Ilioski v R - [2006] NSWCCA 164

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Ilioski v Regina [2006] NSWCCA 164

FILE NUMBER(S):
2005/1614

HEARING DATE(S): 7 February 2006

DECISION DATE: 10/07/2006

PARTIES:
Peter Ilioski v Regina

JUDGMENT OF: Hunt AJA Adams J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1027

LOWER COURT JUDICIAL OFFICER: Hock DCJ

COUNSEL:
WC Terracini SC / A Moen - Appellant
DC Frearson SC - Respondent

SOLICITORS:
Bill Parsons & Associates - Appellant
S Kavanagh (Solicitor of Public Prosecutions) – Respondent

CATCHWORDS:
Appellant charged with wounding with intent to murder or alternatively to do grievous bodily harm - found guilty of the statutory alternative of malicious wounding - principal issue at trial was identification - whether verdict unreasonable - whether directions given on issue of identification adequate - trial judge's obligation under s 116 of the Evidence Act 1995, to inform the jury of special need for caution both generally and in the circumstances of the particular case, arises whatever defence is raised and however the case is conducted - that obligation relates to the reliability of the identification evidence, not to its honesty - bias does not fall within s 116, and obligation to give directions relating to bias depends on how the case was conducted - need for identification parade, s 114 of the Evidence Act - negative identification evidence - compromise verdict - whether miscarriage of justice based on accumulation of conduct by appellant's counsel at trial.

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Jury Act 1977

DECISION:
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.
3. The appellant is to surrender himself into custody to serve the remainder of his sentence.

JUDGMENT:

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

1614 of 2005
HUNT AJA
ADAMS J
LATHAM J
Monday 10 July 2006

ILIOSKI v REGINA

Index to judgment

Hunt AJA   paragraphs
Introduction   1 –     6
Grounds of appeal   7 –    10
Ground 1A           Unreasonable verdict   11 –   60
Ground 5              Identification evidence   61 – 103
Familiarity of witnesses with appellant   68 –   70
Risk of confusion, period of perception of assailant,
  lighting, alcohol consumption, stress, eyesight
  and distance   71 –   85
  Disparities between appellant’s appearance and
  descriptions of assailant   86 –   90
  Displacement, suggestion and the identification
  process   91 –   96
  Bias   97 – 102
  Conclusion as to Ground 5  103

Ground 2              Admission of hearsay evidence  104 – 110
Ground 3              Witness’s belief that accused was assailant  111 – 117
Ground 4              Identification parade  118 – 125
Ground 6              Negative identification evidence  126 – 136
Ground 7              Compromise verdict  137 – 149
Ground 1B            Miscarriage of justice   150 – 156
Ground 8              Application for leave to appeal against sentence  157 – 163
Proposed orders  164

Adams J                 165
Latham J  169
ORDERS  170

------------------------------------

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

1614 of 2005
HUNT AJA
ADAMS J
LATHAM J
Monday 10 July 2006

ILIOSKI v REGINA

Judgment

HUNT AJA: Peter Ilioski was found guilty by a District Court jury of the malicious wounding of Sasa Anastasovski on 19 May 2001. Judge Hock imposed a sentence on imprisonment for four and a half years with a non-parole period of two and a half years. The appeal against conviction and sentence was filed out of time, but the Crown did not object to leave being granted to do so and leave was granted during the hearing of the appeal. Accordingly, I shall refer to Peter Ilioski as the appellant, and to Sasa Anastasovski as the victim.

The victim and his twin brother, Slobodan Anastasovski, had celebrated their twenty-eighth birthday with a group of about fifteen friends in the Pot of Gold Restaurant in Wollongong. There were a number of altercations during the course of the evening, and it was eventually suggested to the party that it should leave. They moved on to the Steelers Club, also in Wollongong. There were further altercations outside the Club, causing the police to speak to some of the persons involved. A major altercation then took place outside the Club in which as many as thirty-five people (mainly men) took part.

The major altercation followed a minor incident when the victim’s twin brother Slobodan took offence at what he perceived to be a threatening gesture by a man in a motor vehicle parked in an area outside the Club, the man having looked at him and run his finger across his throat. The Crown case did not depend on an acceptance by the jury that this man was the appellant, although there was some evidence suggesting that it was. Shortly afterwards, a fight ensued between the twin brothers and a third man which, on the Crown case, was the appellant. Others joined in. For emphasis, I shall refer to this as the first confrontation (in the sense of being the first relevant confrontation) in what was in reality one continuous brawl between many people.

A somewhat general description of the man involved in this confrontation was that he was stocky in build, he was wearing black clothing and he had a roundish face. Some witnesses said that the man had blond streaks in his dark hair. There were further details by way of description given by various witnesses to which reference is made later. The stocky man left the first confrontation, and (on the Crown case) the same man returned with a knife in his hand with a short blade, saying words effectively inviting those there to “have a go now”. Several different versions of the man’s invitation were given in evidence — including “Come and have a go”, “What are you going to do now I’ve got a knife”, “You want some of this”, “We’ll see who’s fucking tough now” — but they all carried much the same message of seeking revenge. It was essential to the Crown case that the man who issued the invitation was the appellant. This man closed in on the victim and slashed him with the knife. He then broke away from the brawl. The most serious wound was to the front of the victim’s neck with an associated tracheal injury requiring urgent cardiothoracic surgery, for which the victim was flown to Sydney by helicopter. He also received stab wounds to the right upper abdominal wall, a stab wound to the left forearm with muscle injury and two minor stab wounds to the left forearm. I shall refer to this as the second confrontation.

The appellant was then identified by Trevor Braithwaite (a friend of the victim) as the assailant, and the victim’s twin brother Slobodan, his cousin Jason Hrstovski and several others joined in kicking and punching him. He received marked facial injuries in that assault. I shall refer to this as the third confrontation. The appellant was shortly afterwards pointed out to the police in the Club car park as having been the assailant and he was arrested. All of these incidents outside the Steelers Club took place at night (the stabbing at about midnight), in conditions of considerable confusion and in a poorly lit area.

The principal issue at the trial was the identification of the man who had wounded the victim in the second confrontation. The point of major contention was whether the appellant had been correctly identified as the person involved in that second confrontation. The appellant’s case was that he was wrongly identified as such and that, because he was wrongly accused of having been involved in the second confrontation, he became involved in the third confrontation and was then reported to the police.

Grounds of appeal

The appellant advances several separate grounds of appeal against his conviction, but there is a degree of overlap between many of them. The appellant also seeks leave to appeal against his sentence. The first ground of appeal, as argued, in fact contains two separate grounds.

That ground, as pleaded, is that no jury properly instructed could reasonably have arrived at a guilty verdict. Effectively, the appellant says the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence: Criminal Appeal Act 1912, s 6(1). The appellant contends, echoing what was said in one of the many High Court decisions discussing s 6(1), that the evidence was inadequate, lacked credibility, was tainted and lacked probative force, and that there is therefore a significant probability that an innocent person was convicted.

However, as argued, this ground also complains that the combined effect of the errors made during the trial and the subject matters of the other grounds of appeal was to cause a miscarriage of justice, thus giving this Court the power to set aside the jury’s verdict pursuant to s 6(1) of the Criminal Appeal Act on that basis also. A miscarriage of justice has been well defined when examining the proviso to s 6(1) as arising where the appellant may have lost a chance of being acquitted fairly open to him: Mraz v The Queen (1955) 93 CLR 493, per Fullagar J at 514; or a real chance of an acquittal: Regina v Storey (1978) 140 CLR 364, per Barwick CJ at 376. In Wilde v The Queen (1988) 164 CLR 365, the joint judgment of Brennan, Dawson & Toohey JJ accepted both descriptions, at 371-372. The same definition of a miscarriage of justice has generally been accepted as applicable also to that term in the body of s 6(1): see, for example: TKWJ v The Queen (2002) 212 CLR 124 at [26], [64] and following, [102]. There was no objection by the Crown to this argument being raised under the first ground of appeal. Consideration of it is deferred until all of the other grounds of appeal against conviction have been considered.

The appellant has maintained that he was not the person responsible for the stabbing of the victim. Identification was the principal issue at the trial. The Crown adduced evidence from several persons who identified the appellant as the victim’s assailant. The appellant contends that significant aspects of this evidence were unreliable, and the appeal is, in large part, directed to this evidence in the trial — its admissibility, its reliability and the directions given in relation to it.

Ground 1A — Unreasonable verdict

Where this Court is asked by an appellant to exercise its power under s 6(1) of the Criminal Appeal Act, it must make its own independent assessment of the evidence, and then consider whether, notwithstanding that as a matter of law there was evidence to sustain the jury’s verdict, it was nevertheless open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty, paying full regard to the circumstances that the jury is the body entrusted with the primary responsibility of determining the issue of guilt and that they had the benefit of having seen and heard the witnesses. This Court must be satisfied that the evidence on which the Crown case relied was cogent and unequivocal, and that it was not inherently implausible. Where the evidence appears on a reading of the record to contain discrepancies, display inadequacies, or lack probative force, its apparent lack of credibility may in many cases be explained by that advantage enjoyed by the jury. But, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, this Court is entitled and obliged to act on its own assessment of the nature and quality of the evidence if it is satisfied that, even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: Knight v The Queen (1992) 175 CLR 495 at 503, 511; M v The Queen (1994) 181 CLR 487 at 492-495; Gipp v The Queen (1998) 194 CLR 106 at [18], [128], [169]; MFA v The Queen (2002) 213 CLR 606 at [25], [30], [48], [55]–[56], [59].

The appellant has filed voluminous submissions in support of this ground, criticising the quality of the evidence given by almost every one of the Crown witnesses. I have given those submissions careful consideration, but the issue raised by this ground of appeal does not require me to refer to all of them. In my view, what is needed in relation to this issue in this particular case is to consider only the evidence of those witnesses on which the judge told the jury the Crown case relied, and the criticisms directed to their evidence, in the context of the evidence favouring the appellant including his own evidence. The fact that the evidence of other witnesses not put forward by the judge as supporting the Crown case may be the subject of valid criticism does not, in the circumstances of this case, weaken or make unreliable the evidence on which the Crown case did rely. If the appellant's conviction on that evidence is not shown to be unreasonable, or if it is not shown that the conviction cannot be supported by that evidence, the conviction will not be quashed because there may be valid criticisms made of that other evidence.

The judge referred to the evidence of the four witnesses on whose evidence the Crown relied — Trevor Braithwaite, Eid Masri, Daniel Steele and Steven Karandzulovski. I shall refer also to the appellant’s own evidence and the other evidence supporting his case.

