Kanaan v R - [2006] NSWCCA 109

No judgment structure available for this case.

CITATION: Kanaan & Ors v Regina [2006] NSWCCA 109
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10–11 February 2005

JUDGMENT DATE:
13 April 2006

JUDGMENT OF: Hunt AJA at [1]; Buddin J at [1]; Hoeben J at [1]

DECISION: 1. The appeal against conviction by each of the appellants is dismissed.; 2. The application by the appellant Kanaan to defer an application for leave to appeal against sentence is refused.; 3. The application by the appellant Mawas for an extension of time within which to seek leave to appeal against sentence is granted, leave to appeal is granted but the appeal against sentence is dismissed.; 4. The application by the appellant El-Assaad for leave to appeal against sentence is granted and (by majority) the appeal against his sentence is allowed. The sentence imposed in the Common Law Division is quashed, and in lieu thereof the appellant El-Assaad is sentenced to a non-parole period of 16 years and 6 months, to commence on 17 September 1999 and expiring on 16 March 2016, with a total term of imprisonment of 22 years to commence on 17 September 1999 and to expire on 16 September 2021. He is eligible for release on parole on 16 March 2016.

CATCHWORDS: Assassination of head of criminal organisation by members of that organisation — joint criminal enterprise — Crown case relied principally on evidence of former member of organisation who might reasonably be supposed to have been criminally concerned in that enterprise — witness given undertaking by Attorney General that, provided the evidence he gave was the truth, his evidence would not be used against him. - Bases on which “accomplice” evidence may be unreliable — extent to which judge required to warn jury about matters not within their general experience and understanding — except in relation to identification evidence, judge required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury. - Direction that dangerous to convict on uncorroborated evidence of “accomplice” unnecessary but not prohibited — whether independent support for evidence of “accomplice” may be found in evidence of another “accomplice”. - Evidence of negative identification by Crown witness — no application by Crown prosecutor to cross-examine witness — Crown prosecutor asks jury to disbelieve her evidence — whether leave to cross-examine would have been given — whether accused lost opportunity to call evidence supporting negative identification made — nature of directions concerning negative identification.

LEGISLATION CITED: Crimes (Administration of Sentences) Regulation 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Criminal Appeal Act 1912
Evidence Act 1995
Criminal Appeal Rules

CASES CITED: Adam v The Queen (2001) 207 CLR 96
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1
Archer v Richard Crookes Construction Pty Ltd (BC9705329), Court of Appeal, 22 October 1997
AG v John Fairfax & Sons Ltd (1985) 6 NSWLR 695
AG v News Group Newspapers Ltd [1987] QB 1
Bromley v The Queen (1986) 161 CLR 315
Carr v The Queen (1988) 165 CLR 314
Conway v The Queen (2002) 209 CLR 203
Cullen v Ampol Petroleum Ltd (Court of Appeal, 20 October 1970, unreported)
Davies v DPP [1954] AC 378
Demirok v The Queen (1977) 137 CLR 20
Dhanhoa v The Queen (2003) 217 CLR 1
Domican v The Queen (1992) 173 CLR 555
Duff v The Queen (1979) 28 ALR 663
Festa v The Queen (2001) 208 CLR 593
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134
Gallagher v The Queen (1986) 160 CLR 392
Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563
Hajje v Regina [2006] NSWCCA 23
Hinch v AG (Vic) (1987) 164 CLR 15
Hinch v Attorney-General (Victoria) No 2 (1987) 164 CLR 14
House v The King (1936) 55 CLR 499
John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
Markem Corporation v Zipher Ltd [2005] EWCA Civ 267
Mickelberg v The Queen (1989) 167 CLR 259
Mohan v The Queen [1967] 2 AC 187
Mraz v The Queen (1955) 93 CLR 493
Mule v The Queen [2002] WASCA 101
Nudd v The Queen [2006] HCA 9
Osland v The Queen (1998) 197 CLR 316
Papakosmas v The Queen (1999) 196 CLR 297
Pollitt v The Queen (1992) 174 CLR 558
Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419
Postiglione v The Queen (1997) 189 CLR 295
The Queen v Apostilides (1984) 154 CLR 563
The Queen v Glennon (1992) 173 CLR 592
Regina v Abusafiah (1991) 24 NSWLR 531
Regina v Adam (1999) 47 NSWLR 267
Regina v AEM & Ors [2002] NSWCCA 58
Regina v AGJ (BC9705789), CCA, 30 October 1997
Regina v Ayoub [2004] NSWCCA 209
Regina v Baartman [2000] NSWCCA 298
Regina v Ball (1960) 61 SR(NSW) 37
Regina v BD (1997) 94 A Crim R 131
Regina v Bell (BC9805451), CCA, 8 October 1998
Regina v Birks (1990) 19 NSWLR 677
Regina v Booth [1982] 2 NSWLR 847
Regina v Burrell [2004] NSWCCA 185
Regina v Bus (BC9501880), CCA, 5 November 1995
Regina v Chai (1992) 27 NSWLR 153
Regina v Chan (2002) 131 A Crim R 66
Regina v Checconi (1988) 34 A Crim R 160
Regina v Chen (2002) 130 A Crim R 300
Regina v Clark (2001) 123 A Crim R 506
Regina v Clarke (1997) 97 A Crim R 414
Regina v Clough (1992) 28 NSWLR 396
Regina v Coe [2002] NSWCCA 385
Regina v D'Arcy (2003) 140 A Crim R 303
Regina v Demiroz [2003] NSWCCA 146
Regina v Dudko (2002) 132 A Crim R 371
Regina v Fidow [2004] NSWCCA 172
Regina v Fowler (2003) 151 A Crim R 166
Regina v Fuge (2001) 123 A Crim R 310
Regina v GDP (1991) 53 A Crim R 112
Regina v George (1987) 29 A Crim R 380
Regina v Goodwin (1990) 51 A Crim R 328
Regina v Goonan (1993) 69 A Crim R 338
Regina v Gordon (1994) 71 A Crim R 459
Regina v Graham (1986) 28 A Crim R 259
Regina v Hamzy [2004] NSWCCA 243
Regina v Hawkins (1993) 67 A Crim R 64
Regina v Ignjatic (1993) 68 A Crim R 333
Regina v Johns (1999) 110 A Crim R 149
Regina v Johnson [2005] NSWCCA 186
Regina v Johnston (1998) 45 NSWLR 362
Regina v Kaddour (2005) 156 A Crim R 11
Regina v Kalajzich (1997) 94 A Crim R 41
Regina v Kalajzich, CCA, 2 November 1998
Regina v Kanaan [2005] NSWCCA 385
Regina v Kneebone (1999) 47 NSWLR 450
Regina v Le (2002) 54 NSWLR 474
Regina v Livingstone (2004) 150 A Crim R 117
Regina v LNT (2005) NSWCCA 307
Regina v Long (2002) 128 A Crim R 11
Regina v MA (2004) 145 A Crim R 434
Regina v Milat (BC9607720), Hunt CJ at CL, 23 April 1996
Regina v Milat (BC9800394), CCA, 26 February 1998
Regina v Munday (1984) 14 A Crim R 456
Regina v Ngo [2003] NSWCCA 82
Regina v Parkes (2003) 147 A Crim R 450
Regina v Penisini [2003] NSWSC 892
Regina v Pham (1991) 55 A Crim R 128
Regina v Phan (2001) 53 NSWLR 480
Regina v Pollitt (1990) 51 A Crim R 227
Regina v Puddick (1865) 4 Foster & Finlayson 497 [176 ER 662]
Regina v Pye [2000] NSWCCA 544
Regina v Richards & Bijkerk (1999) 107 A Crim R 318
Regina v Robinson [1999] NSWCCA 186
Regina v Ronen [2004] NSWSC 1298
Regina v Rose (2002) 55 NSWLR 701
Regina v Salama [1999] NSWCCA 105
Regina v Sheikh (2004) 144 A Crim R 124
Regina v Simpson (2001) 53 NSWLR 704
Regina v Edward James Smith, CCA, 8 October 1982
Regina v Smith (BC0707089), CCA, 18 December 1997
Regina v Souleyman (1996) 40 NSWLR 712
Regina v Spencer [1987] 1 AC 128
Regina v Stewart (2001) 52 NSWLR 301
Regina v Storey (1978) 140 CLR 364
Regina v Sullivan [2003] NSWCCA 100
Regina v Tangye (1997) 92 A Crim R 545
Regina v Thursfield (1838) 8 Carrington & Payne 269 [173 ER 490]
Regina v Vastag (Court of Criminal Appeal, unreported, 20 June 1997)
Regina v Wilson (2005) 62 NSWLR 346
Regina v Yuill (1993) 69 A Crim R 450
Rex v Baskerville [1916] 2 KB 658
Richardson v The Queen (1974) 131 CLR 116
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Southern Area Health Service v Brown [2003] NSWCA 369
TKWJ v The Queen (2002) 212 CLR 124
Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226
Wilde v The Queen (1988) 164 CLR 365
“The Corroboration of Accomplices” [1973] Crim LR 264, Mr JD Heydon
“The Duties and Responsibilities of Prosecuting Counsel” [1955] Crim LR 739

PARTIES: Appellant (60265/03) – Michael Kanaan
Appellant (60219/03) – Rabeeh Mawas
Appellant (60367/03) – Wassim El-Assaad
Respondent – Regina (NSW) (60265/03, 60219/03, 60367/03)

FILE NUMBER(S): CCA 60265/03; 60219/03; 60367/03

COUNSEL: Appellant (60265/03) – SJ Odgers SC, HK Dhanji
Appellant (60219/03) – TA Game SC
Appellant (60367/03) – MC Ramage QC
Respondent (60265/03, 60219/03, 60367/03) – PE Barrett, JA Girdham

SOLICITORS: Appellant (60265/03) – Michael Croke & Co
Appellant (60219/03) – Jeffreys & Associates
Appellant (60367/03) – Nicopoulos & Associates
Respondent (60265/03, 60219/03, 60367/03) – Director of Public Prosecutions

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70045/00; 70208/00; 70209/00

LOWER COURT JUDICIAL OFFICER: Wood CJ at CL

60265, 60219 & 60367/03

HUNT AJA
BUDDIN J
HOEBEN J
Thursday 13 April 2006

KANAAN & ORS v REGINA

Headnote

The appellants were members of a criminal organisation of which one Danny Karam was the head. The Crown alleged that the appellants were members of a joint criminal enterprise to kill Karam. He was murdered by three men standing outside his motor vehicle and shooting at him. The Crown alleged that the appellants Kanaan and Mawas were two of those shooters, and that the appellant El-Assaad had sent a telephone alert to the three shooters that Karam was on his way down to the motor vehicle.

The Crown case relied principally on the evidence of a witness given the pseudonym Rossini, who had been a member of the same organisation and who might reasonably be supposed to have been criminally concerned in the joint criminal enterprise. Prosecutions against Rossini on drug supply charges were withdrawn when he gave an undertaking to give evidence in this and other cases. He was in turn given an undertaking by the Attorney General that, provided the evidence he gave was the truth, his evidence would not be used against him. The witness himself believed that he had an immunity from serious charges of conspiracy to supply commercial quantities of cocaine, of murder and “everything that had happened”.

The Crown case also depended to a lesser extent on the evidence of two brothers given the pseudonym Laycock, who were related to Rossini, and who might reasonably be supposed to have been accessories after the fact of murder.

