Merza v The Queen - [2021] NSWCCA 269

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Merza v R [2021] NSWCCA 269
Hearing dates: 19 July 2021
Date of orders: 10 November 2021
Decision date: 10 November 2021
Before: Basten JA and Price J at [1];
Hamill J at [270]
Decision:
In matter 2016/281692:
1.   Grant the applicant an extension of time within which to seek leave to appeal against his convictions and aggregate sentence imposed on 15 May 2020.
2.   Grant the applicant leave to appeal against his convictions, but dismiss the appeal.
3.   Grant the applicant leave to appeal against sentence, but dismiss the appeal.
In matter 2017/49186:
1.   Grant the applicant an extension of time within which to seek leave to appeal against the aggregate sentence imposed on 15 February 2019.
2.   Grant the applicant leave to appeal against sentence, but dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – unreasonable verdict
CRIME – directions to jury – direction regarding use of phone call evidence – inference of consciousness of guilt – no further direction sought – chance of prejudice from not giving further direction remote
EVIDENCE – evidence of consciousness of guilt – alternative inference – burden of proof – intermediate facts – inference constituting link in chain on one offence and an essential element of another offence
SENTENCING – appeal against sentence – alleged failure by sentencing judge to make a finding of special circumstances – sentence partly accumulated on prior term – variation of statutory ratio – no finding of special circumstances – effect on earlier sentence not overlooked
SENTENCING – appeal against sentence – criminal record taken into account in assessing objective seriousness – error conceded – re-exercise of sentencing discretion – aggregate sentence unaffected

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A
Crimes Act 1990 (NSW), s 93T
Criminal Appeal Act 1912 (NSW), s 5
Evidence Act 1995 (NSW), ss 32, 38
Summary Offences Act 1988 (NSW), s 27DA

Cases Cited:
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
GP v R [2017] NSWCCA 200
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Huang v R [2019] NSWCCA 144
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lonsdale v R [2020] NSWCCA 267
Matthews v R [2014] NSWCCA 185
McKittrick v R [2014] NSWCCA 128
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R Close (1993) 31 NSWLR 743 at 748
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v GDR (1994) 35 NSWLR 376
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Simpson (1992) 61 A Crim R 58
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14
Vincent v R [2020] NSWCCA 271
Zreika v The Queen [2020] NSWCCA 345

Category: Principal judgment
Parties: Olevar Merza (Applicant)
Regina (Respondent)
Representation:
Counsel:
2016/281692:
Mr D Dalton SC (Applicant)
Ms M Millward (Respondent)

2017/49186:
Mr D Barrow (Applicant)
Ms M Millward (Respondent

Solicitors:
2016/281692:
Kiki Kyriacou Lawyers (Applicant
Solicitor for Public Prosecutions (Respondent)
2017/49186:
Sayad Sahinovic Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/281692; 2017/49186
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 189

Date of Decision:

15 May 2020; 15 February 2019

Before:

Colefax SC DCJ; O’Brien AM DCJ

File Number(s):

2016/281692; 2017/49186

Judgment

BASTEN JA and PRICE J: On 19 July 2021 the Court heard two separate matters involving the applicant Olevar Merza.^[1] The primary matter involved an appeal against his convictions on two charges in an indictment presented on 23 September 2019. That indictment contained three charges, the second being that, on 7 August 2016 at Fairfield, he did wound AA [a youth under 16 years of age] with intent to cause grievous bodily harm. (He was acquitted by the jury of the first charge, a more serious charge of wounding with intent to murder.) The indictment also contained a third charge, of doing an act intended to cause AA to give false evidence. He was convicted of the second and third charges.
1. The applicant’s first name is subject to different spellings: this is his spelling as appears in his ERISP.
The challenge to the convictions relied upon two grounds expressed as follows:

“(1) His Honour erred in failing to direct the jury that they could use the phone calls, the subject of count three, as demonstrating the applicant[’s] consciousness of guilt upon counts one and/or two, only if they found that he said those things in an attempt to bribe and/or coerce the complainant to change his evidence beyond reasonable doubt.
(2) The verdicts are unreasonable and not supported by the evidence.”

These grounds will be dealt with in that order below. The first ground was a challenge to the conviction on count 2, not count three.

The applicant also sought leave to challenge the sentence imposed by Judge Colefax on 15 May 2020, being an aggregate term of 12 years imprisonment with a non-parole period of 9 years, commencing on 26 September 2019. The sole ground of the proposed appeal against sentence was that the judge failed to make a finding of “special circumstances” pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) in circumstances where the aggregate sentence was to be served consecutively upon a prior term of imprisonment.
The second proceeding before the Court was an application for leave to appeal with respect to an earlier sentence. That application related to an aggregate sentence imposed on the applicant on 15 February 2019 for charges of (i) supply a prohibited drug (cannabis); (ii) direct a criminal group; and (iii) deal with proceeds of crime. The sentence imposed was one of 4 years 6 months with a 3 year non-parole period. The sole ground of the proposed appeal was that the sentencing judge erred “when he considered that the objective seriousness of the applicant[’s] offending was aggravated by reason of his prior criminal history.” The sentence commenced on 15 February 2017, the non-parole period therefore expired on 14 February 2020, but after the commencement of the later sentence referred to above.
It appeared that each of the applications for leave to appeal was lodged out of time. Counsel for the Director did not oppose extensions of time and the applicant should be granted those extensions.

