Hasapis v The Queen
[2014] NSWCCA 216
•15 October 2014
Court of Criminal Appeal
New South Wales
Case Title: Hasapis v R Medium Neutral Citation: [2014] NSWCCA 216 Hearing Date(s): 8/09/2014 Decision Date: 15 October 2014 Before: Macfarlan JA at [1];
Fullerton J at [2];
Hamill J at [25]Decision: Appeal against conviction dismissed.
Catchwords: CRIMINAL LAW - conviction appeal - robbery in company - whether verdict is unreasonable having regard to the nature and quality of the evidence Legislation Cited: Crimes Act 1900 (NSW), s 97(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Criminal Appeal Act 1912 (NSW), s 6(1)Cases Cited: Kurdi v R [2011] NSWCCA 179
M v The Queen [1994] HCA 63; 181 CLR 487; 76 A Crim R 213
MFA v The Queen [2002] HCA 53; 213 CLR 606; 135 A Crim R 361
R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315
SKA v The Queen [2011] HCA 13; 243 CLR 400; 209 A Crim R 433Category: Principal judgment Parties: Daniel Hasapis (Appellant)
The Crown (Respondent)Representation - Counsel: Counsel:
R Munro (Appellant)
N Williams (Crown)- Solicitors: Solicitors:
O'Brien Solicitors (Appellant)
Solicitor for Public Prosecutions (Crown)File Number(s): 2011/221061 Decision Under Appeal - Court / Tribunal: District Court - Before: Craigie DCJ - Date of Decision: 02 November 2012 - Court File Number(s): 2011/221061
JUDGMENT
MACFARLAN JA: Based on my independent assessment of the evidence at the trial I agree that, for the reasons given by Fullerton J, the appeal should be dismissed.
FULLERTON J: On 2 November 2012 the appellant was convicted after trial of one count of robbery in company laid contrary to s 97(1) of the Crimes Act1900 (NSW). The indictment named the appellant's stepbrother, Michael El Soussi, and BW, a friend of his aged 13, as the people with whom he was in company when the complainant (Arvind Teluchina-Appadu) was robbed of his mobile telephone whilst he was waiting at a bus shelter in Ermington at approximately 10.45pm on 1 July 2011.
On 26 April 2013 the appellant was sentenced to imprisonment for a term of 18 months which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act1999 (NSW).
The appellant challenges his conviction under s 6(1) of the Criminal Appeal Act 1912 (NSW) on the sole ground that the verdict is unreasonable having regard to the nature and quality of the evidence.
There is no application for leave to appeal against sentence.
The principles to be applied in determining an appeal pursuant to s 6(1) of the Criminal Appeal Act are well settled and can be shortly stated. This Court is obliged to make an independent assessment of the evidence led at trial, both as to its efficacy and its quality, in order to determine whether, notwithstanding the fact that there is evidence upon which a jury might convict, that it would nonetheless be dangerous in all the circumstances to allow the verdict of guilty to stand (see M v The Queen [1994] HCA 63; 181 CLR 487; 76 A Crim R 213, MFA v The Queen [2002] HCA 53; 213 CLR 606; 135 A Crim R 361, and SKA v The Queen [2011] HCA 13; 243 CLR 400; 209 A Crim R 433).
In Kurdi v R [2011] NSWCCA 179 Bathurst CJ said at [8] that in order to comply with M v The Queen (and the decisions that have subsequently accepted the statements of the Court as authoritative) this Court does not conduct its own trial. Rather, the Court is required to review the whole of the evidence before the jury for the purpose of determining whether it was open to them to have returned a verdict of guilty, that is, whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant's guilt has been proved or whether they ought to have had a reasonable doubt as to guilt. The evidence led at trial is not viewed piecemeal but in its totality. This involves an assessment of the direct evidence and the inferences that can be legitimately drawn from that evidence. As the High Court emphasised in M v The Queen, a doubt experienced by an appellate court will be in most cases a doubt which a jury ought also to have experienced, subject only to those cases where it can be confidently said that the advantage a jury has in seeing and hearing the evidence is capable of resolving a doubt an appellate court might have as to guilt.
Consistently with M v The Queen, Bathurst CJ also emphasised that it is the jury that is entrusted with the primary responsibility of determining guilt or innocence, and that when this Court is undertaking its independent review of the evidence led at trial under s 6(1) of the Criminal Appeal Act, full regard must be afforded the fact that the jury has had the benefit of having seen and heard the evidence.
The appellant's trial extended over three days. It was the Crown case that the appellant was involved in a joint criminal enterprise with his stepbrother to rob the complainant, an agreement which, on the Crown case, was capable of being inferred from the circumstances in which the robbery took place and the appellant's participation in it.
