Hajje v R

[2006] NSWCCA 23

CITATION:	Hajje v R [2006] NSWCCA 23
HEARING DATE(S):	16 November 2005
JUDGMENT DATE:	23 February 2006
JUDGMENT OF:	Simpson J at 1; Adams J at 105; Hoeben J at 106
DECISION:	Appeal against conviction dismissed.
CATCHWORDS:	appeal against conviction - jury verdict - malicious wounding - complainant shot in calf during fracas involving a number of men and the use of three guns - whether verdict unreasonable - tendency evidence - credibility of prosecution witnesses - whether evidence of unrelated ammunition in the appellant's home was admissible - evidence wrongly admitted - no miscarriage of justice arising - directions to jury on identification evidence - unreliable evidence - directions to jury as to "the real issues" - directions as to credibility
LEGISLATION CITED:	Criminal Appeal Act 1904, s6 Evidence Act 1995, s56(2), s97, s116, s135, s137, s165(2)
CASES CITED:	Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 Domican v The Queen [1992] HCA 13; 173 CLR 555 Jones v The Queen [1997] HCA 12; 191 CLR 439 M v The Queen [1994] HCA 63; 181 CLR 487 R v Clarke (1997) 97 A Crim R 414 Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
PARTIES:	Odeness Hajje - Appellant Crown - Respondent
FILE NUMBER(S):	CCA 2005/1322
COUNSEL:	J Dailly SC with D Price - Appellant JA Girdham - Respondent
SOLICITORS:	Nyman Gibson Stewart - Appellant S Kavanagh - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0032
LOWER COURT JUDICIAL OFFICER:	Shillington DCJ

2005/1322

SIMPSON J
ADAMS J
HOEBEN J

Thursday 23 February 2006

Odeness HAJJE v REGINA

Judgment

1 SIMPSON J: On 26 August 2004 the appellant was arraigned in the District Court on an indictment containing three counts, all in the alternative. The counts were, in descending order, of malicious wounding with intent to cause grievous bodily harm; malicious wounding; and firing a firearm in a public place. On 8 September 2004, following a ten-day trial, the jury found the appellant not guilty of the first count, but guilty of the second. Obviously, the jury returned no verdict in respect of the third count. The appellant now appeals against the conviction. He has not sought leave to appeal against the sentence subsequently imposed.

2 The events the subject of the indictment took place on Wednesday 27 March 2002, in a suburban street in Bass Hill. At about 9.15 pm that night the complainant, Luke Watts, was shot in the left calf. It was the Crown case at trial that the appellant was the person who fired the gunshot; or, alternatively, that he was one of three men, all of whom shot at Watts in pursuance of a common design, and that, therefore, even if the appellant was not the person who actually fired the shot that struck Watts, he was guilty by reason of the doctrine of joint criminal enterprise. Given the way the case was conducted, the Crown accepted that the appellant could not be convicted unless the jury was satisfied beyond reasonable doubt that the appellant was in possession of, and fired, a gun, and the jury was directed accordingly. It was not however necessary that the Crown establish that it was the appellant who fired the actual bullet that struck Watts.

3 What follows is a general outline of the Crown case and the defence case. It should not be taken as representing any findings of fact. There were many details that were either disputed, or the subject of variable testimony, or put in a different light by different witnesses. I have attempted, in the following outline, to put the evidence as neutrally as possible. It will be necessary, later, to mention in more detail some of the discrepancies.

4 Put very succinctly, the Crown case was that a dispute had arisen between Watts and Rick Mihalopoulos on the one hand, and the appellant on the other, as a result of which Watts and Mihalopoulos were pressing the appellant for money; that they intended (to the appellant’s knowledge) to go to his house on the evening of 27 March for the purpose of recovering the money; and that the appellant arranged for a number of others to be present to deal with the visit. Guns were present. The appellant was in possession of one. The shot that hit Watts was either fired by the appellant, or was fired by another person, pursuant to a joint criminal enterprise for which, on the applicable legal principles, the appellant is criminally liable.

5 The events that gave rise to the charges began in November 2001. At that time the appellant sold a motor vehicle, which he claimed was a Brock Commodore Coupe, to Watts and Mihalopoulos. They paid $15,000 in cash for the vehicle. Within two days the engine failed. They had the engine inspected and were told that it was not, as the appellant had represented to them, a “355 stroker”, but an inferior and considerably less valuable Chrysler.

6 They approached the appellant on a number of occasions, at his place of work, requesting that he either replace the engine or refund their money. After initially refusing to do either, eventually the appellant did give them a replacement engine, but this, too, was defective.

7 On the evening of 26 March Watts and Mihalopoulos, in company with another man identified only as “David”, visited the appellant at his home at 110 Buist Street, Bass Hill. This was the first time they had been to his home, they having obtained the address from “a friend of a friend”. According to some evidence given in the Crown case, a conversation with the appellant followed in which, initially, he refused to return any money. Shortly after, however, he reached an agreement that Watts and Mihalopoulos would return the vehicle and the appellant would repay the money. All four then travelled, on two occasions, to the Bass Hill Plaza, for the purposes of enabling the appellant to withdraw money from an automatic teller machine. The appellant travelled in his own vehicle, accompanied by Watts. Mihalopoulos and David drove in Mihalopoulos’ vehicle. On the first occasion, the appellant used an ATM card referable to an account that was virtually devoid of funds. The four men therefore returned to the appellant’s home, where he obtained his wife’s ATM card. In the account which this card accessed were funds the property of his wife’s mother. The men returned to the ATM where the appellant withdrew $1,000, the maximum permitted. He gave this to Mihalopoulos.

8 Watts and Mihalopoulos let the appellant know that they would return the following evening. Their purpose was to return the vehicle and the second engine and to collect the balance of the money the appellant was to pay them, $14,000.

