Majok v The Queen

[2015] NSWCCA 160

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Majok v R [2015] NSWCCA 160
Hearing dates:	20 April 2015
Decision date:	19 June 2015
Before:	Hoeben CJ at CL at [1]; Hall J at [2]; R A Hulme J at [3]
Decision:	1. Time to file Notice of Application for Leave to Appeal extended to 19 January 2015. 2. Leave to appeal against conviction refused.
Catchwords:	CRIMINAL LAW – appeal against conviction - function and duty of trial judge in summing up to jury – contention that trial judge expressed agreement with matters favourable to Crown and continuously undermined defence arguments causing unfair trial and miscarriage of justice – need to consider in context of entire summing up - single complaint raised at trial on point lacking merit – other complaints raised for first time on appeal – leave to appeal refused
Cases Cited:	Domican v The Queen [1992] HCA 13; 173 CLR 555 R v Heuston (1995) 81 A Crim R 387 R v Meher [2004] NSWCCA 355 R v Sukkar [2005] NSWCCA 54 R v Zorad (1990) 19 NSWLR 91 Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 RPS v The Queen [2000] HCA 3; 199 CLR 620
Category:	Principal judgment
Parties:	Kachuol Majok (Applicant) Regina (Respondent)
Representation:	Counsel: Mr P Lange (Applicant) Mr K McKay (Crown)   Solicitors: Hanna Legal Solicitor for Public Prosecutions
File Number(s):	2009/243170
Decision under appeal	Court or tribunal: District Court Date of Decision: 28 March 2013 Before: Bennett SC DCJ File Number(s): 2009/243170

Judgment

1. HOEBEN CJ at CL: I agree with R A Hulme J.

2. HALL J: I agree with R A Hulme J

3. R A HULME J: Kachuol Majok ("the applicant") was found guilty by a jury in September 2012 of offences of assault occasioning actual bodily harm in company and causing grievous bodily harm with intent to do so. He was sentenced in March 2013 by his Honour Judge Bennett SC to an overall term of 9 years 6 months with a non-parole period of 5 years.

4. The applicant filed a notice of application for leave to appeal on 19 January 2015 and seeks an extension of time for such filing as a notice of intention to appeal expired on 28 April 2014. The Crown argued that an extension of time should be refused having regard to the principle of finality and that the proposed appeal lacks merit. The delay is largely explained by regrettable actions and inactions of lawyers rather than fault on the part of the applicant himself. An extension of time should be allowed.

5. There is one proposed ground of appeal: "His Honour erred in his summing up resulting in a miscarriage of justice". There is no appeal against sentence.

The Crown case

6. The Crown case was that in the early hours of 31 October 2009 at Blacktown the applicant and two other men, all of Sudanese heritage, assaulted Michael Skordis and caused him bodily harm. In a separate incident a short time later, elsewhere but still in Blacktown, the applicant and his two companions assaulted Matthew Nagy intending to cause him grievous bodily harm. He sustained a significant brain injury. The two alleged co-offenders were Fadllaseed Tombe (who was tried together with the applicant and also found guilty) and Godwill Zakria (who was tried separately and also found guilty).

7. There was no issue in the trial that Messrs Skordis and Nagy were assaulted and sustained the degree of harm that the Crown alleged. The sole issue was whether the applicant, Tombe and Zakria were the assailants.

8. The evidence in the trial concerned three events.

The preliminary event - an altercation at the railway station

9. The first event occurred at around 12.50am when there was an altercation at Blacktown railway station between a group of Sudanese men and a group of Caucasian men and women. Police attended the scene and ordered most of the people to disperse. Tombe claimed to have been assaulted. He and the applicant went with a police officer (Leading Senior Constable Martin) to the nearby police station so that statements could be taken. However, whilst they waited in the foyer it could be seen that a group of Caucasian males outside were walking away. Tombe said to LSC Martin, "forget about it" and he and the applicant left. It was the Crown case that they were aggrieved and resented the earlier actions of the Caucasian males.

10. Yasmine Eastlake was in Parramatta with her then boyfriend, Godwill Zakria. She received a phone call from the applicant in the early hours of the morning in which he told her that he had been involved in an incident in which he had been attacked by "some white men". She and Zakria drove to Blacktown. She met the applicant and Tombe at the police station but they only remained a short time before the four left in her car.