Dangerous to convict on uncorroborated evidence of “accomplice”

The appellants complained on appeal, but not at the trial, that the judge erred in not giving a warning to the jury that it would be dangerous to convict on the uncorroborated evidence of an accomplice.

Held:

(1) It is not necessary for the evidence of a witness who may reasonably be supposed to have been criminally concerned in the events giving rise to the trial to be corroborated.

(2) The judge, if requested to do so and unless of opinion that there are good reasons not to do so, is:

(3) The matters to which reference was generally made in the directions which accompanied the common law accomplice warning should, when appropriate, generally be used when informing the jury of the matters which may cause the evidence of that witness to be unreliable.

(4) The judge may, if satisfied that it is necessary in the interests of justice to do so in the particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of such a witness, but the judge is never under a duty to do so. [217]

Conway v The Queen

Regina v Ngo

Regina v Livingstone

Discussion as to whether an accessory after the fact is an accomplice.

[201]–[203]

Davies v DPP

Regina v Clark

The judge directed the jury that they could find “support” for the evidence of Rossini in the evidence of the Laycock brothers. The appellants complained on the appeal, but not at the trial, that this offended the rule that one accomplice cannot corroborate another.

Held: The words “independent support” used by the judge have a far wider meaning than “corroboration”, and therefore “support” need not be of such a nature that it confirms in some material particular not only that the crime has been committed but also that the accused committed it. Provided that the jury is adequately warned that the evidence of a witness who may have fabricated a story jointly with the “accomplice” may be unreliable for that reason when looking for support in that witness’s evidence of the evidence given by the “accomplice”, there is no reason why the jury may not look for support in such evidence.
[203]

Benefit obtained by witness — warning

A warning was given pursuant to s 165 of the Evidence Act !995 that the evidence of these three witnesses may be unreliable. The appellants complained on appeal, but not at the trial, that the warning given underestimated the role played by Rossini, and hence the potential jeopardy in which he stood when giving his evidence in accordance with the statements he made to the police.

Held:

(1) The purpose of the requirement that the warning inform the jury of matters which may cause the evidence to be unreliable is to provide the jurors with knowledge of matters not within their general experience and understanding. [116], [182]

Regina v Stewart (2001) 52 NSWLR 301 applied.

(2) If a request is made for a s 165 warning to be given, those matters need to be stated only in such detail as is required to achieve that purpose. Except in the case of identification evidence, a trial judge in a criminal case is required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury; the conduct of the case necessarily bears on the extent to which the judge is bound to comment on and discuss the evidence. [182]

Domican v The Queen

The Crown called as a witness the wife of an associate of the three appellants, who gave evidence that she was sitting in a motor vehicle a block away from the deceased’s vehicle. She saw three men leave the building opposite her own vehicle and noticed that two of them were carrying guns. They ran to the deceased’s vehicle and she saw two of them firing shots into that vehicle. She had them under observation for between five and ten minutes. She knew the three appellants and had met them “a lot”. She gave evidence that neither Kanaan nor Mawas was involved in the shooting. Her evidence was thus negative identification (or exculpatory) evidence.

No application was made by the Crown prosecutor to cross-examine the witness pursuant to s 38 of the Evidence Act, although there had been some discussion of s 38 before the witness was called. In his final address to the jury, the Crown prosecutor invited the jury to disbelieve her evidence. The appellants complained on appeal, but not at the trial, that the Crown prosecutor, by doing so without any indication that the Crown challenged her evidence, had denied her (and the appellants) the opportunity to explain or to qualify the matters raised by the Crown prosecutor in his address.

Held:

(1) The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has placed more emphasis on the Crown’s obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. [84]

(2) When the Crown prosecutor fulfils such an obligation, it would be unjust to the Crown to refuse leave to cross-examine in relation to the unfavourable evidence given, subject to s 137 of the Evidence Act. [85]

(3) The witness had previously given evidence before the NSW Crime Commission, and that evidence was relevant to the weight to be given to her evidence at the trial as demonstrating that the apparent confidence with which her evidence was given at the trial was not wholly consistent with the evidence she gave before the Crime Commission. Cross-examination by the Crown was therefore justified, and leave to cross-examine would have been granted. [95]

(4) The conduct of the Crown prosecutor was in clear breach of his obligation in accordance with the rule in Browne v Dunn. That breach may well have created some unfairness to the witness, but the issue is whether the appellants were directly prejudiced by the Crown prosecutor’s conduct.

[96]

(5) The appellants were unable to show that they had any material which they could have either led or raised in cross-examination of the witness to support her evidence had the Crown prosecutor challenged her evidence as the rule in Browne v Dunn requires. [104]

(6) A direction that the defence had been denied the opportunity to support the witness’s evidence either in cross-examination or by calling independent evidence would ordinarily have been an appropriate one in the circumstances, but no such direction was sought and no ground of appeal was directed to the failure to give such a direction. [104]

(7) There was no miscarriage of justice. [105]

Browne v Dunn

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation

Regina v Milat

Regina v Parkes

Regina v Ronen

The judge gave the jury directions in relation to identification evidence generally which were appropriate to both the positive identification evidence on which the Crown relied and the negative identification evidence on which the appellants relied. The appellants complained on appeal, but not at the trial, that those directions should have been qualified so far as they applied to the evidence favourable to their case.

Held:

(1) Although negative identification evidence does not fall within the terms of s 116 of the Evidence Act, it is nevertheless “evidence of a kind that may be unreliable”, and thus falls within s 165. [115], [126]

(2) The mere fact that the evidence favours the accused is not a good reason for not giving a s 165 warning in relation to it. [127]–[128]

(3) A s 165 warning in relation to negative identification evidence is already tempered to some degree by comparison with the warning required for positive identification evidence by s 116. [132]

(4) What is required in relation to negative identification evidence is that the trial judge ensures by appropriate directions that the jury understands that:

(i) as the Crown must establish beyond reasonable doubt that it was the accused who committed the offence charged or who was involved in its commission (as the case may be), the negative identification evidence raises a doubt as to that fact,

(ii) the Crown must eliminate such doubt in order to succeed in establishing that fact, and

(iii) if there remains a reasonable possibility that the negative identification evidence is correct, the Crown case against the accused must fail. [133]

(5) A direction that the jury had to exclude the negative identification evidence beyond reasonable doubt before being able to accept the positive identification evidence is more likely to confuse rather than assist the jury.

[144]

(6) The directions given in the present case were sufficient to make it clear to the jury where the onus of proof lay in relation to each type of identification evidence. [152]

(7) Whether a separate warning should be given in relation to negative identification evidence depends on the circumstances of the particular case. [154]

(8) The reference to serious injustices having occurred resulting from honest but mistaken evidence of identification in other cases is not appropriate in relation to negative identification evidence. [131], [154]

Regina v Rose

Regina v Stewart (2001) 52 NSWLR 301; Regina v Kanaan [2005] NSWCCA 385 applied

Regina v Pollitt (1990) 51 A Crim R 227; Regina v Chan (2002) 131 A Crim R 66; Regina v Fowler (2003) 151 A Crim R 166 referred to

Mule v The Queen [2002] WASCA 101 not followed

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

60265, 60219 & 60367/03

HUNT AJA
BUDDIN J
HOEBEN J
Thursday 13 April 2006

KANAAN & ORS v REGINA

Judgment

1 THE COURT: Michael Kanaan, Rabeeh Mawas and Wassim El-Assaad were each convicted by a Supreme Court jury of the murder of Danny Georges Karam at Surry Hills on 13 December 1998.

2 In sentencing the appellants, Wood CJ at CL described the killing as a deliberate assassination carried out under the leadership of the appellant Kanaan, substantially to advance the interests of the appellants in ongoing criminal activities — an assassination motivated by greed, carried out with considerable pre-meditation, and callous and cold-blooded in character. He sentenced Kanaan to imprisonment for life, the appellant Mawas to imprisonment for 25 years with a non-parole period of 19 years, and the appellant El-Assaad to imprisonment for 24 years with a non-parole period of 18 years. Each of the appellants has appealed against his conviction.

3 The appellants Mawas and El-Assaad have each also sought leave to appeal against his sentence. Kanaan sought to reserve his position in relation to his sentence until his appeal from an earlier murder conviction and life sentence is resolved. He conceded that he could not contend that life sentence in the present case was manifestly excessive when considered in the light of the sentence he received in the earlier case, and sought to reserve an application for leave to appeal against the present sentence in the event that the result in that appeal was in his favour. That appeal has now been resolved, and his life sentence in that case stands: Regina v Kanaan [2005] NSWCCA 385 at [194]–[195]. In those circumstances, there is no utility in reserving any further an application by Kanaan for leave to appeal against his sentence in the present case, and his application for such leave is refused.

The evidence

4 The deceased Karam — whom the judge described as a vicious killer who was himself a danger to the community — was shot dead when sitting in his motor vehicle, not far from an apartment used by him as a safe house for the preparation and sale of cocaine by an organisation overseen by the deceased and known as "DK's Boys". (“DK” stood for Danny Karam.)

5 The case against the appellants was that they were part of the joint criminal enterprise with one Charlie Gea Gea to shoot Karam with the intention of killing him. Kanaan, Mawas and Gea Gea were alleged to have fired the weapons at the deceased. The case against El-Assaad placed him in the position more of an accessory before the fact, although an important participant in the enterprise. Gea Gea left Australia for Lebanon shortly after the shooting and he has not returned. It has not been possible to secure his extradition.

6 The Crown case against all three appellants relied principally on the evidence of a man given the pseudonym Alan Rossini for the purposes of these proceedings, and to a lesser extent on the evidence of Rossini’s cousins who were given the pseudonyms Peter and Oscar Laycock for the same purpose. All three witnesses had been arrested after Karam’s murder on drug supply charges. Each was taken before the NSW Crime Commission where he gave evidence of his criminal activities and of the criminal activities of others. In due course, the drug charges against the three were withdrawn when they had signed undertakings to give evidence of their knowledge of various criminal activities, including the murder of Karam. In return, they were each given an undertaking by the Attorney General pursuant to what is now s 33 of the Criminal Procedure Act 1986 that, provided the evidence they gave was the truth, their evidence would not be used against them.

7 Each of the appellants was a member of DK's Boys, as were Rossini and Gea Gea. The main activity of that organisation was selling cocaine in Kings Cross. The Boys organised the supply of cocaine to their own street-level runners. They also stood over other dealers who paid them protection money known as "rent", which allowed those other dealers to operate without fear of harassment from DK’s Boys. The Boys beat up anyone who did not pay the rent. At the peak of the business, which was around the time the deceased was killed, the business was earning about $28,000 a week. Each of the appellants had to pay rent to the deceased. The deceased told Kanaan and Rossini that he was putting money away for them, but for some time they were only paid about $100 a week.

8 The deceased provided each of Kanaan, Rossini and two other members of DK’s Boys with a gold ring to wear as members of the "inner group" within the organisation. The deceased also wore such a ring. The ring had a tiger’s head with ruby eyes and a diamond in its mouth. The letter "D” was stamped on the ring with the wearer's initial stamped inside the ”D”, so that Kanaan’s ring had an “M” stamped inside the "D”. The deceased requested each of them to pay $900 for his ring.