(a) Trevor Braithwaite

Braithwaite, a friend of the victim, gave evidence of seeing the victim’s twin brother Slobodan approach a silver Nissan Pulsar, the vehicle from which a man had made a threatening gesture towards him (see par [3] supra), and hearing Slobodan arguing with someone inside that vehicle. A fight developed between Slobodan and this man in which Slobodan’s brother, the victim, joined. Braithwaite described the man with whom Slobodan was fighting as stocky in build (or a “little bit overweight”), wearing a t-shirt and having a roundish face with blonde streaks in his slicked back hair. He said that at one stage both the victim and the stocky man were on the ground wrestling with each other and that a girl with blond hair was on top of the victim punching him on the head.

Braithwaite saw the stocky man move away in the direction of the Steelers Club (where vehicles were parked), and he saw the same man return, fiddling with something in his hand, unfolding something. He identified this movement on an amateur videorecording made of the brawl. He said that the man was facing him at that moment. As the distance between them closed, he saw that the man had a small knife like a penknife in his hand with a small blade fifty to sixty millimetres long, and that he was walking towards them at a quick pace. The man said something like “come and have a go”, holding up the knife with both hands at either shoulder or chest height in front of him.

The victim put his fists up in a boxer’s posture, and the stocky man moved in and started slashing the victim with the knife in a pumping motion, from shoulder height across his body in a diagonal movement to stomach height. Braithwaite also saw the knife go towards the victim’s throat. He said that the lighting was “pretty reasonable” at that place, sufficient to distinguish individuals quite clearly. He was seven to eight metres from the two men at that stage (in cross-examination he said that it was roughly ten metres), and there was nobody interfering with his view of what was happening. The man left quickly and walked towards the Steelers Club.

It was suggested to him in cross-examination that this evidence was inconsistent with evidence he had given in a previous trial. He had said in that previous trial that he could only see the assailant’s back at the time of the stabbing. The witness said that he did have a clear view, that he had seen the assailant “walk straight in front” of him as he was unfolding the thing in his hand, and that he had seen his back “at times”. It was also pointed out that he had previously described the assailant as wearing a “grey blue top”, but it is clear from the cross-examination that the witness had also said at the earlier trial that it “may” have been black, pointing out “I am not sure. It is a darkish coloured top”. He accepted that it was “possible” that the top was black, saying “I never concentrated on his clothes. I saw his face. […] You don’t identify somebody by his clothes”.

When challenged as to the certainty with which he asserted that the man he identified to the police was the same man he saw with the knife, the witness said that he saw the assailant walk towards the Steelers Club, and that “the next point where I picked him up” he was with “friends or a group”, adding “[it] was definitely the same man”.

Braithwaite identified the stocky man on the amateur videorecording folding the knife at this stage and giving it to another man. He said that he had not had a clear view of this himself at the time, as the man had his back towards him at that stage. He said that he had no memory of seeing this himself at the time. When the videorecording was replayed to the witness during his cross-examination, there was some doubt in the mind of counsel as to whether the recording had been stopped at the same point as it had been stopped in his evidence in chief, and counsel said “I thought it was, and we can certainly confirm this in short course”, to which the witness replied:
I wouldn’t, I wouldn’t like to stake my life on any of it because it’s not — the resolution of it is terrible and it looks like him, but several people there did look the same.

This occurred shortly before the adjournment of the trial for the weekend. On the Monday, the witness volunteered that he had been thinking of this over the weekend, and he went on to say:
The instance I pointed out to you that stuck in my mind, it stuck in my mind before and I couldn’t figure it out why and where I was at the time and what I was looking at. But the time I pointed out on the video, that’s the point of time when the defendant gave the knife to another person. I saw him folding it up in the video. This stuck in my mind because when I saw him he was facing me unfolding it and the back of him was very relevant to me at the time. I couldn’t figure it out why, but that was it.

The witness was shown the videorecording once more. He volunteered:

I didn’t keep my eye off him until I saw the staff member from the Club get back to him after he stabbed him. Because I know I didn’t take my eye off him because I didn’t have trouble pointing at him. I had no physical difficulty pointing him out to the staff member from the Club and I’m down holding Sash’s throat. This is very important to me. I thought at this stage Sash had been murdered.

(“Sash” was the name given by many of the witnesses to the victim, whose name was Sasa.)

When challenged in relation to what he had seen on the videorecording, the witness elaborated the evidence he had given:
It’s not long after here he turns around, walks over here. Excuse me, hold on. If I can just finish this because it’s very important. He walks around this way. I’m still watching him. I’m on the floor with Sash. I’m still watching him. He went back to his friends. He was here. He folded it up. He give it to his friend. His friend moves away. I don’t know where he went. The guy who did it, he turns around, he goes around behind. […] When I was fixated on his position I knew why because I’d seen this as well and I knew it wasn’t the time when he was opening when I thought about it because I saw him, I saw him opening it. […] And when he folds the knife up, he gives it to one of his friends, he walks around and it’s around this point the staff member comes over.

After further cross-examination, the witness returned to this issue:

This is just after he has folded it up and put the knife away. Rock solid. Not long after, […] I am on the ground pointing him out. I didn’t keep my eye off him. I managed to point him out amongst these people so I was watching him […] and I see this and I see him walking towards me. I turned around. I am not surprised when I turned around to hear his voice “I haven’t got a knife. Who’s got a knife?” He had just given it away. Obvious to me.

Counsel for the appellant emphasises that Braithwaite had never previously mentioned seeing the man with the knife hand it to someone else, despite having provided the police with a statement and giving evidence in a number of previous trials. Braithwaite said in his evidence that it had been a “revelation” to him. He also said that he was able to think more clearly at this time having seen the videorecording yet again. Braithwaite gave evidence that he was attempting to stem the bleeding from the victim’s throat with a towel brought to him by a Steelers Club employee when he heard a voice behind him saying, “Who stabbed him? I didn’t stab him”. (In the last passage of his evidence quoted in the previous paragraph, given on the third day of his evidence, Braithwaite said that the man had said: “I haven’t got a knife. Who’s got a knife?”). He recognised the voice and saw that it was the same stocky man. He said that he replied something along the lines of “I saw you do it, I know you did it”. The next thing that happened was that the stocky man was being kicked and punched by Jason Hrstovski, the victim’s brother Slobodan and others.

Braithwaite later pointed out the stocky man to a female police officer, saying “I saw that man stab my friend”. The stocky man’s blond female companion was present at this time, and said “He didn’t do anything. It wasn’t him”. They were near a silver Pulsar motor vehicle at the time. The stocky man was battered and bruised about his face, and he had a black eye.

Braithwaite said that he had never doubted that the person he identified to the police was the man he had seen with the knife. In cross-examination, Braithwaite said that he was the same man he had seen leave the Nissan motor vehicle, fight with the victim and later stab him, but towards the end of his very long cross-examination he said that he could not say that the man had left the Nissan motor vehicle, and he agreed that the man may possibly have come from a Honda Civic motor vehicle parked behind the Nissan.

Counsel for the appellant has also complained that Braithwaite was not cross-examined on various issues, such as honest mistake, contamination of his recollection by conversations with other friends of the victim at the hospital, the state of the lighting and his ability to recognise the assailant’s voice. Those issues are all matters to be taken into account when this Court makes its own assessment of the nature and quality of the evidence which was given, but the absence of cross-examination as to those matters is irrelevant to that issue. It may be relevant to the other part of Ground 1, that there had been, overall, a miscarriage of justice; that issue is examined later in this judgment.

(b) Eid Masri

Masri was not from that area, he did not know either the appellant or the victim, and he had not participated in the birthday party. He gave evidence that, when he left the Steelers Club, he saw what I have described (in par [3] supra) as the first confrontation. He said that he also saw a man and a “blondish” woman scuffling together on the ground in that fight. Masri said that one of the men involved in the main fight had then left, taking the woman from the ground with him. He identified this man on the amateur videorecording. He said that the same man had returned with a knife in his hand and taken part in what I have described (in par [4] supra) as the second confrontation. He said that the blade of the knife was either three or “a couple” of inches. Masri said that once he saw the knife he kept his eye on the man’s right arm. He denied that he was making up the details of the knife. The man was shouting towards those with whom he had been fighting words along the lines of “Do you want to keep going?” and “I will finish this”.

Masri described this man as reasonably stocky in build, a “bit shorter” than six feet tall, and as wearing a black t-shirt with yellow writing on the back of it and dark trousers. He had short dark hair. In cross-examination, he said that he saw more of the assailant’s back than his front in the fight. He said that he did, however, have a view of his face at different times. He had clearly seen the left side of the man’s face when he came past him holding the knife. After being shown a police photograph taken of the appellant that night, Masri agreed that the writing on the t-shirt was white, not yellow. He said that there was not much light at the time. He agreed that there were many people wearing brand-named clothing there that evening. He said that he had seen this man three or four times during the evening.

Masri said that the man took a swing with the knife at one of the men in the earlier fight, who blocked the assailant’s blow with his arm. Another man hit the assailant, who swung the knife like a tennis forearm close to the victim’s throat. The assailant was “taken to the ground” by a couple of men, but he sliced the victim’s arm with the knife as this happened to him. Masri said that he did not see the assailant actually cut the victim’s throat, but he saw the victim recoil and then he saw the cut on the man’s neck.

Masri went to the assistance of the victim, together with another man (the victim’s twin brother). He agreed in cross-examination that he lost sight of the assailant at this time, and he estimated that this would have been for about five minutes. The assailant returned, asked Masri whether the victim was “going to be alright”, and then turned around and walked towards the Steelers Club car park. In cross-examination, he rejected the suggestion that he had been mistaken that the same man returned to the fight with the knife. Masri later gave the police a description of the assailant. In his evidence, he described the assailant as having a “baby face” or “a younger face”, with spiky or short hair and wearing dark clothing.

Masri also saw what I have described (in par [5] supra) as the third confrontation, when Jason Hrstovski, the victim’s twin brother Slobodan and others beat up the appellant as the man they believed to have been the assailant. Masri said in cross-examination that he was not looking at the colour of the man’s hair “whilst everyone was jumping on” his head.

Shortly afterwards, Masri was told by an unnamed security guard that no witnesses had formally identified the man with the police in the car park as the assailant, and that they needed someone to make that identification. When Masri saw the man he said was the assailant with the police in the car park, the man had a black eye and was “pretty well bruised up”. Masri identified that man as the assailant. He agreed that the man’s face had not been injured before he became involved in the third fight. He said “I suppose I had a bit of a better look by that time”. He told the police that the man was “definitely” the assailant. He said that he had made the identification on the basis that he was the man he had seen with the knife attacking the victim.