Conviction appeal

Both grounds of appeal against conviction require leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). As will be explained below, there is sufficient substance in each to justify a grant of leave.
It is convenient to deal with the grounds separately. For the purposes of ground 1, a brief outline of the circumstances of the offending will suffice.

Ground 1: jury direction – telephone calls

There was no dispute that AA was the victim of a concerted attack on the evening of 7 August 2016 in the course of which he was stabbed nine times. The issue at trial was whether it was proved beyond reasonable doubt that the present applicant was a party to the attack and wounding.
At about 11pm on the evening of 7 August 2016, the victim, then 14 years of age, whilst in the company of two other young persons, was accosted at Fairfield railway station (“the railway station”) by three men dressed in black. One of those men was the applicant. Something said in the course of the confrontation led the victim to run down the platform and jump onto the train tracks. He then jumped a fence, and ran around the railway station, through an underpass, up Fairlight Avenue to the intersection with Wilga Street, across Wilga Street, and into a block of units in which a friend, Ahmad Chlab, lived. As the victim ran across Wilga Street he saw a BMW driving down Wilga Street from the direction of the railway station. The BMW stopped at the intersection with Fairlight Avenue as the victim fled up the stairs to his friend’s unit. He said he was under the stairs when he was stabbed by one of the three men dressed in black. The prosecution case was that the applicant was one of the men; it was not necessary to determine who stabbed AA as the case was run on the basis that all three were party to a joint criminal enterprise.
The extent of the evidence in support of that case will be considered below; the only aspect of the evidence relevant in relation to ground 1 concerned a number of intercepted telephone calls made by the applicant whilst in custody.
There were transcripts of several telephone calls in evidence, commencing with calls made on 28 September 2016. The early calls reveal the applicant seeking to have a person who would not be known to the victim approach the victim and talk to him “nicely, very nicely”.^[2] By 5 October 2016 the applicant was agreeing that he could be offered money.^[3]
2. Phone intercept transcript, 28/09/2016, p 5.
3. Phone intercept transcript, 5/10/2016, p 4.
On 15 October 2016 the applicant told his brother:

“Find that one of fourteen years to come to court and to say it wasn’t us, bra.
…
You mustn’t show your face, okay?
Pardon?
You mustn’t show your face.
…
He goes to court and say wasn’t us that’s it.
…
To go to court says; those boys weren’t the ones who did it that’s it.”

In a telephone call on 22 November 2016 to an associate, Martin Hana, who was one of the men at the railway station, the applicant appeared to be saying that the police were saying it was Hana. The applicant continued:

“Applicant: Well you know, I don’t know, I don’t know we are in this sitch; You know?
…
But we can get out; there are two options.

…
To give fifty thousand for LC.

…
Or we give, um, but we have to reach the other one to tell him what to say.

Hana: So for LC to say was him, that’s it?
…
Applicant: If he says was me; those boys had nothing to do with it, they didn’t know was me who done it; they did not know what happen; and we say; we didn’t know what happen that’s it.”

On 22 November 2016 the applicant had a further conversation with Mr Hana about “LC”.^[4]
4. It was not clear if “LC” were initials, or a name misunderstood on transcription.

“Applicant:   Can we message for that LC; if he says this and that we will give him fifty thousand man.
Hana:       Yeah all good, I got visit today let us see what will happen.
Applicant:    Let him go and talk to the lawyer; will give him 50,000 and we’ll fix up his court fees on the basis that you and I be released.
…
He must say ‘he was in your Corolla.’

…
If he says ‘he was in your Corolla, he’s eighteen and the other one fourteen; he will take a Year and Half man; for an eighteen year old for first time, man he will take a year and half and go home; but for us going to be eleven years you know.”

There was a similar conversation with one Antonio Hermiz on 23 November 2016.

In his evidence at trial, the applicant claimed that he wanted someone to tell AA either not to come to court or to come to court and tell the truth, which was that he (the applicant) was not present at the unit that night. With respect to “LC”, he said that the money was a means to entice him to tell the truth and take the blame for what he had done. “LC” was one of the men in the BMW outside the unit. (Although the trial transcript refers to him as “Elzie”, it is apparent from the questioning that they are the same person.^[5])
5. Tcpt, 8 October 2019, p 520(40).