9 Kanaan and Rossini had also been involved for some 18 months in hydroponically growing marijuana in a safe house at Parramatta. Some time after the first crop of the marijuana had been harvested and dried, the deceased took the crop to his own house in Randwick, saying that he wanted to dry it further. Kanaan and Rossini saw the crop the next day and noticed that there was less marijuana. The deceased claimed that it had dried out at that weight. Kanaan and Rossini concluded that the deceased had “ripped them off”. The remaining crop was sold for $32,000. Kanaan and Rossini, although responsible for maintaining the crop, received none of the proceeds. A second crop was sold for $30,000, and again Kanaan and Rossini received none of the proceeds.

10 Kanaan (whom his counsel described as one of the deceased’s lieutenants) started to express feelings of resentment towards the deceased. He and Rossini came to the view that the deceased had taken advantage of them after all they had done to build up his business. Kanaan and Rossini were then permitted to arrange their own teams within the DK’s Boys organisation. At that time, the money Kanaan and Rossini earned in their teams was not enough to pay the deceased the full amount of the new rent. Their earnings depended on a number of variables, including the amount of cocaine sold, the quality of that cocaine, how many runners were on the street, whether there had been any arrests in the group, as well as growing competition from other groups. The deceased nevertheless insisted on being paid the full amount of the rent at all times, and he became angry with Kanaan and Rossini if they could not pay. The deceased would sometimes make threats of violence towards them.

11 Early in 1998, the deceased asked Kanaan to obtain a loan from his parents to help finance a computer shop in Randwick, which the deceased used to launder his money. The business was in Kanaan’s name. The deceased never repaid the loan. The relationship between the deceased and Kanaan became more strained. The deceased would yell and scream at Kanaan frequently, and on one occasion Kanaan said to Rossini that they should "knock this cunt".

12 At about the same time, Rossini became involved in capping cocaine for his own team. This involved putting cocaine into capsules for sale. The capsules were passed on to the runners for sale in Kings Cross. The proceeds were passed back to Rossini’s team, who gave the deceased $4000 and the remainder was shared by Rossini and the three appellants.

13 Each of the three appellants and Rossini was provided with a weapon by the deceased — Kanaan a 0.22 calibre revolver, Mawas a 0.45 pistol, El-Assaad a 9 mm pistol and Rossini a 0.45 calibre semi-automatic gun.

14 In 1998, the Paddington unit where the business of DK’s Boys had been carried on became "hot", and the deceased arranged in September 1998 to move his safe house to a unit in Riley Street, Surrey Hills, not far from the place where he was eventually shot. Shortly after the move, Kanaan spoke for the first time to Gea Gea, Mawas and El-Assaad about killing the deceased. Mawas said at first that it was unnecessary to kill him, as they could do other things on the side. He nevertheless continued to take part in the planning. An early plan was to kill the deceased at his home, but this plan was abandoned when it was realised that not many people knew where the deceased lived (and that they may therefore be implicated). The three appellants and Gea Gea continued to discuss killing the deceased. Another plan was to put something in the deceased's heroin supplied to him by the organisation which would kill him immediately. Some white powder was added to the heroin destined for the deceased, but the deceased realised that his heroin had been interfered with, and he instructed Kanaan and Rossini to attack the original supplier of the heroin with a baseball bat. The plan was then developed to kill the deceased as he entered his motor vehicle when leaving the Riley Street premises.

15 The opportunity to put this plan into effect occurred when the deceased instructed Kanaan to supply him with a fast vehicle and two firearms for a purpose he did not disclose. During the days they waited for the deceased to arrive in Riley Street to collect the vehicle and the firearms, a group consisting of the three appellants, Gea Gea, Rossini and the two Laycock brothers (who had been introduced into DK's Boys in the second half of 1998) cleaned the Riley Street unit to remove any fingerprints.

16 On the day of the shooting, the three appellants, Gea Gea, Rossini and the Laycock brothers were in the Riley Street unit when the deceased arrived at the front door of the building and pressed the buzzer to be allowed to enter. The three appellants and Gea Gea armed themselves: Kanaan selected a 9 mm pistol, Mawas a 9 mm pistol also, El-Assaad a 0.357 calibre revolver, and Gea Gea the 0.45 calibre weapon the deceased had given Rossini. The three appellants and Gea Gea then left the unit. The deceased pressed the buzzer a second time, and Rossini opened the front door of the building by remote control. The deceased entered, had some conversation with Rossini and consumed a couple of cones of cannabis. El-Assaad re-entered the unit and supplied the deceased with the firearms he had requested. The deceased asked Rossini to put the firearms in his motor vehicle, and the Laycock brothers carried them out to the street wrapped in a blanket and placed them in the boot of the vehicle. They returned to the unit. After staying in the unit for between 10 and 15 minutes in all, the deceased left. El-Assaad made a telephone call to warn Kanaan, Mawas and Gea Gea that the deceased was on his way down to the vehicle. There were then about 20 rapid gunshots, followed by another two gunshots. Peter Laycock gave evidence that he looked out of the unit’s window and saw Mawas standing on the driver’s side of the vehicle holding a weapon and shooting. El-Assaad went down to the vehicle, opened the driver's door without leaving fingerprints and removed the deceased's mobile telephone, because he knew that it would have their telephone numbers recorded. A crowd had begun to gather in the vicinity of the motor vehicle.

17 The medical evidence established that there were 16 gunshot entry wounds to the deceased’s body The ballistic evidence established that three different firearms had been used in the killing: a 9 mm weapon, a 0.45 calibre weapon and a 0.357 weapon (possibly a revolver). The Crown case was that all the shots had been fired from the driver’s side into the vehicle. Sixteen cartridges were identified, six from the 9 mm weapon, five from the 0.45 calibre weapon, and five from the 0.357 weapon. The medical evidence established that the 9 mm cartridges had been fired from close range, and that the other cartridges had been fired from an intermediate or greater distance from the body.

18 The appellants did not give evidence, nor did they call any evidence.

19 The Crown case was that the primary motives for the murder were the appellants' dissatisfaction with the money they were paid by the deceased and a desire to take over his operation once he was dead and so obtain a greater share of the market for themselves. An additional motive ascribed to Kanaan was his loss of profit from the hydroponic cannabis episode. Evidence was elicited from Crown witnesses which established that a number of other persons also had a motive to kill the deceased. The defence case was that one or other of those persons were or may have been responsible for the murder. They attacked the evidence of Rossini on the basis that he was himself criminally involved in the murder, and that he had conspired with the Laycocks to blame the appellants for what others had done.

The grounds of appeal

20 Each of the appellants filed four identical grounds of appeal:

(b) The trial judge erred in his directions in respect of the evidence of Ngaari Zahabe.

El-Assaad added two further grounds of appeal:

Kanaan added a further ground of appeal in which Mawas joined:

7 A miscarriage of justice was occasioned as a result of the absence at trial of fresh evidence.
The fourth ground will be considered after the sixth ground, so that it encompasses all of the other grounds of appeal complaining of error.

Ground 1 — Unfavourable and prejudicial media reporting and inadmissible and prejudicial evidence

21 This ground of appeal relies on the combination of six incidents during the cross-examination of the witness Rossini. The appellants assert that their combined effect caused the trial to miscarry.

Incident 1

22 On the second day of the trial, the Daily Telegraph newspaper, in its report of the Crown prosecutor's opening address to the jury, described Rossini as a "former gang member turned supergrass" and Kanaan as a "gangster". In the application by Kanaan for the discharge of the jury based on the reference to him being a “gangster”, it was submitted that the word denoted someone heavily involved in criminal activity at the highest level. The other two appellants joined in the application on the basis that the word had connotations prejudicial to them as well. The Crown prosecutor pointed out that he had not used the description “supergrass” in his opening address, but he submitted that the effect of both expressions could be removed by a further direction to the jury about ignoring publicity given to the trial.

23 The judge acknowledged that the report was an unfair report of the Crown’s opening address, and that those expressions were no more than the reporter's own conclusions. He had earlier explained to the jury that they must ignore newspaper reports of the trial and confine their consideration to the evidence given in the trial. He pointed out that the evidence in the trial would demonstrate the participation of each of the appellants in the organised drug trade, as this was relevant to the motives asserted by the Crown for the murder. The judge referred to the somewhat more robust view now taken by the courts of the ability of juries to ignore and place to one side inaccurate and irresponsible reporting and to the acceptance by the courts that juries will respect the directions given to them when such an incident arises. The application for discharge was refused.

24 It has long been accepted that jurors are able to exercise a critical judgment of what they see, read and hear in the media, and to put such material out of their minds: Duff v The Queen (1979) 28 ALR 663 at 677; AG v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 711; Hinch v AG (Vic) (1987) 164 CLR 15 at 74; Regina v George (1987) 29 A Crim R 380 at 395; Regina v Bell (BC9805451), CCA, 8 October 1998 at 4-7. It must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the directions given to them by the trial judge: Demirok v The Queen (1977) 137 CLR 20 at 22; Hinch v Attorney-General (Victoria) at 74; Regina v Yuill (1993) 69 A Crim R 450 at 453. It is a frequently recognised phenomenon that any criminal trial, by its very nature, causes all involved in it to become progressively more inward looking, with the capacity to study the evidence given and the submissions made in the courtroom, to the exclusion of other sources of information: AG v News Group Newspapers Ltd [1987] QB 1 at 16; Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 at 569-570.

25 In Duff v The Queen, the Full Court of the Federal Court said (at 677-678):

26 In Regina v George, Street CJ said (at 395):

Regina v Edward James Smith

,

Regina v Graham

27 In The Queenv Glennon (1992) 173 CLR 592 at 614-615, the following passage from this Court’s judgment in Regina v Munday (1984) 14 A Crim R 456 at 457-458 was quoted with approval:

[It] is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury.

28 In Regina v Yuill, Kirby ACJ said (at 453-454):

There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled.

29 In Regina v Philip Harold Bell, Spigelman CJ said (at 6):

[In] recent years the prior tendency to regard jurors as exceptionally fragile and prone to prejudice has not carried the day in appellate courts. This is based on a considerable body of experience by trial judges in the criminal justice system which has convinced trial judges that jurors approach their task in accordance with the oath they take, that they listen to the directions they are given and implement them.

30 In John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344, Spigelman CJ returned to the issue:

[103]

[110]

Regina v Milat

Regina v Bell

Regina v Long

Regina v Richards & Bijkerk

Regina v Dudko

Regina v D'Arcy

Regina v Burrell

Regina v Kaddour

31 The judge in the present case gave the jury a firm direction to ignore the Daily Telegraph report if they had seen it, and he suggested that those who had not already done so should not read it. He told the jury that the report had "failed dismally in many respects to [report the opening by the Crown], being replete with a series of inaccuracies or errors and also using expressions which are utterly inappropriate and unfortunate".

32 The general nature of the evidence later given in the trial has already been described in this judgment. That evidence made it clear that the DK’s Boys organisation had all the structure and hierarchy of a criminal gang, and that Rossini was a member of that gang, involved in the supply of cocaine and protection for drug dealers and their runners in Kings Cross. The evidence also made it clear that Kanaan was high up in the structure of the gang, and that he had been involved in its activities. Those facts are sufficient basis for his description as a gangster. The evidence also made it clear that Rossini had been involved in those activities, but had “rolled-over” before the Crime Commission and was now assisting the police against Kanaan, with whom he was directly associated. Those facts constitute sufficient basis for his description as a supergrass as that term is usually understood.