9 The following morning the appellant made a report of the incident to Detective Hardiman at the Bass Hill Police Station. The report was incomplete. The appellant not only withheld from the report the fact that he had paid $1,000, he expressly denied having paid any money. He declined to make any further statement, saying merely that he had made the report as a precaution “in case anything happens”. He told Detective Hardiman that his concern was that Watts and Mihalopoulos now knew where he lived, that his wife, who was pregnant, was often at home alone, and that he was not always present. He did give Mihalopoulos’ name to Detective Hardiman. Detective Hardiman gave the appellant’s report a reference number.

10 Because of their apprehension that Watts and Mihalopoulos would return that evening, the appellant and his wife agreed that she would spend that evening with his mother.

11 Watts and Mihalopoulos arranged for the vehicle and the engine to be taken on a tow-truck to the appellant’s home. Watts and Mihalopoulos travelled in Mihalopoulos’ white van to the apellant’s home. The tow-truck was driven by Mr Dimitrias Yiannakoulias, a friend of Mihalopoulos’ brother, who followed them to the address. Yiannakoulias parked the truck in the street outside the appellant’s home at 110 Buist Street and sat on a porch at the front of the house and awaited further instructions.

12 Watts knocked on the appellant’s door while Mihalopoulos waited on the lawn. The appellant answered the door and Watts invited him to come out the front. The appellant did so. Almost immediately a melee erupted. Accounts of what happened vary in some respects, but, essentially, a number of men emerged from either in or around the house.

13 Yiannakoulias said:

“... all of a sudden there was blokes come from everywhere”.

14 He asked one of the men what to do with the car and was told to “drop it and go”. He unloaded the car from the tray of the truck. At least three guns were present and were fired. It was in the course of the melee that Watts was shot.

15 Both Watts and Mihalopoulos claimed to have seen the appellant in possession of, and fire, a firearm.

16 Watts and Mihalopoulos both ran off. According to Watts, he ran across the road, until he encountered a fence. He fell, and hid behind the fence, then realised that it was damaged and would not provide adequate concealment. He got up, looked around, and began making his way towards the Hume Highway. At this point he checked to see if he had been hit, but did not feel anything. He saw a car coming towards him, from which he intended to seek help. However, he saw that it was being driven by the appellant, who still held a gun in one hand, from which he discharged more shots. Watts ran into a Chinese restaurant where he sought help, which was not forthcoming. He walked out to the street, seeking a taxi. He patted himself down and noticed blood on his leg. He pulled up his trouser leg. He flagged a taxi and was taken to the home of a friend, Steven Kilazoglou.

17 Mihalopoulos’ evidence was that he, too, ran across the street. He saw Watts running with a limp and heard him say:

“Don’t Eddie, you’ve already shot me.”

About three metres behind Watts were the appellant and another man, each carrying a gun. Each man fired another three shots. Mihalopoulos jumped a fence and knocked on the door of a house directly opposite that of the appellant, the home of Mr and Mrs Kattar, the address of which was 82 Cann Street. Cann Street intersects with Buist Street. Mr Mihalopoulos was admitted, and telephoned 000. He made a second telephone call. This was to Steven Kilazoglou. Mihalopoulos asked Kilazoglou to pick him up, and gave him the address. Kilazoglou did pick him up, and took him to his own (Kilazoglou’s) house. Watts was already there. From there they went to the police station and then the hospital.

18 Not surprisingly, a number of neighbours in Buist Street became aware of the disturbance.

19 Mr and Mrs Issa occupied a house on the corner of Buist and Cann Streets. Mr Issa was in his backyard with relatives when he heard something he thought was a firecracker, followed by what he thought sounded like a machine gun. He ran inside and told his wife to call 000, and he spoke to the operator. He saw Yiannakoulias unloading the car from the tow-truck and drive off. While Mr Issa was on the phone to the 000 operator, Mrs Issa looked out the window and saw a man with one leg of his trousers rolled up, limping, heading towards the Hume Highway. She mentioned this to her husband, who passed it on to the 000 operator. It was common ground that this was Watts.

20 Mrs Joan McKinlay lived two houses from the appellant, on the same side of Buist Street. She saw the tow-truck arrive and the white van carrying Watts and Mihalopoulos. She heard what she initially thought were fireworks, and went to investigate. She heard the tow-truck reversing and saw that the vehicle was being unloaded. She saw a ring of fire on the grass outside the appellant’s house, and saw somebody aggressively smashing the windows of the white van. She also called 000 but her husband completed the call. She saw a small white sedan car that had been parked at the appellant’s house drive out, without its lights on, and accelerate down Rixon Street.

the defence case

21 Put equally succinctly, the defence case was that the appellant had been subjected to harassment and intimidation by Watts and Mihalopoulos; that he had withdrawn the $1,000 on 26 March under duress and intimidation; that Watts and Mihalopoulos had made it plain that they intended to return the following evening; that he arranged for his wife to be absent, and for another friend (whom he consistently declined to identify) to be present, with others, in order to “show strength” to Watts and Mihalopoulos and to deter them from revisiting. He did not, however, anticipate the presence of firearms and did not intend any violence. He did not know that the guns were present.

22 The appellant gave evidence. He gave an account of the events prior to 27 March that was, in material respects, at variance from those given by Watts and Mihalopoulos. For example, while Watts and Mihalopoulos had described their visits to the appellant at work as cordial, the appellant described the later visits as hostile and threatening. He said that the visits were weekly, over a period of two months. The two men were sometimes accompanied by others. On at least one occasion, they were in the company of David – the same man who was present on the evening of 26 March. He said that in order to “get them off [his] back” he agreed to give them a replacement engine, and did so. They were not happy with the replacement and resumed their visits to him at work. He continued to refuse to refund the money.

23 Similarly, while Watts and Mihalopoulos gave evidence of the events of 26 March in terms suggesting cordiality, the appellant gave an account of a hostile and threatening encounter. He said that the men demanded the keys to his house, a demand with which he complied. He said that he unwillingly, but in response to their pressure, obtained firstly his, and then his wife’s, ATM card and went with them to the ATM. The following day he made a partial report of the incident to Detective Hardiman, but did not include either the fact that he had handed over $1,000, nor that he had surrendered his keys.