Direction to jury

The direction given by the trial judge was not the subject of complaint; the complaint was the failure to give a further direction. Nevertheless, it is necessary to understand precisely what direction was given in order to determine whether it was inadequate.
Relevantly, the judge’s summing up was as follows:^[6]

“I turn now to the third count on the indictment. This will require you to consider the terms of those phone calls. The Crown's case to you is that Oliver Merza knew he was involved in that stabbing. He was in custody, bail refused, and he wanted to use intermediaries to persuade [AA] to withdraw his identification evidence because he, Mr Merza, knew how fatal that identification would likely be to him – or at least that is what he thought the effect of the identification evidence was – and, therefore, he made these calls to bribe, to threaten, to persuade [AA] to change his evidence.
The Crown also relies on those phone calls, not only to support count 3, but also to support counts 1 and 2. The Crown says that those phone calls show a consciousness of guilt on the part of [AA] [sic, Merza] in relation to the stabbing charges. Mr Hughes [counsel for the accused] has said to you that Mr Merza felt unjustly accused; that faced with the consequences of a very serious allegation, he took desperate measures.
It would be worthwhile looking at those phone calls carefully to see whether what is going on there is a man reaching out to cohorts to interfere with a witness in relation to a charge which he knows he has committed; or whether it is a man desperate at being incarcerated trying to establish his innocence.”
6. Summing up, 17 October 2019, pp 31-32.

The jury was sent out shortly after those directions were given. The prosecutor raised an issue in relation to the last of the three paragraphs set out above, that it might have been understood as imposing an onus on the accused to establish the alternative inference as to the reason for the calls. The judge accepted that that passage needed correction. He asked Mr Hughes (counsel for the accused) if he sought to raise anything to which the reply was, “No, that was the one I was thinking about.”
The jury returned and the judge gave a direction in relation to an unrelated matter and proceeded:^[7]

“The second matter I need to correct is this: that in relation to count 3 I said that there were two alternative approaches, one being a man seeking to reach out to cohorts to influence a witness, the second alternative being an innocent man taking acts to establish his innocen[ce]. Now, they are not alternatives in that sense. The Crown has to prove beyond reasonable doubt the first: that is – that the purpose of the phone calls was to influence a witness to tell untruthful evidence. That is what has to be proved beyond reasonable doubt. Mr Hughes has said there is an alternative available, that is, there was an innocent man seeking to establish his innocence. If you think there is a reasonable possibility that that is so, you would acquit. It is not a question of either/or. The Crown must prove its version beyond reasonable doubt. If you reject entirely the contention by Mr Hughes, you could convict. If you accepted what Mr Hughes has said is the fact or if you thought there was a reasonable possibility that Mr Hughes' contention was correct, you would acquit.”

7. Summing up, p 36.

Ground 1 – further direction

On appeal, it was submitted that the judge’s direction as to the need to be satisfied as to the elements of count 3 beyond reasonable doubt should have extended to the reliance by the prosecution on the telephone calls as demonstrating consciousness of guilt on the part of the applicant, namely that the interpretation relied on by the prosecutor be established beyond reasonable doubt before they could be used in support of counts 1 or 2.
No such direction was sought at the trial, and there may well have been a reason for that. As counsel for the Director noted in this Court, the need to establish an intermediate fact beyond reasonable doubt is limited to the situation where the particular piece of evidence constitutes the only evidence to support an essential element of an offence; using a metaphor, it must be a link in a chain, rather than a strand in a cable, as explained by Dawson J in Shepherd v The Queen.^[8] Evidence demonstrating consciousness of guilt is but one example of evidence of an intermediate fact which is governed by that principle. Thus, in Edwards v The Queen,^[9] Deane, Dawson and Gaudron JJ stated:

“Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof.”
8. (1990) 170 CLR 573 at 579 citing Wigmore on Evidence; [1990] HCA 56.
9. (1993) 178 CLR 193 at 210; [1993] HCA 63.

Applying that principle, counsel at the trial may well have concluded that the direction now sought was not only unnecessary but inappropriate and potentially unhelpful to the applicant’s case.
When that response was raised by counsel for the Director in written submissions in this Court, it drew a change in position of the applicant’s counsel, Mr Dalton SC (who did not appear at the trial). He submitted that not all consciousness of guilt evidence must be proved beyond reasonable doubt but should be so proved “when that conduct is the subject of a separate count on the same indictment with the principal offence.” He submitted that it would be “inappropriate for there to be a lesser standard of proof to be applied to this conduct when considering the principal offence before considering [the same conduct] with respect to the separate count.”
In support of that proposition counsel relied upon an unreported decision of the District Court in a judge-alone trial which involved both a substantive offence and a subsequent offence (count 5) of doing an act with intent to pervert the course of justice (disposing of evidence). The passages in the judgment relied upon as needed to be proved beyond reasonable doubt were to be found in the reasoning dealing with that offence. When dealing with the principal offences, the judge noted that the prosecution relied on the conduct constituting count 5 as showing consciousness of guilt on the part of the accused. It may be inferred that the offence of perverting the course of justice was only relied upon in that way; it does not establish that this was the only way it could have been relied upon.
More importantly, and as a matter of principle, the submission must be rejected. Where there are two or more counts on an indictment, it will commonly be the case that evidence which goes to establish one count may also be relevant to another. What needed to be established in each case beyond reasonable doubt are the essential elements of each charge. A finding of guilt with respect to one is merely a finding that each element of that charge has been established beyond reasonable doubt. To rely upon a “finding of guilt” is merely a shorthand way of saying that elements of another charge have also been established by such a finding.
The point may be illustrated by reversing the argument in the present case. Thus, if the jury were satisfied beyond reasonable doubt that the applicant had indeed carried out, or been party to an agreement to carry out, the wounding, it could not rationally have accepted the case for the accused, namely that the telephone calls were the desperate attempts of an innocent man, falsely accused, to establish his innocence. Similarly, if the jury accepted that the applicant was seeking to have the victim give false evidence as to his (Merza’s) role in the wounding, it is likely that they would accept that he was party to the principal offence.

