Jubraeel v R

[2015] NSWCCA 131

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Jubraeel v R [2015] NSWCCA 131

Hearing dates:

11 May 2015

Decision date:

05 June 2015

Before:

Macfarlan JA at [1];
Johnson J at [65];
RS Hulme AJ at [66]

Decision:

(1) Decline to grant to the applicant leave under r 4 of the Criminal Appeal Rules to rely on Ground 1 in his Notice of Appeal.

(2) Grant to the applicant leave to appeal to rely on Ground 2 in his Notice of Appeal.

(3) Dismiss the appeal.

Catchwords:

CRIMINAL LAW – murder – appeal against conviction – whether judge erred in not giving specific alibi directions – whether jury verdict unreasonable – s 6 Criminal Appeal Act 1912 – appeal dismissed

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
Criminal Appeal Rules 1952, r 4
Criminal Procedure Act 1986 (NSW), s 150
Evidence Act 1995 (NSW), s 38

Cases Cited:

ARS v R [2011] NSWCCA 266
Griffiths v R [2014] NSWCCA 60
M v The Queen [1994] HCA 63; 181 CLR 487
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
R v Amyouni (unrep, 18/2/88, NSWCCA)
R v Harland (unrep, 22/8/90, NSWCCA)
R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527
R v Merrett [2007] VSCA 1
R v Roberts [2001] NSWCCA 163; 53 NSWLR 138
R v Skaf [2004] NSWCCA 37; 60 NSWLR 86
R v Steeden (unrep, 19/8/94, NSWCCA)
SKA v The Queen [2011] HCA 13; 243 CLR 400

Category:

Principal judgment

Parties:

Marwan Jubraeel (Applicant)
Regina (Respondent)

Representation:

Counsel:
A Barrie (Applicant)
P Ingram SC (Respondent)

    Solicitors:
George Sten & Co (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2012/10783

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

New South Wales

Citation:

R v Marwan Jubraeel [2014] NSWSC 838

Date of Decision:

23 June 2014

Before:

Rothman J

File Number(s):

2012/10783

Judgment

1. MACFARLAN JA: Between 10 and 27 February 2014, the applicant, Mr Marwan Jubraeel, was tried before a judge and jury for the murder of Colin Wick on 23 July 2011. The jury returned a verdict of guilty. The applicant appealed against his conviction on the grounds that the trial judge failed to give the jury adequate directions in relation to an alibi on which he relied and that the verdict was unsafe and unsatisfactory. By the latter ground the applicant sought to invoke the Court’s power under s 6(1) of the Criminal Appeal Act 1912 (NSW) to allow an appeal against conviction where the court considers that the jury’s verdict is “unreasonable, or cannot be supported, having regard to the evidence”. Leave to appeal is required in respect of that ground (see s 5(1)(b) of the Criminal Appeal Act). I refer to Mr Jubraeel as the “applicant” rather than the appellant as, for reasons appearing below at [24], he also needed leave to rely on his first ground of appeal.

The course of the trial

2. The Crown opened its case to the jury as follows:

1. At about 9.30 to 9.40 pm on Saturday 23 July 2011, the deceased, Mr Colin Wick, was at the home in Canley Heights that he shared with Ms Eleanor Attard. They heard several loud bangs in the vicinity of the front of their house. When Mr Wick pulled aside a curtain that had been across a sliding glass door, he was shot in the chest. He died of the wound.

2. When Mr Wick pulled the curtain aside, Ms Attard saw that the glass of the door had been shattered and that three men were standing side by side on top of a bench that was located outside the door. One of the men had his hand out pointing a gun directly ahead. The other two stood beside him. The gun was fired almost immediately into the chest of Mr Wick, without a word being said. Ms Attard said that the men were each dressed in dark clothing with balaclavas covering their heads.

3. On the arrival of police, the neighbours directed them to a white Toyota Corolla car parked in a nearby street. Subsequent testing identified the applicant’s fingerprints on the vehicle, and DNA consistent with that of the applicant inside the car. The Crown’s evidence, when called, also indicated that the car had a flat battery and that the applicant had had access to firearms and ammunition prior to the shooting.