33 What must be looked at is the overall context of the trial, not just the material as it stood at the time of the application for discharge: Regina v Sheikh (2004) 144 A Crim R 124 at [19]. The possibility of unfair prejudice to the appellants was therefore virtually nil in the overall context of this trial. The judge made no error in his refusal to discharge the jury, but the effect of this incident remains to be weighed together with the effect of the other incidents yet to be considered.

Incidents 2 & 3

34 On the tenth day of the trial, the judge drew the attention of counsel to two further incidents — a reference on Radio 2UE to the witness Rossini wearing body armour, contrary to a request (but not an order) by the judge to the media the previous day not to refer to that fact; and the headline “Why these gold rings reflect a sinister side” of the report of the previous day’s proceedings in the early edition of the Daily Telegraph newspaper but not in its later editions. The judge asked counsel if they sought the discharge of the jury in relation to these matters. Counsel for Kanaan reserved his position, but no-one asked for a particular direction to be given. The two incidents were not raised again during the trial.

35 On appeal, it was asserted that the reference to body armour was highly prejudicial, as the jury would have understood it to mean that Rossini was such a high security risk as to need such protection and that the risk was connected with the appellants.

36 By the time the reference to body armour was made, the jury knew that Rossini was the witness's pseudonym, that the "Witness Protection Act" did not permit him to answer questions which if answered would lead to his identification, and that he was the subject of a "witness protection programme". The jury also knew that he has signed an undertaking to give evidence of his knowledge of various criminal activities. The evidence made it clear that these criminal activities went beyond those connected with the appellants. The cross-examination of Rossini on the disclosures he made to the Crime Commission underlined that fact.

37 If counsel then appearing for the appellants (none of whom appeared on the appeal) obtained the impression that the jury may have been misled into identifying the appellants as being connected with the risk against which Rossini wore the body armour, they had only to accept the judge's invitation to seek a direction which would have reminded the jury of the facts stated in the previous paragraph in order to dispel that impression. No such application was made, and the clear inference is that this was because no such impression had been conveyed at the time. The inclusion of this incident in the grounds of appeal is yet another example of counsel appearing on the appeal but not in the trial searching through the transcript for appeal points which caused no concern to those conducting the trial. However, for what it is worth, the effect of this incident remains to be weighed together with the effect of the other incidents of which complaint is made.

Incident 4

38 Rossini was cross-examined in order to demonstrate that the evidence he had given in the trial was inconsistent with the evidence he had given to the Crime Commission. In order to explain one such inconsistency, Rossini said that the evidence he had given to the Crime Commission was his "memory around that time". The cross-examination proceeded:

39 Complaint was made on behalf of all three appellants that the jury would have understood that they had been involved in the thirty incidents examined by the Crime Commission, and another application was made for the discharge of the jury. The application was refused by the judge. In the course of his reasons for that refusal, the judge said:

40 In re-examination, Rossini agreed that, when he appeared before the Crime Commission, he had been asked a lot of questions about a lot of different things and a lot of different people, none of which had anything to do with the matters raised in this trial. Even if the judge had erred in the conclusions we have quoted from his judgment (and we do not accept that he did err), those answers in re-examination effectively neutralised any impression which could possibly have been conveyed that the thirty incidents of which Rossini gave evidence before the Crime Commission all related to the appellants.

41 Our own conclusion on a reading of the evidence is the same as that expressed by the judge. In reaching that conclusion, we do not place any weight on the fact that counsel had been warned of the dangers of cross-examining on inconsistencies in the accounts Rossini had given at different times. It was quite proper for counsel to have drawn attention to the inconsistencies, but the answer referring to the thirty incidents was also a quite proper answer to the suggestion implied in the comment that the witness's memory had improved, the suggestion being that his evidence was untrue because it was inconsistent with his evidence before the Crime Commission.

42 There was no error made by the judge in his ruling on this incident, but the effect of this incident remains to be weighed together with the effect of the other incidents of which the appellants complain.

Incidents 5 & 6

43 During the course of the cross-examination of Rossini a few days later, counsel for Mawas was concentrating on Rossini’s own criminal activities during his membership of DK’s Boys, including the dealing in cocaine in Kings Cross, the terrorising of people working in the drug trade in that area, the beating up of people on protection if they did not pay money for that protection, the purchase of three submachine guns for $15,000 on behalf of the deceased, a plan to “rip off” the vendor of those guns by taking them without paying for them and with violence if necessary, and the use of scare tactics, intimidation, robberies and shooting people.

44 After Rossini had expressed his inability to remember a number of details of the shooting of one Danny Sukkar by the deceased, he said:

45 An application was made for the discharge of the jury on the basis that the reference to “the murders” could only be reasonably associated with the appellants. It was submitted to the judge in the alternative that there had been a cumulation of prejudice such that the appellants could not have a fair trial. This application was deferred until the transcript was available.

46 After counsel for Kanaan had read the transcript, complaint was made of a further incident occurring shortly after the last. Counsel for Mawas was testing Rossini’s version of the distribution of firearms to the three appellants and Gea Gea prior to the shooting of the deceased in the present case. After repeating the distribution of the various firearms to the three appellants of which Rossini had given evidence in chief, the cross-examination continued:

47 In the light of the cross-examination to which reference has been made which preceded the second last incident, the judge said that he was not persuaded that the jury would reasonably relate the reference to “the murders” as a suggestion that the appellants were involved in those murders in addition to the murder charged. Nor was the judge persuaded that the fact that Gea Gea was on the run (if it were the fact) could be used by the jury as an indication of consciousness of guilt on his part which would relate back to the present appellants. He held that the alternative submission based on the cumulation of prejudice from all of the incidents had not been made good.

48 The judge did, however, state that it would be appropriate for a direction to be given to the jury in the summing-up to the effect that the jury were not free to use any indication of the consciousness of guilt on the part of Gea Gea as evidence against any of the appellants. He also offered to give a direction along those lines then and there, but it appears that this offer was never taken up.

Combination of incidents

49 On appeal, it was submitted that the combination of these incidents caused the trial to miscarry, and that such combination took the case well beyond the realm of speculative or hypothetical prejudice. It was submitted that, although each of the incidents alone may not have led to the prejudice necessary for the discharge of the jury, when taken together the cumulative impression conveyed by all of the incidents was entirely adverse to the appellants and overwhelming in its nature.

50 Emphasis has been placed in many cases on the superior position of the trial judge in cases involving alleged prejudice. A very experienced criminal trial judge, the first Brereton J, when sitting as a member of this Court in Regina v Ball (1960) 61 SR(NSW) 37, at 41-42, said:

Regina v Ngo

51 It was conceded by the appellants in the appeal that no error in the exercise of the judge’s discretion could be identified. Their argument was that, on the facts, the refusal to discharge the jury based on the accumulation of prejudice was so unreasonable or plainly unjust that this Court should infer that in some way there was a failure by the judge properly to exercise his discretion to discharge the jury: House v The King (1936) 55 CLR 499 at 505.

52 The six incidents on which the appellants rely in the present case have to be viewed not only within their immediate context and in the context of each other but also in the context of the directions which the judge had given to the jury early in the trial and what was said in the summing-up. At the very commencement of the trial, the judge referred to the publicity which had already been given to the events which led to the trial and to the publicity which may be given to the trial itself in the future, and he instructed the jury that all such publicity was “totally irrelevant in this trial”. He directed the jury to confine themselves to what happened within the four corners of the courtroom. Following the first of these five incidents, the judge reminded the jury of that warning, and he reminded the jury to “ignore any newspaper coverage or any other coverage of the proceedings”. The judge gave further warnings during his summing-up to base their verdict on material “which has been presented to you in this courtroom in the form of evidence, submissions and the summing-up”.

53 The judge made further reference to some of these incidents during the course of his summing up. In relation to incidents 4 and 5, the judge drew attention to the fact that the jury had heard evidence about all manner of criminal activity involving violence and drugs, and he emphasised that the appellants were not on trial for drug offences or firearm offences or anything of that nature. In relation to this other criminal activity, the judge gave unexceptional directions:

54 A trial involving all of the issues which arose in the present case was bound to be a difficult one for everyone concerned in it. The very nature of the crime which was alleged to have been committed by the appellants and the background to that crime made it inevitable that the jury would learn a great deal about these appellants and the persons with whom they associated, giving rise to the need for the directions which the judge gave. No complaint is made in this appeal that the judge could have given further directions in relation to these matters. In our view, the judge amply and fairly and completely dealt with the issues which had arisen.

55 In the context to which reference is made in par [52] supra, and in the light of the authorities to which reference has been made, we are not satisfied that the result was so unreasonable or plainly unjust that this Court should infer that the judge erred in the exercise of his discretion to reject the application for the discharge of the jury based upon the accumulation of these six incidents. We disregard the fact that many of the answers given by Rossini were clearly the foreseeable result of the questions which were being asked of him in cross-examination. If prejudice results from the way in which counsel for an accused person has conducted the case, this can in some circumstances give rise to the need for a new trial where that conduct was of such a nature in the circumstances of the case as to have led to a miscarriage of justice: Regina v Birks (1990) 19 NSWLR 677 at 683-685; Regina v Ignjatic (1993) 68 A Crim R 333 at 338; TKWJ v The Queen (2002) 212 CLR 124. That has not been suggested in the present case; nor could it be.

56 Accordingly, the first ground of appeal is rejected.

Ground 2 — Ngaari Zahabe: (a)

Evidence Act

1995, s 38; and (b) negative identification directions

57 These two grounds may for convenience be dealt with partly together, as each is based on the same material in the trial. After indicating that material, Grounds 2(a) and 2(b) will be dealt with separately.

The material on which these grounds are based

58 Ngaari Zahabe is the wife of Rame Zahabe, who regularly trained with Rossini at a gymnasium four or five times a week from June or July 1998. Zahabe used to purchase the steroids he took in connection with his training at the Riley Street unit. He would collect Rossini from the unit to go with him to the gymnasium. He had known each of the three appellants before he had started to visit the Riley Street unit, Kanaan for two to two and a half years. When at the unit, he had seen Kanaan once or twice a week, El-Assaad as frequently and Mawas only from time to time. He had also seen the deceased there at times during the four weeks before the shooting.

59 Earlier on the day of the shooting, Zahabe said, he received a call on his mobile telephone from Rossini inviting him to call into the Riley Street unit. He was later driving with his wife and, as he thought he may have left his wallet at the Riley Street unit on his last visit, he went to the unit to inquire about it. Zahabe said that he was admitted to the unit and took a steroid tablet. He saw the deceased, El-Assaad and one of the Laycock brothers there. He left the unit shortly before the deceased, and the deceased was leaving only a short distance behind him. As he was leaving the building, he heard Rossini over the building intercom tell him to come back upstairs. He returned to the building, just as the deceased was leaving it. Rossini let him back into the unit. He heard something like firecrackers outside. He then received a telephone call on his mobile telephone from his wife, who had remained in the motor vehicle, asking him to return. He did so, and his wife was in a state of shock and wanted to leave. They drove off. Later that night, his wife told him about the shooting in the street.