When shown the amateur videorecording, Masri was able to identify the man leaving the fight with the woman and the man he had identified as having something in his hand, but he was unable to see the knife on the videorecording. He pointed the man out on the videorecording, saying that he had his shirt “half off” at one (unidentified) stage. He was cross-examined on evidence he had given in a previous trial when he had said that the man with the knife was wearing a shirt with vertical stripes on it, and when he had conceded that he was not sure that the man with the striped shirt was the man with the knife. He said in cross-examination: “It could have been somebody else. I think that there is an ambiguity there and I will leave it”. He conceded that the man he had identified as having something in his hand may have appeared on the videorecording after the stabbing had taken place, but he suggested that what he may have seen on the videorecording was the man when he was leaving the fight with the knife.

(c) Daniel Steele

Steele was undertaking work experience as a security guard for the Steelers Club that evening for the first time. He described the “huge massive brawl” on the roadway outside the Club involving thirty to thirty-five people. He had not known any of the participants. He saw what I have described (in par [3] supra) as the first confrontation involving one of the brothers. He described the other man involved in that confrontation as short, with short hair (he thought it was dark brown), wearing a black shirt, and “pretty well built” for someone of his height. He lost sight of the other man for a few seconds and then saw the same man return, walking towards the victim with his arm extended in front of him and holding a knife in his right hand at about stomach height. He said that he clearly saw the knife from about four or five metres away, when he was facing the man directly. The man’s face was normal; “they hadn’t really laid into him yet”.

This man called out “What are you going to do now I’ve got a knife”, he started swinging and swivelling the knife, and then he lunged with it. Steele did not see the knife impact with anyone; his attention was drawn for ten to twelve seconds to another fight breaking out behind him. He said that he heard someone shouting to call an ambulance because a person had been stabbed. He obtained some towels and returned to see the assailant being “seriously” beaten up, kicked in the head, punched and thrown around against vehicles. He had not taken long to get the towels, “thirty seconds maybe”. The assailant looked as if his shirt had been torn off. Other men intervened and rescued the assailant, who entered a vehicle with a female and another man. Steele told those with the assailant not to leave as the police were on the way, and he stood behind the vehicle to prevent them from leaving. The police arrived some thirty to forty seconds later.

He was unable to say that the victim was the same as the man with whom the assailant had previously been fighting, because the twins were very much alike and he could not tell the difference between them. It was put to Steele in cross-examination that he had assumed that the man they attacked was the assailant, but he replied:
No not assume. I knew it was him. Because I remember specifically his shirt being torn off in the scuffle. And as I remember by watching the video, there wasn’t any other people there without [sic] their shirts torn off.

Steele agreed that this had been a terrifying experience for him on his first night working as a security officer. He had said in his police statement that the men beating up the assailant were friends of the victim. He agreed in cross-examination that this was an assumption on his part. He was asked whether he had also made an assumption that the man being beaten up was the assailant, and he replied that that “may be” so. He agreed that it was a possibility that he had made a wrong assumption that the man being beaten up (in the third confrontation) was the man he had seen with the knife (in the second confrontation). In re-examination, Steele repeated that the man with the knife was wearing a black shirt, but he really did not remember what colour shirt the man being beaten up was wearing. When asked how he had formed an opinion that the man being beaten up was the same as the man with the knife, he said:

Well it was, from my eyes at the time it was the same guy from what I saw.

He was not asked to elaborate that answer.

Steele was able to identify on the amateur videorecording the assailant on the ground with his shirt ripped and in the third confrontation “when they really lay into him”, but he was unable to identify him at the point of the videorecording when the stabbing occurred. He was also able to identify himself as well as the female who went to the vehicle with the assailant.

(d) Steven Karandzulovski

Karandzulovski was the brother-in-law of the victim and his twin brother Slobodan, whose evidence on one issue may usefully be referred to here. Slobodan described one of the men in the vehicle at the time a threatening gesture was made towards him (see par [3] supra) as wearing a black shirt (with writing on the front) and black pants, with short black hair and a “pony tail like a rat’s tail” past the collar, and as being a “bit plump-ish”. He was shown the amateur videorecording, and he identified on it the man he said had the rat’s tail, but (according to the transcript) that man is shown facing the camera. There is no suggestion that a rat’s tail could be seen. When asked what he meant by a rat’s tail, he said that the man’s hair was short at the back with a skinny strip of hair about four or five inches long, starting a little lower than the top of his ears and going past his collar. He likened it to that of Kostya Tszyu, the champion boxer. He agreed that the rat’s tail was quite distinctive, and that it could not be missed. When shown a photograph taken of the appellant by the police later that evening (which did not show any rat’s tail), Slobodan suggested that the rat’s tail had been cut off with scissors. It was put to Slobodan that, when he saw the appellant that night, he did not have a rat’s tail, and Slobodan maintained that he did. He denied the allegation that, for a reason best known to himself, he had wrongly nominated the appellant as being involved in the assault on his brother. There was no re-examination.

Karandzulovski himself described the assailant as not very tall, stocky, chubby, with dark spiky hair, with a rat’s tail. (He described the female with the assailant as having dark hair.) He said that the assailant was wearing dark trousers and (he was “pretty sure”) a lighter shirt. He described a rat’s tail as a piece of hair grown to a different length at the back of the head in a plait and about ten centimetres long, but he said that it was different from that possessed by Kostya Tszyu, in that it started down at the hairline rather than at the top of the head. He also said that the rat’s tail was either two and a half or four inches long, but he conceded that he was only guessing its length. He identified the assailant on the amateur videorecording, agreeing that he was wearing a black t-shirt with some white writing on the front, There was no description in the transcript disclosing what view was had of the assailant at that particular point of the videorecording, and no reference to that person having a rat’s tail. In cross-examination, the witness agreed that he was saying that the man who had been fighting with the victim was the man who returned with the knife. The cross-examination continued:
Q: And that man had a rat’s tail that night?
A: I’m pretty sure. Yes, that’s what I say.

He accepted that he had agreed on a previous occasion that he was “quite sure” that he had seen a rat’s tail, and that there was “no question” that the assailant had one. The witness was shown the photograph of the back of the appellant’s head taken by the police, and he agreed that there was no rat’s tail to be seen in it. That subject was not further explored by either party.

Karandzulovski said that he saw the man he identified as the appellant fighting with the victim, throwing punches at him. He saw another man known to him as Momo fighting with Slobodan and a third man known to him as Jigga wielding a piece of timber (see par [43] infra). (Momo was Steven Momirovski, a friend of the appellant, who had travelled to the Steelers Club with him: par 42, infra. Jigga was Tony Dimovski, who was apparently the driver of the silver Nissan Pulsar: par 43, infra.) The witness said that the only man fighting with the victim at that stage was the appellant. He did not see the two men on the ground together. He then saw the same man leave the fight and return holding a knife with a two-inch blade in his right hand, with his arm out in front of him at about shoulder height and the knife pointing upwards. He was four to five metres away when he saw the knife. He heard the man say loudly: “You want some of this?”. He was concentrating on the knife at that stage. The man had then lunged out at the victim by raising his forearm and then straightening his elbow with the knife in his hand. (This appears to have involved a downward movement with the knife.) The victim threw a punch and the assailant fell to the ground. The witness said that he went to the victim’s assistance, but he did not keep the assailant under observation. He noticed that the victim was then holding his throat with both hands. Next, he saw Jason Hrstovski punching and kicking the assailant.

Karandzulovski also said that, at the relevant time, he had seen the appellant two or three times previously over a period of about two years at the Steelers Club, but he did not personally know him and he had not spoken to him. He knew the appellant as “Peter” or “PI”. When asked how he knew that the man he saw was known as “PI”, he replied: “I’m not sure how I know but I know”. It was put to him in cross-examination that the man he saw was not the appellant, and he replied “I know what I seen”. Karandzulovski identified the assailant on the amateur videorecording, agreeing that he was wearing a black t-shirt with some white writing on the front, There was no description in the transcript disclosing what view could be had of the assailant at that particular point of the videorecording, and no reference to that person having a rat’s tail.

Counsel for the appellant has made the same complaint as he did in relation to the witness Braithwaite concerning the absence of any cross-examination of Karandzulovski on various issues (see par [25] supra). My response to this complaint is the same as that given previously.

(e) The appellant

The appellant was interviewed by Det Sen Const Bridge and Sen Const Hyndes, starting at 5:53 am the same evening and after the appellant had received medical attention at Wollongong Hospital. The interview was video-recorded. The appellant accepted that, shortly before the interview began, he had told Constable Hyndes:
You know that the worst thing about it, I had nothing to do with it, I know both sides and I wanted to break up the fight.

The appellant later in the interview slightly elaborated what had happened. He said that, when his girlfriend drove him and a mate (Steven Momirovski, known as Momo) to the Steelers Club, he saw two men fighting there and he recognised them when he left the vehicle. He went in “to break up the fight, to make peace”. One of the men “backed down”, but the other apparently “thought [he] was taking sides”, and “turned on [him]”, although he was not hit at that stage. That man’s brother “got [him] by the throat”, and ten or fifteen of his mates jumped in and pinned him to the ground, when they all “had a go” at kicking him in the head, his ribs, his legs and his body and “stomping” him on his head.

In his evidence at the trial, the appellant said that he had previously that evening been at a twenty-second birthday party of a friend and that, after changing his clothes, he had been in a black Honda Civic hatchback driven to the Steelers Club by his girlfriend Zora; he was in the front seat, and his friend Momo was in the back seat. The appellant said that he was by then wearing a black “Diesel” t-shirt, dark blue jeans and black boots. He said that his girlfriend had parked her vehicle behind a silver Nissan Pulsar SSS vehicle. He noticed that there was fighting between the driver of that vehicle and some men outside the driver’s door. He recognised the man throwing punches (or jabs) into the vehicle as the victim’s twin brother Slobodan. The appellant left the Honda from the passenger’s side and noticed that Slobodan had opened the driver’s door of the Nissan and had both his hands on the driver, whom he recognised as Tony Dimovski (who was known as Jigga; see par [39] supra). Momo tried to reason with Slobodan, and he was told by Slobodan (in colourful terms) to leave. Slobodan continued his attempts to remove the driver from the Nissan vehicle.

Slobodan finally dragged the driver out of his vehicle and held him face to face, Slobodan with his fist clenched at shoulder level. He pulled the driver across the road. At that point, the appellant was watching from the driver’s side of his girlfriend’s hatchback. Momo was trying to separate the driver of the Nissan from Slobodan, and he was himself being punched by Slobodan. The appellant told his girlfriend that he was going to “make peace” with the two men. The driver was still trying to escape Slobodan’s hold, hitting him on the hand in an endeavour to release his grip. The appellant asked the two men to “break it up”. Slobodan told him angrily (again in colourful terms) to go away. The appellant said that he was not himself a fighter, and that he was too scared to be involved.

