs to be borne in mind that if I disbelieve one of the defendants, I cannot use that disbelief against the other defendant. All that does is remove some element of corroboration on the evidence from that defendant but it does not otherwise alter or diminish that defendant’s own evidence.
The error to which Mr Loftus refers is that the learned stipendiary magistrate may disbelieve only part of the other defendant’s evidence and secondly that a defendant does not need to have his evidence corroborated. On behalf of the appellant, it is further submitted that this error is further compounded when the learned stipendiary magistrate continues “Each of the defendant’s evidence needs to be looked at in isolation”.
Ms Fraser, counsel for the appellant, agreed that the learned stipendiary magistrate correctly stated that the prosecution evidence against one defendant cannot be used against the other.
Ms Fraser also agreed that the learned stipendiary magistrate misdirected himself as to the effect of both defendants giving evidence. It is Ms Fraser’s submission on behalf of the respondent that the learned stipendiary magistrate should have said in respect of the trial of Major Fareed that the evidence of Major Khalid was admissible as to the physical elements that he observed. Further Major Khalid’s version was in the same terms as Major Fareed's and was only capable of corroboration if the learned stipendiary magistrate believed both defendants. However, the respondent submits that the learned stipendiary magistrate could not believe the evidence of either Major Khalid or Major Fareed and therefore the evidence of Major Khalid could not amount to corroboration. It is Ms Fraser’s submission that although his Worship’s analysis of the law is flawed, it is flawed to the detriment of the prosecution.
I am not persuaded the error of law worked to the detriment of the prosecution and to the benefit of the appellant. The learned stipendiary magistrate as the Tribunal of Fact was required to consider the whole of the evidence relating to each defendant including in the appellant’s case the evidence of his co-accused, Mohammad Khalid, whose evidence so far as it related to the appellant, supported the appellant’s version.
I have come to the conclusion that in view of the matters already canvassed, where I consider there to have been an error, that the verdict of guilty is unsafe and unsatisfactory. Accordingly, I would allow the appeal and quash the conviction and sentence imposed on the appellant.

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