JH v R

[2017] NSWCCA 22

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	JH v R [2017] NSWCCA 22
Hearing dates:	17 October 2016
Date of orders:	03 March 2017
Decision date:	03 March 2017
Before:	Hoeben CJ at CL at [1] Davies J at [1] Bellew J at [1]
Decision:	(1)   On the conviction appeal: (a)   Leave to appeal granted. (b)   Appeal dismissed.  (2)   On the sentence appeal: (a)   Leave to appeal granted. (b)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – manslaughter – unlawful and dangerous act – appeal against conviction – applicant in a group who bashed and kicked victim – whether verdict was unreasonable – reliability of identification evidence – whether sufficient evidence of motive – whether miscarriage of justice by incompetence of trial counsel – whether other evidence should have been led to detract from Crown case on motive – whether evidence should have been led of a second attack not involving applicant – whether applicant properly advised of his right to give evidence – whether miscarriage of justice by prosecutor’s remarks to jury   EVIDENCE – application to lead new evidence on appeal – whether new evidence was fresh evidence – whether evidence of sufficient cogency that innocence is shown or to give rise to a reasonable doubt – whether miscarriage of justice where evidence not led
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Alseedi v R [2009] NSWCCA 185 Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 Field v R [2015] NSWCCA 332 Kees Langelaar v R [2016] NSWCCA 143 Lane v R [2013] NSWCCA 317; 241 A Crim R 321 MG v R; AE v R [2016] NSWCCA 228 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Birks (1990) 19 NSWLR 677 R v Gordon (1994) 71 A Crim R 459 R v Hillier (2007) 228 CLR 618; [2007] HCA 13 R v LLM [2005] NSWCCA 302 The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Wood v R [2012] NSWCCA 21; (2012) 84 NSWLR 581
Category:	Principal judgment
Parties:	JH (Applicant) Crown (Respondent)
Representation:	Counsel: P Coady (Applicant) M Cinque SC (Crown)   Solicitors: Dr R Spence (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2011/190145
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: [2014] NSWSC 1878 Date of Decision: 12 December 2014 Before: Hall J File Number(s): 2011/190145

Judgment OF THE COURT

1. The applicant, JH, was indicted on one count of murder and pleaded not guilty to that charge. The trial commenced on 25 August 2014 with a jury of 12 which was subsequently reduced to 11.

2. On 13 October 2014 the jury returned a verdict of not guilty of murder but guilty of manslaughter.

3. The Crown case was that the applicant was a party to a joint criminal enterprise. The jury’s verdict of manslaughter was based upon an unlawful and dangerous act. The offence occurred by the conduct of JH and a number of other persons assaulting and ultimately killing the victim Eden Delir at a Halloween party on 30 October 2010. The co-offenders, MG, AE and SB pleaded not guilty to the murder of the deceased and they were tried jointly. They were each convicted of murder. An appeal by MG was upheld and an appeal by AE was dismissed: MG v R; AE v R [2016] NSWCCA 228. JP was tried separately and was convicted of manslaughter. AN was convicted after the Crown accepted a plea to manslaughter.

4. On 12 December 2014 Hall J sentenced JH to imprisonment for 10 years with a non-parole period of seven years commencing 5 October 2014 and expiring 4 October 2021.

5. The applicant now seeks leave to appeal against both his conviction and sentence on the following grounds:

Appeal against conviction

1.   The verdict is unreasonable and cannot be supported by the evidence.

1a.   The identification of the applicant by Mr Crisp as being present at the time of the physical assault on Eden Delir was so unreliable as to cause this Court to have a reasonable doubt;

1b.   There was insufficient evidence from any other reliable witness that the applicant was present at the time of the physical assault, so that this Court would have a reasonable doubt;

1c.   There was evidence before the jury that the applicant was not present at the Halloween party at the time of the assault, sufficient for a reasonable doubt to be raised; and

1d.   There was insufficient evidence to support the alleged motive of the applicant to attack Mr Delir.

2.   A miscarriage of justice occurred by way of incompetent legal representation

2a.   Defence representatives failed to investigate the possibility Mr Delir was subject to a second attack at a different location, and failed to adduce evidence consistent with this;

2b.   Defence representatives failed to adduce relevant evidence from witnesses that detracted from the Crown's case on motive; and

2c.   Defence Representatives failed to properly advise the Applicant on his right to give evidence at trial.

3.   The trial miscarried by reason of prejudice occasioned by the crown prosecutor's address to the jury.

Application for leave to appeal against sentence

1.   The sentence was manifestly excessive.

The facts

6. On 30 October 2010, Brenda Torres hosted a Halloween party at her home, 39 Restwell Road, Bossley Park. The invitation was posted on Facebook and a large number of people attended: some were invited, while others were not. When Ms Torres made her Facebook event public, someone purporting to be from the 'Campbelltown Boys' wrote on her event page saying they were going to bring drugs to her party. Ms Torres did not want this to happen and so spoke to her friend Jayden Mudford who said he would deal with it. It transpired that Mr Mudford, who was concerned that the Campbelltown Boys would still attend the party and assault him, spoke to his friends, the 'Wakeley Boys', who attended the party to deal with the Campbelltown Boys in the event they showed up (T 179, T 181, T184-186, T 218).

7. The applicant, JH, was part of this group of males, the 'Wakeley Boys', that attended the party. The others were, MG, AE, SB, JP and AN. The Crown case was that the group attended the party to confront the 'Campbelltown Boys', who they believed would be at the party. At least one member of the group was seen to be carrying a metal pole at various times.

8. The deceased, Eden Delir, attended the party with friends. He had on a prior occasion given evidence to police and at Court in relation to an incident where he was robbed of his phone and assaulted by a group of males. It was alleged that the applicant was involved in that robbery and assault. The Crown case was that the applicant held the view that the deceased was a 'snitch'.

9. Sometime around 8:30pm on the evening of the Halloween party, the deceased was at the front of the house when one of the group called out to him. The deceased approached the group and one of the males removed his hat. The deceased was then punched on the right side of the head by another member of the group, probably SB, who was seen by at least one witness to come from behind a truck. The deceased fell to the ground, where he was set upon by members of the group who punched and kicked him. JP was seen to smash a bottle over the deceased's head. The deceased was able to get up and run away, but was chased by SB who, on the Crown case was holding a pole, and AE who was wearing a blue shirt. Both boys were attempting to further assault him, but were prevented in doing so by the intervention of Kane Crisp, who was wearing a gladiator costume.

10. Shortly after the assault, the group was seen to look for a knife which had been left at the scene. The group then got into a red car and drove off at speed. The deceased was found unconscious by the side of the house at 15 Restwell Road, about an hour and a half after the assault. He was taken to hospital where he remained in a coma until his death on 5 November 2010.