The appellant said that Slobodan’s brother, the victim of the stabbing, then arrived with a group of ten to fifteen men from the Steelers Club. He said that some of them had given evidence for the Crown in the trial. The victim was the first person he recognised at the time. He knew the twins as fellow Macedonians, but they were not friends. He only recognised one other man at the time, one Peter Lozenkovski. The victim grabbed the appellant by the throat with his right hand, and he was holding him tightly. The appellant grabbed hold of the victim’s head because he was being choked. He managed to remove the victim’s hand from his throat. He told the victim that he had had nothing to do with the fight between Slobodan and the driver of the Nissan, and that he was just standing there at the time. The victim said (also in colourful terms) that he did not care. One of the victim’s friends said: “Just hit him anyway”. The victim then grabbed the appellant by the shirt and started dragging him along the street. He pushed the appellant down to the ground and started throwing punches. The victim and two or three other men whom he did not know started punching and kicking him in the head, shoulder, back and legs and stomping on him. In cross-examination, the appellant said that by kicking he meant that he was being kicked with the toe of the shoe; by stomping he meant that he was being kicked with the sole of the shoe (a “blunt kick”). He thought he had been kicked in the head three or four times. He was in severe pain; he thought he was dead.

When the men stopped hitting him, the appellant picked himself out of the gutter and faced the victim and the other two men who had been kicking him, saying:
Look what youse doing, you’re going to kill me, I haven’t done anything wrong.

The appellant was then attacked by seven to ten men, punching and kicking him, and he fell back to the ground where he curled up in a ball to protect himself. In cross-examination, the appellant could identify some of these men as Slobodan, his brother (the victim of the stabbing), Oliver Koltovski, and Steven Karandzulovski. (He said that he was able now to identify the last two because they had been Crown witnesses.) The appellant could hear his girlfriend yelling at the men that (in colourful terms) they should leave as they were going to kill him. She had covered his head with her body to protect him. However, the victim dragged his girlfriend away by the hair and punched her in the shoulder and neck, kicking her towards the area of her stomach. She was hysterical and screaming in agony. The appellant was pulled away by other men whom he knew, and there was a tug-of-war between the victim’s group and the appellant’s group. He was in a lot of pain, and he felt that his eyes were the size of tennis balls.

The appellant said that he recognised Jason Hrstovski as one of the people who had kicked him (Hrstovski had given evidence that he had indeed kicked and punched the appellant). He had not known Hrstovski at the time. He recalled Hrstovski asking him whether he had stabbed the victim, to which he had replied that he did not know what Hrstovski was talking about. The appellant said that he was then left alone near the motor vehicle with his girlfriend. He could see that the big brawl was still going on. He heard someone yell: “He’s been stabbed, he’s been stabbed”. He made his way to a gathering of men and saw a man lying on the road with a lot of blood. He could not recognise that man.

In cross-examination, the appellant said that he did not know what had happened to the man on the ground; he did not know how he had been injured. He said that he had not known that anyone had been stabbed until told by the detectives in the hospital. He thought that he had been charged only because he had been a fight, and because the police had assumed that he was the assailant. He agreed again that Jason Hrstovski had said to him: “You stabbed Sash [the victim]”, to which he had replied “I don’t know what you’re talking about”. He explained this apparent contradiction in his evidence by saying that he had not seen anyone being stabbed.

The appellant recalled being in the motor vehicle when the police arrived and he was at that stage feeling very, very sore, distressed, confused and scared. He had been scared that he would be hurt by the large group of men from the time he was yelled at in the very beginning. He begged the police to take him to hospital, saying that he was dying. He felt as if he had been hit by a bus. He was shaking in anxiety, very scared and confused. He denied in cross-examination that he was shaking because he knew that he was in trouble for what he had done.

The appellant was shown the amateur videorecording and identified various places and people referred to in his evidence. The appellant denied carrying a knife that evening, and he denied stabbing the victim. He also denied trading punches with the victim on a one-to-one basis, and he denied each of the details of the Crown case against him.

There were a number of different interpretations of the amateur videorecording put to the appellant in cross-examination and denied by him. As this Court was not shown the videorecording, it is not possible to identify any particular conclusions which the jury may have drawn from that videorecording in the light of the interpretations put to the witness in cross-examination but denied by him. However, the appellant did accept that the videorecording showed him returning from the direction of the Steelers Club to where the brawl was taking place with something in his right hand. He said that the video recording was not “real clear”, and that he could not see how his hands were being held. Nevertheless, he agreed that the videorecording showed something in his right hand extending past his little finger. He suggested that it was a cigarette; in re-examination, he suggested that he also had a lighter in his hand. His counsel did not ask him to describe the size of that cigarette lighter. The appellant also agreed in cross-examination that his shirt was hanging around his neck and that he was bare-chested just before he was attacked by Hrstovski and the others.

(f) Other evidence favouring the appellant

The appellant called a number of witnesses:

Zora Tanasovska, the appellant’s the long-standing girlfriend, corroborated his account. She did not see him with a knife at any time that evening.
Tony Dimovski (“Jigga”), the driver of the silver Nissan Pulsar, said that the victim’s twin brother Slobodan was not in his vehicle when he arrived at the Steelers Club that evening. He described being punched by Slobodan and then chased up the street by five or six men. He did not go back to the Club that night. He denied having run his finger across his throat when Slobodan came out of the Club, and claimed that Slobodan was abusive towards him because he came from Port Kembla.
Dr Peter Ellis, the Director of Forensic Medicine at Westmead Hospital and a specialist pathologist, gave evidence that it would be impossible for the knife used to wound the victim not to have a trace of blood on it, but that the transference of blood would depend on how the knife was held. He agreed with the Crown evidence that it was unlikely that blood would have spurted from the injuries. He accepted that it was “possible” for some blood to be “flicked” from the blade on to the person using the knife. He declined to accept that it was a “distinct possibility”, and he was not asked whether it was a reasonable possibility. He said that it was also possible that the blood may not drip on to the hands of the person using the knife.

No blood from the victim was found on the appellant, his clothing or his possessions. The police found no knife on the appellant or on Zora, or in the black Honda Civic vehicle. The appellant raised his good character, and evidence of that good character was also given by two workmates and two neighbours.

Conclusions open to the jury

From the evidence I have recounted, it was clearly open to the jury to reject the self-serving parts of the appellant’s evidence. The appellant said that he became involved in the fight because he wanted to “make peace” with the two men. He told the police that he knew "both sides" in the fight. He identified them in his evidence as the victim's twin brother Slobodan and Tony Dimovski (Jigga). He made it clear that, although he knew the victim and his twin brother, he was not a friend of theirs. He did not suggest that he had any particular relationship with Jigga that would have prompted his action. He gave evidence that he feared being hurt by the men present in this large, sprawling brawl in progress at the time. In the light of the appellant’s evidence, the jury were entitled to take the view that his reason for becoming involved with the victim in the first confrontation — to “make peace” between the two men — was untrue. In my own view, such a reason was so unlikely on the evidence that it rings untrue, even on the transcript. It was, as I have said, clearly open to the jury to form that view. If the jury did form that view, it would follow that they could therefore have viewed all of the significant evidence the appellant gave concerning his participation in the brawl as untrue — as too carefully fitting in with the Crown case in all but the vital issue of whether he was the man with the knife who stabbed the victim.

The appellant concedes that he was the man involved with the victim in what I have described (in par [3] supra) as the first confrontation between the victim, his twin brother Slobodan and a third man. It was not necessary for the jury to accept the evidence of some witnesses that he had emerged from the driver’s door of the silver Nissan Pulsar 333 vehicle to become involved in that fight in order to accept that the confrontation otherwise took place in the circumstances outlined in the evidence on which the Crown relied. In any event, the appellant specifically placed himself at the vital stage as standing beside the driver’s door of the black Honda Civic hatchback parked immediately behind the Nissan. He conceded that he then became directly engaged with the ultimate victim, although on his version he was acting purely defensively.

On his own evidence, the appellant was set upon by the victim and two or three other men in this first confrontation, who punched and kicked him in the head, shoulder, back and legs and stomped upon him (see par [46] supra). This was an important part of the Crown case, as it provided the appellant with a motive to seek revenge for his mistreatment, by using a knife to wound someone. There is no dispute concerning the evidence that the man carrying the knife into what I have described (at par [4] supra) as the second confrontation invited those there to deal with him now that he had a knife (see par [4] supra), which supports the assailant’s motive to seek revenge for some immediately preceding mistreatment. The appellant conceded that the amateur videorecording showed him with something in his right hand as he returned towards the brawl. The jury were entitled to disbelieve his suggestion that it was a cigarette.

The appellant concedes that he was the man involved in what I have described (in par [5] supra) as the third confrontation, and that he was the man arrested by the police. The only remaining issue, therefore, is whether he was wrongly identified as the man involved in the second confrontation and thus beaten up in the third confrontation. The motive on the part of the appellant to seek revenge for his mistreatment received in the first confrontation is by itself an insufficient basis for a finding beyond reasonable doubt that he was the assailant, but it does lend weight to the identification evidence given in the Crown case in the overall context of the appellant's own evidence.

The appellant was identified as the man involved in the second confrontation by the four Crown witnesses whose evidence has already been described, but which may be relevantly summarised as follows:

(1) Braithwaite said that he had a clear view of the man with the knife when he walked straight in front of him holding that knife, and that this man was the man with the blond streaks in his hair involved in the first confrontation. The appellant had such blonde streaks in his hair. Braithwaite was certainly a loquacious and somewhat overly introspective witness, but I see nothing in his evidence which affected the quality of the identification he made. His criticism of the amateur videorecording that several people on it looked the same does not affect his identification either. It was common ground at the trial that the quality of that videorecording was very poor. The argument that Braithwaite’s evidence that the man with the knife subsequently gave it to someone else (see pars [20]–[22] supra) was given for the first time in this trial (which was not the first trial) — the witness described it as a “revelation” to him when giving evidence — is easily explicable from the fact that the witness had just been asked yet again to view the amateur videorecording, and it is obvious from the evidence itself (see the passages of his evidence quoted in par [21] supra) that it was the witness’s interpretation of what he had just noticed in that videorecording for the first time. He expressly stated that he had no memory of having seen the knife being given to someone else at the time himself (par [19] supra). That criticism was misplaced.
(2) Steele gave evidence that he saw the man with the knife (in the second confrontation) from four to five metres away when he was facing him directly, and he identified the man with the knife as the same man involved in the first confrontation. That is so, even though he was unable to identify which of the identical twins with whom that man was fighting in that particular fight. He was not shaken on the identification of the appellant as that man. Importantly, Steele said that the man had his shirt torn off in the first confrontation (pars [34]–[36] supra), and the man involved in the third confrontation is described by other witnesses as having a torn shirt: Masri pointed this out on the amateur videorecording (see par [32] supra); Constable May said that, when she arrested the appellant, he was without his shirt; and the appellant himself conceded that he was bare-chested just before the third confrontation (see par [51] supra). In those circumstances, Steele’s concession in cross-examination that he could possibly have made a wrong assumption that the man with the knife in the second confrontation was the man being beaten up in the third confrontation is of less significance. The importance of his evidence is that the man involved in the second confrontation was also the man involved in the first confrontation — and the appellant has conceded that he was that man.
(3) Masri also identified the man involved in the second confrontation as the same man involved in the first confrontation. He said that he had clearly seen the left side of the man’s face when he came past him holding the knife. The quality of that identification, however, is affected by his concession that he had in a previous trial said that the assailant with the knife could have been wearing a shirt with vertical stripes on it, and his acceptance that there was therefore an ambiguity in his evidence.
(4) Karandzulovski gave evidence that he was four to five metres away when he saw the man with the knife. However, he said that he was concentrating on the knife at that stage, and his evidence that he was “pretty sure” that the assailant had a rat’s tail also affects the quality of his identification.