4. When questioned by the police on 8 August 2011 the applicant said that at the time of the shooting he had been at the flat of a friend known to him as Miss G.

5. On 3 September 2011 a friend of the applicant, Ms Sinem Bas, attended the Green Valley police station to provide information about the shooting that led to Mr Wick’s death. In a recorded interview on 3 November 2011, Ms Bas told the police about a conversation that occurred on 24 July 2011 during which the applicant told her that he was at the Canley Heights house at the time of the shooting.

6. The Crown contended that the applicant was part of a joint criminal enterprise, that is, irrespective of which of the three persons fired the shot that killed Mr Wick, they were each guilty of murder because they were present and participated in the offence with reckless indifference to human life.

3. After the Crown’s opening, the applicant’s counsel told the jury that the applicant’s case was simple: “[w]e were not there, we had nothing to do with the shooting of this man” (transcript p 28).

4. In its case, the Crown also tendered an ERISP transcript of a police interview with the applicant on 11 January 2012 in which the applicant denied involvement in Mr Wick’s murder but, on legal advice, declined to answer many other questions. He did however say that on 23 July 2011 he was at Miss G’s unit from the afternoon until “night”, apart from going out to a service station for some food (pp 22-23). He also confirmed the correctness of a police statement that he had made on 8 August 2011 (pp 9-10). That statement was tendered by the applicant’s counsel to give the jury “a complete picture” of what the applicant had told the police and not as the evidence of the truth of its contents (transcript p 474). The ERISP transcript was however tendered by the Crown without restriction and was accordingly evidence of the matters asserted in it.

5. In the police statement the applicant referred to his friend Randy Younan’s purchase of the Toyota Corolla on 23 July 2011 and their driving of it that day. He said that he went to Miss G’s unit at about 3.30 to 3.40 pm and stayed there until about 1.00 am, along with others including his friend Ollie (p 4).

Ms Bas’ evidence

6. Ms Bas said that she and the applicant were close friends and on a number of occasions on the evening of 23 July 2011 she had attempted unsuccessfully to contact the applicant (transcript p 74, corroborated by telephone records). She was worried about him and when they met the next day she asked him something to the effect of “Where were you? What were you doing?” On that occasion:

“He said that he and a couple of other people had went to someone’s house where they had broke in, and the person who had answered the door was shot at and they – him and whoever was there took off, and the car that they wanted to get in had broken down on them, so they took off by foot and everyone hid somewhere, I don’t know exactly where. And Marwan didn’t have a gun on him from what he had told me so I don’t know who did but, obviously, someone had one that – a man did get shot, but he told me that he didn’t have one and that he wasn’t the shooter, and he also told me that he hid near or in the creek, I’m not exactly sure” (transcript pp 77-78).

7. After seeing a television news broadcast referring to a nearby shooting, the death of a person and “police looking around the creek and the area being closed off” (transcript p 80), Ms Bas, on 3 September 2011, went with her sister to the Green Valley police station to report her conversation with the applicant. On 3 November 2011 she returned to participate in a recorded interview. When asked in evidence-in-chief whether she was still friends with the applicant as at 3 September 2011 she said that “[i]t was pretty complicated … [i]t was like on and off” (transcript p 81).

8. After the following question and answer, the Crown Prosecutor was given leave under s 38 of the Evidence Act1995 (NSW) to cross-examine Ms Bas in relation to parts of the recorded interview:

“Q. Did [the applicant] tell you that he had anything with him at the time that he went to hide?

A. No and I don’t even remember but from what I recall like a weapon or something” (transcript p 82) (sic).

9. Ms Bas’ evidence was that she was unable to recall most of what she had said in the recorded interview. At one point she was asked whether she remembered a particular series of questions and answers saying: “[o]bviously like not exactly, it’s been a while ago now but, to be very honest with you, the only thing that is concrete in my head is what I explained to you before, I just remember when he was present at the house, he wasn’t the shooter and everyone fled off and – ” (transcript pp 91-92).