The second event - an assault upon Michael Skordis

11. Michael Skordis, who was in the company of a number of the Caucasian men involved in the earlier incident, was walking home with some of his companions after having been told by the police to disperse. When he was at the intersection of Kildare and Walters Roads he was attacked by a number of Sudanese men armed with what he thought were baseball bats. There was no dispute that he sustained actual bodily harm. There was inconsistency between the prosecution's witnesses as to how many Sudanese men were involved and inconsistencies with what the witnesses had said on past occasions on this subject. However, the Crown case was that there were three assailants.

12. Ms Eastlake's evidence was that she drove the applicant, Tombe and Zakria away from the police station. She followed directions given to her by one or the other of the passengers. She was directed to drive down Kildare Road and turn into Walters Road and stop. The three men then got out of the car but she remained. She said she heard the applicant slamming the boot of her car closed. When the men returned there were others chasing them. When they got back into the car they said, "drive, drive, drive", so she drove off down Walters Road away from Kildare Road.

13. An important aspect of the evidence for the Crown was that witnesses described Mr Skordis' assailants running to a car and leaving the scene. One of the witnesses recorded the complete registration number of the car and another recalled a portion of it. There was no dispute that this identified Ms Eastlake's car. The defence case was that it was not the assailants who ran to the car but men (the accused and Zakria) who had been mere bystanders.

The third event - an assault upon Matthew Nagy

14. Andrea Gorton, the girlfriend of Matthew Nagy, gave evidence that they had been with the Caucasian group at the incident at the railway station. When everyone dispersed they were given a lift by the mother of one of their companions to a point where they were dropped off and they proceeded to walk down Walters Road to Mr Nagy's home.

15. The Crown contended that as Ms Eastlake was driving down Walters Road, the occupants would have seen Mr Nagy and Ms Gorton and that Ms Eastlake was then directed to drive into side streets and stop so that the men could alight and come out from St Pauls Way to the footpath on Walters Road to carry out a further assault.

16. Ms Gorton's evidence was that as they walked down Walters Road and came to St Pauls Way she saw the headlights of a car shining towards them from St Pauls Way. Three Sudanese men armed with what she thought were baseball bats and a "trolley pole" approached. One of the men menaced her with a bat in a fashion which she took to be a warning that she should stay back. The three men proceeded to strike Mr Nagy at least 20 times with the implements. He quickly dropped to the ground.

17. An important piece of evidence for the defence case was that Ms Gorton knew Mr Tombe from school and had recognised him at the railway station. However, her evidence was that she did not recognise any of Mr Nagy's three assailants.

18. Ms Eastlake denied that the men had weapons when they got back into her car after the earlier stop in Walters Road and denied that the boot was accessed then or when she stopped the second time. The Crown cross-examined her about this and put to her that these aspects of her evidence were untruthful.

19. The police investigation did not recover anything that might have been a weapon used in the assaults.

20. In relation to Ms Eastlake's car, the applicant's and Mr Tombe's fingerprints were found but the Crown accepted that this did not amount to anything of significance because they had been passengers in the car on previous occasions. No blood was found. Swabs were taken but did not reveal any DNA relevant to the alleged offenders or victims.

A circumstantial case

21. The submissions for the applicant accurately identified the following facts comprising the Crown's circumstantial case that he, Tombe and Zakria were the assailants:

"(a)   Both assaults were committed in close proximity by Sudanese men with weapons

(b)   The Appellant (195cm to 205cm tall: T530) and his co-accused (Tombe 190 - 195cm tall; Zakria 175 - 185cm tall: T530), in a very broad sense, have an appearance that is consistent with the description of the offenders in each crime (tall, slender, Sudanese)

(c)   The Appellant and Tombe had a motive to assault both complainants because of the earlier altercation at the Blacktown Railway Station. (Andrea Gorton heard one of Nagy's attackers say "Why are you messing with our brothers" (T79).)

(d)   The persons that assaulted Skordis were seen to immediately enter Eastlake's car and drive off

(e)   Eastlake confirmed that the Appellant, Tombe and Zakria were the men in her car and that they momentarily exited her car near where the assault on Skordis occurred

(f)   Eastlake confirmed that she drove the Appellant, Tombe and Zakria to an area close to where the second assault occurred and that the men once again momentarily left the vehicle."

22. On the Crown case, the only rational inference available from this collection of circumstances was that it was the applicant, Tombe and Zakria who committed the two attacks.

23. Neither the applicant nor Tombe gave evidence or called witnesses. Their cases were identical. They were present at the altercation at the railway station and attended the police station shortly thereafter. They then left the area, with Zakria, in Eastlake's car and were driven to the vicinity of where Mr Skordis was assaulted. They alighted from the car at that point but were not involved in the assault. They were then driven to the vicinity of where Mr Nagy was assaulted where they again alighted but they were not involved in that assault either. There were other Sudanese males around who must have been responsible for the assaults.