The evidence of Masri and Karandzulovski adds little to the Crown case on identification for present purposes. On the other hand, the evidence of Braithwaite and Steele is, on its face, a strong identification of the appellant as the assailant. This Court’s own independent assessment of the nature and quality of the evidence supporting the jury's verdict must nevertheless take into consideration any reasonable possibility that the assailant did indeed have a rat's tail hair style, as the victim's twin brother Slobodan and Karandzulovski asserted. That the jury did not reject the Crown case because of a reasonable possibility that the assailant did in fact have a rat's tail hair style is explicable on the evidence. Just as positive evidence of identification may be affected by confusion and displacement, or contaminated by subsequent conversations with other friends of the victim after the event, so may negative identification evidence be a consequence of the same factors. In my view, it was well open to the jury, having had the benefit (which this Court has not had) of seeing and hearing all the witnesses (see par [11] supra), to conclude from the whole of the evidence that the description of the assailant having a rat's tail given by these two witnesses was mistaken.

Having made my own independent assessment of the nature and quality of the evidence, I am satisfied that it was open to the jury on the evidence — and the evidence of Braithwaite and Steele in particular, in the light of the appellant’s own evidence — to find beyond reasonable doubt that the appellant was the assailant with the knife and thus was guilty of maliciously wounding the victim. I am not satisfied that there is any significant possibility that an innocent person has been convicted.

I would accordingly reject Ground 1A.

Ground 5 — Identification evidence

It is convenient to deal next with Ground 5. It asserts that “[t]he trial judge erred in failing properly to direct the jury on the issue of the unreliability of identification evidence in this case”. The appellant relies on ss 116 and 165(2) of the Evidence Act 1995, and says that the judge failed to give the jury the warnings required by both of those sections. His complaints are numerous and varied.

Section 116 requires the trial judge to inform the jury that there is a special need for caution before accepting identification evidence and of the reasons for that need for caution, both generally and in the circumstances of the particular case. That requirement goes beyond the usual obligation of a trial judge in the summing-up: Kanaan & Ors v Regina [2006] NSWCCA 109 at [183].

A judge is usually required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury so far as those cases are revealed by the conduct of the parties: Domican v The Queen (1992) 173 CLR 555 at 561. However, because the seductive effect of honest evidence of identification has so frequently led to proven miscarriages of justice when the evidence is subsequently shown to have been mistaken, special rules apply in relation to identification evidence. Where such evidence is admitted as part of the Crown case (unless the identification is in the end not in dispute: Dhanhoa v The Queen (2003) 217 CLR 1 at [19]–[22], [53]), the judge must isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence — whatever the defence raised and however the case is conducted: Domican at 561-562.

Section 165(2) requires the judge to warn the jury that identification evidence may be unreliable, to inform the jury of matters that may cause it to be unreliable, and to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. However, the warning need be given pursuant to s 165 only if requested by a party: s 165(2). In the present case, counsel appearing for the appellant at the trial made no complaint about the content or adequacy of any of the judge’s directions concerning identification evidence, and he made no request for any other directions to be given. Whatever room s 165 may have to operate beyond what is required by s 116 in relation to the identification evidence favouring the Crown, therefore, the present case is not the one in which to explore that issue. (The restriction to such evidence is dictated by the definition of “identification evidence” in the s 3 Dictionary.) In this case, the appellant must succeed in relation to s 116 if he is to succeed at all in relation to the complaints he now makes as to the directions given concerning the identification evidence favouring the Crown.

I propose to examine the particular features of the identification evidence now said by the appellant to affect its reliability and then set out any relevant directions given by the judge before considering whether, in light of the appellant’s complaints on appeal, those directions were inadequate.

The judge made the following general remarks concerning identification evidence in the course of her summing-up:
Now members of the jury, it would be clear to you that there is no dispute that it was indeed the accused who was beaten and kicked by Jason, that is Joce Hrstovski, who you saw delivering that high kick on the video, exhibit A, and who ended up with Miss Tanasovska, Zora Tanasovska, in the car and was arrested by the police. What is very much in dispute is what happened before that beating and kicking by Mr Hrstovski, whether he was the person with the knife who stabbed the victim.
In that regard I have just taken you to the evidence of identification of those witnesses whose evidence I have just summarised for you. Evidence that the accused has been identified by a witness, in this case by those witnesses whose evidence I have just summarised, as doing something must, whenever it is disputed by the accused, be approached by you with special caution before you accept it as reliable.
The caution is necessary, even though you may be satisfied that the witness has been giving completely honest evidence when saying that he identified the accused. These particular directions relate to the reliability of the identification evidence given, not to the honesty with which it is given.
Special caution is necessary before accepting identification evidence because of the possibility that even completely honest witnesses may have been mistaken in their identification. I am not suggesting that the evidence of such a witness must be regarded as unreliable. My task is no more than to draw to your attention the possibility that the evidence of such witnesses may be unreliable and to explain why that is so, so as to enable you to exercise the special caution which is required in determining whether you accept that evidence as reliable and what weight you give to it.
The common experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence, however honestly given, may turn out to be unreliable. There have been some notorious cases over the years in which completely honest evidence of identification has been demonstrated to be wrong, after innocent people have been convicted.
The reliability of an identification of a person depends on the circumstances in which the witness observed the person who [sic] he or she has identified as the accused, and any one of those circumstances may possibly lead to error. For example, how long was the period of observation? In what light was it made? And from what distance was it made? Was there anything about the person observed which would have impressed itself upon the witness? Was there any special reason for remembering the person observed? How long afterwards was the witness asked about the person seen? How did the description then given compare to the appearance of the accused? Each of those matters must be considered in every identification case and I will shortly be drawing your attention to some particular matters raised in this present case.
The fact that, in this trial, more than one witness has identified the accused is a matter you may take into account when determining the weight which you place on their evidence. But you must clearly understand that such a fact does not mean that there is necessarily less chance that a mistake has been made. Two or more honest witnesses can be just as mistaken as one. This warning of the need for special caution before accepting the evidence of identification is one which is given in every case in which such evidence is disputed by the accused. It is not given because of any particular view which I may have formed concerning the reliability of the identification evidence in the present case. The weight to be given to that evidence is a matter for your decision and not mine and I have, as I have already said, I have nothing to do with that decision which you have to make.
You should not interpret these directions as indicating any particular view which I may have formed one way or the other. As I have said, you must approach all identification evidence with special caution. There are however, a number of matters in this case, to which I now propose to draw your attention, which are relevant to the reliability of the evidence of identification that’s been given and my direction is that you are bound to consider those matters in determining whether you accept the evidence as reliable.
I do not say you must regard all or any of them as necessarily undermining the reliability of the identification evidence and I repeat I do not express any opinion myself as to whether they should lead you to reject the evidence as unreliable. My purpose in referring to these matters is only to assist you in your task by pointing them out as warranting your attention and by directing you that you are bound to give them careful consideration.

These directions adequately inform the jury of the special need for caution before accepting identification evidence and of the reasons for that need for caution generally. The only issue is whether those directions and the further directions given by the judge in relation to specific issues concerning identification arising in the evidence adequately informed the jury of the reasons for that need for caution in the circumstances of this particular case as required by s 116. For convenience, I have given subheadings to each of the particular features now said by the appellant to affect the reliability of the identification evidence in this case.

Familiarity of witnesses with appellant

Identification evidence given by a witness who has some familiarity with the person said to have been present at the relevant time and place is generally (and reasonably) thought to be more reliable than the evidence of a witness who identifies a complete stranger as the assailant. The appellant points out that he was a complete stranger to the majority of persons who gave identification evidence for the Crown. Only one Crown witness, Steven Karandzulovski, claimed to have recognised the appellant as someone of whom he had some knowledge (see par [40] supra). As already stated, he said he had seen the appellant about three times during the two years prior to the stabbing. He gave evidence that he knew the appellant as “Peter” or “PI”. The appellant suggests that Karandzulovski was not really familiar with the appellant, having encountered him so few times previously, and that he was in no better position than any other eyewitness to identify him.

The judge gave the following warning:
The particular matters that I ask you to bear in mind, and I direct you to keep in mind, are that the witnesses, with the exception or possible exception of Steven Karandzulovski, were identifying a person who, prior to that evening, was a stranger to them.

That was a correct statement of the evidence, and that direction, coupled with the judge’s general cautionary directions, adequately met the case. The appellant was not a stranger to Karandzulovski, but it could hardly be said that he was familiar with the appellant. The direction does not suggest that he was.

The appellant complains that judge did not go on to state that, in any event, mistaken identification evidence is sometimes given by witnesses already familiar with the accused. There was no need to do so in the present case because none of the identification witnesses claimed to have that familiarity. It is inaccurate to assert that Karandzulovski was in no better position than the other eyewitnesses, but his faint knowledge of the appellant did not require any separate direction along those lines concerning the reliability of his evidence. I would reject this complaint.

Risk of confusion, period of perception of assailant, lighting, alcohol consumption, stress, eyesight and distance

The appellant says that the following circumstances gave rise to a significant risk that the identification witnesses may have confused the appellant with someone else:
There were approximately twenty-five males involved in the brawl outside the Steeler’s Club where the appellant was stabbed.
Most of those present were wearing dark coloured clothing, including the appellant.
Three men other than the appellant had expressed a desire to seriously harm either the victim or his identical twin brother in the minutes or hours leading up to the stabbing.
There were lapses of time between the various distinct phases in the events prior to and following the stabbing.

The appellant also draws attention to the facts that the area in which the stabbing occurred was poorly lit and that many of the identification witnesses had consumed alcohol and were under stress.