11. There was evidence in the trial of an incident that occurred in February 2010 which involved both the applicant and the deceased. The deceased's statement dated 21 February 2010, was tendered and read to the jury (T 128). In summary, the deceased and the applicant knew each other from school. The deceased was 17 years old at the time, and the applicant was 15.

12. On the evening of 20 February 2010, the deceased received a call from an unknown number. He did not answer it because his phone was on silent and he did not hear it. At about 10:30pm he saw the missed call and dialled the unknown number. The applicant answered the call and asked if he could come around for a visit. The deceased agreed and met him at the front of his house. While they were talking, the deceased saw three males running towards him. The first male was wearing a cap and a bandana covering his face, the second male was wearing a bandana covering his face and had a shaved head with a rat's tail down the back of his head to his shoulders. The third male was wearing a dark green hoodie with the hood pulled down over his head and up at the bottom near his chin so that his face could not be seen. As the males were approaching, the applicant ran away. One of the males demanded that the deceased give them 'all your shit' while the others surrounded him.

13. The male with the black cap punched the deceased to the head causing him to drop his mobile phone. The deceased bent to pick it up and was kneed to the right side of the head causing him to fall to the ground. One of the males kicked the phone away, and the deceased was then kicked a number of times to his head and body. The males then ran away with his mobile phone.

14. The deceased ran inside his house and locked the doors and shutters. He sat in the shower for about 10 minutes feeling nauseous and dizzy. He felt bruising and numbness on the right side of his face. He went to bed feeling confused and unwell, and he felt like fainting when he tried to stand up. His sister Annabelle and god-sister Denita Khosrow found him lying in bed and then called his parents. When his parents came home, he was taken to hospital for treatment.

15. The deceased provided a statement to police about the assault and robbery the following day. This was the so-called 'snitching' to which reference was made by one of the attackers just before the deceased was set upon by the Wakeley Boys at the Halloween party on 30 October 2010.

appeal and leave to appeal against conviction

Ground 1 – the verdict is unreasonable and cannot be supported by the evidence

16. The applicant’s submissions did not rely on an assertion that the evidence generally was insufficient for the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The submissions were rather directed to the alleged weakness of the identification evidence when coupled with the evidence of motive on the applicant’s part. Although there was some direct evidence identifying the applicant as part of the group that assaulted the deceased, the Crown’s case was largely a circumstantial one that involved inferences from observations of the applicant with the offending group both before and after the assault on the deceased, inferences from telephone calls as well as inferences and admissions from recorded conversations on the telephone and in person.

17. The High Court has recently said this concerning the role of the jury and the issue of unreasonable verdicts in The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 at [65] – [66]:

[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

[66]   With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

18. Because this Court must be satisfied on “the whole of the evidence”, considering the grounds as framed is an inappropriate way of determining whether the verdict is unreasonable. In R v Hillier (2007) 228 CLR 618; [2007] HCA 13 the joint judgment of Gummow, Hayne and Crennan JJ said at [48];

Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.

19. We will, however, consider the matters raised by each of the grounds and in the light of that make an assessment of whether the verdict is unreasonable considering all of the evidence.

Grounds 1a and 1b – identification of applicant   

20. These two sub-grounds can be conveniently dealt with together.

21. The applicant submitted that it was a central part of the Crown case that he was physically present at the time the deceased was attacked. He submitted that Kane Crisp was the only person during the trial to give positive evidence that he, the applicant, was present and participating during the attack on the deceased. He submitted that any evidence of Mr Eishou to similar effect should be disregarded because of the lies that Mr Eishou told to the police and the inconsistencies in his evidence.

22. During the trial on 31 October 2013 Ms Hickleton of counsel, who appeared for the applicant at the trial, gave notice that she objected to the identification evidence to be given by Mr Crisp. The application was made based on sections 135 and 137 of the Evidence Act 1995 (NSW). The evidence proposed to be led was that on 1 May 2011 Mr Crisp recognised and identified to police the applicant as a person depicted in a photograph displayed on Facebook which was taken at the party and as being a person who was present when the deceased was assaulted. In a judgment given by the trial judge on 27 August 2014 his Honour ruled that the evidence was admissible. There is no ground of appeal concerned with that judgment.

23. In order to understand the course of events leading to Mr Crisp’s identification of the applicant as well as the basis for the objection to the evidence made by counsel for the applicant at the trial, it is convenient to set out portions of his Honour’s judgment:

[41]   The chronology of events indicates that Kane Crisp initially gave a statement to police on 31 October 2010 (in the early hours of the morning immediately following the assault) in which he stated that he witnessed the assault upon the deceased.

[42]   On 14 March 2011, he gave a further statement to police stating that he had read the copy of his statement made on 31 October 2010 and confirmed his account recorded in it. He did not refer at that point to having seen a photograph on Facebook.

[43]   On 1 May 2011, Kane Crisp participated in viewing five photo board presentations. The fifth of the presentations contained a photograph of the accused, [JH]. The procedure was videotaped. In the first of two statements that Kane Crisp made on 1 May 2011 (VD”H”) he stated, at [10]:

“The fifth presentation was session ID 36212. I didn’t recognise anyone in the presentation.”

[44]   In a second statement to police dated 1 May 2011 (Exhibit VD“J”) Kane Crisp stated that on that date he had attended Fairfield Police Station to view some photographs. He referred to the five separate presentations which he viewed and the fact that he had made a statement about those photographs. He then stated:

“… while doing so, I told the police about a photo I have previously seen on facebook shortly after the Halloween Party on the 30th of October 2010. The photo was of a girl in the foreground and some people who were involved in the attack of Eden in the background.” (at [5])

[45]   In the same statement Kane Crisp stated that Detective Barnes showed him some photographs that were taken at the Halloween party. He said that while looking at the photographs he stated “… while I [as I said] looking at the photos I saw two photos with three guys in it …”.

[46]   In paragraph [7] of his statement he referred to a photo which he said he recognised as the same as the one that he saw on Facebook that had a picture of “… the guys who were involved in the attack of Eden …”. He went on to state that the picture included a photo of a girl in a silver dress and three males in the background. He then proceeded to refer to each of them, one of whom he said looked like “Justin”, another a male next to him who was in a black jumper with white stripes who was “definitely” part of the group of Assyrian males he had described in paragraph [18] of his first statement. He then stated:

“… I am one hundred percent sure he was part of that group who I also believe were involved in assaulting Eden. I didn’t see that guy actually lay a hand on Eden but he was definitely there with the rest of them when they were assaulting Eden.” (Statement 1 May 2011, (Exhibit VD“J”) at [7].)

[47]   In the written submissions for the accused the sequence of events was noted as follows. While videotaping of the photo identification presentations proceeded Detective Barnes handed Kane Crisp four individual bundles of photographs that had been taken during the course of the party on 30 October 2010. Initially Kane Crisp looked through each bundle but was unable to recognise any particular photograph or person who he believed was involved in the assault.