General submissions

24. Counsel for the applicant submitted that the summing up by the trial judge caused a miscarriage of justice because of the manner in which his Honour conveyed the competing arguments to the jury. The judge expressed agreement with some matters favourable to the Crown and continuously undermined arguments made on behalf of the applicant. It was submitted that this was done with such force as to deprive the applicant of a fair trial. A number of "examples" were cited in the written submissions which will be discussed in turn below.

25. The Crown's submissions were to the effect that each of the matters identified in the applicant's submissions had been put to the jury by counsel in the course of the trial and were properly left to the jury in the trial judge's summing up. It was submitted that on no occasion did the trial judge express a view as to what aspects of the evidence should be accepted by the jury.

Principles relating to a fair and balanced summing up

26. The overarching principle is that "the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury": Domican v The Queen [1992] HCA 13; 173 CLR 555 at 560-561.

27. In Robinson v R [2006] NSWCCA 192; 162 A Crim R 88, Johnson J stated (at [140]) the following as to the need for impartiality and balance in a summing up:

"[T]he judge's role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn at 682. The fundamental task of a trial judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at paragraph 76. Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case - first, it is inconsistent with judicial impartiality and secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at paragraphs 87-93."

28. As to the ability of a judge to express a view about the facts, in R v Zorad (1990) 19 NSWLR 91, the Court stated (at 106-7):

"A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he [or she] makes it clear that it is the jury's function (and not his [or hers]) to decide the facts and that it is their duty to disregard the view which he [or she] has expressed (or which he [or she] may appear to hold) if it does not agree with their own independent assessment of the facts." (Citations omitted)

29. In RPS v The Queen [2000] HCA 3; 199 CLR 620 it was stated by Gaudron ACJ, Gummow, Kirby and Hayne JJ at [42]:

"… it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel".

30. As to a judge going beyond the arguments that were presented by the Crown, Wood CJ at CL said in R v Meher [2004] NSWCCA 355:

"[87] Finally, it may be observed that trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. It is one thing to bring to the attention of a jury an alternative lesser count, that is fairly open on the evidence, or an available defence, even though it was not mentioned by the Crown Prosecutor and defence counsel, in their closing addresses, for example manslaughter in a case where the accused was indicted on a count for murder. It is quite another thing for a judge to advance an argument, on behalf of the Crown in support of the Prosecution case, which the judge considers was available, but was either overlooked, or not used by the Prosecution.

[88] There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Prosecution case. First it is inconsistent with judicial impartiality. Secondly, to do so denies the Prosecution and the defence the opportunity either to disavow, or to meet the argument.

[89] The observations of this Court in a joint judgment (Spigelman CJ, Wood CJ at CL, and Kirby J) in R v RTB [2002] NSWCCA 104 are apposite:

'[55] In the present case, both of the issues that have arisen were of a character that could have been put by the Crown as a suggestion to the jury. In neither case was there any necessity for the trial judge to say anything to the jury. There was no suggestion of any unfairness to the Crown in the way the case was conducted. Nor was there any other reason for the trial judge to put an argument not advanced by counsel. (see e.g. R v Heuston (1995) 81 A Crim R 387 at 393).

…

[59] In each of the two respects of which complaint is now made, the intervention of the trial judge urged upon the jury a particular mode of thought. His Honour suggested that there could have been an explanation for the deficiency in the complainant's evidence, of a character which was not of itself based on any evidence but which, to a legal mind, would appear to be in each case a logical possibility. Juries are not required to think like that.

[60] The fact that each of these 'possibilities' was put to the jury by the trial judge, rather than by the Crown, may have directed that the jury's collective mind in assessing credibility in a particular way. Specifically, the thrust of the trial judge's directions, on each of the two occasions, was that, notwithstanding the appearance of inconsistency in each of the two respects, there was a possible explanation. Such matters of speculation, whilst perhaps appropriate for counsel, should not receive the added weight of the intervention of the judicial officer. In each respect the jury could have understood the trial judge to be suggesting that, because there may have been an explanation as a matter of logic, they should not take these matters into account in determining the credibility of the complainant.

[61] In the event, in our opinion, the directions to the jury were, in a critical respect, lacking in the appropriate balance.'