24 Since he knew that they intended returning the following night, he arranged for his wife to stay with his mother; and he arranged for “a very strong friend” to be with him at his home that night. This was “to show a presence” and deter Watts and Mihalopoulos from any further visits.

25 The appellant declined to name his friend, saying that he was fearful for his safety and that of his family if he did so. He said that the friend proposed to bring some others, again in order to show a strong presence.

26 On the evening of 27 March the appellant picked up his friend from near the appellant’s parents’ house in Simmat Avenue, which was nearby. The appellant did not see any firearms or knives. There was no discussion concerning guns. He had no knowledge of the presence of any firearms.

27 Although the appellant was aware that his friend made a number of telephone calls, he did not see anybody else. He asked his friend about this, who said that they were “around”. When Watts and Mihalopoulos arrived in their van, the appellant told his friend, who then passed that information on by telephone to persons of whose presence the appellant was unaware.

28 Although the appellant maintained his denial of any knowledge that a gun would be used, he was well aware that the evening might result in violence. He anticipated that Watts, Mihalopoulos and David would all be present; but he believed that, by reason of his friend’s superior strength and fitness, he would win any fight that eventuated.

29 The appellant related what happened after the arrival of Watts, Mihalopoulos and David. He said that he heard a knock on the door; when he opened the door Mihalopoulos was there, demanding the return of the money. Mihalopoulos began to argue with the appellant’s friend. The appellant then saw people running from every direction, attacking Watts and Mihalopoulos. He heard gunshots. He immediately rang 000, explaining what had happened. After the call concluded, he heard his friend call to him to open the door. He did so, and his friend demanded the appellant’s car keys. The appellant gave them to him. He then waited for the police to arrive.

30 He said that it had never been his intention that the men attack Watts or Mihalopoulos and that he was unaware of the actual location of the men outside the house. He denied having fired any shots. He denied driving his car at any time after Watts and Mihalopoulos had arrived. He said that the keys to his car had never been returned but that the car itself was later recovered from outside his parents’ house in Simmat Avenue, near where his friend had parked his own car earlier that night.

31 The appellant said that he remained in his home until police arrived. He consented to their conducting a search of his premises, notwithstanding that he was told that he had a right to object. He drew to their attention two boxes of ammunition in his spare room. He explained his possession of the ammunition by saying that he had had it since going on a hunting trip about eighteen months earlier.

* * *

32 Notwithstanding this rather lengthy exposition of some parts of the evidence, it will be necessary, when dealing with the individual grounds of appeal, to refer to additional evidence. This is, in part, because of variations and discrepancies in the evidence given by various witnesses.

33 It is pertinent here to make two observations. The first is that, as the case proceeded, the Crown did not seek to rely on Watts and Mihalopoulos as witnesses of absolute truth. The Crown accepted, explicitly, that their purpose in their conduct of 26 March was to intimidate the appellant.

34 The second observation is that the Crown contended that the appellant had planned the shooting and that his report to police on the morning of 27 March was a device to create the appearance that it was Watts and Mihalopoulos who had initiated the violence and produced the guns. The Crown drew some support for this from the content of the appellant’s 000 call, which was recorded. That recording shows that the appellant began by saying that there had been a shooting at his house; he immediately followed this by saying that he had earlier in the day reported harassment. He volunteered to cite the reference number he had been given. Thereafter he made repeated references to his report and to the reference number.

35 A search of the area was conducted. This yielded 22 fired cartridge cases of various calibres; a .45 Winchester live round (located in the appellant’s front lawn) and various other bullets, or parts or fragments of bullets. Ballistics evidence identified the brands or manufacturers of most of these. This evidence showed that at least three different firearms had been discharged.

36 The search did not, however, produce any firearm. The bullet which struck Watts passed through his leg and was never identified. Nor did the evidence reveal at which point, either in time or in place, Watts was shot. He gave no evidence of being conscious of having been shot, until after the event, and, on at least two occasions, searched or tested his body to see if he had been struck.

37 On the appellant’s account, he barely left the house. His evidence was that Mihalopoulos had arrived, that the appellant had walked out with his friend following, and joined Watts and Mihalopoulos on the grass in front of his veranda; that Mihalopoulos had told him that the vehicle had been returned, that Mihalopoulos and the appellant’s friend began arguing and:

“... I’ve seen people running from every direction attacking Rick and Luke. I’ve run back inside, as I’ve run inside, I’ve heard gunshots go off, I’ve gone to the telephone, I’ve gone to the telephone, I’ve rang 000, explained what had happened ...”

grounds of appeal

38 The grounds of appeal are framed as follows:

“1. The conviction on count 2 of the indictment against the appellant is unreasonable on the following basis: the jury, acting reasonably and in all of the circumstances, must have entertained a sufficient doubt as to the guilt of the appellant.

2. His Honour erred in allowing evidence to go to the jury of the finding by police of two boxes of bullets in the home of the appellant. The evidence was of no probative value in the circumstances but was potentially of great detrimental effect. It should have been rejected under s56(2) or s137 of the Evidence Act 1995 .

3. His Honour failed to direct the jury on identification evidence, as required by s116 and s165(2) of the Evidence Act 1995 .

4. His Honour’s Summing Up was insufficient to bring to the jury’s attention the real issues in the case and was deficient in outlining the defence case.

5. His Honour did not direct the jury as to the impact of any doubt they might have as to the credibility of the versions of Watts and Mihalopoulos in relation to the ATM incident on the 26th. That incident was integral to the shooting incident the following evening, and any doubt on that evidence should have been taken into account upon a proper assessment of their evidence in relation to counts 1, 2 and 3.”

39 It appears to be acknowledged on behalf of the appellant that only the first ground, if successful, would result in the entry of a verdict of acquittal. Success on the remaining grounds would or might entitle the appellant to a new trial.