10. Ms Bas was cross-examined in detail about her relationship with the applicant and her attitude to being unable to contact him on the night of 23 July 2011. She rejected the suggestion that the reason that she remained friends with the applicant was that he had not told her that he had been involved in the shooting (transcript p 110).

11. She accepted the proposition that the applicant “never told [her] about having a firearm and a balaclava” but was referred to the following question and answer in the transcript of her Record of Interview:

“Q. Okay, so it is fair to say what you were told, you were told he had a firearm and a balaclava?

A. Oh, well that’s what I was told but I don’t know” (transcript p 113).

12. When confronted with the inconsistency, she said that she could not remember but “[i]f it is said there, then – it is written there, it means I obviously did say it” (transcript p 114).

13. She was then referred to other parts of the Record of Interview in which she was asked whether the applicant had told her that he had a weapon and responded: “I think so” and, at another point, “I don’t remember” (transcript pp 114, 115 and 116). Later in the interview, she said “I’m not sure if they were all armed or if it was only [the] one who was responsible for the shooting” (transcript p 117).

Alibi evidence

14. The Crown called a number of the applicant’s friends and associates to give evidence relating to the circumstances of the day. The Crown’s written submissions on appeal gave compelling reasons why the evidence of two of these friends, Mr Manwol Khamis and Mr Esho Esho, should not be regarded as alibi evidence of any significance. On appeal, the applicant did not contend otherwise and instead focused solely on the evidence of Mr Oliver Merza, the “Ollie” referred to in the applicant’s statement of 8 August 2011, evidence (see [5] above).

15. Mr Merza gave evidence that he helped Mr Younan purchase the Toyota Corolla on 23 July 2011 (ibid) and that he was at Miss G’s unit from around 11.00 am to noon on that day until the following morning (transcript p 114). In cross-examination Mr Merza said that the applicant came to the unit with Mr Esho in the afternoon on 23 July 2011, that Mr Esho left for a short period in the evening but returned and then left again at about 12.30 am the next morning, and that the applicant stayed all night and left the following afternoon (transcript pp 417-418).

16. After the Crown Prosecutor completed her re-examination, the trial judge said to her in the absence of the jury that the Crown’s lack of cross-examination on the evidence of Mr Merza that was inconsistent with the Crown’s case would be the subject of comment to the jury (transcript pp 419-420). The Crown Prosecutor then sought, but was refused, leave to cross-examine Mr Merza. The trial judge’s reasons for rejecting the application concluded as follows:

“It seems to me that fundamentally there are two aspects; firstly, were it not for the intervention of the Court this witness would have already been excused. Secondly, the Crown was on notice that the accused said this witness was with him at the time of the commission of the offence. Thirdly, being on notice the Crown did not seek to adduce from the witness evidence inconsistent with that proposition.

In all of the circumstances it seems to me leave ought not be granted to reopen the re-examination and to cross-examine under s38. I so rule” (transcript, 21 February 2014, p 3).

17. The applicant did not give an alibi notice under s 150 of the Criminal Procedure Act 1986 (NSW). However the applicant’s police statement put the Crown on notice of the alibi. Given that the Crown did not contend that a notice should have been given, I express no opinion as to whether that should have occurred.

The applicant’s case

18. The applicant did not give evidence or call any other person to give evidence.

Counsels’ addresses

19. In address, the Crown Prosecutor referred to Mr Merza’s evidence but not to the absence of challenge to it (transcript p 524).

20. The applicant’s counsel described the Crown’s case as almost totally reliant on the evidence of Ms Bas, which he submitted should be rejected (transcript pp 537-538). He focused particularly on inconsistencies in Ms Bas’ answers in evidence and in her recorded interview about whether the applicant told her that he had a firearm and a balaclava at the time of the shooting. He also relied on Mr Merza’s evidence, stressing it was “not contested” and that Mr Merza was “not even questioned about it” (transcript pp 538-539).