60 The evidence given by Zahabe differed somewhat from that given by Rossini, and to some extent it was inconsistent with the evidence given by his own wife, but no significance was given to these discrepancies in the appeal. Rossini gave evidence that Zahabe had arrived at the front door of the building in Riley Street just after El-Assaad had made the telephone call to warn the other two appellants and Gea Gea that the deceased was on his way down to his vehicle. Rossini saw him approaching the building on the security camera connected to the building intercom. El-Assaad had called out to Zahabe on the intercom that he should "get out of here", but he was still there when the deceased walked out of the building. The deceased had asked Zahabe how he was as they passed each other at the front door.

61 Rossini said that Zahabe had come to the unit that night, but only at the time the deceased was leaving. He denied that Zahabe had come to look for his wallet; he said that he had never known Zahabe to carry a wallet. He denied that he was Zahabe’s supplier of steroid tablets, and said that he had only taken three or four steroid tablets himself.

62 Mrs Zahabe was called by the Crown. She gave evidence that she and her husband had had dinner at Brighton "just before dark". They were driving around in their motor vehicle when her husband received a call on his mobile telephone. He informed her that they were going to Riley Street to visit Rossini. When they arrived, her husband went into a building and she turned the vehicle around and parked opposite the building. After listening to music in the vehicle, she saw her husband walking out of the building, but heard a voice saying "Rame [her husband], come back upstairs" when he was halfway across the road. He returned to the building. When her husband had first left the building, another man left the building within seconds and walked to another vehicle, which was parked a block away from the unit. She did not suggest in her evidence that she had recognised that other man. (Her husband gave evidence that she had later asked him who the man was.) She saw the man enter the vehicle on the driver's side. The vehicle's headlights came on, as did its brake lights.

63 At that time, Mrs Zahabe’s attention was diverted to three men at the door of the building which her husband had visited. They were talking to each other. One of the men pulled his shirt up, and she saw a black gun tucked into the front of his trousers. A second man, who was taller than the first man, also pulled his shirt up and took a gun out. She did not see the third man produce a gun. The three men ran quickly to the vehicle to which the man leaving the building had walked. The shorter of the two men with guns started firing shots into the window of the door on the driver's side, with his hand halfway inside the window. The second man then started firing shots into the window. At one stage, both of them were firing at the same time. She did not see the third man fire any shots. The second man stepped back and then fired two or three more shots. The third man was at all times behind the other two men. She heard at least 15 or 16 shots in all. The three men ran away down a laneway to a vehicle there. She telephoned her husband, who returned to the vehicle and they drove off.

64 Mrs Zahabe said that she had had the three men under observation for between five and ten minutes. Although night had fallen, she said the street at the entrance of the building in which the unit in question was located was “pretty lit up”. She gave descriptions of the three men involved in the shooting and of their clothing. Part of her description was that all three men were of “Islander appearance”. The totality of her descriptions was inconsistent with the men involved in the shooting having been Kanaan, Mawas and Gea Gea.

65 Eleven days later, Mrs Zahabe was taken to a police station to be shown video images of each of the three appellants, Rossini and a man she knew as Eddie. (Eddie does not appear to have been otherwise identified; Gea Gea was called Charlie.) She said that she had known them as friends of her husband for around two years and had met them “quite often, a lot”. She was asked in chief:

Evidence Act

66 None of the other witnesses as to the events in the street that night was able to give a description which clearly identified Kanaan, Mawas or Gea Gea or to identify them from photographs. One witness described the three men as in their early twenties, with dark skin and dark hair, and of Italian, Greek or Middle Eastern appearance. Another described the shooter he could see as being Lebanese, but the three men as having white skin. Another witness described the three men as having white skin. Most witnesses described the men as having a Mediterranean or dark or olive complexion. Two witnesses described either one or two men at the scene as having an Islander appearance, but the evidence does not suggest that the men so described were the shooters. The judge told the jury in his summing-up that, although some witnesses had described men acting suspiciously at the scene as being of Islander appearance, only Mrs Zahabe described any of the shooters in that way.

67 One witness, who had been driving a taxi at the intersection of Riley and Albion Streets, gave evidence of seeing three or four males, aged no more than 16 years old, running towards Oxford Street. He said that one of them had long, spiky blond hair. The Crown prosecutor was granted leave pursuant to s 38 of the Evidence Act to cross-examine this witness, who agreed that the signed statement he had volunteered to the police had said nothing about blond, spiky hair. He denied using the description of the males in his statement as having an Arabic appearance, but he suggested that he would have said Middle Eastern. He maintained that the males he saw were about 16 years old, despite the description in his signed statement that they were in their early to mid twenties. The various descriptions of the clothing worn by the three men were of no real assistance in either identifying or excluding Kanaan, Mawas and Gea Gea as the three men at the scene.

68 Those witnesses who mentioned the state of lighting in the area where the shooting occurred described it in terms which suggested that it was dim. It is fair to suggest that the direct identification evidence in its totality — apart from that of Mrs Zahabe and Peter Laycock — gave no assistance at all to the jury. Only Mrs Zahabe gave what has been described as negative (or exculpatory) identification evidence, that she was able to exclude Kanaan and Mawas as two of the three men involved.

Ground 2(a)

Evidence Act

, s 38

69 This ground asserts that the Crown prosecutor’s final address in relation to the evidence of Ngaari Zahabe caused a miscarriage of justice.

70 In his final address to the jury, the Crown prosecutor (who addressed first) said of the evidence of Mrs Zahabe:

She was asked how long the incident took and she initially said ten minutes. She then said between five and ten minutes. She says it was pretty well lit up under where the front of the building was. She says that neither Mr Mawas nor Mr Kanaan were involved in the shooting.

Well, you have to make an assessment of her evidence. You have to make a determination about her credibility. When you come to make an assessment of her evidence and her credibility you might want to take into account a number of matters: firstly, she says that she had known the accused for a number of years. She had seen them quite regularly apparently. It would seem more regularly than her husband had seen them. She says, and it is a matter to you to assess, that these men stood in a brightly lit area and pulled out guns. She says that they stood there and looked at her for a period of time before; they then went over and apparently did the shooting.

71 Counsel appearing for Mawas at the trial spent some time in his final address basing submissions on the quality of the evidence given by Mrs Zahabe. He said that she had not been shown to have any reason to lie or to deceive the jury in any way. In expressing the importance of her evidence, he said:

Ngaari Zahabe of all of the eye witnesses is the most important for these reasons, and in my submission to you she gave evidence in a way which was clearly a woman speaking from her observations and speaking without doubt as to who she had seen and, most importantly, quite clearly, that she had not recognised any of the men she knew and they were not involved.

72 Counsel appearing for Kanaan at the trial in his final address specifically took up the remarks of the Crown prosecutor. He told the jury that the Crown did not want them to accept the evidence of Mrs Zahabe because her evidence destroyed the Crown case — it was “poison” to the Crown case, and it had left its case "in tatters", he said. Yet, he pointed out, the Crown prosecutor had never suggested to Mrs Zahabe that she was “hiding the truth” or had “got it wrong”, and he had left her evidence uncontested. Counsel suggested to the jury that the Crown had instead attempted in a roundabout way to make out that her evidence was a "put-up job", when it was clear and uncontested. Her evidence of non-recognition, he said, was just the same as the recognition evidence given by Laycock when he said he saw Mawas shooting into the vehicle. Her evidence, it was submitted, told the jury a great deal, and it had the effect that the identification evidence on which the Crown relied left many questions unanswered, questions which should trouble them.

73 Counsel for El-Assaad made no reference to the Crown prosecutor's address, no doubt as El-Assaad was not, on the Crown case, one of the shooters. Mrs Zahabe had not identified El-Assaad as the man who, on the Crown case, subsequently went down to the motor vehicle to remove the deceased's mobile telephone. However, she was not present at the relevant time.

74 No complaint was made on behalf of any of the appellants at the trial concerning the Crown prosecutor's address in relation to Mrs Zahabe. In his Summing-up, the judge reminded the jury of the submissions made by counsel for Kanaan — that the basis of the Crown prosecutor's argument that Mrs Zahabe "had got it wrong" had not been put to her when she gave her evidence. The judge was not asked to give any further directions on this issue.

75 It was submitted on appeal that the remarks by the Crown prosecutor were unfair, in that they clearly invited the jury to conclude that the evidence of Mrs Zahabe, his own witness, was not truthful. The Crown prosecutor, it was submitted, should have made it clear when Mrs Zahabe gave her evidence that the Crown challenged her negative identification, and by not doing so denied her (and the appellants) the opportunity to explain or to qualify the matters raised by the Crown prosecutor in his final address: Browne v Dunn (1894) 6 R 67 at 70-71, 76-77, 78-79.

76 The report of Browne v Dunn is not readily available and, at the invitation of the appellants, reference is made to Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16-23 (Hunt J) in which Browne v Dunn and the decisions which have followed it are fully discussed. That discussion has been referred to with approval in a number of appellate decisions: Archer v Richard Crookes Construction Pty Ltd (BC9705329), Court of Appeal, 22 October 1997, at 7; Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 at 148 (Full Federal Court); Regina v Pye [2000] NSWCCA 544 at [54]; Southern Area Health Service v Brown [2003] NSWCA 369 at [102]–[103]; Markem Corporation v Zipher Ltd [2005] EWCA Civ 267 at [57]–[61] (English Court of Appeal); and Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226 at [54]. See also Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 224-225 (Court of Appeal) and Regina v Birks at 689-690 (Court of Criminal Appeal).

77 The Crown has disputed that any “positive assertion” was made by the Crown prosecutor that Mrs Zahabe should not be believed. That is so, but his intention is not relevant in this appeal, nor is the appellants’ allegation that his conduct was improper. It is the effect of the Crown prosecutor’s conduct, not its propriety, which may cause a miscarriage of justice: TKWJ v The Queen at [25], [79], [97], [101], [107]–[108]; Nudd v The Queen [2006] HCA 9 at [10]–[19], [24], [64], [68], [157]. The relevant issues in this case are how those submissions by the Crown prosecutor would have been interpreted by the jury, whether that interpretation prejudiced the appellants (either procedurally or otherwise), and whether that prejudice resulted in a miscarriage of justice.

78 Notwithstanding the care with which the Crown prosecutor appears to have formulated his submissions to the jury concerning Mrs Zahabe, those submissions, in our opinion, would inevitably have been interpreted by the jury as an invitation to disbelieve her evidence. It is difficult to see how his remarks could have been understood in any other way. The final address by counsel for Kanaan obviously sought to meet the submissions by the Crown prosecutor as an attack on the truthfulness of his own witness. The judge in his summing-up described the Crown prosecutor’s remarks as having been directed to the credibility of Mrs Zahabe and as suggesting that her evidence was improbable. The Crown prosecutor made no objection that this had not been his intention.

79 The references by the Crown prosecutor to the witness's familiarity with the three accused — in themselves quite justifiable in the context of dealing with her evidence — may well also have been understood by the jury in the context of that invitation as a suggestion of bias on her part in favour of the accused. The reference to the men pulling out guns in a brightly lit area could have been understood by the jury as a suggestion that it was unlikely that the shooters would have done so in such an area. The repeated reference to the imprecision of the time Mrs Zahabe said she observed the three men may have been understood as another attack on the truthfulness of her evidence. It was claimed on appeal that the Crown prosecutor’s address may also have been interpreted as a suggestion that Mrs Zahabe was exaggerating the time she had been watching the three men in order to give her own evidence greater credibility, but it is doubtful that the jury would have reached that particular conclusion unaided.