40 It will be necessary to refer to a good deal more of the evidence, but it is convenient to do that in relation to the individual grounds of appeal.

ground 1: unreasonable verdict?

41 The test to be applied by a court of criminal appeal asked to set aside a conviction on the ground that it is (in the old language) unsafe or unsatisfactory, or (in the new language) unreasonable, is well known and was stated by the High Court in M v The Queen [1994] HCA 63; 181 CLR 487. The question that 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.”

42 In answering that question the court is to pay proper regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and to the benefits the jury has had in having heard and seen the witnesses. However, the Court added:

“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.”

43 There were, effectively, two strands to this ground of appeal. The first was that the only direct evidence identifying the appellant as the, or a, person who had had, and had fired, a gun, came from Watts and Mihalopoulos who were, it was argued, inherently unreliable witnesses. The second strand depended upon an analysis of the evidence of various of the other witnesses, particularly in respect of the timing of what they observed, and the location of the appellant and Watts at critical times.

44 It cannot be doubted that the credibility of Watts and Mihalopoulos was seriously in issue. The Crown Prosecutor accepted that their conduct in the events preceding 27 March had been for the purpose of intimidating the appellant into refunding their money: their conduct on the evening before was unquestionably so. Since they both insisted that there was nothing untoward about their approaches to the appellant, and that his agreement to pay them, initially $1,000, and then the balance of $14,000, had been secured amicably, it must have been the case that at least part of their sworn evidence was untruthful. The difficulty about this for the appellant is that their lack of credibility was brought home with considerable force to the jury.

45 As I have indicated, the Crown accepted that their conduct on the evening of 26 March was intimidatory. In his final address to the jury the Crown Prosecutor said:

“Now let me make it clear members of the jury, I am not going to insult your intelligence by trying to suggest to you that Luke Watts and Rick [Mihalopoulos] ... not going to remotely suggest to you that the intention of Luke and Rick going around to the accused’s residence on the night of 26th with big Dave – by any measure a big boy – was other than to intimidate the accused. ...
... Clearly going to a person’s home at night, the three of them given the bulk of Dave, was, one would reasonably suggest, open to being taken as being intimidated into agreeing what had been demanded for at least two months, possibly longer, and that is you take the car back and give us our money back.”

46 This acceptance necessarily carried with it an implied acceptance that their evidence of what had happened on that evening was not credible. The defence address was rather more forceful. Defence counsel opened with a detailed attack on the evidence given by these two witnesses, and what he asserted to be their lack of credibility, and this continued over a period that occupied six pages of transcript. The point cannot have been lost on the jury. The trial judge reiterated, more briefly, what had been said by defence counsel. True it is that he did this in the context of reminding the jury of the competing addresses, but no complaint is made in this respect concerning the content of the summing up.

47 In order to establish the lack of credibility of these witnesses, defence counsel set out to establish that they had in fact behaved in a highly intimidatory fashion. But that had its dangers for the appellant. The more powerful his case in that respect, the more obvious it became that he had a compelling motive to do more than merely “show strength”.

48 It was, as is always the case, open to the jury to accept some parts of the evidence of any witness, and this is what the jury in this instance plainly did. The question for this Court is whether, accepting the compromised nature of the evidence of these witnesses, it was nevertheless open to the jury to be satisfied beyond reasonable doubt that the appellant had himself fired the shot that struck Watts, or had, in the relevant sense, been a party to his shooting. It is apposite here to observe that the unreliability of Watts and Mihalopoulos, while relevant to an overall assessment of their credibility, was only marginally relevant to the critical events. It was an incontrovertible fact that Watts was shot. Whether that came about as a result of his and Mihalopoulos’ own intimidatory tactics or not did not, in any real sense, bear upon the question of the extent (if any) of the appellant’s involvement. The critical evidence of Watts and Mihalopoulos in implicating the appellant was their evidence that they had seen him with, and firing, a gun. Plainly each of these witnesses had a motive to lie in order to implicate the appellant and, equally plainly, their discredited evidence as to what had preceded the events of 27 March justified scepticism about the other evidence they gave. It was, therefore, necessary for the jury to scrutinise with considerable care their evidence of what they observed of the appellant. But they were entitled to do this in the context of the whole of the evidence, and bringing their own common sense analysis of all of the evidence. As I have mentioned above, it was forcefully brought home to them that these two witnesses could not necessarily be taken at face value.

49 The second strand of the argument centred largely upon the evidence of the timing of the various 000 calls. Of most significance was the appellant’s call, which began at 9.17.40 and ended at 9.20.50. Great store was placed upon the asserted significance of the timing of the appellant’s call when taken in conjunction with the call made by Mr Issa, and the content of that call. Mr Issa’s call began at 9.16.50 – 50 seconds before that of the appellant – and ended at 9.18.10. About half way through the call (if one can make that evaluation on the transcript) Mr Issa told the operator that his wife had seen a man (who, it was agreed, was Watts) limping outside their house. The argument put on behalf of the appellant was that it was not possible for the appellant to have shot Mr Watts and returned to his home to make his call at the same time as Watts was seen outside the Issa house in Cann Street.

50 The logic of this reasoning escapes me. I have already referred to Watts’ evidence that he did not know when he had actually been shot. He gave no evidence of having been conscious of being struck – or where he was when he was struck. He twice checked his body for external signs of having been struck.

51 The argument would work only if there were clear evidence of when or where (from which some deduction might be made as to when) Watts was actually shot, and that timeframe would not have permitted the appellant the time to return to his house and make the call. Further, the argument can only work in relation to the first branch of the Crown case: that is, that it was the appellant who fired the shot that actually struck Watts. It cannot work in relation to the alternative basis, that Watts was shot by somebody else in pursuance of a joint criminal enterprise to which the appellant was a party. On that scenario, Watts might have been shot at the very time the appellant was making the call, without undermining the Crown case.