The Summing-Up

21. In his Summing-Up the trial judge repeatedly instructed the jury that in order to return a guilty verdict it had to be satisfied that the Crown had proved its case beyond reasonable doubt (for example pp 7, 12, 15 17, 18, 20, 21, 31, 43-44, 49, 50 and 53). His Honour specifically directed the jury that it had to be satisfied beyond reasonable doubt that the applicant was at the Canley Heights address on 23 July 2011 when the shooting occurred, was one of the three persons wearing balaclavas (p 12) and “was a participant in the commission of the crime as part of a joint criminal enterprise with the other persons” (p 31). His Honour referred to this as the “fundamental issue” in the trial (ibid) and directed the jury that if it did not accept Ms Bas’ evidence that the applicant told her that he was present at the time of the shooting, it must return a verdict of not guilty of murder and manslaughter (pp 43 and 44). The jury was given a hard copy of his Honour’s Summing-Up.

22. His Honour also referred to Mr Merza’s evidence that the applicant was in Miss G’s unit with him at the time that the murder was said to have occurred and directed the jury that when determining whether to believe Mr Merza it was entitled to take into account the Crown’s lack of examination and cross-examination of him on this topic (p 8).

23. The applicant’s trial counsel did not request the trial judge to give any further directions to the jury.

Ground 1: the absence of specific alibi directions

24. On appeal, the applicant’s counsel acknowledged that because the applicant’s trial counsel did not request that the trial judge give any further directions, the applicant required the leave of this Court under r 4 of the Criminal Appeal Rules 1952 (NSW) to advance this ground of appeal. In light of a trial counsel’s duty to object to evidence and seek redirections following the Summing-Up, leave under r 4 is not lightly given. Obtaining leave requires an applicant to satisfy the court that the failure to give the jury a particular direction (or other error) has caused a miscarriage of justice (Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [72] per McHugh J), or at least that there is a possibility that that is the case (R v Roberts [2001] NSWCCA 163 NSWLR 138 at [55] per Howie J).

25. In ARS v R [2011] NSWCCA 266, Bathurst CJ provided the following summary of important considerations in relation to r 4:

"148 The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].

The appellant must establish that he or she has lost a real chance (or a

chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].

A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].

An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]."

26. Before determining whether leave should be granted, I turn to consider the merits of the proposed ground of appeal by reference to the seven matters listed in the applicant’s Notice of Appeal as particulars of the ground.

“(i) His Honour failed to direct the jury that … if they accepted the alibi they were obliged to acquit”

27. The applicant submitted in effect that the following extract from the Judicial Commission of New South Wales’ Criminal Trial Courts Bench Book suggested direction (at paragraph [6-000]) should have been given:

“The Crown must establish beyond reasonable doubt that the accused was at [the scene of the crime] at the relevant time. The Crown cannot do so if there is any reasonable possibility that the accused was at [somewhere else, according to the alibi evidence] at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was at [somewhere else, according to the alibi evidence] at the relevant time, and also persuade you, on the evidence on which the Crown relies, that beyond reasonable doubt the accused was at [the scene of the crime] at that time. If the Crown fails to remove or eliminate that reasonable possibility, you must acquit the accused”.

28. The applicant’s submissions quoted an earlier version of the suggested direction. I have quoted that which is current.

29. The Bench Book states that the suggested alibi directions are intended to be consistent with R v Amyouni (unrep, 18/2/88, NSWCCA), R v Steeden (unrep, 19/8/94, NSWCCA) and R v Kanaan [2005] NSWCCA 385 at [135]. I refer to these and other decisions below.

30. In Amyouni, the trial judge’s directions in relation to the accused’s alibi defence included the following:

“If you accept [the] alibi evidence it is likely that you would have a reasonable doubt on the Crown case but if you do not accept the alibi evidence you must still look to see if you are satisfied on the Crown case that it has made out those elements of which I told you to your satisfaction beyond a reasonable doubt. In short, the failure of an alibi does not necessarily prove the Crown case” (pp 1-2).