However, these are merely illustrations of the principle: each element of each offence must be established beyond reasonable doubt; evidence which is relevant to more than one offence but is not the only evidence of an essential element of the principal offence, can be taken into account by the jury with respect to the principal offence even if not established on its own beyond reasonable doubt.
Further, consciousness of guilt of the principal offence is not necessarily an element of the offence of perverting the course of justice. The proposed false evidence may relate to the acts of a co-offender or someone who is not a co-offender but who is sought to be implicated. Accordingly, the proposed principle would need to be stated in terms more nuanced than those suggested by counsel for the applicant.
Finally, it would seem that the argument turns entirely upon a fear of confusion leading to prejudice. Thus, if the jury were told that they could rely upon the telephone calls as evidence of guilt of the principal offence without being satisfied beyond reasonable doubt that they demonstrated consciousness of guilt, there might be a tendency to convict of the perversion of justice offence without being satisfied of its elements beyond reasonable doubt. But that is quite a different concern, and one which did not arise in the present case. There may be cases involving a danger of circular reasoning where, for abundant caution, the jury should be directed in the manner urged by the applicant in this appeal. However, that is not this case because of the re-direction given at the suggestion of the Prosecutor. In fact, the jury were not told that they could use the evidence of consciousness of guilt without being satisfied beyond reasonable doubt as to the necessary inference. On the other hand, they were expressly told that to convict on count 3 they had to be satisfied beyond reasonable doubt of the elements of that count. The likelihood of prejudice in this case was remote. Indeed, having obtained a clear direction with respect to the burden of proof in relation to count 3, it is understandable that no further direction was sought, or should have been sought. The direction presently proposed could only have created the confusion and potential for prejudice which it sought to avoid.
Ground 1 must be rejected.

Ground 2 – Verdicts unreasonable and not supported by the evidence

The applicant’s submissions

Although Ground 2 refers to “verdicts”, the applicant’s complaint of an unreasonable verdict was confined to the wounding with intent to cause grievous bodily harm. The focus of the applicant’s submission was on the victim’s identification of the applicant’s presence when he was being stabbed. The applicant contended that the photographic identification process was flawed and in any event, the victim’s evidence was contradicted by Mr Chlab.
The applicant submitted that despite any advantages enjoyed by the jury, “the compounding improbabilities caused by the unchallenged evidence from the identification procedure, the account of the events by Mr Chlab, Mr Hadani, the 000 call and the CCTV evidence required the jury, acting rationally, to have entertained a reasonable doubt as to the Applicant’s guilt upon count two”.^[10]
10. Applicant’s Speaking Notes, par 3.
The applicant referred to the victim’s evidence of his face being covered during the offence, to his claim of being able to identify the applicant after the stabbing when he was outside the unit block with a piece of wood given to him by Mr Chlab and when a knife was thrown at him.
The applicant submitted that this evidence was specifically contradicted by Mr Chlab who said that when he first came out of his front door, the victim was lying on the ground injured until he helped him into his unit. Further reference was made to Mr Chlab’s evidence that he didn’t see the victim come outside the unit and he never gave the victim a piece of wood.
The applicant emphasised that not only did Mr Chlab not see the victim come outside, his unchallenged evidence was that the victim was lying on the ground right behind him when he was outside with the wood.
The applicant pointed to the victim’s denial of speaking to the 000 operator when in fact his voice can be heard on the taped calls. The applicant contended this was perhaps indicative of the victim’s confused state of mind as a result of his injuries.
The applicant submitted the BMW had left the scene at the time the identification was purportedly made outside the unit block and it was highly unlikely the driver of the BMW left without the applicant as it was the applicant’s car. This was supported, the applicant contended, by no witness giving evidence of anyone running to the BMW before that vehicle left the scene and the report that persons of interest were seen running towards the railway station.
In further submissions, the applicant referred to Mr Chlab’s description of the person who threw the knife at him as the tallest of the three men. It was also the prosecution case that he was the only one who had a scarf. The applicant referred to Mr Chlab’s evidence that the man whom he saw who had a scarf covering his face was behind him. He was not the man who threw the knife. The applicant’s senior counsel in oral submissions said, “In other words, there’s another person there that was wearing a scarf, contradictory to the submissions…made by the Crown…that it had to be the applicant”.^[11] It was argued that if the applicant was there and was the tallest man, someone else had a scarf covering his face.
11. Tcpt, 19 July 2021, p 11(43)-(45).
The applicant argued, in any event, if any of these men were wearing a scarf on their face, “then as the [victim] said in the ID procedure when he first answers questions about the selection of the applicant’s photo, to the effect that he was not able to identify if he was at the unit because he had his face covered”.^[12] The applicant referred to Mr Chlab’s evidence that it was too dark to identify the men’s faces and there was not even one light on. Accordingly, he was not asked to attempt an ID procedure.
12. Applicant’s Speaking Notes, par 8.
The applicant submitted that Mr Chlab’s evidence about the victim standing and then falling down should be understood as happening when he first saw the victim when he came out of the door of his flat. The applicant argued that this explained Mr Chlab’s unchallenged evidence that the victim was lying on the ground inside the entrance way behind him when he was outside with the wood. Further, Mr Chlab could easily have said to Mr Hadani in the victim’s presence in the unit that night that one of them had thrown a knife.
The applicant referred to both the victim and Mr Chlab describing the assailants as wearing black clothing. The applicant pointed to the CCTV footage from the railway station which showed the applicant wearing a black top with a significant white Puma logo on the front (Exhibit Q), a long white pull cord on his track pants, a white top seen between his track top and pants, and white sand shoes.
In response to the prosecutor’s argument that a significant matter was the victim’s evidence “about seeing the men get out of the BMW in Fairlight [S]treet”^[13] as he was sprinting ahead to the unit complex looking over his shoulder, the applicant argued that this evidence was prone to error in the circumstances. The applicant submitted that “it [was] available that [the victim] knew [the applicant] was likely to be the front passenger from when the BMW arrived at the [railway] station and he has just assumed he was one of his attackers”.^[14]
13. Applicant’s Speaking Notes, par 14.
14. Applicant’s Speaking Notes, par 14.
The applicant referred to the evidence of the victim telling police in his interview on 17 August 2016 “multiple times” that five people had stabbed him being “three from the BMW and two from the red [C]amry which despite the interview being played he denied”.^[15]
15. Applicant’s Speaking Notes, par 15.
The applicant submitted that Mr Hadani’s unchallenged evidence was that he walked outside during the 000 call and saw eight men there; one who he thought was Roni Pottress who had a knife. The applicant argued that the BMW was seen in the CCTV footage to have left the area minutes before that time and upon Mr Hadani’s evidence there was a significant possibility that persons involved in the attack were still outside the premises after the applicant had left the area.
As to the identification at Fairfield Police Station (“the police station”), the applicant placed emphasis on what was said by the victim when he selected photo number nine (the applicant’s photo) in the second set. When he was asked by the police officer, “Where did you see that person?” He replied with words to the effect, “At the station, and at the unit, no, he covered his face. I seen him at the station.” The applicant contended that everything the victim said thereafter should be interpreted in light of those initial comments. The applicant’s submission was that it is most likely the victim has assumed the applicant was at the unit because he was with Martin Hanna at the railway station; he appeared to be the boss; he was the front seat passenger in the BMW which the victim saw when the applicant got out of the vehicle at the railway station; and he saw someone with his face covered at the unit.