[90] The permissible area within which a trial judge may draw to the jury's attention an argument that was not put by Counsel, was conveniently noted by Hunt CJ at CL in R v Heuston (1995) 81 A Crim R 387 at 393:

'Sometimes, of course, a judge is obliged - even in what might be described as the ordinary case to draw the attention of the jury to an argument which has not been put by counsel, if it is necessary to do so in order to ensure that the jury has sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Some such occasions are obvious - where, for example, the principal "defence" is one of alibi, yet there is clear evidence of intoxication which would be relevant to specific intention in the event that the alibi fails. Everyone realises that, from a tactical point of view, if counsel were to address upon such an issue of intoxication it would weaken the strength of his client's case on alibi, and trial judges should usually discuss the need to give directions as to such matters with counsel (in the absence of the jury) before the summing up commences. Other such occasions are not always so obvious, and - again, stated in very general terms in relation to the ordinary case - there will be no miscarriage of justice if arguments which may have been available on the evidence are not put by the judge in the summing up if they had not already been put by counsel. Sometimes, indeed, it may produce positive mischief if the judge raises arguments which could have been but which were not put or requested by counsel.'

[91] Additionally, occasion might arise for the judge to draw attention to some matter which had not been dealt with by the Crown, where that is necessary to restore a balance to the trial, and where the Crown Prosecutor had no reason to foresee it, or any opportunity to deal with it.

[92] As Blanch CJ also said in R v Malone:

'In this case it is clear that the remarks complained of were made by the trial judge in the context of criticisms made of the Crown case not foreshadowed during the course of the trial and not anticipated by the Crown Prosecutor in his address. This Court has drawn attention before to the fact that judges may find it necessary to become involved in forensic argument insofar as it is necessary to deal with matters raised by defence counsel who make the last address to the jury - see for example R v O"Donoghue (1988) 34 A. Crim. R. 397, R v William Booth, (C.C.A. (N.S.W.) unreported 29 September, 1993 and R v Gluscheski (1987) 33 A. Crim. R. 193.'"

31. It is important to bear in mind as well that "in order to determine whether a summing up is unfairly balanced, it is necessary for it to be considered in its entirety and in the context of the issues and the evidence led in the trial": R v Sukkar [2005] NSWCCA 54 at [90] (Wood CJ at CL).

First example - in the context of directing that the Crown does not need to prove the truth of each and every statement of every witness

32. At an early stage of his summing up, in the context of directing the jury about their role in determining the facts and after having given a relatively elaborate direction that the facts were for the jury alone to determine with the judge having no role to play, his Honour directed the jury concerning the Crown bearing the onus of proof. He then moved to say that this did not mean that the Crown had to prove "the truth of each and every statement made by each and every Crown witness" and he foreshadowed that he would be telling the jury about the essential elements of the charges.

33. His Honour told the jury that witnesses to the same event who were doing their best to be truthful and accurate "might for various reasons not all give the same evidence in all respects". He then elaborated by speaking about the issue concerning Ms Gorton's recognition of Mr Tombe at the railway station but not at the time of the assault upon Mr Nagy at Walters Road and St Pauls Way:

1.   "It might be expected that witnesses to the same incident will each perceive it differently because of the position they were in at the time, the position of lighting that might have assisted the field of vision of some of them and not others, the level of stress they were experiencing, or their intoxication. Some might have a more or less accurate memory of the event compared with others as time passes. You might expect that they would remember core features of the events or those that were more significant or important to them, discarding or at least not remembering accurately peripheral matters of little consequence.

2.   It is important that you appreciate those matters because a matter of some significance upon which the accused rely in this case is that Ms Gorton went to school with Fadllaseed Tombe, one of the accused, and that she saw him at the railway station. Now, you have the benefit of the video recording of the events on the cab rank outside the railway station and you can gain some appreciation of the lighting that was there installed at the time. It is not the best material upon which to assess lighting but you can see that there is more than one light installed at that location, at least at the time.

3.   Now, in contrast to that, you will see in exhibit B, the photographs, that the lighting is far more limited, and the very first photograph to which you were taken by counsel shows the police car or police van immediately adjacent to a telegraph pole with a single streetlight to the left of St Pauls Way.

4.   St Pauls Way is where it is said the attack occurred upon Mr Nagy; and further into the exhibit you will see photographs depicting the stains on the footpath which are in an alignment with the brick wall to the north side of St Pauls Way if we accept that St Pauls Way generally runs east and west, those stains being suggested to be bloodstains, the inference available being that the blood was issued from Mr Nagy after he was attacked.