The complainant was the principal witness in the Crown case. The jury were given a direction in accordance with R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 that they should exercise caution when assessing his evidence in order to satisfy themselves that they could safely act upon it before returning a verdict of guilty. The jury were also invited to consider whether there was other evidence in the case which supported the complainant's account. In that regard, the Crown relied upon photographs of the scene and CCTV footage of the appellant, his stepbrother and BW earlier in the evening at a bus interchange depot. The Court was provided with the CCTV footage on the appeal.
The complainant's evidence can be summarised as follows. He described the assailants as comprising a group of three "guys" (consisting of two adults and a child) who approached where he was seated at a bus stop. He said the child was aged between 12 and 14 and around 40kg in weight and 150cm in height. He said he was wearing a pale cream jumper (the CCTV footage showed BW to be wearing a light green jumper). He said that the child was the first of the three to interact with him. He said that the child blew smoke into his face and insisted on being given a "high five". He said the boy attempted to grab his mobile telephone but that he stood up, put the telephone in his pocket and said he was going to call the police. He said it was at that time that the man with the black jumper approached him and aggressively demanded that he hand over his telephone. The complainant walked away but the man came after him and punched him to the face. After the delivery of a second punch the complainant tried to get his telephone out of his pocket to give it to the man. He said he was then grabbed from behind with an arm and an elbow hooked around his neck. He said that he then threw the mobile telephone to the man who was standing in front of him. He said his neck-hold was then released and the men ran away.
Aside from his insistence that "the boy" (BW) was not involved in the robbery (in the sense that he did not strike him from the front and did not grab him from the rear) he also described the two older males as similar in appearance, to the extent that he thought they might be brothers. He said one of the adults was wearing a black jumper and cream track pants. He said that person was 1.72m tall (referable to his own height), medium to well built, about 85kg in weight. He said this person appeared to be 16 to 17 years of age. He thought the person was either wearing a black beanie or had black hair. The complainant said it was this person who punched him twice while aggressively demanding that he surrender his mobile telephone. He said he did not pay very much attention to the other older male but when he saw all three running away that person was wearing the same clothes as the man who he described as wearing the black jumper.
In his evidence in chief, when asked what the person behind him did as the other man punched him, he gave the following evidence:
Q. What did this person do, if anything, after putting his arm around your neck?
A. He didn't hit me, he just hold my neck so that I gave the mobile to the other guy, but I threw the mobile.Q. You threw the mobile.
A. Yes.Q. Now you said this was the third guy who did this, did you actually see the person who put their arm around you from behind?
A. No, because he came from behind.Q. So why do you say it was the third person who did it?
A. Yeah, because the child was in front of me and the child was short, so obviously he cannot hold my neck.Q. He couldn't reach, is that what you're saying?
A. Yeah.
[Emphasis added.]The complainant said that whilst he was dazed as a result of being punched he was not disoriented. He rejected the suggestion put to him in cross-examination that he reeled backwards as a result of the punch delivered by the person in front of him. He insisted that he maintained an upright stance. He also rejected the proposition that he bent forward as a result of being punched.
The complainant was recalled for further cross-examination by leave. He was taken by counsel to his police statement given within a couple of hours of the robbery. He confirmed when speaking to police that he chose his words carefully and that he took his time in recounting to police what had occurred.
He was then taken to the following passage in his statement and asked questions about it:
Q. Now at paragraph 15 of that statement I'll just read what it says - you noted this in your statement:
"As I pulled my mobile out the other male came from behind and stretched out his whole arm around my neck and pulled me straight backwards towards him. I did not actually see this male though but I knew it was the third male as the kid was too short and the male with the black jumper was still in front of me".
That's what you relayed to the police.
A.Yes.Q. A couple of hours after the incident took place.
A. Yes.Q. Now what I'm suggesting is that you assumed it was not the kid because to your mind he was too short to pull you from behind.
A. Yes.Q. It's not the case that you actually saw the kid.
A. No, I didn't see the kid.The effect of the cross-examination was to confirm that the complainant did not see BW in front of him (contrary to his evidence in chief), and that he was merely assuming that it was not BW who grabbed him from behind because of the sense he had of the height of the person that did grab him. In my assessment, the overwhelming effect of the complainant's evidence was to inculpate the appellant as the person who was behind him at the point of the robbery, given the appellant's height relative to BW's (as confirmed by the CCTV footage), and the complainant's evidence that he did not lose his balance or lean forward as a result of the punch to his face.
The CCTV footage is relevant in three ways:
(1)It shows the appellant as part of a cohesive group of three over a number of hours before the robbery.
(2)It shows the clothing of each and, significantly, the similarity in the clothing of the appellant and his stepbrother. The appellant was wearing a black hoodie and distinctive cream-coloured cargo style pants extending well below the knee which had a black stripe running down both sides while his stepbrother was wearing black track pants. BW was wearing a green jumper and jeans.