The Director’s submissions

The Director submitted that the victim’s evidence was not contradicted by Mr Chlab, arguing that while Mr Chlab initially said that when he first saw the victim, he had fallen down just inside the blue doors of the unit complex, he later said that when he first saw the victim he was standing, and that he fell down after he was bleeding. While Mr Chlab agreed that he did not see the victim walk out of the blue doors, the Director contended that it was plain Mr Chlab’s attention was focussed forwards in the direction of the three men and not behind him on what, if anything, the victim was doing.
As the victim described having seen the knife thrown (which was supported by Mr Chlab) the victim must have been in a position to see it, as otherwise he would not have known that this event occurred. Mr Chlab gave evidence that he had never spoken to the victim about what he recalled seeing that evening and the throwing of a knife was not mentioned in the 000 call. In reply to the applicant’s argument that there could have been a discussion between Mr Chlab and Mr Hadani in the presence of the victim that evening, the Director said there was no evidence about that at all.
While the victim initially said he took the piece of wood off Mr Chlab, the Director pointed out that he later accepted he may have been mistaken about that detail. The Crown contended that even if the applicant was mistaken, it was well open to the jury to conclude that such a mistake did not undermine the reliability of his identification.
As to the identification procedure, the full recording of which was played to the jury (Exhibit N), the Director submitted it was plain that the victim undertook the task with the seriousness it deserved and in a considered manner.
The Director contended that proof beyond reasonable doubt did not depend “solely, or even exclusively or in large part, on the identification made by the victim”.^[16]
16. Tcpt, 19 July 2021, p 15(33)-(35).
Another significant matter the Director submitted supported the victim’s identification of the applicant was his evidence that as he was running, he saw the black BMW come up Wilga Street, turn right into Fairlight Avenue and stop quickly at the corner. The Director referred to the applicant’s identification during the computer identification procedure of the applicant as the person in the front passenger seat of the BMW being corroborated by other evidence and being demonstrative of the reliability of his recollection, notwithstanding the seriousness of his injuries.
The Director submitted that it was not in dispute that, just before the stabbing, the applicant was in the front passenger seat of the BMW when it pulled up directly outside the unit complex where the attack took place. The Director referred to the short distance from the railway station to the unit complex (Exhibit 2) and the police officer’s evidence that the distance was 205 metres.^[17] The Director submitted that it was not in dispute that the applicant had come from the railway station where there had been an altercation between the victim and the group which was led, on the prosecution case, by the applicant. Further reference was made to Mr Pottress’ evidence of being told to smash the victim.
17. Tcpt, 2 October 2019, p 336(35).
The Director contended the applicant’s evidence that he merely wished Mr Pottress to stop the victim was inconsistent not only with Mr Pottress’ evidence but with the way the applicant was seen to behave on the CCTV footage. It was the prosecution case that having asked Mr Pottress to chase after the victim, the applicant left the railway station in the BMW and went immediately to the scene. All of these matters, the Director submitted, supported the victim’s identification of the applicant.
As to the applicant’s submission that the BMW had left the scene when the purported identification was made, the Director referred to there being no dispute that the BMW was seen on Dale Street (an extension of Wilga Street) at 11:10:49pm and had earlier been seen to leave the railway station, turn right into Wilga Street and drive in the direction of the unit complex at 11:08:35pm. The Director contended that the victim’s evidence was consistent with the attack having occurred quickly and it was a matter of common sense that those responsible departed quickly. The Director argued that even if the applicant was in the BMW as it passed the railway station at 11:10:49pm, the timing of events was not inconsistent with the applicant’s involvement.
The Director submitted that it was of no moment that no witness saw anyone run to the BMW before leaving the scene. The Director referred to the evidence of the victim and Mr Chlab that they could not see the street from where they were near the blue doors. Photographs of the area (Exhibits A and AD), the Crown said, supported the conclusion that the intersection of Wilga Street and Fairlight Avenue was not visible from that location.
Another matter that was said to support the identification of the applicant was the CCTV footage from the railway station that showed the applicant wearing a black scarf with tassels found at Marker A at the unit complex. The Director referred to Mr Chlab’s evidence that one of the three males had been using the item as a mask.
The Director submitted that the evidence of motive for the stabbing (the altercation at McDonald’s) and the close relationship between the applicant and Mr Hanna was another factor that supported the identification of the applicant.
For the purpose of considering ground 2, it is necessary to consider the evidence in some detail.