5.   Now, again as a matter of common sense and experience of life, if this was an illuminated area with lots of ambient lighting the opportunity to identify somebody is going to be much improved. But where you have a single streetlight, which might be behind the individuals that are being observed, the capacity to see features of those individuals must be compromised. And you will recall there was some cross-examination of Senior Constable Cook about the lighting, including the streetlight and passing traffic lights and how it might impact upon night vision where one's night vision might reach a certain level, but be compromised by lighting upon which one might come or which might come upon someone as they are in the location.

6.   I express no view one way or the other; I simply bring to your attention these matters to be brought to account in the course of your deliberations when assessing the submissions made as to why Ms Gorton may or may not have been in a position to say whether one of the three assailants was Fadllaseed Tombe at the time Mr Nagy was attacked."

(In this extract and those below, the italicisation and underlining indicate emphasis, and further emphasis, in the applicant's written submissions. Paragraph numbering has been added for ease of reference.)

34. That passage was immediately followed by his Honour mentioning the difference between Mr Skordis' evidence in the trial with what an ambulance paramedic said that he told her. (After Mr Skordis was delivered to hospital she completed her paperwork which included writing that "he was allegedly assaulted by a large group of offenders wielding baseball bats". She did not have an independent recollection of it; said that it was not verbatim; but agreed he must have said something to that effect.)

7.   "Some witnesses might have a greater or lesser ability to communicate what they remember of the event they are describing. As I explained to you earlier in the trial it is not unusual for people called to give evidence to have been asked to make a statement to police and later, perhaps on more than one occasion, to be called to describe events in a courtroom. Thus you have an event and then a police officer asks questions upon which a statement is prepared in narrative form and which the witness is asked to sign. And then subsequently the witness is asked to give evidence in court.

8.   The witness may or may not have an imperfect memory of the event by the time they come to court and will sometimes be reminded of what they said on earlier occasions. You saw that occur in the course of cross examination here in this trial.

9.   One of the matters brought to your attention was the fact that Mr Skordis is attributed with certain facts by the ambulance officer who recorded a field record of what the event was after she had delivered him to the hospital and whilst she was in her vehicle waiting to depart or go to her next job, I suppose. Counsel made submissions to you about that and you will give those submissions such weight, as you deem appropriate. But do not overlook the fact that what is recorded by that ambulance officer was not a verbatim record of what was said by Mr Skordis. It is what I would refer to as a derivative statement or a conclusion of what she understood Mr Skordis to have said to her in narrative form and in brief form.

10.   So I hope what I have said to you explains why the law does not require the Crown to prove the truth and accuracy of every representation made by every witness called to give evidence in the trial. It would be an impossible task for the Crown to do so. As I have said, what the Crown must prove are the essential elements, which combine to make up the offence in each case and upon which I will instruct you later in this summing-up."

Submissions

35. What the judge said about the lighting at St Pauls Way and Walters Road and Ms Gorton not recognising Mr Tombe ([2]-[6] of the extract) was submitted to have been unnecessary in the context of explaining the direction about the Crown not having to prove every statement of every witness. It was submitted that this undermined a key feature of the defence case; indeed the very first submission counsel had made in his closing address to the jury. Counsel in this Court characterised what his Honour said as the expression of "scepticism or caution about the significance that could be attached to Gorton's omission" that was highly disadvantageous to the applicant.

36. In relation to what the judge said about the evidence of the ambulance paramedic ([9] of the extract), it was submitted that it was important to the defence case that there were more than three African men present at the scene when Mr Skordis was assaulted. The trial judge undermined the applicant's case in this respect by having "urged the jury to be cautious before accepting Skordis may have said the words attributed to him by the ambulance officer".

37. Counsel for the Crown submitted that in relation to Ms Gorton not identifying Mr Tombe at St Pauls Way, the judge was simply pointing out to the jury that in assessing a witness they should take into account the circumstances as established on the evidence. In this case, that included evidence as to the nature of the attack and the lighting. Counsel for both accused had cross-examined Senior Constable Cook who had examined the crime scene where Mr Nagy had been assaulted. Counsel for the applicant obtained his agreement that when he arrived at the scene it was "very dark" and that "there was limited street lighting". Counsel referred to the concept of a person acquiring "night vision" but obtained the officer's agreement that "it was very dark so with the limited lighting of that street light and the cars that occasionally go past you lose your night vision as well".