31. This Court found that the first part of the direction was in error because if the jury was satisfied that the alibi was reliable, it was bound to acquit the accused. Using the word “likely” therefore understated the position.

32. The Court also found that the latter part of the direction was in error because it presented the jury with only two alternative situations (acceptance or rejection of the alibi evidence) when a third existed, namely, one in which the jury doubted the force of the alibi evidence but did not either accept or reject it. In this situation, the jury should consider the whole of the evidence, “giving to the claimed alibi such significance as the jury might think it deserved in the overall factual context” (p 2), to determine whether the Crown had proved its case beyond reasonable doubt.

31. Neither of these errors occurred in the present case. First, the trial judge directed the jury that it must acquit if it was not satisfied beyond reasonable doubt that the applicant was present at the scene of the murder (see [21] above). From this, the jury would have understood that if it accepted the alibi evidence it must acquit the accused. Secondly, the trial judge did not present the jury with two alternatives. Rather, his Honour repeatedly emphasised that the applicant’s presence must be proved beyond reasonable doubt. The trial judge did not, and was not asked to, distinguish between a situation in which the jury rejected the alibi evidence and one in which it simply had a doubt about it.

32. In Amyouni, whilst agreeing with Street CJ (with whom Slattery CJ at CL also agreed), Roden J added:

“It seems to me that in every case where that situation is met, there are three possibilities, all three of which should be explained to the jury.

One is that they accept the alibi, in which event they would be obliged to acquit. The second is that they reject the alibi, in which case they would not necessary convict but must assess the evidence as a whole. The third possibility is that although they do not accept the alibi, they also do not reject it in the sense that they regard it as something which could reasonably be true. In that event also, in such a case, they must acquit.

In my view, it is the failure of the learned trial judge to refer to that third possibility that leads to the orders which are proposed and with which I agree” (p 3).

35. In R v Harland (unrep, 22/8/90, NSWCCA), Campbell J (with whom Meagher JA and Newman J agreed) referred, with approval, to Roden J’s observation but pointed out that a trial judge was not required to “adhere to a rigid formula”, nor to refer to each of the matters to which Roden J referred if the case’s particular circumstances made it unnecessary to do so (p 5). The Summing-Up in Harland would have left the jury with the impression that if it rejected the accused’s alibi evidence it should convict, thus leaving unstated the jury’s obligation to be satisfied beyond reasonable doubt of the accused’s guilt upon the evidence as a whole, even if it rejected the alibi evidence (p 4). This error did not occur in the present case.

36. In Steeden, this Court stated that “[it] is clearly desirable for a judge summing-up in a case in which an alibi defence is raised to approach the matter in the fashion considered by Roden J in Regina v Amyouni” (p 4). However, despite the absence of an Amyouni-type direction by the trial judge in that case, this Court considered that the directions at trial were sufficient in light of the “clear and repeated directions on the onus of proof and the standard of proof” (p 5).

37. In R v Skaf [2004] NSWCCA 37 (paragraphs [1]-[7] and [187]-[287] only reported in 60 NSWLR 86), this Court concluded:

“105 Unlike [in] Amyouni, the judge did not invite the jury to look only at the Crown case to the exclusion of everything else in the event of rejecting the alibi. His Honour made it quite clear that the onus of proof lay on the Crown in all matters”.

38. In these circumstances, the Court found that the directions were adequate notwithstanding the absence of formalised alibi directions.

39. A similar approach was taken in Kanaan in which this Court found that, despite the absence of any formal alibi direction, the trial judge had made it clear “in the context of directions concerning the onus and standard of proof, that any reasonable possibility that the alibi was true had to be eliminated before the applicant could be convicted” and that the Summing-Up would have ensured that the jury understood that it could not draw “a conclusion of guilt as a direct consequence of rejecting the alibi” (at [136], [137]).