The judge gave the following directions:
The next matter is that some of the witnesses had been drinking alcohol. Mr Karandzulovski told you that he had been. He was drinking in a “shout”, he told you, and he had previously been at the Pot of Gold Restaurant. Mr Masri told you he had only had one or two drinks. Mr Braithwaite had had, as I previously mentioned, two bourbon and cokes — that was at the restaurant, as I understood his evidence. He was also in the birthday party. Mr Steele had not been drinking alcohol because he was the security guard working his first night.
You should keep in mind that it was night time and that the lighting was “not the best in the street”. There were various answers in respect to the lighting, members of the jury I’m sure it’s reasonably fresh in your mind, but most witnesses were taken to the lighting. You will see, you will have some assistance from the video, bearing in mind that it is a video and it may be darker than the lighting in the street was. Many of the participants in what I will call the brawl outside the Steelers’ Club were apparently wearing dark clothes and could easily be confused one for the other.
The next matter is there was obviously a great deal of activity going on outside the Steelers’ Club. Fights, arguments, brawls, altercations going on all over the place at various points. And to that extent the video, exhibit A, captures the chaos and confusion outside the Steelers’ Club on the evening of 19 May 2001 except, of course, that the bush in effect hides the very part that you would be most interested to see, that is, you’re not able to see the actual stabbing taking place and a lot of that activity is screened by the bushes in the foreground of the video. From the aspect that the young video camera operator was, that was the inevitable result, it seems.
The Crown says that you would find the eyewitnesses reliable, that the identification took place within minutes of the stabbing, that Mr Braithwaite told you he tried to keep an eye on the person who stabbed the victim, that Mr Masri and Mr Steele both identify the accused at the scene, as indeed did Mr Braithwaite.
In my view, those directions, together with the general directions quoted in par [66] supra, adequately address the need for care given the potential for confusion among witnesses for the Crown, and they adequately draw particular attention to those circumstances most likely to lead to that confusion. The jury could have been left in no doubt that the evidence of the identification witnesses was to be treated with special caution, given the poor lighting of the area in which the events took place and the risk that one or more of them may have been distracted at a critical moment during the events of the night in question. The judge’s remarks also specifically address the potential effects of the consumption of alcohol by one or more of the witnesses.

Whilst a specific reference to the effects of stress was not made, I am satisfied that the jury would have been sufficiently aware, given the judge’s references to “fights, arguments, brawls, altercations” and “chaos and confusion”, that the witnesses were clearly not in a normal situation to obtain an accurate perception of the events taking place. It was unnecessary for the judge to use the word “stress” in order to make it clear that the perception of events by persons who were either participants in or witnesses to a large and violent brawl and a vicious stabbing may be affected by those events.

The appellant has also suggested that the perception of the witnesses may also have been affected by the injuries they received. There is no clear evidence that any participant other than the victim of the stabbing received injuries of such a nature as to affect that witness’s perception of the events, and the judge was not required to enter into speculation. So far as the victim himself was concerned, it would have been obvious to the jury from the nature of the injuries he received that they may have had some effect on his perception of the events. In any event, he did not make an identification of the appellant.

As to the expressed desire by three men to seriously harm the victim or his twin brother Slobodan (see par [71(3)] supra), counsel for the appellant has referred to the following incidents:
The victim gave evidence that, at the Steelers Club on the evening in question, there was a scuffle between either his twin brother Slobodan or himself (he could not recall which) and a man called “Sash” Petrovski (a fellow Macedonian) and two of his friends in the men’s lavatory. The scuffle involved one or two pushes. This incident was also witnessed by Oliver Koltovski, a friend of the twins and a cousin of Jason Hrstovski (who was in turn the victim’s cousin). Koltovski described it as “an argument” in which the other men challenged the victim and his brother to “go outside”. Subsequently, when the victim and his twin brother returned to the bar, the victim said he heard a man screaming at his brother and himself and he saw that man slide his finger horizontally across his throat. He did not know whether this gesture was directed at himself or his twin brother. The description given by the victim in cross-examination does not suggest that this man was Petrovski, but a further scuffle then took place between his twin brother Slobodan and Petrovski.
The victim agreed in cross-examination that his brother-in-law Steven Karandzulovski had informed him a few months after the evening in question that Petrovski had, earlier on the evening in question, telephoned him at the Steelers Club, telling him to bring “the twins” to the Port Kembla Hotel, that he could accompany them to that hotel if he wished but that he would need some people “to bring the dead bodies back”, or “the coffins back”. Petrovski was said by counsel then appearing for the appellant in his final address as having been described in evidence as having “blondish hair” and “a bit on the slender side”.
Trevor Braithwaite, a friend of the victim, gave evidence of another incident on the evening in question involving Petrovski, the victim’s twin brother Slobodan and a third man, described as a young fellow with a long ponytail, in which there was some pushing and shoving. Slobodan joined the two men and they went outside where they were still arguing and taunting each other and there was more pushing and shoving until police officers “cooled them down”. Jason Hrstovski dragged Slobodan away from the scene. This incident was also observed by Oliver Koltovski, who described the man with the ponytail as the “main guy” arguing with the victim and his twin brother Slobodan. The physical appearance of the man with the ponytail involved in this incident was described by Graham Crittenden, the duty manager of the Steelers Club on the night in question, as being of “middle height … not very tall”, and by Daniel Steele, undertaking work experience as a security officer of the Club, as “a little guy”.
The victim’s twin brother Slobodan gave evidence of the subsequent incident described in par [3] supra when a man sitting in a motor vehicle parked in an area outside the club had, when looking at Slobodan, run his finger across his throat. It was this incident which preceded the first confrontation between the twin brothers and the appellant.

Insofar as this evidence suggests that either Petrovski or the man with the ponytail could reasonably have been the man who stabbed the victim, that suggestion is refuted by the descriptions given of their appearance (pars [76(2)], [76(3)] supra), which are quite inconsistent with the descriptions given of the assailant, that he was short (par [33] supra, par [127(3)] infra); stocky in build (pars [14], [27], [38] supra) or chubby (par [38] supra, par [127(1)] infra) or well-built for a person of his height (par [33] supra); with short black hair (par [37] supra) or spiky dark hair (par [38] supra) or short or spiky hair (par [29] supra, par [127(3)] infra) or dark hair (pars [27], [33] supra). Moreover, Daniel Steele gave evidence that the man with the ponytail had left the Club in a motor vehicle immediately after the incident he saw. Counsel then appearing for the appellant went to the lengths of suggesting to the jury that Petrovski may have had a gang and had sent someone around with a knife. There was nothing in the evidence to support that speculation. In these circumstances, if the judge had referred to others as having expressed a desire to seriously harm the victim or his identical twin brother Slobodan, her description of the evidence would inevitably have lent no support to the reasonable possibility that either Petrovski or the man with the ponytail was the assailant. Insofar as the evidence suggests that the man in the motor vehicle could reasonably have been the man who stabbed the victim, on one version of the Crown case that man was the appellant.

No application was made for a direction to be given as to the reasonable possibility that those who had expressed a desire to seriously injure the victim was the assailant. I do not accept that the omission by the judge to do so caused any miscarriage of justice.

The appellant says that the risk of mistaken identity was increased by the lapses of time between the various distinct phases in the events prior to and following the stabbing, and the possibility that one or more of the witnesses became distracted by other events during these “distinct” phases — between (i) the confrontation between the victim and the appellant, (ii) the stabbing of the victim, (iii) the physical confrontation of the appellant by the victim’s twin brother Slobodan, (iv) the appellant leaving the scene of the stabbing, and (v) the attack on the appellant by relatives and friends of the victim.

This Court recently examined in some detail the issue of negative identification evidence, in Kanaan & Ors v Regina at [107]–[157]. The joint judgment said (at [133]):
What is required in relation to negative identification evidence is, therefore, that the trial judge ensures by appropriate directions that the jury understands that:
(1)as the Crown must establish beyond reasonable doubt that it was the accused who committed the offence charged or who was involved in its commission (as the case may be), the negative identification evidence raises a doubt as to that fact,
(2)the Crown must eliminate such doubt in order to succeed in establishing that fact, and
(3)if there remains a reasonable possibility that the negative identification evidence is correct, the Crown case against the accused must fail.

The Court formulated (at [144]) an appropriate direction to be given, along these lines:

The Crown must remove or eliminate any possibility that the crime was committed by someone else, as well as satisfy you, on the evidence on which it relies, that beyond reasonable doubt the accused committed the offence.

That formulation is consistent with the direction required for an alibi, considered in Regina v Kanaan at [134]–[135]: see Kanaan & Ors v Regina at [145]. The direction now suggested in the present case — that the jury had to exclude that evidence beyond reasonable doubt — was rejected by this Court, and the decision in Mule v The Queen [220] WASCA 101, on which such a direction was based, was not followed (at [149]).

No direction of any kind was sought at the trial in relation to the negative identification evidence to which reference has been made. Accordingly, the appellant must demonstrate that the absence of an appropriate direction resulted in a miscarriage of justice. This Court made it clear in Kanaan & Ors v Regina (at [146]) that a summing-up is not necessarily defective if it does not give a direction in the terms quoted in the previous paragraph. It was said that there is no general requirement for a trial judge to use that formulation in a negative identification case, provided that the judge makes it clear to the jury that there cannot be proof beyond reasonable doubt if there remains a reasonable possibility that the accused is not the offender.

The evidence given by the security guard Radic did not, in my view, give rise to any need for a specific negative identification direction. His evidence was of only slight value on the issue of identification. The version he gave of the knifing was significantly different from that given by the other two witnesses. Unlike those other two witnesses, he was unable to identify on the amateur videorecording the man he saw with the knife. More importantly for present purposes, there was no attempt made in relation to his rather tentative statement that he “thought” that the assailant had a goatee to ensure that the goatee was of importance in his description of that man, as there had been in relation to the evidence of the victim’s twin brother Slobodan and, to a somewhat lesser extent, to the evidence of Karandzulovski.

Even if it had been shown that the goatee was of importance to the description Radic had given of the assailant, so that a negative identification direction was needed, there was a strong possibility that he may have mistakenly recalled the assailant, rather than another man, as having a goatee. Karandzulovski gave evidence that Jason Hrstovski, who was very involved in the kicking and punching of the assailant, had a goatee at the time, like his own he said — although it was not made clear whether Karandzulovski also had a goatee at the time of the brawl. In the circumstances, the appellant would not have satisfied me that the absence of such a direction caused a miscarriage of justice.