[48]   Kane Crisp is said to have then handed the bundles of photographs back to Detective Barnes. Detective Barnes, it was noted in the submissions for the accused, then looked through the four bundles of photographs before returning one bundle to Kane Crisp, accompanied with the suggestion that Kane Crisp take another look through that particular bundle of photographs. Kane Crisp looked through the bundle and picked out a photograph which he identified in his second statement at paragraph [7] as a photograph of the accused.

24. At the hearing of the appeal counsel for the applicant played two DVDs showing the interview with Mr Crisp when he was shown the various photographs.

25. The applicant submitted that what took place at the second of those interviews left open the suggestion that Mr Crisp was influenced by Detective Barnes’ interest in the particular photograph ultimately identified by Mr Crisp as showing the applicant. The applicant eschewed any suggestion that there had been any wrongdoing or impropriety on the part of Detective Barnes. The applicant submitted that Mr Crisp’s evidence was a strong example of the displacement effect at work. That theory was said to be that true memories had been displaced by memories brought about, in this case, by the fact that the photograph had been posted on Facebook and was commented upon by a number of persons suggesting that the applicant had been involved in the assault on the deceased.

26. The issue of the fallibility of identification evidence has most recently been highlighted in New South Wales in Wood v R [2012] NSWCCA 21 by McClellan CJ at CL (Latham and Rothman JJ agreeing) at [410]-[417]. In particular, his Honour said:

[413]   The phenomenon known as the "displacement effect" was described by Stephen J in Alexander at 409:

"Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace the original memory. Any subsequent identification, in court or in an identification parade, may on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting."

[414]   This type of evidence was referred to later in Stephen J's judgment at 414 as akin to "worthless"; see also Mason J in Alexander at 426; Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 at 178-179 (Latham CJ, Rich, Dixon, Evatt, McTiernan JJ); R v Carusi (1997) 92 A Crim R 52 at 55 (Hunt CJ at CL, Ireland and Newman JJ agreeing); R v Agkul [2002] VSCA 222 at [26]-[27]; [2002] 5 VR 537 ; R v Skaf [2004] NSWCCA 37 at [80]; Aslett v R [2009] NSWCCA 188 at [55]-[56]. In Skaf at [80] this Court described the displacement effect in the following terms:

"The displacement effect refers to the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier observation of the person in the flesh; and that that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person."

27. Mr Crisp’s evidence was as follows (T1153 – T1154):

Q. We're dealing with the fellow with the stripes down the side of his top there. You have got the photograph there. Can I ask you to look at it and tell me what it was about him that caused you to choose him as someone you recognised out of this photograph?

A. He was involved in the assault of Eden.

Q. Was he, he was involved in the assault?

A. He was a member of the six males that entered the party and were out the

front.

Q. Speak up. Was this male with the stripes on his top, you say he was a

member of the group? Was he a member of group that you saw enter the

house at the beginning of the party?

A. I believe so, yes.

Q. Was he member of the group who were engaged in the activity of asking

people if they were from Campbelltown in the rear yard?

A. I believe so.

Q. Was he a member of the group who attacked Eden Delir?

A. I believe so.

Q. Can you recall what role he played in that attack?

A. Not entirely, no.

Q. What was it about the photograph, that's his appearance in the photograph, that caused you to say that he was one of the members of the group? What was it about it?

A. I saw him earlier that night socialising with the same people.

Q. That one fellow with the stripes, how much of an opportunity did you get to

see him that night? Over what period of time did you see him?

A. When he entered the house, out the front, and this here, three times.

Q. Now you said when they entered the house you had an opportunity to

speak to them?

HIS HONOUR: Before you put that question. So it is clear on the record.

Q. When you said in that last answer, when he entered the house, out the front, and this here, three times, "this here", I think you indicated you're referring to the photograph were you?

A. Correct.

28. In cross-examination Exhibit F was placed on the overhead projector and he gave this evidence (T1192 - T1193, T1194 - T1195 & T1197- T1200):

Q. Now, unfortunately the overhead projector, it's not quite as clear as it is just looking at it directly. Now to the right of the lady in the silver dress, we see a man in a blue shirt standing next to a man in a red black and white checkered shirt, is that correct?

A. Yes.

Q. Now the man in the blue shirt, you say is one of the men you say assaulted Eden?

A. Correct.

Q. So, and if we move to the right of the lady in - sorry left of the lady in the

silver dress - we see Aaron, we see your friend Justin, and then we see the

person you say was also with the group, is that correct?

A. Correct.

Q. Are you sure that you saw him with the group assaulting Eden, are you

sure?

A. I'm fairly sure, yes.

Q. Fairly sure?

A. Yes.

Q. But not absolutely sure?

A. I'm pretty certain.

…

Q. Now, you went through an identification photo array parade with the police

some six months after the party, that is correct isn't it?

A. Correct.

Q. And they showed you a series of five presentations in which you were able

to point out at least one person that you believed you'd seen assault Eden, that is correct?

A. Yes.

Q. I am going to show you a video of part of that photo identification process.

It is the last presentation that you were shown. For the benefit of the ladies and gentlemen of the jury this is only part of the presentation, and it's the fifth

presentation, and it's the presentation in which there was a photo of my client,

[JH] (video played). Now, Mr Crisp, you have seen in evidence an A4

page with all the images of the photographs that were shown to you during that presentation, have you not?

A. Correct.

Q. You would agree that when you went through the process at the police station you were not looking at images, you were looking at clear quality photographs on a computer screen?

A. Correct.

Q. And you made a statement on 1 May 2011 about that photo identification

process that you had been through. That is correct isn't it?

A. Correct.

Q. And in that presentation that we've just seen, which is the fifth presentation, you say, "I didn't recognise anyone from that presentation". That is correct, isn't it?

A. Yes.

Q. You could not recognise anyone, including my client?

A. I guess.

Q. After that presentation, you were shown some photographs that were taken at the party, that is correct isn't it?

A. Yes.

…

Q. And that photograph, have you found that?

A. Yes.

Q. And what is the page number that the Crown has written on there?

A. Page 6.

Q. Now, when you saw these photographs, they were in exactly the same

format as you are looking at them now, four to a page?

A. Yes.

Q. And I think when my friend was asking you some questions he asked you,

did you see the photograph on Facebook and you said no?

A. (No verbal response)

Q. Is that your evidence?

A. Yes.

Q. You didn't see this photograph on Facebook?

A. Not that I - no, I don't think so.

Q. Now, when you were shown these photographs in the police station it was

also videoed, wasn't it?

A. Yes.

Q. I am going to play you that now (video played). Now, you did give another

statement after that, did you not, to police?

A. Yes.

Q. And now this identification, if that is what it is, of the man in the black and

white striped top, in that photo, which is Exhibit F, this was done immediately

after you'd viewed a presentation featuring my client and couldn't recognise

him, isn't it?

A. Yes.

Q. When you saw the photo, the first thing that your eye was drawn to was the guy in the blue shirt, the chubby guy, that is correct isn't it?