40. Maxwell P’s observation as follows in R v Merrett [2007] VSCA 1 (Chernov JA and Habersberger AJA agreeing) encapsulates the effect of the abovementioned cases, although it should not be taken as discouraging the giving of explicit alibi directions where the trial judge considers it appropriate:

“22 … When the Judge says that the Crown must establish beyond reasonable doubt that the accused committed the offence, it is equivalent to saying that the Crown must prove that there is no reasonable possibility that the accused is innocent or – in the case of an alibi defence – no reasonable possibility that the accused was elsewhere at the time the offence was committed. For the Judge to have told the jury that, while neither accepting nor rejecting the alibi evidence, they might conclude nevertheless that there was a reasonable possibility that the alibi evidence was true would merely have been to restate the direction he had given – repeatedly – on the standard of proof …”.

41. In the present case, the trial judge directed the jury that it should acquit the applicant unless it was satisfied beyond reasonable doubt that he was present when the shooting occurred. In these circumstances an explicit statement that the jury should acquit if it accepted the alibi was unnecessary because it would have been obvious to the jury from the direction given that it should do this.

“(ii) His Honour failed to direct the jury that if they rejected the alibi they would not necessarily convict but must assess the evidence as a whole”

42. His Honour did not at any stage suggest that if the jury rejected the alibi, it should necessarily convict the applicant (compare R v Steeden referred to in [36] above). Rather, his Honour’s repeated direction that the Crown must prove its case beyond reasonable doubt (see [21] above) indicated to the jury that this was not the position.

“(iii) His Honour failed to direct the jury that if they did not accept the alibi or reject it in the sense that they regarded it as something which could reasonably be true, they must acquit”

43. Again, this direction was unnecessary as his Honour made it clear to the jury that if it had a reasonable doubt about the applicant’s presence at the scene of the shooting, it was required to return a verdict of not guilty.

“(iv) His Honour [erred in] fail[ing] to direct the jury that the Crown must disprove the alibi”

44. His Honour’s repeated references to the onus of proof made it clear to the jury that, in order for it to convict, it had to be satisfied beyond reasonable doubt that the applicant was present at the scene of the shooting (ibid). This made it clear to the jury that if it considered that there was a reasonable possibility that the alibi evidence was correct it should conclude that the Crown had not discharged its onus of proof.

“(v) His Honour failed to give the jury any or any adequate directions as to the fact that the [applicant’s] alibi was supported by a Crown witness”

45. The trial judge’s Summing-Up referred to Mr Merza’s alibi evidence that the applicant was with him at Miss G’s unit at the time of the shooting (p 6). The jury was aware that Mr Merza was a Crown witness because it knew that the applicant did not call any witnesses. His Honour’s limited reference to the evidence was sufficient considering the applicant’s counsel’s reliance on the evidence in his address (see [21] above) and the absence of a request by that counsel for the trial judge to supplement his Summing-Up.

“(vi) His Honour failed to comment or give the jury any warning on the fact that the evidence of Merza was not challenged by the Crown”

46. His Honour’s Summing-Up referred to the Crown’s lack of cross-examination of Mr Merza and told the jury that it was entitled to take that into account in determining Mr Merza’s “believability or his accuracy” (p 8). Again, this was adequate in light of the applicant’s counsel’s reliance in address on the absence of challenge to Mr Merza’s evidence and of any request to the trial judge to supplement his Summing-Up.