52 This is of particular significance, since the Crown alleged that the appellant’s report to Detective Hardiman, and his 000 call, were part of an elaborate subterfuge on his part designed to create the false impression that he was an innocent victim.

53 Reliance was also placed, in a negative way, upon the evidence of the tow-truck driver Yiannakoulias. In this respect it was put that:

“The tow-truck driver who was attending his truck in the street outside number 110 at the time he first heard shots, and who was in the path of the alleged chase, did not see Watts being chased. Nor did he see the appellant return to his home to make the ‘000’ call. Yet he was present in the street outside no 110 at the time the appellant was making the call – 9.17.40 (evidence of Mr Issa; Mrs McKinlay).”

54 I am not persuaded that this submission fully encapsulates the evidence given by Yiannakoulias. If a reading of the transcript is any indication, Yiannakoulias fell somewhat short of the ideal witness, or even a satisfactory witness. His evidence-in-chief, relevantly to this question, was that, after the arrival of Watts and Mihalopoulos, “blokes came from everywhere”, there was a scuffle, with pushing and punching, he heard “a couple of gunshots”, and he unloaded the car and left in his tow-truck. In cross-examination, when asked if the two men on the veranda (the appellant and his friend) had remained there, he said that he could not see, and had himself left the veranda; that he did not see anybody with guns; nor did he see anybody run past him, firing guns at anybody else, nor anybody run past towards Cann Street. He agreed, however, that, a few hours after the incident, he had been interviewed by police and had said that he was “pretty sure” that the two men (the appellant and his friend) had remained on the porch.

55 The point that was being made on behalf of the appellant was that Yiannakoulias was in the street, unloading the car, at the time the appellant was making the 000 call, (this emerged from the evidence of Mr Issa and Mrs McKinlay, both of whom saw him at about the time of their 000 calls) and that he could have been expected to see Watts being chased, if indeed that had happened.

56 In my opinion this submission misses the point. There can be no doubt that Watts was shot; and there can be little doubt that he was shot in the course of a melee in which a number of men were present, and in which at least three guns were used. The evidence of Yiannakoulias does not advance the appellant’s case.

57 A more telling point concerns Watts’ evidence that, after he ran away, he saw the appellant driving his own Gemini, and that the appellant then fired at him. For various reasons, it is unlikely that Watts was correct in identifying the appellant as the person driving the Gemini. The Crown Prosecutor conceded as much in his final address. Watts described the driver of the car as wearing a white jacket; it was common ground that, on the evening in question, the appellant was wearing a black jacket. (It is true that, when pressed in cross-examination, Watts also said that the man who chased him in Buist Street with a gun was wearing a white jacket, but I think this answer should be treated with some circumspection. When first asked the question, Watts said that he had identified that man as the appellant “by his face”; it was only when pressed that he acceded to the proposition that that man was wearing a white jacket. In an interview to police made while he was still in hospital, but not otherwise fixed in time in the evidence, Watts said only that, on that night, the appellant was wearing a white jacket. The entire interview was not before the court, but it appears that Watts did not then say that he observed the man chasing him to be wearing a white jacket.)

58 The subsequent location of the Gemini near the appellant’s parents’ home, where the appellant said his friend had parked his own car, and from where the appellant said he had picked up his friend, lends support to the appellant’s evidence that his friend had requested and received the keys to the appellant’s Gemini, and that he had driven it off. This would suggest that it was he, not the appellant, whom Watts saw in the car at that time. That is, of course, capable of casting doubt upon the accuracy of Watts’ evidence of his observations at that time; and that doubt was capable of being translated to the assessment of his evidence of his observations at an earlier time. But this was quintessentially a jury question. It would not be surprising, in the circumstances, if Watts had been mistaken in that identification. The incident was a discrete part of the entire episode. While it would have been open to the jury to conclude that they could not, or would not, rely on Watts’ evidence, it was also open to them to conclude that they could reject one part of his evidence, but accept the most salient part of it. The most salient part of his evidence was, in fact, in a very short compass: it was the evidence that he saw the appellant firing a gun; he supported that by saying that he saw sparks coming from the gun.

59 Of course, the jury would have been entitled to take a highly sceptical approach to the evidence of Watts, and also of Mihalopoulos, and to have rejected either or both as unreliable. It was not, however, obligatory for them to do so. In determining what weight to accord to the evidence of either or both of them, the jury was entitled to take into account the whole of the evidence, including that given by the appellant. Two things may be said about the appellant’s evidence – one, as I have already mentioned, is that his account of his dealings with Watts and Mihalopoulos afforded powerful evidence of a motive for him to seek to put an end to their alleged harassment. The second is that the jury may well have regarded much of his account of the events of the evening as highly implausible.

60 This was a case in which the advantage enjoyed by the jury in the opportunity to assess the credibility of witnesses was of considerable importance – an advantage expressly recognised by the High Court in M. This Court should not usurp the role of the jury in such a case. I would reject this ground of appeal.

ground 2: the admission of evidence of ammunition in the appellant’s home

61 By this ground of appeal the appellant complains of the admission of evidence concerning the location in his home of two boxes of ammunition unrelated to any of the three guns that had been identified from analysis of the shell casings and bullet fragments found in the vicinity of the fracas as having been used in the fracas. The appellant’s explanation was that these were left over from a hunting trip he had undertaken some time before.

62 Objection to the admission of the evidence was taken at trial and quite lengthy argument on the issue is recorded in the transcript. The argument, however, is hardly illuminating. I have been unable to discern the basis upon which the evidence was tendered. Senior counsel for the appellant began his objection by attributing to the Crown Prosecutor the intention to tender the evidence as a response to his cross-examination of Watts and Mihalopoulos on their criminal records. The Crown Prosecutor appeared to accept this, but added that he anticipated that the appellant:

“... may be delving into some form of character evidence.”