A. I suppose so.

Q. Well that is what you say when you see the photograph, you look through

the photographs and you can't see it at first, can you?

A. No.

Q. And then the officer takes the bundles back and hands you back one

bundle and you go through that and you see a photograph and the first thing

you mention is the guy in the blue shirt as the chubby guy?

A. Correct.

Q. That is the chubby guy you had referred to as being one of the people that

assaulted Eden, correct?

A. Correct.

Q. And then you look at the rest of the photo and you have to really squint at it because it's not very clear, is it?

A. Correct.

Q. And you are able to identify Aaron, then you say that you identify the guy in the black and white stripes, as another one of those being involved with the

group?

A. Correct.

Q. That assaulted Eden, and then looking as closely as you can and squinting

at it, you think that it's Justin in the picture, that is Justin Eishou, isn't it?

A. Yes.

Q. In relation to the statement that you made you said at paragraph 7: "I

recognise another photo as one I saw on Facebook that had a picture of the

guys who were involved in the attack of Eden". Now this is the photograph you are referring to, isn't it, with the girl in the silver dress in the front?

A. I suppose so.

Q. “The picture has a girl in a silver dress and you can see four guys in the background. The guy on the left is Aaron, he goes to my school. The guy next

to him looks like Justin. I don't know his last name though. The guy next to him in the black jumper with white stripes was definitely part of the group of Assyrian males I describe in paragraph 18 of my first statement. I am 100 percent sure he was part of the group who I also believe were involved in assaulting Eden. I didn't see the guy actually lay a hand on Eden but he was definitely there with the rest of them when they were assaulting Eden". That is what you said, isn't it?

A. Yes.

Q. Now, what I am putting to you is that you are associating the person in the black and white stripes with the group that you say attacked Eden, correct?

A. Yes.

Q. And I am going to suggest to you that six months later, after looking at some photographs on Facebook, that you have put him - put that person as being there when Eden was assaulted. Correct?

A. Sorry can you please say that --

Q. I will put it a different way. Have you ever heard of the displacement theory?

A. Yes.

Q. Do you understand that your memory can play tricks on itself and can displace real memories with other ones, is that what you understand?

HIS HONOUR: Ms Hickleton, you are now going into an area of expert evidence.

HICKLETON: He says he knows what displacement theory is.

HIS HONOUR: Well you might explore how much of the displacement theory.

HICKLETON

Q. You tell me how much you understand about the displacement theory?

A. That if you see something, I don't know how to put it in words.

Q. Sorry I can't hear you?

A. I don't know how you put it into words. If you see something over a prolonged period of time you can see it was there.

Q. That is a reasonable summation. So, what I am suggesting to you, you did

see that photograph with others on Facebook?

A. Possibly, yes.

Q. That is what you told the police, isn't it?

A. Yes then.

Q. I am not criticising you for not remembering that now, it's a long time after.

But at that time, six or so months after the party, you had seen that photograph on Facebook?

A. Yes.

Q. And in that photograph what was brought to your eye was the guy in the blue shirt, correct?

A. Correct.

Q. Now also in that photograph was the guy in the black and white striped top?

A. Yes.

Q. And you had seen him at the party, I'm not talking about at the time of Eden's assault, I'm talking at the party when the boys arrived with that group. That is what I am putting to you?

A. Yes.

Q. I am suggesting to you that because of that association with the group, and with seeing a person that you actually recognise is assaulting Eden, you have put the guy in the black and white, in your mind you have put the guy in the black and white striped top around at the time Eden was assaulted?

A. I believe he was involved.

Q. Six months after the fact, can you be sure when you made that identification?

A. Yes.

Q. But you are unable to identify my client shortly before, in a clear photographic identification parade, as one of those that assaulted Eden, that is true isn't it?

A. Yes.

29. In relation to any suggestion of influence by Detective Barnes by what happened at the second interview it is significant that Mr Crisp identified the photograph that he was talking about before Detective Barnes handed him one group of the photographs in which he identified that particular photograph being Exhibit F. The transcript reads as follows:

Q1.   Alright, O.K. its about 9am Kane, we've finished all the photo ID stuff.

While we were doing that, you mentioned that you'd seen a photo or

something like that on facebook.

A.   Yeah.

Q2.   That was taken at the party. Is that right?

A.   Yes.

Q3   Mate, I’ve got a copy of some photos we've obtained that were taken

at the party, there's quite a few of them here. I'm just gonna give you, basically have a look through them and see if you can make any comment about any of the photos in there. Mate there (sic) a bit all over the place obviously they've just been printed out from how we've obtained them.

A.   Nothing in that one. No. Is that all of them.

Q4.   That's all the ones we have.

A.   Must have been taken off or something cause there was one …

Q5.   What was the photo of?

A.   It was, there was a girl blocking like half of them, and then there was

a picture of two of them on the side …

Q6.   Alright.

A.   Underneath the shelter, kitchen, outside the kitchen.

Q7.   Alright. You can have another took at them.

A.   Pardon.

Q8.   You wanna have another look through that one.

A.   Oh shit, right in front of me. He looks similar to the guy, I know, I think

I know him, he goes to my school but he looks like, you can get very confused with this guy and like, you can get confused with this guy and the guy that I said that got suspended from St Johns, they look very similar but, he's not the one though, he's not the one but he looks very similar like.

Q9.   Alright, so definitely different person though.

A.   Definitely different person but he looks very similar, like if that's the picture, that's probably the more similar out of them two.

Q10.   Yeah.

A.   Like way more similar that (sic) the one I pointed out like.

Q11.   But different person to the one you pointed out.

A.   Different person yeah.

Q12.   Yeah.

A.   But very similar, like ninety per cent he looks like.

Q13.   Just have a look through the rest of them mate.

A.   That's it, that's the one. The chubby guy, the guy in the blue shirt. I don't know how I missed that sorry, I was just going to (sic) fast. That one, the chubby guy, that's Aaron from my school, he's not involved.

Q14.   Yep.

A.   That guy right there.

Q15.   Yep.

A.   He's not involved. That guy is involved, the one in the white stripes and black shirt, I mean black jumper, so them two. I'm not sure about the other guy I don't think he was, I'm not sure about him.

Q16.   Alright, so your (sic) saying the photo here with a girl in a silver dress.

A.   Yeah.

Q17.   To the right of her is a guy in a blue shirt, your (sic) saying that's the chubby guy.

A.   That's the chubby guy.

Q18.   Your (sic) saying the guy on the far left is Aaron he goes to your school,

you said he's not involved.

A.   Yep.

Q19.   You said the guy in the black and white stripes, he's involved. And

the other guy in the middle of those two you said …

A.   I can't even recognise him, he kinda looks like …

Q20.   Your (sic)saying you can't recognise him?

A.   He actually looks like Justin.

Q21.   He looks like Justin.

A.   Yeah.

Q22.   Do you know Justin's last name.