The applicant’s trial

The applicant’s trial before a jury lasted 19 days from 23 September 2019 to 17 October 2019. After deliberating for four and a half hours, the jury returned a verdict of not guilty to the first count and verdicts of guilty to the second and third counts.

Prosecution case at trial

The prosecution case was that the applicant was one of three persons present in the stairwell of a Wilga Street unit complex when the victim was stabbed nine times between 11:08:39pm and 11:12:02pm on 7 August 2016. Each of those persons was a party to a joint criminal enterprise to stab the victim intending to kill him or cause him grievous bodily harm. The prosecution contended the stabbing was motivated by an altercation that occurred involving the victim, Mr Hanna and others at Fairfield McDonald’s on 5 August 2016. During the altercation the victim punched Mr Hanna causing him to sustain a black eye. The victim gave evidence that he did so in self-defence.
It was not in dispute that the altercation occurred and that Mr Hanna was a close friend of the applicant.
The paragraphs that follow set out in summary form evidence adduced in the trial. The Court has not summarised all of the evidence but has considered all of the evidence in determining the grounds of appeal.

A summary of the victim’s evidence

On 5 August 2016, the victim was at McDonald’s with his friends, DM and DA. While waiting in the drive-through to order food, a red Camry with a driver and one passenger stopped next to the car the victim and his friends were in. The red Camry “started up” and one of the people in the car said to the victim, “what are you looking at you dog”. DM replied to the person by saying words to the effect of “relax”.^[18]
18. Tcpt, 23 September 2019, p 13(11)-(30).
The victim and his friends parked their car to eat. The men in the red Camry also parked and waved to the victim to come their way. The victim obliged by walking over to their car. The men got out of their car, ran towards the victim and a fight started. The victim punched the driver of the red Camry and got into a scuffle with the passenger during the physical altercation.
The victim gave evidence that on 7 August 2016, he was at Fairfield with his friends, DA, Ajaz and Junior. He later agreed that his friend TL was also present. While he was on the police station side across the road from the railway station, the victim noticed a red Camry driving around with people he had seen at McDonald’s. The occupants of the red Camry told him to go down to the bridge. The victim believed that they wanted to fight him, so he did not go.
The red Camry then left the station and a BMW arrived with three people in it. The three people approached the victim and his friends who were standing near the elevator on platform 2 of the railway station. The victim and his friends jumped on the train tracks when they saw one of them was holding a knife.
The men spoke to the victim’s friend, Junior. They asked Junior what nationality he was and he said “Samoan”. They told him to stay on the side as “they don’t want him”. They then asked the victim’s other friend what his nationality was and he said “Afghani”. Finally, they asked the victim, and he said, “Iraqi”. They said “No, you” and tried to “rush” him, which the victim explained as trying to hit him. The victim jumped back on the train tracks.^[19]
19. Tcpt, 23 September 2019, p 6(5)-(6).
The victim ran a few metres, jumped a fence to the other side of the railway station onto the police station side, and ran around the police station to a tunnel or alleyway under the tracks. He began walking to his friend, Mohammad Chlab’s, house. He could not recall which street it was on.
The victim gave evidence that as he was running, he saw the BMW. The victim said the occupants of the car saw him running, parked the car and got out. He saw the men in the front passenger seat and in the back seat get out of the BMW and start chasing him. The driver then stopped the car and the victim, looking back, saw the driver running with them as well.
The victim reached his friend’s unit door and discovered it was locked. The unit was just inside the complex and to the right, and up three stairs. The victim was shown eight photographs of premises at Wilga Street. He identified them as photos of the area where Mr Chlab’s unit was.
The next thing the victim remembered was being stabbed in the back. He said the group of men caught up to him, dragged him down three steps and then under the stairs. He said he saw who stabbed him in the back, but he could not remember where they had been sitting in the car. All three of the men that got out of the BMW were involved in the altercation with him. They stabbed him and punched him in the face. The victim used his forearms to cover his face.