From that (quite unclear) start the argument proceeded. Senior counsel for the appellant repeatedly submitted that the evidence had no “probative value”. The transcript records the Crown Prosecutor as saying, in response, inter alia :

“Now your Honour, in those circumstances the Crown says it’s highly probative that this person and even in his admissions to the police, well, I must have those left over from the shooting trip. We don’t know what sort of shooting trip it was.”

and:

“... it is in the circumstances of this case that it has been put to the jury already that this person appears what I understand invited one person around who on the accused’s case has been opened unbeknownst to him or beknownst to him, I’m not quite sure invites other people around. Now the Crown can say that it really is a matter for the – sorry, I’ll just go back one step your Honour, that the Crown would say that that’s not a believable version of events that he didn’t know anything. But the Crown could reasonably say that the jury in disregarding that account either given by the accused or given in opening could disregard that this man or any reliance that this man has no knowledge of firearms or people with firearms which is what your Honour the Crown says, is attempting to be done here ...”

63 Both the trial judge and senior counsel for the appellant immediately contested the suggestion that, in opening on behalf of the appellant, senior counsel had suggested that the appellant had no knowledge of firearms. That proposition was thereupon withdrawn. In any event, the basis on which the evidence was said to be relevant and admissible was never stated any more clearly than in those quite obscure passages which I have extracted.

64 A fair reading of the transcript makes it reasonably clear that the substance of the objection was that the evidence was not relevant and was, therefore, not admissible by reason of the provisions of s56(2) of the Evidence Act 1995. It also seems, although it is not entirely clear, that an alternative argument put on behalf of the appellant was that the evidence, even if held to be relevant and otherwise admissible, ought to be excluded pursuant to either s135 or s137 of the Evidence Act.

65 The trial judge gave short reasons for admitting the evidence. He recorded the Crown’s submission that:

“... this is nevertheless a relevant matter on the question of what has been foreshadowed as the defence of the accused in this matter, to the effect that although he asked people or someone person to come to the house on the night in question, foreshadowing that there may be some trouble, that in fact other persons did come apparently arranged, as I understand what will be the defence case, by the person first contacted by the accused, that the accused had no knowledge of any weapons being brought there until in fact they were fired.”

His Honour then held:

“It seems to me that the presence in the house of, even though unopened boxes of this calibre ammunition, is a relevant matter for the consideration of the jury.”

66 His Honour then expressly recognised that the admission of the evidence may be the occasion of some prejudice to the appellant. He stated that he had considered the provisions of ss135 and 137 the Evidence Act and held:

“... I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect of that evidence before the jury.”

He accordingly admitted the evidence.

67 At no time during the debate did the Crown Prosecutor identify any relevant fact, or any issue, on which the tendered evidence of the appellant’s possession of the ammunition was said to cast any light. Nor, despite the express finding that the location of the boxes of ammunition was “a relevant matter for the consideration of the jury”, did the trial judge identify any issue, or any contested fact, on which the evidence cast any light.

68 The position was made no clearer on appeal. Both in written and oral submissions senior counsel for the appellant maintained his stance that the evidence lacked any relevance to any issue. The nearest the Crown came, in any real sense, to answering that proposition was contained in written submissions. It is convenient to extract in full the material passages:

“67. The case against the Appellant was that he had possessed and discharged a firearm on or near to his property. The Crown was required to meet the foreshadowed defence – that the accused did not have a gun; that he did not shoot anyone; that he did not know that anyone whom he had organised to protect him that night would have a gun, that he never intended that anyone would be shot[;] that all he intended to do was to protect himself and his family.
68. That the Appellant owned two full boxes of .22 calibre ammunition rounds which were located in a spare room towards the back of the Appellant’s house in a set of drawers was clearly relevant and probative of the issue to be decided by the jury.
...
71. The Appellant confirmed his initial agreement to the police search being conducted by the bomb squad officer and her dog. He admitted ownership and said they were ‘ left over from a hunting trip he did that [he] went on with [his] mates about a year and a half ago’. The Appellant agreed to attend the police station.
72. That he possessed ammunition was evidence capable of being regarded, along with the other evidence in the case, as bearing directly upon that issue and of thus being relevant to it.”

69 “That issue” in paragraph 72 quoted above I take to be a reference to the “issue” raised by the appellant’s evidence that the ammunition was in his possession as a result of an earlier hunting trip. At no time was the manner in which the appellant’s possession of ammunition unrelated to any firearm used in the fracas of 27 March could have been relevant to any issue in the trial specified. In paragraph 67 of the written submissions counsel for the Crown appears to submit that the issue to which the ammunition was the appellant’s “foreshadowed defence” – that is, that he did not have a gun (on the evening in question) and that he did not shoot Watts; and that he had no relevant knowledge or intention. I am at a loss to perceive any basis (other than that to which I will shortly come) on which the appellant’s possession of the ammunition could have been relevant. By s56(2) of the Evidence Act, if it could not be shown to be relevant, then the evidence was inadmissible. In my opinion, the sole basis upon which the evidence could have been relevant was as tendency evidence: that is, evidence tendered to prove that the appellant had a tendency to possess or to use firearms. That being the case, its admissibility was governed by s97 of the Evidence Act. The evidence, however, was not expressly tendered on that basis. Had that purpose been identified as the basis for the tender of the evidence, it would have been necessary for the judge’s attention to have been drawn to the provisions of s97(1)(b), and for his Honour to have undertaken the exercise specified in that sub-paragraph: that is, to consider whether the evidence would not, either by itself or having regard to other evidence already adduced or anticipated, have had significant probative value. (For present purposes I leave out of consideration the provisions of s97(1)(a); since no mention was ever made of s97, I assume that the necessary notice was not given. This issue has, however, not been debated on appeal and it does not seem to me, particularly in the light of the final view to which I have come, to warrant further consideration.)