A.   No I don't, like I said I'm more of a face person, like …

Q23.   And how do you [know] these two people you refer to in that photo were involved.

A.   I remember them from the night.

Q24.   You remember them from the night.

A.   Yeah.

Q25.   Alright. And …

A.   And she's like blocking the whole row of them, like they're all there. That's all of them there. There's like one two three four five. She's blocking all of them.

Q26.   Did you see that photo, were you there when that photo was taken

or?

A.   I was …

Q27.   Or in the area, like how do you know there's other people behind her?

A.   Because I was like standing at the back near the, um, clothes line, that's pretty much when they came back. That's when I was like, “lets (sic) go” to Adis.

Q28   So your (sic) saying you were standing near the clothes line that's when they came back and that's when you said lets (sic) go.

A.   Yeah, and they were like hassling people coming through the doorway, like the girls.

Q29.   Ok, urn, alright then, no worries. I'll just get that added to another statement. Alright, I'll suspend the video recording, its (sic) 9.07am.

30. From viewing the interview and reading the transcript, there is nothing to suggest anything Detective Barnes said or did might have influenced Mr Crisp.

31. As can be seen from the cross-examination of Mr Crisp it was put to him that his memory might be affected by the displacement theory. He said that he understood the theory but denied that it was so. The trial judge gave careful directions about identification to the jury including unreliability based on the displacement theory. His Honour said this:

Members of the jury, I was dealing with the issue of displacement effect. I said I would come back and deal with that as part of the directions I was giving you on identification evidence. I do not need to say much about it other than, firstly, just to make clear what the understanding is about displacement effect. It is essentially concerned with the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier or original recollection or observation of the person in the flesh, and that that displaced memory may be the basis of later identification.

…

And Ms Hickleton then has suggested, well, Kane Crisp saw the photo array, did not identify it, and then saw him in the photograph, the accused in the photograph, exhibit F. Bear in mind there are differences between someone seeing a person fleetingly, as discussed earlier this morning, from one who sees a person at some length on a number of occasions, and has occasion or reason to retain a memory of that person because of the circumstances surrounding his or her observation of a particular person. In other words, there is a different effect in terms of memory from the first instance to the last one I just mentioned.

Evidence in this case of witnesses, both given to police and also in evidence, concern not just their facial features but what they were wearing, the colour of their clothing and so on. The difference between the photo array and the photograph that Mr Crisp was shown was a facial photograph, exhibit F, showed more of a body image and his clothing. Those are matters the Crown points to as saying, well, who he was talking about and that that is the photo he identified to be seen in that context.

So, members of the jury, they are all matters you can take into account in determining, in addition to sizing up, as it were, assessing Mr Crisp as a witness. Did he appear to you to be a reliable type of man whose powers of observation seemed to be good, or not good, as you may assess.

He also was successful in identifying other people in that photograph, exhibit F, that is Aaron, Justin Eishou, and I think at least one other, as well as the accused, and he was right when he identified the others. He is right in the fact he did not identify the accused. The question then becomes whether or not the point Ms Hickleton has made, well, he did not identify the photo array cancels out, as it were, the ability of him to have identified positively the accused, as he said he did with exhibit F.

32. A matter of some significance that the jury may well have considered was that Mr Crisp said that he was present when the photograph Exhibit F was taken. The jury may have taken the view that an identification from a photograph of a scene he actually witnessed is likely to have been more reliable than one where he had not been present and was being shown it for the first time. It was ultimately a matter for the jury having heard and seen Mr Crisp to decide if they considered that his evidence was reliable.

33. Mr Crisp was not the only witness who provided positive identification of the applicant’s presence at and about the time of the assault. Moana Heta gave this evidence about what she and Brenda Torres did during the evening (T1272 – T1274):

Q. Something caused you to go to the front of the house later on?

A. Yeah.

Q. Can you take us through that?

A. It was just like a couple of hours later that happened, and Brenda, like me

and Brenda, we just grabbed each other and started walking toward the front

of the house, just like a random check up, how everything is going. And as we

were on our way towards the house, her mum started talking to her in like

Spanish. I didn't understand what she was saying, but Brenda just turned

around and said to me let's go out the front, and I said okay.

Q. Keep going?

A. We went out the front, and we just saw those same guys that were out the

back, they went to the front, but there was like more guys there. So we don't

do anything about it. And then they started acting like really aggressive towards each other. We thought there was going to be a fight, so Brenda went up to them and told them not to fight down here. Not fight at the time house. And so some guy come up to someone like, yeah okay, we'll move down there then. They started moving halfway towards Brenda's house and next door neighbour's house. They were in between, like arguing, so me and Brenda thought they were going to take it down somewhere else.

HIS HONOUR: Slow down a bit so it can be recorded.

CROWN PROSECUTOR: Slow it down.

HIS HONOUR:

Q. You said - take it up from where you and Brenda were together; is that right? And you said that the group moved down?

A. Uh-huh, okay. The group went like yeah, halfway between Brenda's house

and the neighbour's house. So me and Brenda started walking towards her

house, back into the party, and then Brenda started walking inside but I stayed because I saw some of my friends on the driveway. So I was standing on the driveway talking to them, and we heard like a bottle smash, and after that, like a whole bunch of guys started running up the hill, and everywhere. They just scattered everywhere.

Q. Did you see anyone hit with the bottle?

A. No.

Q. You heard a sound of smashing glass?

A. Mmm mmm.

Q. Did you know Eden at the time?

A. No, I didn't.

Q. You did know him by sight or name; is that what you're saying?

A. No.

Q. There was an assault upon him. Did you see anyone involved in an

assault?

A. No.

Q. You saw people go everywhere I think you said?

A. Yeah.

Q. Can you describe that scene for us from your point of view, where were

you standing when that happened?

A. Okay. So the hill goes like that (indicated), and then there is a garage right

behind us, so I was probably midway up the driveway. Yeah that's when we

saw it happen. About like five, ten guys went up, right, up Restwell Road, but I

saw like people ringing (sic) up the street in front of me as well. Yeah, then nothing happened, it was just clear.

Q. From where you were looking out on to the road, right, left, where did you

see people move to the right, left or both?

A. Like most of the people, they went right. They went up the road.

Q. They went right?

A. Yep.

Q. The other direction, did you see anyone go in that direction?

A. I didn't see many people go in that direction.

Q. Any or many? Did you say many or any?

A. Many.

Q. Those you did see, what point in the sequence of events was it you saw

some go in that direction?

A. Like straight afterward I saw people running up the right direction.

Q. Could you say whether they were the same or different people?

A. Probably different people.

Q. Did you know or recognise any of the people who were running?

A. No.

Q. Did you have any idea what was going on at the time?

A. No I had no idea.

Q. When you came back out to the front and saw the group there, before this

commotion occurred, did you see where [JH] was?