80 Before turning to what the Crown prosecutor should have done before attacking the credit of his own witness, it is important to emphasise that the Crown does not warrant the truthfulness of its witnesses, and it is not obliged to embrace and accept whatever the witnesses say: Regina v Le (2002) 54 NSWLR 474 at [68]. That is because the Crown has the obligation to present its case conformably with the dictates of fairness to the accused: Richardson v The Queen (1974) 131 CLR 116 at 119. That obligation is imposed on a Crown prosecutor as an incident of his or her position as a “minister of justice”: Regina v Puddick (1865) 4 Foster & Finlayson 497 at 499 [176 ER 662 at 663]. See also Regina v Thursfield (1838) 8 Carrington & Payne 269 at 269-270 [173 ER 490 at 491-401]. It is the usual practice in criminal trials that, subject what is said in the following paragraph of this judgment, the Crown accepts an obligation to call witnesses whose evidence is relevant to the Crown case when requested by the accused to do so. When doing so, the Crown prosecutor is always entitled to say to the jury that the Crown has not put that particular witness forward as a witness of truth. The Crown’s obligation to call such witnesses has been stated more firmly in Regina v Le at [68]. (The duties of a Crown prosecutor are discussed in an address to the Student’s Union of the Inns of Court in 1955, by the then Senior Prosecuting Counsel at the Old Bailey in Great Britain, Mr Christmas Humphreys, of which a shortened version has been published under the title “The Duties and Responsibilities of Prosecuting Counsel” in [1955] Crim LR 739.)

(6) The sentencing judge erred in failing to make a finding that the applicant was remorseful.

(7) The sentencing judge erred in failing to take into account the arduous nature of the offender’s custody.

(8) Special Circumstances.

272 It is convenient to first set out the judge’s description of the personal circumstances of El-Assaad. It is in the following terms:

[81] This offender was born on 10 November 1977, and is now aged 24 years.

[82] The pre-sentence report shows that he is an Australian born of Lebanese parents, and the eldest child in a family of six children. He is reported to be very family orientated, and to be highly regarded by his parents and siblings. It is said that he occupies an important position in the family structure, and his incarceration has apparently caused his mother and siblings considerable stress.

[83] Between the age of 13 years and 16 years, he and the rest of his family returned to the Lebanon so that the children could attend school, and learn the Lebanese language and culture. Regrettably during this period, in the aftermath of the war, he became accustomed to carrying a gun for self protection. It is said that he was exposed to a considerable amount of anarchy and violence which left its mark on him.

[84] His subsequent return to Australia was described as difficult, as a result of the loss of contact with his former friends. Due to his familiarity with guns and violence, he drifted, on his own account, into an undesirable peer group. He did not complete his education to Higher School Certificate, and instead worked in the family coffee shop. He is said not to have had a history of drug or alcohol abuse.

[85] He presented to the Probation and Parole Service as polite and cooperative, and as having expressed an intention to change his ways, now realising that the most important things he has are his family and religion. He has not caused any real problems while in custody, his record being confined to various incidents of unauthorised possession of property. The Governor of the MRRC and the Block Area Manager have each reported positively in relation to his general attitude and demeanour, and his attendance at the weekly Muslim prayer meetings. They added that he had shown himself to be a role model for other Lebanese inmates with regards to reducing violence and improving cultural harmony within the centre.

[86] Their reports were supplemented by a report from the Islamic Chaplain at the MRRC who indicated that he had demonstrated remorse and repentance, and that he encouraged good behaviour in other inmates and leads the way by example. Whether that remorse and repentance are related to his prior offences or to the present offence remains unclear, it being the case that he has not admitted to his responsibility in relation to the murder of Danny Karam.

[87] His earlier criminal record is not impressive, although again it is not quite as serious as its length might first suggest, largely revolving, as it does, around offences involving motor vehicles.

[88] That record commences with a conviction for break enter and steal, in respect of which a 2 year recognisance was imposed on 9 April 1996.

[89] On 14 May 1997 a 2 year recognisance, and a fine were imposed for an offence of attempt to steal a motor vehicle, which sentence was confirmed in the District Court. For a breach of that recognisance, he was later sentenced in the District Court, on 16 June 1999, to a fixed term of 1 month commencing on 1 June 1999.

[90] In the meantime, he was convicted and fined, in the Local Court on 5 February 1997, for various motoring offences, including drive while cancelled, and drive in a manner-dangerous.

[91] On 28 April 1997 and 15 May 1997 he was again fined in relation to motoring offences, including two offences of driving while cancelled, two offences of stating a false name, one offence of goods in custody, as well as offences of driving an unregistered vehicle, and using an uninsured vehicle.

[92] On 10 March 1998, he was back in the Local Court, on three charges of drive while disqualified, offences which earned him three fixed terms, each of 4 months. On appeal to the District Court on 24 April 1998, these sentences were reduced to sentences of 3 months periodic detention, each to commence on 8 May 1998.

[93] On 4 August 1998 he was convicted and fined for an offence of driving a conveyance taken without the consent of the owner.

[94] On 20 October 1998, he was sentenced to concurrent fixed terms of 1 month and 6 months for offences of goods in custody and steal motor vehicle, which sentences were later confirmed, on appeal to the District Court on 28 July 1999, the sentences being directed to commence on 1 July 1999, and to expire on 31 July 1999, and 31 December 1999, respectively.

[95] On 7 July 1999, he was convicted and sentenced in the Local Court to a fixed term of 6 weeks for an offence of goods in custody, which conviction and sentence were again confirmed on appeal by the District Court on 28 October 1999, the sentence being directed to commence on 28 October 1999, and to conclude on 8 December 1999.

[96] On 24 August 1999, pending the last mentioned appeal, he was fined for further motoring offences involving the use of an uninsured and unregistered vehicle, the fraudulent use of a licence, and stating a false name; additionally he was sentenced to further fixed terms of 6 months, each to commence on 1 June 1999 and to expire on 30 November 1999, for 4 further counts of drive while disqualified.

[97] Then, on 21 December 1999 he was sentenced to concurrent fixed sentences of imprisonment for 20 months, with non parole periods of 15 months, when convicted of counts of possessing an unauthorised firearm and an unregistered firearm. On this occasion, appeals to the District Court were dismissed, on 13 July 2000. These sentences were directed to commence on 1 January 2000 and to expire on 31 August 2001 with the non-parole periods expiring on 31 March 2001. The offences to which they related occurred at a time when he was present with other offenders who became involved in a shoot out with police at White City. He was himself shot during this incident, but it was not alleged that he was responsible for any of the gunfire which occurred.

[98] The net result of this history, which involved a significant adjustment and backdating for various offences, is that although arrested and bail refused for another matter from 1 June 1999, and for the current offence from 17 September 1999, he is to be regarded as having been held in custody in respect of the other offences mentioned between 1 June 1999 and 31 March 2001, that being the date on which he would have necessarily been released on parole for the firearm offences.

[99]

273 The judge also declined to impose a life sentence on the applicant El-Assaad. He did so essentially for the same reasons as he did in relation to Mawas, and also because “his participation was less heinous” than those who actually shot Karam and killed him The judge then explained his reasons for arriving at the sentence which he ultimately imposed:

[103] On the more favourable side is his absence of any prior record for violence, or signs of psychopathology of the kind which would suggest that he poses any continuing danger to law abiding members of the community. On the contrary, there are some signs that he can make a positive contribution while within the prison system, and that the prospects for rehabilitation are reasonable.

[104]

274 We return now to consider the individual grounds of appeal taken by El-Assaad.

Youth and background of the offender

275 The complaint was that the judge failed to make sufficient allowance for this fact.

276 The judge was well aware that El-Assaad was a youth — he was in his early 20’s during his association with Kanaan and the deceased Karam. The judge was also aware of his somewhat chaotic background. The judge specifically referred to the immaturity of El-Assaad and how it had led him into the surreal world of Kanaan, Karam and others to whom he was clearly beholden.

277 The judge correctly observed that, because the offenders had conducted themselves in the same fashion as mature adults would have, they were not entitled to “any significant diminution in their objective criminality”. The emphasis on rehabilitation rather than general deterrence where the offender is a youth (Regina v GDP (1991) 53 A Crim R 112 at 116) is subject to the qualification that, where a youth conducts himself in a way an adult may conduct himself and he participates in a crime of considerable gravity, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing: Regina v Pham (1991) 55 A Crim R 128 at 135; Regina v Hawkins (1993) 67 A Crim R 64 at 66; Regina v Gordon (1994) 71 A Crim R 459 at 469; Regina v Bus (BC9501880), CCA, 3 November 1995, at 14; Regina v AEM & Ors [2002] NSWCCA 58 at [97]–[98]; Regina v MA (2004) 145 A Crim R 434 at [28]–[30]; Regina v LNT (2005) NSWCCA 307 at [31]–[32].

278 That principle applies in the present case. The ground of appeal is without substance, and it is rejected.

The position of the offender as a junior member of the gang

279 The essence of the submission is that Kanaan, Gea Gea, Rossini and Karam were brutal men who would not hesitate to resort to violence. It was submitted that “[t]here seems no way one could just leave the gang”. The evidence established that the applicant was a willing party to a joint criminal enterprise to kill Karam. There is no suggestion in the evidence before the court, and no attempt has been made to produce further evidence, that El-Assaad was in any way prevented from leaving “the gang”.

280 Nevertheless the judge concluded, in relation to Mawas, that “to some extent his immaturity led him not to fully appreciate what he had led himself into, and that once caught up in Kanaan’s planning it would not necessarily have been easy to walk away”. Those findings were incorporated into the reasons for sentencing El-Assaad as well, since the judge observed that, “for essentially the same reasons as those which applied to Mawas”, he would not impose a life sentence on El-Assaad. The finding the judge made in favour of El-Assaad fully acknowledged the matter which it is now claimed he failed sufficiently to take into account.

281 As the judge made that finding in favour of both El-Assaad and Mawas, and as he used the sentence imposed on Mawas as the basis for his consideration of the sentence to be imposed on El-Assaad, there is nothing in the sentencing process which supports the claim that the judge failed to take this matter sufficiently into account for both of them. This ground of appeal is rejected.

Distinguishing El-Assaad’s motive from that of his co-accused

282 Particular complaint was made of the judge’s conclusion that “this was a deliberate assassination which was carried out under Kanaan’s leadership, substantially in order to advance the interests of the prisoners in ongoing criminal activities”. It was submitted that El-Assaad should not have been included in that motive.

283 The context in which that statement was made clearly indicates that the judge’s primary focus was, understandably, on Kanaan’s motivation, not that of the other members of the joint criminal enterprise. He went on to find:

284 The applicant was unable to point to any evidence which might have suggested that his motivation was somehow different to that which the judge expressed. The ground of appeal is rejected.

Assistance rendered and positive rehabilitation

285 The complaint is that the judge failed to make sufficient allowance for these matters. El-Assaad points to reports, provided by the Governor and another senior officer of the Metropolitan Remand & Reception Centre at Long Bay Gaol, concerning the favourable progress and positive contribution which he had made whilst in that gaol. The judge referred in some detail to that evidence, and he concluded that “there are some signs that he can make a positive contribution while within the prison system, and that the prospects for rehabilitation are reasonable”. Those remarks, when read together with the rest of the judge’s findings, certainly do not support the complaint that insufficient weight was given to these matters.