Closing address arguments to the jury

38. In relation to Ms Gorton's evidence that she was not able to recognise any of the men at the scene of the attack on Mr Nagy, the Crown asked that the jury consider all of the circumstances in which she found herself: it was a dark night, there was limited lighting in the street, it was a surprise attack by people of a similar physical appearance who were carrying weapons. It was a situation that was highly traumatic for Ms Gorton. In such circumstances, the Crown submitted that Ms Gorton's ability to identify any of the people present at the attack would have been highly impaired.

39. The defence case was that it was highly significant that Ms Gorton was unable to recognise any of the men present at the assault on Mr Nagy given that she went to school with Mr Tombe and had identified him as being present earlier that evening. Mr Bogan (counsel for the applicant) pointed to Ms Gorton's evidence that she had looked at the men, they were not covering their faces and yet she was unable to identify any of them.

40. In relation to the ambulance paramedic's evidence, counsel for the applicant submitted that evidence that there were a number of men present when Mr Skordis was assaulted was highly relevant. Emphasis was placed upon the words used by the ambulance paramedic in the patient health care record which was completed soon after the paramedic had spoken to Mr Skordis. She recorded that Mr Skordis told her that "a large group" of Sudanese men attacked Mr Skordis. The jury was asked to accept this evidence because Mr Skordis "couldn't have any reason to exaggerate after the event to the ambulance officer".

Consideration

41. It was not contended that anything the trial judge said was inaccurate or was not based upon the evidence (and this was confirmed by counsel for the applicant in the course of oral argument in this Court). It was clearly relevant for the jury to assess the issue about Ms Gorton not identifying Mr Tombe at St Pauls Way by considering all of the relevant circumstances established by the evidence placed before them by the parties.

42. Later in the summing up his Honour reminded the jury of various submissions which had been made by the prosecutor and defence counsel in their closing addresses concerning Ms Gorton’s non-identification of Tombe. His Honour did not go beyond any argument advanced in the Crown's closing address and, arguably, in summarising the Crown's submissions his Honour was rather cursory. In any event, what he said was balanced by reminding the jury of some of the submissions of counsel for the applicant. There is no suggestion that he said anything to undermine those submissions.

43. There is nothing in the complaint about what the judge said concerning the evidence of what Mr Skordis said to the ambulance paramedic. There was nothing inaccurate about it. His Honour was highlighting for the jury the care which must be taken when assessing evidence of what a person said out of court when there is not a verbatim record. His Honour did not express a view about the evidence of Mr Skordis. It cannot be said that his Honour undermined the defence submissions in these remarks. It should also be noted that later, when summarising the content of closing addresses, his Honour reminded the jury of arguments that had been made concerning conflicts between the evidence of Mr Skordis and witnesses to his assault and prior statements that they had made (see [19] in the extract below]). There is no complaint about what his Honour said on this topic at that point.

44. There is nothing in this "first example" that supports the applicant's contention that there was a miscarriage of justice.

Second example - in the context of summarising the competing submissions

45. In the submissions for the applicant the "second example" was said to concern the manner in which the judge reviewed the submissions of counsel. When dealing with the Crown's address he explained each of the facts and circumstances of the Crown's circumstantial case without any major qualification to them. Sometimes he prefaced mention of these matters (appropriately in the applicant's submissions) with phrases such as "the Crown asks you to accept" or "the Crown submits that". It was contended, however, to be significant that the judge concluded this summary by saying:

11.   "In this way the Crown relies upon circumstantial evidence, the most significant of which it would appear to me, ladies and gentlemen, is that there are the assailants on Skordis, they go to the vehicle, the vehicle is recorded. Ms Eastlake confirms it is her vehicle, she confirms that the accused were two of the three passengers in the vehicle with Zakria and she then drove them to a point proximate to where the attack occurred on Mr Nagy."

46. The emphasised words were submitted by the applicant to have had the effect of conveying to the jury that the trial judge recognised the persuasive force of those strands of the Crown's circumstantial case. They were unnecessary words but were disadvantageous to the applicant. Moreover, there was no particular defence submission that was identified by the judge has holding such special significance.

Closing address arguments to the jury

47. The Crown emphasised that the most important aspect of its circumstantial case was the evidence of people moving to and from Ms Eastlake's vehicle at the relevant times. This was made clear to the jury: "the important point, as I said, is the linkage between the people who attacked Michael Skordis with weapons and that vehicle …".

Consideration

48. The contention that the judge was conveying that he recognised the persuasive force of the Crown's submission must rejected. It ignores the terms of the Crown closing address. The Crown Prosecutor had made it plain that the matter that the judge mentioned in the passage in question was the lynch pin of the case identifying the accused as the assailants of both Mr Skordis and Mr Nagy. I am not persuaded that the jury would have interpreted what the judge said as a personal opinion as to the merit of the Crown's submission; it was simply an observation that this was the main point ("the most significant point") relied upon by the Crown.