“(vii) His Honour failed to give the jury any or any adequate warning as to the limited use they could make of the evidence concerning persons and weapons at [Miss] G’s flat”

47. The trial judge gave the jury detailed directions concerning Miss G’s oral evidence immediately after it was given. The Crown’s written submissions on appeal summarised the directions as follows:

“a.   The fundamental issue in the trial was whether the Crown could prove beyond reasonable doubt that the Applicant was one of the three males at the scene when the Deceased was fatally shot and,

b.   The evidence of Miss G is evidence that the Applicant had access to a weapon of a similar kind to the type that [was] used or described [as] being at the scene of the fatal shooting of the Deceased but, that evidence cannot be used to prove directly that the Applicant was the person at the scene and,

c.   Further, the circumstance that the Applicant had access to such a weapon cannot be used … to reason that he was more likely to have been at the scene (i.e. proscribing impermissible propensity reasoning) and,

d.   … that the Crown case relied upon the admissions to Ms Bas to prove beyond reasonable doubt that the Applicant was at the scene of the fatal shooting, and the evidence of the Applicant having access to guns was put and is only available for the jury to render her evidence more believable and,

e.   It is not permissible to use the evidence of Miss G to reason that the Applicant had access to a weapon therefore he committed the murder because that ‘just doesn’t follow’ and that is why those directions were being given just after the evidence had been heard”.

48. His Honour said that he would probably give the directions again in his Summing-Up but he did not do so. In my view, the directions that his Honour gave were adequate and, given that the applicant’s counsel did not request that they be repeated in the Summing-Up, it was unnecessary that that occur.

Conclusion on Ground 1

49. For the reasons that I have given, the applicant’s submissions in relation to Ground 1 should be rejected. The fact that none of the points were taken by trial counsel strongly suggests that he did not perceive the directions now under consideration to be necessary to avoid unfairness to the applicant (see [24]- [25] above). I would refuse leave to the applicant to rely upon Ground 1.

Ground 2: “the verdict is unsafe and unsatisfactory”

50. As noted earlier, this ground of appeal seeks to invoke the Court’s powers under s 6(1) of the Criminal Appeal Act. In determining such a ground, this Court must make “an independent assessment of the evidence, both as to its sufficiency and its quality” and determine “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (SKA at [14], [11] quoting M v The Queen [1994] HCA 63; 181 CLR 487 at [25], [21]). The “central question” to be answered in making such an independent assessment is whether the court is satisfied that the applicant was guilty of the offences (SKA at [20]).

51. In the present case, the Crown’s case depended on the jury accepting Ms Bas’ admission evidence. The Crown accepted on appeal that whilst there was other evidence that was supportive of its case, for example the fingerprint and DNA evidence, that other evidence could not have justified the applicant’s conviction in the absence of Ms Bas’ evidence. The trial therefore turned on Ms Bas’ credibility and reliability. As a result, the jury’s advantage of having heard and seen the witnesses is particularly significant and must be given full weight (Griffiths v R [2014] NSWCCA 60 at [4]; see also SKA (at [13]) and M v The Queen at 494). Such weight diminishes or disappears if the jury was not properly instructed but that is not the case here. For the reasons that I have given above, the only complaints made about the trial judge’s instructions to the jury are without merit.

52. The particular matters advanced by the applicant to found his submission that the jury’s verdict is “unsafe and unsatisfactory” were as follows:

“(i) Evidence was tendered by the Crown in the form of the [applicant’s] statement to police and his Record of Interview which supported his alibi for the offence.”

53. As noted in [4] above, the applicant’s police statement of 8 August 2011 was not tendered as evidence of the truth of its contents. However the Crown’s tender of his Record of Interview was not so limited and the document was accordingly evidence of the truth of its contents. In it, the applicant is recorded as asserting that he was at Miss G’s unit on the night in question but, importantly, that he left the unit for an unidentified period in the evening to obtain food from a service station.

“(ii) This alibi evidence in the statement, confirmed in the Record of Interview, was provided more than two years before the [applicant’s] trial. Notwithstanding this early raising of alibi, the prosecuting authorities produced no direct evidence in contradiction of the [applicant’s] alibi.”

54. Although not evidence of the truth of its contents, the applicant’s police statement did put the Crown on notice of the applicant’s alibi defence and that Mr Merza’s evidence may be able to support it.

55. The jury was well aware that the Crown did not call a witness to contradict Mr Merza’s alibi evidence and no doubt took that fact into account.