Mr Chlab came out of his unit with a big stick and hit one of the men and they ran away. Mr Chlab and the victim began to chase the men. The victim said, “We started chasing them…when I got stabbed…I didn’t fall like on the ground. So I was with him ‘cause like I just chased them as well,”^[20] indicating that they chased them to just in front of the blue door. The three men then came back again and one of them threw a knife at the victim. The victim and Mr Chlab went inside the unit.
20. Tcpt, 23 September 2019, p 11(7)-(10).
The victim said he had collapsed on the floor inside Mr Chlab’s unit and told his friend to call the police. The victim said he did not speak to the 000 operator. The only thing he recalled after that was an ambulance arriving and asking him which hospital he wanted to go to, Westmead or Liverpool. The victim chose to go to Liverpool Hospital for treatment. He remained for over a week in hospital.
The victim said that one of the two men who were originally in the red Camry at the railway station was one of the three men in the BMW and was also one of the men he saw at the unit when he was stabbed. The victim said that this was the man punched at McDonald’s, who was at the railway station on 7 August 2016, talking on the phone and sitting in the passenger seat of the red Camry as it drove around.
After he had been released from hospital, the victim was approached by a man he did not know while standing near a fruit shop at the railway station. The man asked him for a lighter. The man said to the victim words to the effect of, “we’ll give you money for just to drop, like drop the charge, like what happened that – for stabbing, like for when you were stabbed”.^[21] He was told that he would be given a new car, which he understood to be a 2015 model, and money, but he could not recall the amount offered. The victim told the man, “I’ll think about it”. He never saw that man again. He later attended the police station and informed Detective Senior Constable Alex Guy of the encounter. The victim agreed, having refreshed his memory from a statement he made on 16 November 2016, that the incident occurred on 14 October 2016 and that he told police that he had been offered $20,000 and a car.
21. Tcpt, 23 September 2019, p 18(46)-(47).
Portions of a transcript of intercepted telephone calls between the applicant and his associates in October 2016, which were played to the jury, are quoted at [12]-[14] above.
The victim gave evidence that he attended the police station on 6 September 2016 and participated in a photo identification (“ID”) parade. The jury watched a recording of a portion of the interview and ID parade. While giving evidence, the victim agreed that the second photograph he selected, photograph four, was the man that had been at McDonald’s, was in the red Camry, and was in the BMW. This person was Martin Hanna.
On the night of the stabbing, it was dark in the area that the incident occurred. Despite the dark, the victim said he was able to pick out two men in the ID parade. The victim was shown three sets of photos in the ID parade. From the second group of photos, the victim identified the photo of the applicant. From the third group of photos, the victim identified the photo of Mr Hanna. He said:

“A. The first one, the second one are big. The second one on the video. He was, he was at McDonald’s, driving through, the one driving the red Camry. I remember like, I remember him like, that’s, that’s the first, incident like that’s what happened, from there like. And the second one, from the station. I remember him from the station. That’s when they came, and he was like, he like, he was up to me, like. He’s like, “You’re here my brothers”, and like, ..(not transcribable).. like, “Kill my brothers,” start swearing.
Q. What do you remember him saying?
A. He said that he like, he hit ..(not transcribable).. he’s saying that I hit his brother, like he, like, he got the knife, pointing at me, saying that, “Hit my brother, you’re motherfuckers.”
Q. That’s the, in the video that we just watched?
A. Number 1, number 1, the big, number 1. The one, like, I still remember he got piercing on his, on his face.
Q. So that’s the first one that we saw you pick out?
A. First one.
Q. In that video we just watched?
A. Yes.
Q. Did you see that man at the unit block as well?
A. Yes
Q. At what point at the unit block do you remember seeing him?
A. I seen him, I seen him like, like, see photograph, photograph number, number 2. After they stabbed me, they, they, they came out. Like, my friend came out, and he hit one of them, and they run out. They went like, they run off. And then we chased them, like, in front of the, front of the blue door. That’s, that’s when I seen him in the light.”^[22]
22. Tcpt, 23 September 2019, pp 16(40)-17(21).