A. Yeah, he was in amongst the boys as well.

Q. Did you recognise any one else in that group apart from [JH]?

A. No.

Q. You told us that [JH] was a member of the group back at the clothes line

when you had a word out there?

A. Uh-huh.

Q. When was the first you noticed that [JH] was out the front?

A. Sorry?

Q. You've given evidence that you spoke to [JH] out the back?

A. Yeah.

Q. When you got out the front, where was he?

A. He was with the boys.

34. Mr Crisp’s evidence cannot be seen in isolation from evidence of Ms Heta, nor indeed from the evidence of a number of witnesses who reported that the applicant arrived with and was seen with a number of other persons involved in the assault at various times during the evening. Some examples follow.

35. Jayden Mudford knew JH from school although they were not friends and he had never spoken to him. He identified the applicant from a photo presentation and said that he had seen him standing with JP and another person he knew, Alan Elia, prior to the assault on the deceased. Jasmine Dinh also knew the applicant from her school. She saw the applicant and JP arrive together in a car with some other people. She also saw them come back to the party together after the assault. She told the police in her statement of 17 November 2010 that JH was carrying a stick when he arrived and that he yelled out “Let’s go have some fun boys”. The significance of the evidence from Mr Mudford and Ms Dinh is that JP was one of the persons who actually assaulted the deceased.

36. George Eaglesham gave evidence that he was approached by a couple of people who asked him aggressively if he was from Campbelltown. He said that he was not but one of them who was holding a knife in Mr Eaglesham’s direction asked him a second time. Mr Eaglesham said that he saw the applicant “hanging” with the same group of males that that had approached him, one with the knife, although he said JH did not have the knife and was not another person in the group who had a pole.

37. Elias Daccour saw a group of boys one of whom had a pole in his hand. He, like others, described the group as moving from the front through to the backyard and then back out the front. He described the boy with the pole as using it to hit the deceased. Shortly before the assault he heard one of the boys in the group call out the deceased’s name and say “You’re the guy that snitched”. That evidence was, therefore, linked to the motive for the bashing and that motive concerned the applicant. The issue of the motive is discussed when considering ground 1(d).

38. Finally, the jury also heard the evidence of Justin Eishou who identified the applicant as being part of the group that was involved in the assault. It may be accepted that Mr Eishou’s evidence was unsatisfactory in that he admitted to having lied to the police on more than one occasion and he retracted evidence that he saw the applicant actually strike the deceased. Nevertheless, it was open to the jury to accept parts of his evidence, as the trial judge made clear in his directions to them when dealing with Mr Eishou’s evidence. That evidence included that the applicant had told Mr Eishou sometime before the party not to bring the deceased over to the applicant’s place or the applicant would punch the deceased. It was also open to the jury to accept that part of Mr Eishou’s evidence that placed the applicant with the group of boys who assaulted the deceased because that evidence was at least consistent with evidence of other witnesses already referred to.

Ground 1(c) – applicant not present at party at the time of the assault

39. The applicant relied on what was said to be an exculpatory conversation that he had with Marie Khokaz which was secretly recorded by her on her telephone. The applicant also relied on the telephone calls between the applicant and Marvin Georgis and the home phone number of the Georgis family.

40. The phone calls were said to support the applicant’s account that he had left the party just before the assault to pick up Marvin Georgis in response to Marvin’s request to be picked up and taken to the party.

41. The phone calls from Exhibit 15 are said to be these:

19:50 to 19:53   Three calls from the Georgis’ family home to the applicant’s mobile phone (connecting for four, three and three seconds respectively);

20:01:43    Applicant’s mobile phone to Marvin Georgis’ mobile (82 seconds);

20:18:59   Applicant’s mobile phone to Marvin Georgis’ mobile (23 seconds);

20:30   Two calls from the Georgis’ family home to the applicant of one and five seconds respectively;

20:39:24   Call from the Georgis’ family home to the applicant’s mobile (not answered);

20:39 – 20:41   Several attempted calls from the Georgis’ family home to both the applicant and Millard Georgis; and

20:41:43   Call from the applicant to Marvin Georgis’ mobile (12 seconds).

42. The applicant submitted that in his Honour’s summing up to the jury of the phone call evidence his Honour inadvertently misrepresented the evidence. His Honour said (SU 104):

Now there is one call recorded earlier in the piece at 20.41.33 but that's not a call coming in from Marvin Georgis, that is one from [JH] to Marvin Georgis and, as Ms Hickleton pointed out, earlier from a time 20.40.02 downwards, there is a number of attempted calls from the Georgis' home but none of those calls registered because they are all zeroes. So that there is no entry that I can see - but this is a matter for you to assess the evidence, of course, not me - on examining exhibit 18 to show where Marvin Georgis made a call to the accused.

43. The applicant submitted that that summary misstated the evidence of Detective Senior Constable Bressington who gave this evidence (T1512.45):

Q.   …You have told us that when you see something as short as one second, it usually means that the call hasn't been answered?

A. That's correct.

Q. Then we have also a call for five seconds, you don't know whether that was answered or not, do you?

A.   No.

44. The applicant submitted that his Honour further ignored the earlier calls at 7:50pm from the Georgis’ family home to the applicant’s mobile phone. It was possible that contact was made between the Georgis’ family home and the applicant’s mobile for five seconds. The result was that there was a reasonable possibility that the applicant was not present at the time of the assault.

45. The attack on the deceased is thought to have occurred between 20.30 and 20:43:11 when the deceased rang Romina Khosorow. The relevant calls prior to that time that could have been calls from Marvin Georgis to the applicant were at 19:50:42 (four seconds); 19:50:58 (three seconds); 19:53:09 (three seconds); 20:30:12 (five seconds); and 20:30:42 (one second). The last call can almost certainly be discounted because on Detective Bressington’s evidence it would have been an unanswered call. It was therefore for the jury to determine whether it would have been possible for Marvin Georgis to have requested the applicant to pick him up and told him where he was in any of those calls, when none of the calls lasted more than five seconds.

46. However, consideration of that matter could not be divorced from a consideration of the whole of the transcript of the recorded conversation by Ms Khokaz (Exhibit W). The following is relevant from that transcript:

[JH]:   Anyways, we went to the party, and we went all into the party saying “whose Campbelltown boys, whose Campbelltown boys”.

KHOKAZ:   Youse went in the party?

[JH]:   Yeah, yelling whose Campbelltown boys, whatever. You'se, you know, you'se are saying shit over the phone, say shit to our face.

…

KHOKAZ:   Oh yeah, and Daniel Alves and shit.

[JH]:   Yeah, we were with them. Yeah… We were chilling out the front. And when we were inside the party looking for the Campbelltown boys my mate he saw Eden.

KHOKAZ:   Who's mate? Just tell me bro.

…

[JH]:   Mary, I trust you. Please, please don't fuck it up, please. I trust you. You know Milad? Marvin's little brother?

KHOKAZ:   Yeah.