“(iii) The [applicant’s] alibi was supported at trial by a Crown witness, Oliver Merza”;

“(iv) The alibi evidence of Merza was unchallenged by the Crown”

56. Mr Merza’s evidence was required to be, and no doubt was, considered by the jury in determining whether the Crown had established its case beyond reasonable doubt. As noted above (at [20], [22]) the applicant’s trial counsel and the trial judge referred to that evidence being unchallenged.

(vi) The jury was not properly instructed as to the applicant’s alibi defence, as to the lack of challenge to the evidence of Mr Merza and as to Miss G’s evidence concerning the applicant’s access to weapons and ammunition

57. I have earlier rejected the applicant’s contentions that the jury was not properly instructed.

“(v) The evidence of Ms Bas, which was not direct evidence as to the [applicant’s] whereabouts at the time of the offence, contained many contradictions and defects”

58. The applicant’s counsel did not elaborate on this submission but it was no doubt intended, at least principally, as a reference to the inconsistent answers that Ms Bas gave in her recorded interview and in her evidence about whether the applicant told her that he had a firearm and a balaclava with him at the time of the shooting (see [6] to [13] above).

59. However, it is not particularly remarkable that Ms Bas gave different answers at different times about whether the applicant told her that he had a firearm and balaclava with him at the shooting. From Ms Bas’ perspective that question could well have been of limited significance, bearing in mind that she did not at any time suggest that she thought the applicant himself fired the fatal shot. If of limited significance it would not be surprising that her recollection about it might have been confused or uncertain. What can be inferred to have been crucial from Ms Bas’ point of view is that the applicant told her that he had been a participant in a shooting incident that she had later learned resulted in a person’s death. Her recollection of this did not waiver. Such inconsistencies and uncertainties as there are in her answers concerning the details of what the applicant told her do not lead me to have a reasonable doubt as to the truthfulness or reliability of her evidence on this critical issue. It was entirely open to the jury to take the same view, which it undoubtedly did.

Conclusion on Ground 2

60. Having conducted the requisite independent assessment of the record of the trial and giving full weight to the verdict of guilty returned by the properly instructed jury, I am not left with any reasonable doubt about the applicant’s guilt of the offence of which he was convicted. On my reading of the transcript, Ms Bas’ evidence was compelling and, notwithstanding Mr Merza’s alibi evidence, it justified the jury’s conclusion that the Crown proved its case against the applicant beyond reasonable doubt.

61. The fact that Ms Bas’ evidence to the police about her conversation with the applicant contained an accurate reference to the Toyota Corolla escape vehicle having “broken down” when that occurrence was not referred to in any of the television reports of the shooting and could not, on the evidence, have been known to Ms Bas otherwise than as a result of speaking to the applicant, is particularly supportive.

62. It is also important that in his Record of Interview the applicant stated that he had left Miss G’s unit for a period on the evening in question (see [4] above), which contradicted Mr Merza’s evidence that he was at the unit throughout the evening (see [15] above). This severely diminished the value to the applicant’s case of Mr Merza’s alibi evidence.

63. For these reasons, I do not consider that Ground 2 has any merit. Accordingly, it is rejected.

Orders

64. In light of my conclusion that neither ground of appeal sought to be relied on has any merit, I propose the following orders:

1. Decline to grant to the applicant leave under r 4 of the Criminal Appeal Rules to rely on Ground 1 in his Notice of Appeal.

2. Grant to the applicant leave to appeal to rely on Ground 2 in his Notice of Appeal.

3. Dismiss the appeal.

65. JOHNSON J: I agree with the reasons and proposed orders of Macfarlan JA. With respect to Ground 2, having conducted the necessary independent assessment of the trial, I am left with no reasonable doubt of the applicant's guilt of the murder of Colin Wick.

66. RS HULME AJ: I agree with the orders proposed by Macfarlan JA and with his Honour's reasons.

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Amendments

10 June 2015 - [27]: Quotation incorrect.

Decision last updated: 10 June 2015