286 This ground of appeal is rejected.

Remorse

287 The complaint was that the judge failed to make a finding that El-Assaad was remorseful. The judge specifically referred to the evidence that the applicant had expressed an intention to change his ways. He also referred to the report of the Islamic Chaplain at the MRRC as having “indicated that [El-Assaad] had demonstrated remorse and repentance”. That was the extent of the evidence on this subject. Because El-Assaad had continued to maintain his innocence, the judge was entitled to qualify his acceptance of the remorse to which the Chaplain had referred by his comment that El-Assaad had “not admitted to his responsibility in relation to the murder of Danny Karam”.

288 The ground of appeal has no substance, and it is rejected.

Arduous nature of the offender’s custody

289 The complaint was that the judge had failed to take this fact into account. El-Assaad also has an A1 classification and he too has been designated as an extreme high security inmate: see letter relating to El-Assaad from Ms Crilly of the Legal Branch of the Department of Corrective Services, dated 23 July 2002. As already stated (at par [261] supra), such an inmate is one who in the opinion of the Commissioner (a) represented a special risk to good order and security and who should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment, and (b) constituted either an extreme danger to other people, or an extreme threat to good order and security.

290 El-Assaad spent three months in total segregation at an early stage of his period in custody. It is clear from the letter from Ms Crilly that El-Assaad was no longer in the HRMU at the time of the sentencing process. There is no evidence as to whether he will be returned to the HRMU. Nor is there any suggestion that El-Assaad is otherwise serving in conditions of custody other than those applicable to inmates with his designation. No further evidence has been placed before this Court as to the nature of his present custody.

291 As stated in relation to Mawas (at par [263] supra), El-Assaad can hardly call in aid the conditions of his custody which are the consequence of his own conduct in custody: see Regina v Hamzy at [129]–[130], quoted in par [264] supra. In the circumstances, it has not been demonstrated that the sentencing judge has fallen into error. This ground of appeal is rejected.

Special circumstances

292 Section 44 of the Crimes (Sentencing Procedure) Act 1999 requires the sentencing judge when imposing a term of imprisonment on an offender — except in the circumstances identified in s 45 — to set a non-parole period (that is, the minimum period for which the offender must be kept in detention in relation to the offence) of such a length that the balance of the term is not greater than one-third of the non-parole period unless there are special circumstances for the balance of the term being more than one-third. In mathematical terms, therefore, the non-parole period may not be less than three-quarters of the total term of the sentence unless the judge decides that there are special circumstances warranting such a departure from that statutory requirement.

293 To that extent, the statutory ratio operates as a fetter or constraint on the exercise of the sentencing judge’s general discretion as to the structure of the sentence to be imposed: Regina v Simpson (2001) 53 NSWLR 704 at [69]. It is, however, clear that this fetter or constraint operates only to prevent the balance of the term being greater than one-third of the non-parole period; there is no restriction on the balance of the term being less than one-third: Ibid at [70]. See, for example, Regina v Kalajzich, CCA, 2 November 1998, dismissing an appeal from a total sentence of 28 years consisting of a minimum term of 25 years and an additional term of three years (Regina v Kalajzich (1997) 94 A Crim R 41). In the present case, the judge imposed a total sentence of 24 years with a non-parole period of 18 years. The balance of the term was exactly one-third of the non-parole period.

294 The issue of special circumstances does not appear to have received very much attention during the sentencing proceedings, but the judge was required nevertheless to consider the issue, and he did so by finding (at [107]) that such circumstances did not exist in relation to El-Assaad. The judge concluded that “the period of six years during which the prisoner will be potentially eligible for release and supervision on parole is sufficient to enable his reintegration into the community”.

295 It has been submitted by El-Assaad that there were other matters which constituted special circumstances in the case which would have justified a departure from the statutory requirement, and which the judge had not considered. Those identified are the offender’s youth, the fact that it was his first significant gaol sentence, the “significant and impressive” rehabilitation he has exhibited, and the arduous nature of his incarceration “to date and likely to continue”. These taken together are certainly capable of amounting to special circumstances in those cases where they point to the need for a longer than usual period of parole, usually under supervision, in order to assist the offender to reintegrate into the community after serving the non-parole period in custody.

296 El-Assaad has already argued unsuccessfully that the judge failed to consider some of those matters in determining the total period of the sentence. It is, however, clear that the judge considered all of these matters in relation to the issue of special circumstances, because their relevance to the issue of special circumstances was that they pointed to the need for a longer than usual period of parole to enable the offender to reintegrate into the community, and the judge’s decision that he should not alter the statutory ratio was based on his opinion that the six years during which El-Assaad would be on parole was sufficient to achieve that purpose.

297 Simply because there exist matters capable of constituting special circumstances in some cases does not mean that a sentencing judge is obliged to vary the statutory ratio in every case in which those matters exist: Regina v Fidow [2004] NSWCCA 172 at [22]. A submission that special circumstances exist in the particular case requiring a variation of that ratio necessarily focuses attention initially on the length of the balance of the term which is produced by the normal application of that ratio. In the present case, the sentence imposed by the judge meant that El-Assaad would be eligible for release and supervision on parole on 16 September 2017, when he will be almost 40 years old. There can be no doubt that at that stage he will need considerable assistance by way of supervision to ensure that he does reintegrate into the community.

298 The decision by the judge that six years was sufficient for that purpose was open to him in the present case. He was entitled to assume that, if it were thought by the Parole Board to be necessary in this case, an extension of the standard restriction to three years of supervision, imposed by cl 216(1) of the Crimes (Administration of Sentences) Regulation 2001, would be extended pursuant to cl 216(2) to ensure that such a purpose was realised. Even without an extension of the period of supervision, it was open to the judge to decide that six years was sufficient for El-Assaad to reintegrate. That being so, the matters identified by El-Assaad did not constitute special circumstances in this case.

299 There was no error by the judge. This ground of appeal is rejected.

Parity

300 The essential substance of the submission is that the sentencing judge erred in differentiating only to a slight degree between the sentences which were imposed on each of El-Assaad and Mawas. On this issue of parity, there is a difference of opinion in the Court. What follows in pars [301]–[305] represents the view of the majority (Buddin & Hoeben JJ). The dissenting view of Hunt AJA follows at pars [306]–[311].

301 The judge explained his reasons for imposing the respective sentences in the following terms:

[105]

[101] To some extent his participation was less heinous than that of those who were prepared to discharge their weapons at Karam, although like a wheelman in an armed robbery, or the person who contracts another to kill on his behalf, he was integrally involved in the killing and he played an important role in sending the alert.

[102]

302 When the nature of the offences on El-Assaad’s record is examined, which the judge described (at [87] quoted in par [272] supra) as “not quite as serious as its length might at first suggest, largely revolving, as it does, around offences involving motor vehicles”, with the nature of the offences on the record of Mawas, which also largely revolves around motor vehicles, there is (with respect) nothing to justify the description of the former’s record as being “somewhat worse” than that of Mawas. On the other hand, the evidence of the progress of El-Assaad in custody, and of his commitment to changing his ways, weighs in his favour.

303 More importantly, we accept the primary submission of El-Assaad that the judge erred in concluding that his objective criminality was to be properly characterised as being “only marginally less serious” than that displayed by Mawas. True it is that he performed an integral role in the joint criminal enterprise to kill Karam by alerting the shooters of Karam’s imminent arrival in the downstairs area. Nevertheless, in the final analysis, El-Assaad did not participate in firing any of the fatal shots. Moreover, as the judge observed, “it cannot be said that the killing would not have occurred without his participation”.

304 For those reasons, we would uphold this ground of appeal and proceed to re-sentence El-Assaad so as to achieve what we perceive to be “due proportion” between the sentences: see Postiglione v The Queen (1997) 189 CLR 295 at 301-302. In re-sentencing El-Assaad we have had due regard to the various factors identified in s 3A of the Crimes (Sentencing Procedure) Act and to those matters in s 21A of the Act which relevantly bear on the present sentencing exercise. For the reasons given by the judge, we would decline to find “special circumstances”.

305 We would accordingly quash the sentence imposed on El-Assaad and in lieu thereof impose the following sentence: a non-parole period of 16 years and 6 months, to commence on 17 September 1999 and expiring on 16 March 2016, with a total term of imprisonment of 22 years to commence on 17 September 1999 and to expire on 16 September 2021. The applicant is eligible for release on parole on 16 March 2016.

306 The dissenting view of Hunt AJA is as follows: I agree with the majority that there is little relevant difference between the criminal records of Mawas and El-Assaad. However, and with respect, I do not agree that the evidence of the progress of El-Assaad in custody, and of his commitment to changing his ways, weighs in his favour, or at least to any significant extent. The fact that each of the two men has the same classification and the same designation — whereby each is, in the opinion of the Commissioner, either an extreme danger to other people or an extreme threat to good order and security (see pars [261], [289] supra) — tends to suggest that to whatever degree the conduct of El-Assaad differs from that of Mawas it is not a matter of much significance in the sentencing process.

307 As to the conclusion by the judge that the objective criminality of El-Assaad was “only marginally less serious” than that displayed by Mawas, it is important to have regard to the elaboration of the judge’s views on this issue during the submissions made on sentencing (at pp 42-43). In answer to the submission by counsel then appearing for El-Assaad that there was “a fairly clear distinction between Mr El-Assaad and the others on the objective facts”, the judge responded “It is not dissimilar to armed robbery, where everybody has their role to play”. The judge agreed that it “will be somewhat more serious to be the actual gunman, but I’m not sure there is a huge difference.” He said:

308 El-Assaad took part in the planning of the murder with the other appellants and Gea Gea from the beginning of the enterprise. Whereas Mawas initially doubted whether it was necessary to kill Karam, El-Assaad (so far as the evidence goes) expressed no such doubts. As such a doubt would be a matter in mitigation, he bore the onus of proof in relation to it. In all the circumstances of the case, the views expressed by the judge quoted in the last paragraph and his finding that El-Assaad’s objective criminality was only marginally less serious than that of Mawas were open to him on the evidence.

309 Whilst I would myself have reflected the difference between the respective degrees of criminality on the different parts of El-Assaad and Mawas with a slightly lower sentence than that imposed by the judge on El-Assaad, such a view does not demonstrate appealable error on the judge’s part. We are told frequently that there is no single, correct, sentence for the specific conduct involved in the particular case. That is why s 6(3) of the Criminal Appeal Act has been interpreted as requiring this Court to be satisfied “positively” that “some other sentence […] is warranted in law and should have been passed” before upholding an appeal against sentence: Regina v Simpson at [79]; Regina v Johnson [2005] NSWCCA 186 at [27]–[34].

310 It remains for me to deal with the first ground taken by El-Assaad, that the sentence was unduly harsh and severe. The submission in support of this ground was succinctly, but unhelpfully, expressed: “It is submitted that in all the circumstances the sentence was unduly harsh and severe”. I have taken the reference to “the circumstances” as being to the matters on which the other grounds were based. As I have already rejected each of those other grounds, I may be equally succinct. The sentence imposed was within the range for a crime correctly described by the judge as an assassination motivated by greed, carried out with considerable pre-meditation, and callous and cold-blooded in character. That description applies to El-Assaad as much as it does to the other appellants. The sentence he received was well deserved. I would reject this ground as well.