…

[JH]:   Milad saw him, and Milad was mate's with Shabin too. Like I wasn't even mates with Milad back then, but Shabin knew.

KHOKAZ:   Cause Shabins in gaol or some shit.

[JH]:   But Shabin, Shabin knew Milad back then.

KHOKAZ:   Yeah.

[JH]:   Milad saw him, "Oh isn't that that guy that snitched on youse" and shit.

KHOKAZ:   Oh.

[JH]:   And I was like "Yeah, yeah, yeah that's the guy, that's the guy and then Little Alan he's like, "Nah, nah we won't hit him now", like you know like it wasn't meant to be like that. I swear to God Mary, (I swear to god), like why would I want someone to die for Mary...

KHOKAZ:   I know.

[JH]:   Are you serious?

KHOKAZ:   I know. Yeah go on. Oh it's cold.

[JH]:   Anyways, and then Little Alan was like nah, nah, nah we won't hit him now we'll wait till the party ends before we go home, so we can have fun.

KHOKAZ:   Yeah.

[JH]:   Like alright no worries. And then (I swear on my mums life), I'm saying (I swear on my mums life) Mary, and I swear I'll never lie on my mum's life.

KHOKAZ:   You left?

[JH]:   Marvin called me up, he's like "Come pick me up", alright cause we had our mates car there, he's like "Come pick me up". I took the keys and I left, like I drove off and as I was driving off all the boys started running to the car.

KHOKAZ:   Like who's the boys.

[JH]:   Like Milad, and Little Alan.

KHOKAZ:   Milad and Little Alan.

[JH]:   And someone else and shit you know. They all jumped in the car and we drove to Abbotsbury.

KHOKAZ:   And he was there?

KHOKAZ:   Who was there?

KHOKAZ:   Eden.

[JH]:   Nah, Eden... Eden like when they ran into the car they hit him".

KHOKAZ:   Little Alan, just, just them two?

[JH]:   Other people.

KHOKAZ:   Who hit him but, I just wanna know who hit him like, but... How bad was it cause he got bottled, he got fucken hit in the head, like the guy is dead.

…

[JH]:   Steven went up to him he goes, 'Oi come here', whatever, he went up to him he goes, Why did you snitch on my mate for", this this that and my other mate Johnny... Johnny he was the one with the champagne bottle.

KHOKAZ:   Yeah, Johnny. Who's these guys, Johnny who?

[JH];   Johnny, the one, like mates with Wakeley and shit.

KHOKAZ:   What's his last name?

[JH]:   I don't know, (I swear to god) I don't know.

KHOKAZ:   Yeah go on.

[JH]:   Anyways, Johnny took his hat. He goes 'Oh nice hat', took it off him, then Steven punched him, he dropped.

KHOKAZ:   Where the fuck did Steven come from?

[JH]:   Steven was there, he goes 'Oi come here'.

KHOKAZ:   'Ok'

[JH]:   Like Steven and Johnny went up to him...

KHOKAZ:   Yeah.

[JH]:   Steven hit him.

KHOKAZ:   Yeah.

[JH]:   He dropped and my mate, you know the one with the champagne bottle, Johnny…

KHOKAZ:   Johnny, yeah.

[JH]:   Johnny, was the one that hit it over his head. I don't even know why I'm telling you this now... I swear to god.

KHOKAZ:   It's alright just go on.

[JH]:   Anyways, Johnny hit him in the back of the head and then they all started kicking him and I don't know what. He got up and started running and then two, two boys started chasing him...

KHOKAZ:   Yep.

[JH]:   ...and they couldn't get him so they ran to the car while I was driving off.

KHOKAZ:   Yep, and then that's it, they just left him there to fucking die. (Sighs) I just wanted to know who it was, like I just wanted to know who it was that's all I wanted.

(spelling and punctuation in original transcript)

47. Although reluctant to impart information to Ms Khokaz about who was involved and what happened, at no point does the applicant suggest that he was merely repeating what somebody else had told him. The applicant was very wary of anyone finding out that he was telling Ms Khokaz about who was involved. One might have expected him to make it clear that he was only told what he was imparting to Ms Khokaz if that was the case. Indeed, the detail provided by the applicant in his account to Ms Khokaz, which is consistent with what some of the other witnesses have described, points strongly against this information having been imparted to the applicant and points to the conclusion that he was present when it took place. It was a matter for the jury whether they accepted that the applicant, whilst illegally driving a motor vehicle full of people who had just assaulted the deceased, would be able to remember the detail of who did what in the detail described by him to Ms Khokaz.

48. Further, the only evidence that Marvin Georgis had contacted the applicant and asked to be picked up and that the applicant had left before the assault to do so was contained in Ms Khokaz’s statement. That evidence had to be assessed with the other evidence already referred to that put the applicant with the offending group at the time of the assault.

49. The fingerprint evidence did not identify any prints from the applicant in or on the car. However, a left thumb print of AE was found on the rear vision mirror and a right palm print of AE was found on the inside of the driver’s side door frame area. It was open to the jury to have concluded that AE rather than the applicant was the driver of the car.

Ground 1(d)   - insufficient evidence to support the alleged motive of the applicant to attack Mr Delir.

50. The applicant submitted that it was a central part of the Crown case that the applicant’s involvement in the earlier robbery on Mr Delir and the mistaken belief that Mr Delir had “snitched” (or informed) on the applicant provided a motive for the applicant to organise and participate in the attack. The applicant pointed to various references made in both the Crown’s opening and closing addresses. In the Crown’s closing address the prosecutor said (T1594:35), that there were three silver bullets being intention, motive and actions. The applicant pointed to what the Crown said at T1618:11 in closing:

The event [the assault] might have been thought by you to be unthinkable because in the absence of the motive evidence, because you would be left with two old school friends, and a suggestion that the accused was involved in something, for an old school friend, but the motive evidence gives it a different colour, doesn't it?

51. The applicant submitted that only two witnesses in the Crown case gave evidence that was consistent with the applicant maintaining animosity against the deceased. Those witnesses were Mr Eishou and Ms Matekalo. The applicant pointed to the general unreliability of Mr Eishou’s evidence and issues relating to his honesty. He also pointed to the fact that Mr Eishou agreed, in any event, that he did not witness any exchange between the applicant and the deceased at the party in relation to the issue of revenge for snitching.

52. Ms Matekalo gave evidence of the applicant speaking badly of the deceased following Mr Chin’s court proceedings arising out of the earlier robbery. She recalled the applicant saying:

Don’t worry, I just still haven’t gotten him back.

53. The applicant submitted that Ms Matekalo did not like him following a break up in their relationship, and that she came to a conclusion about his involvement in the attack soon after it had occurred. Further, Ms Matekalo gave evidence that she had watched Mr Chin’s court proceedings and that the deceased did not say anything bad about the applicant. She also gave evidence that the applicant had apologised to the deceased and that the matter was behind them. The applicant also pointed to emails from the deceased to the applicant after the earlier robbery where the deceased did not express antagonism between him and the applicant.