(3)Of critical significance is that the footage shows that the appellant and his stepbrother are of similar height, with the appellant of a more solid build. They are both clearly adolescents. In contrast BW, aged 13, is of the height and general body proportions of a young boy. He appears to be about chest height to the appellant. In one segment BW stands in front of the appellant and reaches up, putting his hand on the appellant's shoulder and, standing on his tip toes, appears to swipe at the appellant's face.
The appellant did not give evidence. He did participate in a record of interview with police upon his arrest in which he admitted being in the company of his stepbrother and BW and in the immediate proximity of the complainant when he was robbed but denied participating in the robbery.
The applicant told police in the ERISP that on the early evening of 1 July his stepbrother, in company with BW, collected him from his home in Epping. (Later in the interview he agreed that BW looked like an 8 or 10-year-old boy.) They travelled first to Parramatta, then on to West Ryde where they purchased food from McDonalds on Victoria Road. He said they then sat at a nearby bus stop where there was an Indian man who was seated alone. He said his stepbrother sat next to the man and that BW was standing in front of him "in his face half the time". He said BW started "acting like a smartarse to the guy", asking for the time, talking to him and pretending to take his telephone. The appellant said he did not sit down but paced backwards and forwards near the bus stop sign. On the third occasion that BW tried to grab the man's telephone, the man slapped him lightly on the face with an open hand at which point his stepbrother jumped up and demanded the man's telephone, hitting him with a closed fist to the jaw. He said whilst this was happening BW was standing three or five steps away from the man, watching and laughing. The appellant said that he was 8 or 9 metres away from the confrontation. He said after the man was punched he threw his telephone to the ground, his stepbrother picked it up and they all ran off. The appellant said the entire incident was over within 10 to 20 seconds. He told police that the man appeared to be stunned after he was punched.
The police read some parts of the complainant's statement to the appellant for his comments. He agreed that he was the person who the complainant described as wearing the black jumper and cream-coloured track pants and his stepbrother was the man the complainant described as wearing the black jumper and the man who demanded his telephone and punched him. The appellant again asserted that he saw this happen from a distance and that he was not involved in the assault or the robbery which followed. He denied putting his arm around the complainant's neck and pulling him backwards. He said that it was BW who jumped up and grabbed the complainant by the neck. He said he ran off with the other two boys because he wanted to be "out of there" after realising what the other boys had done.
At the end of the trial, the single issue left for the jury's consideration was whether the Crown could establish beyond reasonable doubt that it was the appellant and his stepbrother, as the two older males, who were physically involved in the robbery (with the appellant either punching the complainant to the face and demanding the mobile telephone or grabbing the complainant around the neck with his arm from behind - with the latter being the Crown case as ultimately left to the jury) as distinct from the appellant's stepbrother being the person who punched the complainant and BW who grabbed him from behind. It was the appellant's case at trial that the Crown had not discharged the onus of proving guilt because it had failed to exclude the reasonable possibility that it was BW who had grabbed the complainant from behind and, accordingly, the reasonable possibility that the appellant, while present, did not participate in the joint criminal enterprise. It remained his case on the appeal that on an independent review of the evidence this Court would be left with a reasonable doubt as to the identity of the person who grabbed the complainant from behind.
I have read the evidence of the complainant with care and given appropriate and deserving weight to the position of the jury in assessing the complainant's demeanour under questioning. I have also considered the CCTV footage, in particular the relative heights of the appellant and BW. I am firmly of the view that it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's participation in the joint criminal enterprise in the role attributed to him by the Crown or, to put it another way, that it was well open to the jury to be satisfied there was no reasonable possibility that it was BW who grabbed the complainant from behind in the course of the robbery.
The order I propose is:
The appeal against conviction is dismissed.
HAMILL J: I agree with Fullerton J. I agree with her Honour's analysis of the evidence in the case and with her conclusions as to inferences that could properly and safely be drawn from that evidence.
I have reviewed the evidence that was before the jury and concluded that it was open to the jury, in the sense discussed in cases such as M v The Queen [1994] HCA 63; 181 CLR 487 and SKA v The Queen [2011] HCA 13; 243 CLR 400, to be satisfied beyond reasonable doubt of the appellant's guilt. The material does not leave me with a reasonable doubt in spite of some inconsistencies concerning the descriptions of the assailants given by the complainant and his ability to make relevant observations.
The CCTV footage is particularly telling as it shows the vast difference in height and stature of the group of three people who were involved. It was open to the jury to be satisfied beyond reasonable doubt that the complainant was correct when he said that it was not the boy who assaulted him from in front or grabbed him from behind.
**********
5
3