70 The inevitable conclusion from what I have written above is that the evidence was wrongly admitted. Either it was not relevant to any issue in the proceedings, and therefore was not admissible; or, if it were relevant, it was only as tendency evidence; it ought to have been, but was not, identified as such; and the necessary questions ought to have been, but were not, asked; and the appropriate procedures ought to have been, but were not, followed.

71 Either way, error in the admission of the evidence has been demonstrated.

72 That conclusion, of course, does not necessarily entail the further conclusion that a miscarriage of justice has also been demonstrated. In order for this ground of appeal to succeed, it would be necessary for the appellant to show, pursuant to s6 of the Criminal Appeal Act 1904, that a miscarriage of justice has resulted from the admission of the evidence.

73 The evidence itself appears to have had minimal significance in the trial. It was given by Constable Thomas who, reading from his statement, said:

“... the dog squad handler located two full boxes of .22 calibre ammunition rounds. The dog handler said, ‘Do these belong to you.’ The Accused said ‘Yeh, they’re mine. They’re left over from a hunting trip that I went on with my mates about a year and a half ago’...”

74 The appellant gave evidence to the same effect, including in his evidence that it was he who had drawn the attention of police to the presence of the ammunition. However some scepticism on the part of the Crown Prosecutor was suggested in his cross-examination of the appellant about his explanation. He asked, for example:

“Are you asking the jury to believe that?”

to which the appellant replied:

“That’s what actually happened.”

75 But there the issue appears to have ended. The ammunition was not mentioned during the course of the Crown Prosecutor’s comprehensive address.

76 By contrast, senior counsel who appeared for the appellant placed some emphasis on the ammunition and the appellant’s explanation for his possession of it. He emphasised the difference between these bullets and those identified as having been involved in the shooting. That was reinforced in the trial judge’s directions to the jury. His Honour, in the context of reiterating senior counsel’s address, made express reference to the appellant’s explanation. This came at the very end of the summing up.

77 The jury could not, in my opinion, have been under any misapprehension about the significance of the ammunition. Everything in the trial pointed to its irrelevance to the events of 27 March. All reference to the evidence was in the context of the appellant’s innocent explanation, and of the divergence between that ammunition and any ammunition used in the shooting.

78 In my opinion there is no conceivable miscarriage of justice resulting from the wrongful admission of the evidence. I would, accordingly, reject this ground of appeal.

ground 3: directions on identification evidence

79 S116 of the Evidence Act provides as follows:

“ 116 Directions to jury

(1) If identification evidence has been admitted, the judge is to inform the jury:

(a) that there is a special need for caution before accepting identification evidence, and
(b) of the reasons for that need for caution, both generally and in the circumstances of the case.

(2) It is not necessary that a particular form of words be used in so informing the jury.”

80 “Identification evidence” is defined in the Dictionary as:

“... evidence that is:
(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place ...”.

81 By s165 of the Evidence Act, a judge, if requested by a party to do so, is required to give certain warnings and information to a jury about evidence of a kind that is categorised as “unreliable”. Identification evidence is specifically included as one instance of evidence that may be unreliable.

82 The requirements of these two sections do not significantly diverge from what the common law required: see, for example, Domican v The Queen [1992] HCA 13; 173 CLR 555; R v Clarke (1997) 97 A Crim R 414. The statutory requirements enhance what was, in any event, required.

83 The direction given by the trial judge on identification was in the following terms:

“Members of the jury clearly identification is an important matter in this trial and I must tell you that the law in that regard is to this effect, that there is a special need for caution before you as the jury would accept evidence of identification. In particular that is the identification by both [Mihalopoulos] and [Watts] of the accused as being the person who was firing. This is not a case of course of a stranger seeing a stranger. Clearly the evidence here is that both [Mihalopoulos] and [Watts] knew the accused well by sight. They have had a number of dealings with him to do with the car and they both say they saw him standing on the veranda when they came to the house. So no doubt that would be a matter in your minds when you consider the question of whether he was one of the persons with a gun outside the house later that evening. But the law certainly is members of the jury that evidence of identification can be unreliable and it is necessary that you very carefully look at the evidence before you would accept that evidence in that regard.”

84 A number of criticisms are made of the content of this direction. It was argued that, by specifying that it is a requirement of law that the direction be given, and that the law is that evidence of identification can be unreliable, the judge deprived the direction of the authority of the court. It was also argued that the direction was inadequate because his Honour gave no reasons, either generally or related to the specific circumstances of the case, for the need for caution.

85 At the conclusion of the summing up senior counsel for the appellant raised the issue and expressly urged his Honour to direct the jury in such a way as to incorporate his own authority as trial judge; and to refer to the specific difficulties of the identification of the appellant in the present case. The major feature to which he alluded in this context was the positive identification of the appellant by Watts as the person in the Gemini and wearing a white jacket. Both of these were shown to be incorrect. His Honour did not give any additional direction.

86 S116 is not to be read literally: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1. If it were, the section would require a cautionary direction in every case where evidence is given of the presence of an accused person at or near the scene of a crime: in Dhanhoa each member of the Court held that s116 is to be construed as requiring the direction where the identification evidence is disputed: [19] – [22], per Gleeson CJ and Hayne J; [53], per McHugh and Gummow JJ; [92] – [95] per Callinan J.

87 The real question which arises in the present case is whether the evidence that identified the appellant as a person present at the scene of the crime, and participating in the fracas, was such as to call for the direction. It was clear beyond argument, and entirely uncontested, that the appellant was present at the house during the events in question. It was also clear that Watts and Mihalopoulos, who were the witnesses who principally identified him as such a person, were well acquainted with him and in a position to recognise him. Thus, although the evidence of those two witnesses of the appellant and his conduct appears to fall within the definition of identification evidence, it is not the case that s116 is necessarily brought into play.