I accept that the rat’s tail was of importance in the description of the assailant given by the victim’s twin brother Slobodan, even to the extent of his extraordinary explanation for the absence of a rat’s tail in the photograph of the appellant taken by the police, presumably whilst he was still in their custody. Just how the evidence of Karandzulovski himself, that he was “pretty sure” the assailant had a rat’s tail, would have been interpreted by the jury is unclear, but that evidence is nevertheless capable of being interpreted as asserting that the rat’s tail was of some importance in his description.

The judge did not give a specific negative identification direction along the lines suggested in Kanaan & Ors v Regina (a decision given long after this trial), and it is necessary therefore to see whether she made it sufficiently clear to the jury that, if there remained a reasonable possibility that the appellant was not the assailant, they must acquit him. The directions given must, of course, be considered in the light of how the trial was conducted. The final addresses of counsel were almost wholly directed to this issue.

Early in her summing-up, the judge emphasised that it was for the Crown to prove the appellant’s guilt. She emphasised that the burden and standard of proof were the most important and fundamental directions, that the burden of proving the guilt of the accused was placed firmly on the Crown and that the standard of proof is beyond reasonable doubt. She said that there was no onus of proof on the accused at any stage or on any issue, and that he was presumed to be innocent, a presumption that continued unless the Crown satisfied the jury beyond reasonable doubt that he was guilty. She said:
Now I am sure it is abundantly clear to you members of the jury by now, that the first issue that you have to decide is whether it was the accused who stabbed or wounded Sasa Anastasovski. […] If you are not satisfied by the Crown, beyond reasonable doubt that it was the accused who stabbed Mr Anastasovski, then that is the end of the matter and your verdict would be not guilty of all three counts.

The substance of this direction was subsequently repeated by the judge. After dealing with the evidence in relation to the identity of the assailant, the judge said:

Now as I said to you members of the jury, the first issue for you to decide is whether it was the accused, whether you are satisfied beyond reasonable doubt that it was the accused who wounded the victim, Sasa Anastasovski. If you were not satisfied beyond reasonable doubt that it was the accused who wounded the victim, then as I have said earlier, that is the end of the matter. You need go no further.

When dealing with the evidence of identification, the judge drew the attention of the jury to the arguments by counsel then appearing for the appellant that a number of witnesses had mentioned a rat’s tail as having been worn by the assailant, as well as the failure by many of the witnesses to having seen the distinctive t-shirt worn by the appellant at the time.

The judge made it adequately clear to the jury that (1) the Crown bore the onus of proving its case beyond reasonable doubt, (2) there was no onus on the appellant to prove anything, (3) a fundamental issue in the trial was whether the appellant or someone else had stabbed the victim, (4) it was necessary in weighing the identification evidence for the jury to compare the appearance of the appellant with the descriptions given by the identification witnesses of the person who stabbed the victim (including the rat’s tail), and (5) there was evidence that there were inconsistencies between the appellant’s appearance and these descriptions. In my opinion, the jury would inevitably have understood from the judge’s directions that, before there could be a verdict of guilty, the Crown needed to eliminate the reasonable possibility that someone other than the accused — someone with a rat’s tail hair style — was responsible for the stabbing, and that the Crown bore the onus of establishing, on the whole of the evidence, that the appellant was guilty of the offence with which he had been charged. If this had not been made sufficiently clear in the atmosphere of the trial at the time, I would have expected the experienced counsel then appearing for the appellant to have made a complaint,

Even if the directions given fell short of what perfection required, I am not satisfied that this caused a miscarriage of justice. I would refuse leave to rely on this ground of appeal.

Ground 7 – Compromise verdict

This ground asserts that “[t]he trial judge erred in failing to direct the jury that if they were unable to reach agreement on the more serious charges they were not permitted to compromise on their verdict by convicting the appellant on the available lesser charge of malicious wounding”. The appellant’s argument proceeds on the assumption that there is a real and substantial risk the verdict given at the trial was a compromise.

The indictment charged the appellant with wounding with intent to murder (Crimes Act 1900, s 27) and, alternatively, with maliciously wounding with intent to do grievous bodily harm (s 33). A statutory alternative verdict, malicious wounding (s 35), was left to the jury in accordance with s 34. The jury acquitted the appellant of the two crimes charged in the indictment, but found him guilty of the statutory alternative of malicious wounding.

In relation to the further alternative of malicious wounding, the judge directed the jury that the appellant would be guilty of that crime if they were satisfied that he had wounded the victim, but not satisfied that he had done so with either of the specific intents charged in the indictment, provided that they were satisfied that he nevertheless had acted maliciously — that is, he had intended to cause some physical harm to the victim. There was no issue at the trial that the victim had been wounded. Nor was there any issue that whoever wounded the victim intended to cause some physical harm to him. The issue was whether it was the appellant who wounded the victim. The jury were directed that, in determining whether the appellant had either of the specific intents charged in the indictment, they had to consider the effect on the appellant, if any, of the alcohol he had consumed that night. There was a dispute in relation to this issue. The appellant said that he had consumed only one or two beers all night, and that he was not intoxicated. The arresting officer (Constable May) gave evidence that the appellant had slurred speech, she could smell liquor on his breath and he appeared “extremely intoxicated” to her, although she conceded that a factor in that condition could have been a blow to the head.

The judge directed the jury that, in certain circumstances, an intoxicated person may act without forming any intention at all, but that, on the other hand, a person may be considerably affected by alcohol and still be able to act intentionally. She very fairly pointed out that counsel appearing for the appellant at the trial had not addressed the jury on that issue because it was his client’s case that he was not the person who wounded the victim, but she directed the jury that, if they found that the appellant was the person who wounded the victim, it was still necessary for them to consider the element of specific intent in relation to the two charges in the indictment. The jury were also directed — in accordance with the Crimes Act, s 428D — that, when considering the further alternative of maliciously wounding, the jury were not to take into account the effects (if any) of the alcohol the appellant had consumed in considering the element of basic intent, to cause some physical harm to the victim.

The verdicts given by the jury are easily explained by the jury’s satisfaction beyond reasonable doubt that it was the appellant who wounded the victim but no such satisfaction that, despite the serious nature of the injuries caused, he did so with an intent to do at least grievous bodily harm to the victim. The appellant has nevertheless submitted that the likelihood of compromise arises from the circumstances in which those verdicts were given.

The jury commenced their deliberations at 12.10 pm on the Tuesday of the fourth week of the trial. Later that day, they requested transcripts of the evidence of seven witnesses: Constable May (the arresting officer), Masri and Braithwaite (identifying witnesses), the appellant, Zora Tanasovska (the appellant’s then long-standing girlfriend who was with him that evening), Steele (a security guard, and an identifying witness) and Det Sgt Bridge, who subsequently assumed control of the investigation and who conducted the videorecorded interview with the appellant some hours after he had been arrested. These transcripts were supplied to the jury the following morning, Wednesday. During that morning, the jury asked for the transcript of the evidence of Radic (the other security guard). At 2.50 pm, the jury sent a note saying that they were “deadlocked and cannot reach an agreement”. About five minutes later, a further note said:
Is it possible for us to be dismissed now, we have reached an impasse today and jurors need another night to reflect.

The jury was permitted to leave, and it was agreed that a “Black direction” would be given the following morning; the reference is to Black v The Queen (1993) 179 CLR 44 at 51-52.

On the Thursday morning, it was again agreed that a Black direction should be given. The direction was given in the terms suggested by the High Court, including the passage:
Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

The jury retired again. Later that morning, the jury requested transcripts of the evidence of the victim’s twin brother Slobodan and of Constable Gornall (who attended the Steelers Club with Constable May). At 3.31 pm, the jury returned their verdicts described in par [138] supra, and they were discharged. The judge sentenced the appellant on the basis that he intended some harm to the victim and that his level of intoxication caused him to act in this way.

The appellant now contends that the judge ought to have given the jury a direction to the following effect:
You should not regard this as an invitation to compromise — supposing, for example, that six of you were for a verdict of “guilty” on the first or second count and six believed that the accused was not guilty of anything at all. It would be quite wrong in these circumstances to compromise by convicting him on the less serious charge of malicious wounding.

No such direction was sought at the trial, and r 4 applies. There would have been nothing wrong with such a direction being given, but there is certainly no requirement that the usual direction given concerning the possibility of compromise as suggested by the High Court in Black’s case be expanded beyond the passage quoted in the preceding paragraph unless the circumstances of the particular case suggest that it is necessary. The absence of any request for such an expanded direction suggests that counsel then appearing for the appellant had gained no impression from these events that the jury might reach a compromise verdict.

In support of his argument that the circumstances of this case did require such an expanded direction, the theory put forward by the appellant is that the jury, on reading the transcripts of the evidence of Constable May (the arresting officer) and Constable Gornall (who accompanied her), would have been persuaded by the hearsay evidence of identification referred to by those two officers in their evidence that the appellant must have been the assailant. Constable May said in her evidence that she directed the appellant to leave the vehicle in which he was sitting in the car park and that, when he did so, approximately five males yelled out “he stabbed him”. Constable Gornall said in his evidence that “a few people” had yelled out that the appellant had “stabbed him” at that time.

Speculation as to why the evidence of a particular witness is sought by a jury during the course of their deliberation is usually of little utility. A request may come from one juror who wishes to be reminded of a piece of evidence because no clear assistance could be given to that juror by the other jurors. It does not necessarily identify the issue on which there was at that time a disagreement, although obviously it may sometimes do so where the only evidence sought relates solely to the real issue in dispute. I see no particular significance in the request for the evidence of these two witnesses, or in the time at which the requests were made. Constable May was the first of the list of witnesses whose evidence was sought, before any suggestion of disagreement had been conveyed to the judge, at the same time as the evidence of a number of other witnesses was sought whose evidence was irrelevant to the hearsay evidence of identification. The evidence of Const Gornall was sought after the Black direction had been given, but at the same time as that of the victim’s twin brother Slobodan, which was similarly irrelevant to this issue.

An alternative submission suggests that the evidence of these two witnesses may have been sought for some other purpose, that some of the jurors who previously favoured a finding that the appellant was not the assailant, having read that evidence, were reminded of the hearsay identification evidence which had been given and were persuaded to favour a finding that the appellant was the assailant, notwithstanding that that evidence had not been put forward in the summing-up as being relevant to that issue. This then led to a compromise result and the need for an expanded compromise direction. I would reject such a submission as mere speculation.