311 I am, with due respect to the majority, not persuaded that the judge erred, or that a less severe sentence was warranted in law and should have been passed, as required by s 6(3) of the Criminal Appeal Act. I would grant leave to appeal against the sentence, but dismiss the appeal.

Orders

312 The following orders are made:

1. The appeal against conviction by each of the appellants is dismissed.
2. The application by the appellant Kanaan to defer an application for leave to appeal against sentence is refused.
3. The application by the appellant Mawas for an extension of time within which to seek leave to appeal against sentence is granted, leave to appeal is granted but the appeal against sentence is dismissed.
4. The application by the appellant El-Assaad for leave to appeal against sentence is granted and (by majority) the appeal against his sentence is allowed. The sentence imposed in the Common Law Division is quashed, and in lieu thereof the appellant El-Assaad is sentenced to a non-parole period of 16 years and 6 months, to commence on 17 September 1999 and expiring on 16 March 2016, with a total term of imprisonment of 22 years to commence on 17 September 1999 and to expire on 16 September 2021. He is eligible for release on parole on 16 March 2016.

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13/04/2006 - Par [24] omission of repeated citation.Par [124] "Chan" for "Chai". - Paragraph(s) 24, 124

Citations

Kanaan v R [2006] NSWCCA 109

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R v White [2011] SASCFC 89

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R v Stewart [2001] NSWCCA 260

R v Kanaan [2005] NSWCCA 385

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CITATION:	Kanaan & Ors v Regina [2006] NSWCCA 109 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10–11 February 2005
JUDGMENT DATE:	13 April 2006
JUDGMENT OF:	Hunt AJA at [1]; Buddin J at [1]; Hoeben J at [1]
DECISION:	1. The appeal against conviction by each of the appellants is dismissed.; 2. The application by the appellant Kanaan to defer an application for leave to appeal against sentence is refused.; 3. The application by the appellant Mawas for an extension of time within which to seek leave to appeal against sentence is granted, leave to appeal is granted but the appeal against sentence is dismissed.; 4. The application by the appellant El-Assaad for leave to appeal against sentence is granted and (by majority) the appeal against his sentence is allowed. The sentence imposed in the Common Law Division is quashed, and in lieu thereof the appellant El-Assaad is sentenced to a non-parole period of 16 years and 6 months, to commence on 17 September 1999 and expiring on 16 March 2016, with a total term of imprisonment of 22 years to commence on 17 September 1999 and to expire on 16 September 2021. He is eligible for release on parole on 16 March 2016.
CATCHWORDS:	Assassination of head of criminal organisation by members of that organisation — joint criminal enterprise — Crown case relied principally on evidence of former member of organisation who might reasonably be supposed to have been criminally concerned in that enterprise — witness given undertaking by Attorney General that, provided the evidence he gave was the truth, his evidence would not be used against him. - Bases on which “accomplice” evidence may be unreliable — extent to which judge required to warn jury about matters not within their general experience and understanding — except in relation to identification evidence, judge required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury. - Direction that dangerous to convict on uncorroborated evidence of “accomplice” unnecessary but not prohibited — whether independent support for evidence of “accomplice” may be found in evidence of another “accomplice”. - Evidence of negative identification by Crown witness — no application by Crown prosecutor to cross-examine witness — Crown prosecutor asks jury to disbelieve her evidence — whether leave to cross-examine would have been given — whether accused lost opportunity to call evidence supporting negative identification made — nature of directions concerning negative identification.
LEGISLATION CITED:	Crimes (Administration of Sentences) Regulation 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Criminal Appeal Act 1912 Evidence Act 1995 Criminal Appeal Rules
CASES CITED:	Adam v The Queen (2001) 207 CLR 96 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 Archer v Richard Crookes Construction Pty Ltd (BC9705329), Court of Appeal, 22 October 1997 AG v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 AG v News Group Newspapers Ltd [1987] QB 1 Bromley v The Queen (1986) 161 CLR 315 Carr v The Queen (1988) 165 CLR 314 Conway v The Queen (2002) 209 CLR 203 Cullen v Ampol Petroleum Ltd (Court of Appeal, 20 October 1970, unreported) Davies v DPP [1954] AC 378 Demirok v The Queen (1977) 137 CLR 20 Dhanhoa v The Queen (2003) 217 CLR 1 Domican v The Queen (1992) 173 CLR 555 Duff v The Queen (1979) 28 ALR 663 Festa v The Queen (2001) 208 CLR 593 Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 Gallagher v The Queen (1986) 160 CLR 392 Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 Hajje v Regina [2006] NSWCCA 23 Hinch v AG (Vic) (1987) 164 CLR 15 Hinch v Attorney-General (Victoria) No 2 (1987) 164 CLR 14 House v The King (1936) 55 CLR 499 John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 Markem Corporation v Zipher Ltd [2005] EWCA Civ 267 Mickelberg v The Queen (1989) 167 CLR 259 Mohan v The Queen [1967] 2 AC 187 Mraz v The Queen (1955) 93 CLR 493 Mule v The Queen [2002] WASCA 101 Nudd v The Queen [2006] HCA 9 Osland v The Queen (1998) 197 CLR 316 Papakosmas v The Queen (1999) 196 CLR 297 Pollitt v The Queen (1992) 174 CLR 558 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Postiglione v The Queen (1997) 189 CLR 295 The Queen v Apostilides (1984) 154 CLR 563 The Queen v Glennon (1992) 173 CLR 592 Regina v Abusafiah (1991) 24 NSWLR 531 Regina v Adam (1999) 47 NSWLR 267 Regina v AEM & Ors [2002] NSWCCA 58 Regina v AGJ (BC9705789), CCA, 30 October 1997 Regina v Ayoub [2004] NSWCCA 209 Regina v Baartman [2000] NSWCCA 298 Regina v Ball (1960) 61 SR(NSW) 37 Regina v BD (1997) 94 A Crim R 131 Regina v Bell (BC9805451), CCA, 8 October 1998 Regina v Birks (1990) 19 NSWLR 677 Regina v Booth [1982] 2 NSWLR 847 Regina v Burrell [2004] NSWCCA 185 Regina v Bus (BC9501880), CCA, 5 November 1995 Regina v Chai (1992) 27 NSWLR 153 Regina v Chan (2002) 131 A Crim R 66 Regina v Checconi (1988) 34 A Crim R 160 Regina v Chen (2002) 130 A Crim R 300 Regina v Clark (2001) 123 A Crim R 506 Regina v Clarke (1997) 97 A Crim R 414 Regina v Clough (1992) 28 NSWLR 396 Regina v Coe [2002] NSWCCA 385 Regina v D'Arcy (2003) 140 A Crim R 303 Regina v Demiroz [2003] NSWCCA 146 Regina v Dudko (2002) 132 A Crim R 371 Regina v Fidow [2004] NSWCCA 172 Regina v Fowler (2003) 151 A Crim R 166 Regina v Fuge (2001) 123 A Crim R 310 Regina v GDP (1991) 53 A Crim R 112 Regina v George (1987) 29 A Crim R 380 Regina v Goodwin (1990) 51 A Crim R 328 Regina v Goonan (1993) 69 A Crim R 338 Regina v Gordon (1994) 71 A Crim R 459 Regina v Graham (1986) 28 A Crim R 259 Regina v Hamzy [2004] NSWCCA 243 Regina v Hawkins (1993) 67 A Crim R 64 Regina v Ignjatic (1993) 68 A Crim R 333 Regina v Johns (1999) 110 A Crim R 149 Regina v Johnson [2005] NSWCCA 186 Regina v Johnston (1998) 45 NSWLR 362 Regina v Kaddour (2005) 156 A Crim R 11 Regina v Kalajzich (1997) 94 A Crim R 41 Regina v Kalajzich, CCA, 2 November 1998 Regina v Kanaan [2005] NSWCCA 385 Regina v Kneebone (1999) 47 NSWLR 450 Regina v Le (2002) 54 NSWLR 474 Regina v Livingstone (2004) 150 A Crim R 117 Regina v LNT (2005) NSWCCA 307 Regina v Long (2002) 128 A Crim R 11 Regina v MA (2004) 145 A Crim R 434 Regina v Milat (BC9607720), Hunt CJ at CL, 23 April 1996 Regina v Milat (BC9800394), CCA, 26 February 1998 Regina v Munday (1984) 14 A Crim R 456 Regina v Ngo [2003] NSWCCA 82 Regina v Parkes (2003) 147 A Crim R 450 Regina v Penisini [2003] NSWSC 892 Regina v Pham (1991) 55 A Crim R 128 Regina v Phan (2001) 53 NSWLR 480 Regina v Pollitt (1990) 51 A Crim R 227 Regina v Puddick (1865) 4 Foster & Finlayson 497 [176 ER 662] Regina v Pye [2000] NSWCCA 544 Regina v Richards & Bijkerk (1999) 107 A Crim R 318 Regina v Robinson [1999] NSWCCA 186 Regina v Ronen [2004] NSWSC 1298 Regina v Rose (2002) 55 NSWLR 701 Regina v Salama [1999] NSWCCA 105 Regina v Sheikh (2004) 144 A Crim R 124 Regina v Simpson (2001) 53 NSWLR 704 Regina v Edward James Smith, CCA, 8 October 1982 Regina v Smith (BC0707089), CCA, 18 December 1997 Regina v Souleyman (1996) 40 NSWLR 712 Regina v Spencer [1987] 1 AC 128 Regina v Stewart (2001) 52 NSWLR 301 Regina v Storey (1978) 140 CLR 364 Regina v Sullivan [2003] NSWCCA 100 Regina v Tangye (1997) 92 A Crim R 545 Regina v Thursfield (1838) 8 Carrington & Payne 269 [173 ER 490] Regina v Vastag (Court of Criminal Appeal, unreported, 20 June 1997) Regina v Wilson (2005) 62 NSWLR 346 Regina v Yuill (1993) 69 A Crim R 450 Rex v Baskerville [1916] 2 KB 658 Richardson v The Queen (1974) 131 CLR 116 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Southern Area Health Service v Brown [2003] NSWCA 369 TKWJ v The Queen (2002) 212 CLR 124 Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226 Wilde v The Queen (1988) 164 CLR 365 “The Corroboration of Accomplices” [1973] Crim LR 264, Mr JD Heydon “The Duties and Responsibilities of Prosecuting Counsel” [1955] Crim LR 739
PARTIES:	Appellant (60265/03) – Michael Kanaan Appellant (60219/03) – Rabeeh Mawas Appellant (60367/03) – Wassim El-Assaad Respondent – Regina (NSW) (60265/03, 60219/03, 60367/03)
FILE NUMBER(S):	CCA 60265/03; 60219/03; 60367/03
COUNSEL:	Appellant (60265/03) – SJ Odgers SC, HK Dhanji Appellant (60219/03) – TA Game SC Appellant (60367/03) – MC Ramage QC Respondent (60265/03, 60219/03, 60367/03) – PE Barrett, JA Girdham
SOLICITORS:	Appellant (60265/03) – Michael Croke & Co Appellant (60219/03) – Jeffreys & Associates Appellant (60367/03) – Nicopoulos & Associates Respondent (60265/03, 60219/03, 60367/03) – Director of Public Prosecutions
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70045/00; 70208/00; 70209/00
LOWER COURT JUDICIAL OFFICER:	Wood CJ at CL