88 What was at issue was just what the appellant did, and what Watts and Mihalopoulos had been able to observe during the course of what was obviously, while relatively short-lived, a time of considerable confusion and hectic activity. The issue which arose was not as to their identification of the appellant but as to their identification of what he did during that time. The evidence of Watts, that the appellant was the person driving the Gemini, comes closer to being evidence of identification as envisaged in the definition. The direction did not make clear that there was a distinction between the evidence given by Watts and Mihalopoulos as to the appellant’s activities prior to the shooting of Watts, and the evidence of Watts that, after he had been shot, he saw the appellant driving the Gemini. It would have been better if the directions had been divided in that way. However, I do not think the jury can have been in any doubt about the force of the directions. In fact, the direction as given, so far as it related to the pre-shooting conduct of the appellant, may have been more favourable than that to which he was entitled. As I have indicated, I am of the view that this was not “identification evidence” of the kind to which s116 relates. But the direction was so framed as to incorporate that evidence within its compass.

89 I do not think any miscarriage of justice has been occasioned by the nature of the direction concerning identification evidence. I would reject this ground of appeal.

ground 4: directions as to “the real issues”

90 In support of this ground it was argued on behalf of the appellant that insufficient attention was given in the summing up to certain matters of detail in relation to the evidence, significantly discrepancies or inconsistencies between the evidence of various Crown witnesses. For example, complaint was made that his Honour made no mention of certain aspects of the evidence of the tow-truck driver, Yiannakoulias, specifically that, while on the porch, he saw the appellant but did not see a gun; and that he believed that the appellant had remained on the porch and did not become involved in the commotion.

91 Secondly, the argument, already dealt with under ground 1, concerning the evidence of the appellant’s location and the timing of his 000 call was reiterated. Thirdly, the evidence given by Watts that the appellant was wearing a white jacket was relied upon.

92 As I indicated at the outset of these reasons, the evidence concerning the events, which took place over a confined period of time, bore significant discrepancies. That is hardly surprising, given the circumstances of the events. It was not, in my opinion, required that the trial judge repeat everything that had been said, at some length, in the comprehensive address to the jury by senior counsel.

93 The trial judge reviewed the addresses of counsel succinctly. He treated each counsel equivalently in that his review of each address was brief, to the point, and touched only upon the most salient matters. He did not go into the detail of the factual matters argued. In my opinion it was not necessary for him to do so. He was summing up only the day after senior counsel for the appellant had addressed. It was hardly necessary for him to repeat all of the factual matters that had been put to them in that address. I would reject this ground of appeal.

ground 5: directions as to credibility

94 This ground is framed as set out above. It depends upon the contention that any doubt the jury might have had concerning the credibility of Watts and/or Mihalopoulos in relation to the events of 26 March was relevant to the assessment of the credibility of either or both in relation to the events of 27 March.

95 Senior counsel for the appellant placed reliance upon one paragraph from the lengthy decision of this Court in Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82.

96 In that case the appellant had been arraigned on an indictment containing six counts of alleged sexual offences against a single complainant. He was convicted of five, and acquitted on the sixth. Relying upon the decision of the High Court in Jones v The Queen [1997] HCA 12; 191 CLR 439, the appellant contended that the verdicts of guilty could not stand in the light of the acquittal on the sixth count.

97 Since the complainant in relation to each count was the same person, and since the evidence given in support of each count was principally given by the complainant, the issue which arose on appeal was whether, if the jury did not accept her as a truthful witness in relation to the events giving rise to the sixth count, they could not then accept her evidence to establish the remaining counts. At [190] – [191] Spigelman CJ, with whom Grove J and Carruthers AJ agreed, said:

“190 Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant’s credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

191 The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant’s evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant’s evidence with respect to other counts.”

98 As is apparent from the preceding paragraphs, what his Honour was focussed upon was the problem which had arisen in many previous cases, of juries returning apparently inconsistent verdicts based wholly or predominantly upon the evidence of one witness, ordinarily the complainant. That is what was in issue in Jones.

99 Taken out of context some passages in Markuleski may appear to suggest that the same principle applies in relation to the circumstance where a jury might have doubts about the credibility or reliability of a witness in relation to one aspect of his or her evidence, and the application of that doubt to other aspects of that witness’ evidence. For example, at [185], his Honour said:

“It may appear to be obvious that a reasonable doubt about one aspect of a complainant’s evidence ought to be taken into account when assessing that witness’s evidence on other matters.”

At [186] his Honour said:

“In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.”

and at [188] – [189]:

“It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.
On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.”

100 The principles so expressed are not confined to cases of inconsistent verdicts. It is, as the Chief Justice observed, patently obvious that a reasonable doubt about one aspect of a complainant’s (or a witness’) evidence ought to be taken into account when assessing that witness’ evidence on other matters. The present question is whether the absence of such an explicit direction in the present case gave rise to a miscarriage of justice.

101 The appellant is correct in asserting that the evidence of Watts and Mihalopoulos of the events of 26 March was inherently suspicious; the Crown Prosecutor at the trial essentially accepted that that was so. There is no reason why a person who is a principal Crown witness should be treated any differently in this respect from a person who falls into the category of complainant in a sexual misconduct case. Indeed, Watts was, in effect, the complainant or victim or alleged victim, in the present case. But that did not necessarily mean that that a Markuleski direction was mandated. The jury was given the traditional direction that they may accept all, none, or part of the evidence of any witness. The circumstances in which Watts and Mihalopoulos made their observations, and gave their evidence, was not analogous to the circumstance of a complainant giving evidence of a series of events, each of which constituted an offence the subject of a count on the indictment.

102 Even in such a case, the absence of a direction is not necessarily fatal: Markuleski at [187].

103 It was perfectly obvious to the jury that the credibility of Watts and Mihalopoulos was seriously in question and that this in part derived from their evidence of what had happened on the evening preceding the events the subject of the charges. I do not think a Markuleski direction would have done any more to secure the acquittal of the appellant. I would reject this ground of appeal.

104 There is no application for leave to appeal against sentence. I propose that the appeal against conviction be dismissed.

105 ADAMS J: I agree with Simpson J.

106 HOEBEN J: I agree with Simpson J.

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