No fingerprints found on boot of Ms Eastlake's car and no blood or DNA inside it

49. The next complaint concerns the following passage which appears in the course of his Honour's review of the defence submissions:

12.   "He [counsel for the applicant] then asked rhetorically where could the weapons have come from for use by the accused and Mr Zakria if they were the assailants in each case. There was no one who saw them with weapons at all if they were not the persons responsible for these attacks. Indeed, he said no one sees them with weapons at all before these events. He reminded you that Yasmine Eastlake's evidence regarding the slamming of the boot was qualified. There was no fingerprint evidence or evidence of any fingerprint impression left near to the boot notwithstanding that they found fingerprint impressions elsewhere on the vehicle.

13.   There was no evidence before you to explain how that might or might not have occurred or whether the vehicle was out in the elements that might have impacted upon such evidence but it is the fact that there was no fingerprint evidence harvested from that point.

14.   It was said that there was no evidence of Matthew Nagy's blood found in the car. Well, that is so; there was no evidence of any tissue with a DNA profile matching any of the accused or either one of the complainants.

15.   There was some DNA material that was too small a quantity to be able to reveal a DNA profile so that evidence really is neither here nor there. I would invite you to put that entirely to one side as not being of any assistance to you at all.

16.   It was said to you that you would expect there to be blood transferred from the scene of the attack on Mr Nagy into the vehicle by use of the weapons if these accused were participants in this event. Ladies and gentlemen, much would depend upon that. Much would depend upon whether or not the weapons had picked up any of Mr Nagy's blood bearing in mind that he has it appears one laceration to his skull consistent with one blow to the skull out of the twenty.

17.   And there could be any number of explanations for there to be no transference of any blood tissue from the attack into the vehicle. You would not speculate in the circumstances where the evidence is, you might think, entirely silent upon that point. It was perhaps suggesting matters at a too high a level to say that you would expect there to be a transference of blood in light of the dearth of evidence upon that point.

…

18.   I do not propose to go into the evidence of those witnesses in detail. Counsel for the accused and the Crown for that matter have done so urging you to the view that you, first of all on the Crown side, you would accept their evidence with regard to core matters as reliable and trustworthy. And Mr Stitz [counsel for Tombe] and Mr Bogan, of course, reminded you of the burden of proof being with the Crown to the standard beyond reasonable doubt upon which I have already directed you.

19.   Mr Stitz took you to exhibit A and through the courses of travel that were available by looking at that street map. He reminded you of the risk of resulting impairment from alcohol that the witnesses might have suffered. And again he took you to the triple-0 calls and reasons why they might be unreliable. And both counsel reminded you that evidence given in this trial stood in contrast to some aspects to what these witnesses had said on earlier occasions, when they were taken back to other occasions when they gave evidence, and also the content of their statements.

20.   Counsel took you to pages and read you the evidence. I do not propose to go through the same exercise.

21.   A point the Crown made which I believe you should not overlook is that these events were not static; they were an evolving sequence and these witnesses were all not in the same location. You should bear in mind that they are describing what they claim to have seen as those events were unfolding. They might not have all been looking at the same thing at the same time." (Emphasis in applicant's submissions)

50. It was submitted that this "continuous adding of qualifications to the defence submissions discredited the defence case" and that "the contrast between the two summaries demonstrates a lack of balance.

51. The Crown submitted that far from undermining the defence submission that there was no evidence of Mr Nagy's blood in the car, the trial judge confirmed that that submission was in accordance with the evidence. However, with respect to the submission that the jury might "expect there to be blood transferred" the trial judge appropriately, in the Crown's submission, directed the jury not to speculate in light of the absence of evidence as to the likelihood of transference.

Closing address arguments to the jury

52. The Crown acknowledged that there was no DNA evidence linking either accused to the crime scene, but asked the jury not to draw any adverse inferences from that fact. The prosecutor reminded the jury that in relation to Mr Nagy's head injury and the resultant bleeding, "a lot of it is internal bleeding, not external bleeding". He also reminded the jury that for most of the attack Mr Nagy was lying on the ground; that explained blood staining on the ground and would make less likely that blood would have been directed towards the assailants. As a result, it was very possible that no blood was transferred onto the assailants or their weapons and then transferred to Ms Eastlake's car.