There was a considerable amount of evidence given that the brawl was fuelled largely by the state of intoxication of most of the participants. The victim and his party had certainly been fighting with other people throughout a large part of the evening as a result of their intoxication. In the face of Const May’s evidence that the appellant had slurred speech, had liquor on his breath and appeared to be intoxicated, the jury were well entitled to reject the appellant’s evidence that he had had only two beers in the evening, notwithstanding her concession that his condition could have resulted from a blow to the head. The fact that the appellant voluntarily entered this huge brawl was some indication that he too participated in it because of his state of intoxication. (His unlikely explanation that he did so in order to “make peace” is discussed in par [53] supra.) The directions that the jury were entitled to have regard to the appellant’s intoxication on the two charges in the indictment (crimes of specific intent), but were not entitled to do so in relation to the lesser crime which the statute provides as an alternative verdict (a crime of basic intent), together with the evidence of good character, readily provides an explanation for the verdicts given in those circumstances.

I am not satisfied that there was any real and substantial risk that the verdict was a compromise, or that the expanded direction now sought was required in the circumstances of this particular case. I would refuse leave to rely on this ground of appeal. If leave were to be granted, I would reject the ground of appeal.

Ground 1B — Miscarriage of justice

Ground 1, as argued, also complains that, effectively, the errors made in the trial, although perhaps not causing a miscarriage of justice individually, have in their cumulative effect — together with what is said to be the inadequate quality of the evidence on identification — denied the appellant a fair chance of acquittal, that is, that there has been, overall, a miscarriage of justice. This further argument was reserved for consideration last in the appeal against conviction (see par [9] supra).

It is important to note that the concept on which the appellant relies in Ground 1B is distinct from the concept on which he relies in support of Ground 1A, which was dealt with at pars [11] and following. If it had been held under Ground 1A that the conviction was unreasonable or could not be supported having regard to the evidence, s 6 of the Criminal Appeal Act 1912 required this Court to quash the conviction and to direct the entry of a judgment and verdict of acquittal. That argument under Ground 1A did not succeed. However, if this Court is nevertheless satisfied under Ground 1B that there has been, overall, a miscarriage of justice, a new trial will be ordered. The different outcome in each of these two concepts was considered in Regina v Clough (1992) 28 NSWLR 396 at 407-409; Regina v Pederick, CCA (BC9201982), 21 May 1997, unreported, at 12-13. In the present case, the appellant’s alternative argument is that, if there has been an overall miscarriage of justice, there should be no new trial, for reasons better discussed later when considering the appeal against sentence.

It is clear from the submissions made that the very experienced counsel who has appeared for the appellant in this appeal would have conducted the defence quite differently from the way it was conducted by counsel who appeared for the appellant at the trial. This is often the case in courts of criminal appeal: Nudd v The Queen at [12]. However, trial counsel have a wide discretion as to the manner in which any trial is conducted, and in many cases the client is bound by the way in which his counsel has conducted the trial. As Gleeson CJ said in Regina v Birks (1990) 19 NSWLR 677 at 683, 684:
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. […] The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice.

See also TKWJ v The Queen at [8], [74]; Ali v The Queen at [7]; Nudd v The Queen at [79].

I have already referred (at par [107] supra) to the need for an appellant to show that the conduct of his counsel at the trial resulted in a miscarriage of justice before that conduct can be used by him in order to obtain a new trial. Not every departure from the relevant law or procedure means that there has been a miscarriage of justice: Driscoll v The Queen (1977) 137 CLR 517 at 525; Wilde v The Queen at 375-376. No conduct discussed in this case falls within the description, adopted by McHugh J in TKWJ v The Queen (at [77]), of a “material irregularity” which amounts to a miscarriage of justice if there is a significant possibility that it has resulted in the conviction. It remains necessary for the appellant to demonstrate that, as a result of counsel’s conduct of the trial, he lost a real chance (or a chance fairly open to him) of an acquittal.

I have carefully reconsidered each of the grounds of appeal in the present appeal (and the matters raised in those grounds) already rejected because no miscarriage of justice had been established to see whether, notwithstanding that each did not qualify individually to warrant a new trial, their cumulative effect has been the cause of such a miscarriage. In relation to many of those grounds and matters, I have said that, even if leave were granted to rely on the relevant ground, I would reject it (pars [103], [110], [117] supra). In relation to some of them, I have rejected them outright (pars [60], [70], [102], [125] supra). In relation to the others, in my opinion there could be no suggestion at all that either the absence of the directions which it is said should have been sought or the evidence admitted without objection which it is said was prejudicial and should have been objected to — even when viewed cumulatively — denied the appellant a real chance (or a chance fairly open to him) of being acquitted. The absence of cross-examination on the alleged weaknesses of the identification evidence (see pars [25], [41] supra) does not really add anything to that cumulative effect. Such a cross-examination may perhaps have served to emphasise those weaknesses at an earlier stage of the proceedings, but they were sufficiently emphasised by the judge in her very careful directions given to the jury on that issue.

It does have to be said that the present appeal is a prime example of what has sometimes been described as an “armchair” appeal, where counsel appearing in the appeal consider that, if they had been appearing for the appellant at the trial, they would have conducted the case differently, and thus the result of the trial may well have been different: Regina v Fuge (2001) 123 A Crim R 310 at [40]–[45]; Regina v Fowler (2003) 151 A Crim R 166 at [38]. In such an appeal, counsel go through the record in minute detail looking for errors, any error, without regard to the remarks of Gleeson CJ quoted in par [152] supra. I have already commented (in par [83] supra) that the hope that the appellant may do better with a different jury does not establish a miscarriage of justice.

I am not persuaded by the appellant that there has been, overall, a miscarriage of justice in this case. I would reject Ground 1B. It follows that the appeal against conviction should be dismissed.

Ground 8 — Application for leave to appeal against sentence

The maximum sentence for malicious wounding is imprisonment for seven years: Crimes Act, s 35. The sentence imposed by the trial judge on the appellant was one of imprisonment for four and a half years with a non-parole period of two and a half years.

Counsel now appearing for the appellant also appeared for him in the sentencing proceedings. Various testimonials were tendered which underlined the appellant’s good character. He had no prior convictions. The appellant gave evidence in the sentencing proceedings. He said that he had been assisting his parents financially with their mortgage on the family home which they had obtained in order to fund his legal representation. He maintained his innocence.

The procedural history of the appellant’s trial is unusual. He has stood trial on four occasions. On the first occasion, the jury was discharged after four or five days because the trial judge in that trial was concerned that the amateur videorecording had been used to refresh the memory of eyewitnesses before they gave their evidence. On the second occasion, a juror recognised some witnesses as persons he knew, and the jury were discharged some days into the trial. (It was suggested that there may have been some problem with the pronunciation of the witnesses’ names when they were read to the jury panel pursuant to s 38(7) of the Jury Act 1977.) On the third occasion, the jury could not agree after an eight-day trial. On the fourth and last occasion, the trial lasted three weeks.

The appellant was granted bail after his arrest and throughout all of the trials. His sentence commenced on 3 June 2004. He obtained bail pending the hearing of his appeal and was released on 5 October 2005. His bail was continued after the appeal was heard. It has not been asserted that the appellant has been in any trouble since his current release on bail.

The appellant has therefore served one year four months and two days of his non-parole period, and the unexpired period of that non-parole period is one year one month and twenty-eight days. It is reasonable to assume that he will be released at the expiration of his non-parole period. He has thus served a little over one half of his non-parole period (sixteen out of thirty months). It was this fact — together with the difficulties of a fifth trial when many of the witnesses had already given evidence on three or four occasions — which led to the submission that, even if the verdict was quashed on the basis that there had been a miscarriage of justice, no new trial should be ordered (see par [151] supra).

It is realistically conceded by counsel for the appellant that the sentence imposed was within the appropriate range. The statistics supplied by the Judicial Commission substantiate the accuracy of that concession. What is submitted is that a non-parole period of two years rather than one of two and a half years would have been an appropriate sentence. For myself, I have no doubt that such a sentence would not have been outside the appropriate range, but (as the High Court has said) there is no single correct sentence: Pearce v The Queen (1998) 194 CLR 624 at [46]; Markarian v The Queen (2005) 215 ALR 213 at [27], [66], [133]. See also Regina v Wood [2005] NSWCCA 233 at [19]; Regina v Araya (2005) 155 A Crim R 555 at [60].

I am not satisfied any error has been established by the appellant in the sentence imposed by the trial judge. I would refuse the application for leave to appeal.

I propose that the following orders be made:
The appeal against conviction is dismissed.
The application for leave to appeal against sentence is refused.
The appellant is to surrender himself into custody to serve the remainder of his sentence.

ADAMS J: I agree with the orders proposed by Hunt AJA and with his Honour's reasons but I wish to add a comment of my own.

The grounds of appeal in this case have all failed. They depended, in large part, on an analysis of the evidence and the learned trial judge's summing up which, it was contended, demonstrated one or more miscarriages of justice. When counsel is asked to consider whether a conviction is affected by appealable error, it is inevitable, indeed necessary, that the evidence and the summing up be analysed. Sometimes an error is subtle and sometimes it will be obvious. It is the task of counsel, having identified what appears to be error, to consider whether a miscarriage of justice has occurred. If a redirection has not been sought at trial, the effect of that omission needs to be evaluated having regard, amongst other things, to Rule 4 of the Criminal Appeal Rules. A glance at the judgments of this Court concerning conviction appeals demonstrates that only in rare cases has leave to raise a matter falling within Rule 4 been refused, invariably for the reason that, as a matter of substance, the error has not been made out. Since the substantive question — whether there has been a miscarriage of justice — is very much a question of judgment, upon which different minds may differ in ways that are not by any means always predictable, counsel should not feel inhibited in drawing and arguing grounds of appeal that identify a contended for error simply because counsel at the trial either did not discern it or apparently had a different opinion or for forensic reasons did not take the point if it is fairly arguable that, in the result, a miscarriage occurred. It is far from unknown that the Bench differs from counsel's view of what is a strong or a weak appeal point.

I am not for one moment suggesting that counsel should put forward a ground of appeal or an argument that counsel considers has no merit: to do so is to act improperly. But, where, fairly arguably, error is believed to have occurred and where it is a matter of judgment whether that error has caused a miscarriage of justice, I think that it is the duty of counsel to bring that error to the attention of the Court and make appropriate submissions as to whether it caused or might have caused a miscarriage of justice. The mere fact that, in the result, the Court considers that there has been no error or, if there was or might have been an error, no miscarriage of justice occurred is no criticism of counsel, however firmly the Court's conclusion is expressed.

Of course, we occasionally see arguments that should not have put since they are so plainly unmeritorious. But this has not often happened in my experience, even where I have not doubted that the submission must fail. In this, as in many areas of the administration of justice, the judges should rely on the integrity of counsel. I would be very sorry if counsel felt muzzled because of the risk — even the substantial risk — that an argument conscientiously thought to be fairly arguable would be rejected by the Court.

LATHAM J: I agree with the reasons and the orders proposed by Hunt AJA.

HUNT AJA: The orders of the Court are as I have proposed.

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LAST UPDATED: 10/07/2006