54. The jury had two pieces of significant evidence that supported the motive alleged by the Crown. The first piece of evidence is to be found in the secretly recorded telephone conversation by Ms Khokaz. It was set out earlier at [46]. When MG saw the deceased and asked wasn’t the deceased the guy “that snitched on youse” the applicant said to Ms Khokaz:

And I was like “Yeah, yeah, yeah, that’s the guy, that’s the guy and then Little Alan he’s like, “Nah, nah, we won’t hit him now, like you know, like it wasn’t meant to be like that. I swear to God Mary, (I swear to god), like why would I want someone to die for Mary...

55. Not only did the applicant not deny to MG that the deceased did not snitch on him, he did not say that the matter had been resolved between them and was in the past. He did not suggest to Little Alan that there was nothing to hit him for, and the applicant’s statement to Ms Khokaz suggests that he thought that all that was going to happen was that the deceased would be hit but not seriously injured or killed.

56. The second significant piece of evidence was contained in two intercepted telephone calls from Christopher Chin to the applicant on 14 November 2010 at 22:39:57 and 22:50:37 respectively (Exhibits BC and BB respectively).

57. In the first of these calls the following exchange occurred (V1 = Chin and V2 = the applicant):

The above mentioned therapeutic interventions may assist (JH’s) ability to gain insight into his behaviour. This will require motivation and honesty from (JH) to be of benefit. Further qualifications and vocational training may assist with (JH’s) reintegration into the community into the future, especially in conjunction with a gradual reduction in classification closer to the release date. Both (JH’s) ability to reintegrate into the community and his rehabilitation efforts are anticipated to affect his likelihood of reoffending…One anticipates that providing therapeutic intervention will increase the likelihood of the individual gaining insight into their problems and making change. One cannot be certain whether not providing this intervention will result in improvement in (JH’s) rehabilitation or reintegration. At best, one could estimate that his risk of reoffending would remain unchanged.

Submissions of the applicant

119. Counsel for the applicant expressly acknowledged that in order to make out this ground it was necessary to demonstrate that the sentence imposed was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54. In order to demonstrate that the sentence fell into that category, counsel for the applicant essentially advanced three submissions.

120. First, he submitted that the applicant was of a young age at the time of the offending, namely 15 years and 9 months.

121. Secondly, he submitted that on the whole of the evidence, the applicant’s prospects of rehabilitation were “perhaps better than his Honour’s categorisation as moderate”. Counsel pointed out, in particular, that:

(i)   the applicant was assessed as being in the low range of re-offending;

(ii)   he retained the support of his family and his employers; and

(iii)   he had no criminal record.

122. Thirdly, he submitted that although his Honour’s finding that “the offence was not spontaneous but was planned and orchestrated by the applicant” was not an error in characterisation, it represented an overstatement of the applicant’s role, and infected his Honour’s ultimate finding as to objective seriousness.

Submissions of the Crown

123. The Crown submitted that the findings made by his Honour as to the objective seriousness of the offending, and as to the applicant’s prospects of rehabilitation, were clearly open: Field v R [2015] NSWCCA 332 at [111] per RA Hulme J (Macfarlan JA and Johnson J agreeing).

124. In terms of the first of those matters, the Crown submitted that the attack on the victim was obviously not spontaneous, and that such a conclusion was supported by (inter alia) the evidence of discussions to which the applicant was a party. The Crown further submitted that the attack on the victim was one which clearly involved a co-ordination of roles to be undertaken by the members of the group and which, as his Honour found, resulted in a ferocious attack being perpetrated against a defenceless victim.

125. In terms of his Honour’s findings as to the applicant’s prospects of rehabilitation, the Crown submitted that such findings were clearly open on the evidence, particularly given the contents of the Juvenile Justice Report.

126. Finally, the Crown submitted that the sentencing judge had clearly considered all other relevant matters, including the applicant’s age and the principles applicable to the sentencing of young persons.

Consideration

127. His Honour was clearly mindful of the applicant’s age. He made specific reference to it on two separate occasions. In these circumstances, there is no reason to think that his Honour did not take it into account.

128. Moreover, the fact that an offender may be youthful does not, of itself, mean that his or her sentence will be reduced on account of that fact. Whilst youth is a mitigating factor in sentencing, and the rehabilitation of young offenders is important, there are limits upon the extent to which such matters can be allowed to influence the sentencing process: R v LLM [2005] NSWCCA 302 at [49] per R S Hulme J (Grove J and Simpson J (as her Honour then was) agreeing). In particular, where a youth conducts himself in a way in which an adult might conduct himself, and in doing so commits a crime of considerable gravity, the protective function of a sentencing court may cease to operate: R v Gordon (1994) 71 A Crim R 459 at 469 per Hunt CJ at CL (McInerney and Sully JJ agreeing); LLM (Supra) at [49]-[51] and the authorities cited therein.

129. In light of these principles, and in light of the seriousness of the applicant’s offending, the applicant’s youth, either of itself or in combination with other factors, does not support a finding that the sentence is manifestly excessive.

130. The sentencing judge concluded that the applicant’s prospects of rehabilitation were moderate. That finding was amply supported by the evidence and, in particular, by the contents of the Juvenile Justice Report which referred specifically to (inter alia) a failure on the part of the applicant to recognise that his behaviour was problematic. Further, although various forms of therapeutic intervention have been recommended, whether they will bring about a positive outcome remains a matter of complete speculation. In her report, Ms Jones specifically acknowledged that she could not be certain whether any of her recommended interventions would improve the applicant’s rehabilitation.

131. A failure on the part of an offender to acknowledge guilt after being found guilty at trial will not, of itself, deprive him or her of a finding that there are good prospects for rehabilitation: Alseedi v R [2009] NSWCCA 185 at [65] per Giles JA (Hidden and McCallum JJ agreeing). However, in the present case, the evidence to which his Honour expressly referred supported the conclusion that he reached.

132. Finally, at [68] his Honour said:

Whilst I do not consider that the evidence establishes that the offender “orchestrated the attack” as the Crown submitted (in the sense that he was the sole instigator of it), I have, as I have indicated, concluded that he and others jointly decided upon launching the group attack upon (the victim) and encouraged others to do so. That finding plainly establishes a high level of moral responsibility in the offender.

133. The submission of counsel for the applicant that his Honour overstated the applicant’s role in the offending was based upon the proposition that his Honour had found that the applicant “orchestrated” the offending. His Honour expressly stated at [68] that he did not consider that the evidence established that fact. Counsel’s submission was therefore based upon a false premise. Moreover, his Honour’s findings as to the objective seriousness of the offending were open on the evidence.

134. It follows that this ground is not made out.

conclusion

135. The following orders should be made:

1. On the conviction appeal:

1. Leave to appeal granted.

2. Appeal dismissed.

2. On the sentence appeal:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 03 March 2017