52. Counsel for the applicant submitted that in circumstances where Mr Nagy was "hit at least 20 times" and was "bleeding heavily" "… you would expect to find some evidence of blood after the car is subjected to extensive forensic testing". It was also suggested that "there must have been blood on those weapons that were used to assault Mr Nagy".

53. When that submission was challenged by the Crown (in the absence of the jury), Mr Bogan maintained that it was open to the jury to find that, given the nature of the attack, "there must have been blood all over those weapons". The trial judge indicated his disagreement with that submission and said he would remind the jury of the evidence relevant to it.

54. The Crown submitted that it was Ms Eastlake's evidence that she heard the boot slam when the three men got out of her car in Walters Road. The Crown contended that this meant that "clearly that boot was opened by somebody … by Mr Majok". The jury was asked to accept Ms Eastlake's evidence that the three men went to the boot, which "can indicate nothing but that they wanted to get something out of the boot".

55. Counsel for the applicant pointed out (correctly) that Ms Eastlake's evidence regarding the slamming of the boot was not definitive: "She doesn't say she knows it happened, she doesn't say that it did happen. All she says is she thinks so in response to a question as to whether it happened … we don't know whether maybe it's simply that she heard car doors slamming and assumed that the boot has slammed as well". Mr Bogan highlighted that while fingerprints were located on Ms Eastlake's car, there were no fingerprints on the boot.

Consideration

57. At the conclusion of the summing up, counsel for the applicant raised four matters that he considered required correction. The first concerned what turned out to be counsel's misunderstanding of what the judge had said about the Crown case being that there were three assailants. No correction was required. The second matter concerned there being nothing conclusive in terms of DNA found on Zakria's clothing. The judge felt he had adequately dealt with this and did not consider it should be given prominence by revisiting it. The third matter concerned his Honour's comments about speculation on the subject of blood transference onto weapons. The judge declined to say anything more to the jury because there was no evidence on the subject. The fourth matter concerned the judge having referred to the lighting in relation to Ms Gorton's non-recognition of Mr Tombe at the scene of the attack upon Mr Nagy. The judge responded to the effect that what he had said was just commonsense.

58. The comment made by the judge about there being no explanation in relation to the (lack of) fingerprints issue ([13] in the extract) was not a submission that had been made by the prosecutor. There was no complaint made to the trial judge about the comment. With the benefit of hindsight, it might have suggested to the jury that the lack of any fingerprints near the boot of the car (from where the Crown suggested that weapons were obtained) did not detract from the Crown case. The true position was that it did not support the Crown case. But the fact that counsel did not perceive anything detrimental to the defence case, in the context of him having raised other complaints, suggests that the matter did not have the significance it is now suggested to have.

59. The matter given emphasis by the applicant in [14] of the extract has no significance. It was an entirely neutral matter and what the judge said was an endorsement of a defence submission.

60. The matter highlighted by the applicant in [16]-[17] of the extract was the subject of complaint at the trial. But the judge was correct to point out that it was a matter of speculation whether transference might or could be expected. Counsel for the applicant had been quite excessive in his address to the jury on this topic. For example, he said that Mr Nagy "was bleeding heavily and there must have been blood on those weapons"; "we know that there was a lot of blood that was produced"; "he's hit at least 20 times and there's all this blood"; and "those weapons would have had a lot of blood on them". The evidence simply did not support such submissions. Mr Nagy sustained only the one wound and the blood stains seen in the area where he fell was relatively meagre (see Exhibit B). In these circumstances, it was necessary for something to be said to the jury to correct the wrong impression conveyed on behalf of the applicant and to avoid the jury engaging in speculation.

61. The matter highlighted by the applicant in the final paragraph of the extract was a valid reminder of a significant matter for the jury to take into account.

Conclusion

62. I am not persuaded that any of the specific matters identified in the submissions for the applicant looked at in isolation or in combination, and in the context of the entirety of the summing up, support the contention that the summing up was productive of a miscarriage of justice.

63. Rule 4 applies in respect of most of the points sought to be raised. The only matter relied upon that was raised at trial concerned the comment made by the judge about the possibility of blood transference to the weapons used by the assailants and then to Ms Eastlake's car. That point arose from the lack of evidence and the excesses of counsel for the applicant's closing address to the jury. It had no merit. The other points that were sought to be raised for the first time in this Court lacked merit as well. For these reasons I favour a refusal of leave to appeal.

Orders

64. I propose the following orders:

1   Time to file Notice of Application for Leave to Appeal extended to 19 January 2015.

2   Leave to appeal against conviction refused.

**********

Decision last updated: 19 June 2015