He was also shown 27 photographs of the railway station on 7 August 2016.
In cross-examination, the victim confirmed that the passenger originally in the red Camry at the railway station also sat in the back of the BMW. This was the same man that was the driver of the red Camry on 5 August 2016 and whom he punched at McDonald’s. Additionally, the passenger of the red Camry at McDonald’s became the driver of the red Camry at the railway station on 7 August 2016.
The victim agreed that it was dark under the stairwell but said it was “not really dark”.^[23] He agreed that because of the dark and covering his face, he could not see the three men under the stairs.
23. Tcpt, 24 September 2019, p 45(39).
The victim said that Roni Pottress was not there during the incident at the unit. He said that Mr Pottress chased him and he ran as fast as he could from the moment he started on the train tracks until he reached Mr Chlab’s front door. It was there that he was stopped by the three men. He agreed he did not see if Mr Pottress came to the door or the stairwell because it was dark.
The victim agreed that he was very stressed and very tired from running and being chased by Mr Pottress. He confirmed that he did not know he had been stabbed until after they had left, adding, “After I chased them, like, a little up front of the [blue] door, and then they chucked the knife at me they came back, I went back inside and that’s when he locked the door and I fell, like on the ground, on the rug, yeah”.^[24] He accepted that he did not see people stabbing him with a knife at any time under the stairs and he thought that he was just being hit.
24. Tcpt, 24 September 2019, p 48(29)-(32).
The victim gave evidence that the driver of the red Camry was the one that yelled out to him to come under the bridge. He later gave evidence that this was the same man who was in the passenger seat at McDonald’s on 5 August 2016. He did not accept that he told the police the passenger yelled out to him; he told the police the passenger was on the phone and the driver yelled to him. He understood the purpose of telling him to go under the bridge was to start a fight. The red Camry was the same one from McDonald’s. He agreed that at least one of the people in the red Camry on the night of 7 August 2016 was also one of the people he had a fight with at McDonald’s.
On 7 August 2016, he was walking around with his friends before arriving at the railway station to go to Cabramatta with his friends. He saw the red Camry on the police station side of the railway station when it drove past him and his friends as they were walking. The victim was not present, but agreed he knew that DA talked to the person in the red Camry before they arrived at the railway station. It was put to him that a telephone call was made by one of his group for the purpose of buying weed from one of the occupants of the red Camry. The victim said he did not know. It was put to him that he was asked in his police interview if he was at the railway station to buy cannabis and he responded, “Yeah, not me, the boys”. He accepted that he may have said that but stated, “but I wasn’t there, I was there, I say I was there, but I wasn’t there”.^[25]
25. Tcpt, 24 September 2019, pp 52(50)-53(1).
The victim said he was not aware that there had been an arrangement to buy weed on the night of the incident. It was put to him that he was aware that on 7 August 2016 the occupants of the red Camry were selling one stick of weed for $20. He said he did not know that and stated he was not there. It was put to him that after he saw the red Camry on Level 7 of the carpark at Fairfield Library, it began to drive laps around him and his friends, drove off, then came back, and that is when it occurred to him that they were following him. He accepted this and that this occurred before he went to the railway station.
He said he did not speak to the 000 operator on the night of the incident.
The victim agreed his evidence was that there were three people who assaulted and stabbed him in the stairwell. He agreed he had told police there were five people. He said there were three in the stairwell stabbing him under the stairs, while there were two outside on the road standing next to the red Camry. He agreed it would be wrong to say five people were stabbing him. He said he could not recall telling police that he was stabbed by five people; three from the BMW and two from the red Camry. He recalled seeing his friend, Mr Chlab, come out near the blue door with a large piece of wood which he swung at them. His evidence was that the three ran outside and two were on the road. The victim did not agree that he told police on multiple occasions in the interview conducted on 17 August 2016 that there were five people stabbing him.
He confirmed that the first time he saw the BMW was at the railway station in the carpark. After that, when he was running down Fairlight Avenue, he saw the BMW come up Wilga Street from the direction of the station and turn right into Fairlight Avenue where it stopped quickly on the corner. It was as he crossed Wilga Street that the men jumped out of the BMW and he looked around and saw three of the men chasing him. He was near his friend’s unit but far from the blue door entrance. He sprinted downhill to his friend’s unit, along a little garden path, and turned right into the stairwell.
He agreed that he said the three men reached him when he was at his friend’s door and they dragged him down the stairs and assaulted him at the spot he circled on photograph four. It was not outside.
He agreed that if he was standing outside his friend’s door at the blue entrance as depicted in photograph two, he would not be able to see the red Camry parked on Wilga Street as there was a building in front of the view. He agreed that when he was being stabbed in the stairwell, he could not explain where the two men who had been standing near the red Camry were as he could not see the street from that location.
He agreed he told the police the assailants chucked one knife at him only. He agreed he also told police the men who stopped him in the stairwell and front door area were all holding knives. He then agreed that he did not see anyone holding knives while under the stairwell and commented that it was dark. He said when he went outside the blue door, “that’s when I seen”.
He maintained that Mr Chlab came out of the flat with a piece of timber. He said that he took the piece of timber off Mr Chlab when he went through the blue door after he had been stabbed. He later accepted that he may have been mistaken about whether he took the piece of timber.
It was put to him that there were no knives at the railway station. The victim said that there were, but he had not mentioned this to the police. He said that if there had not been knives, he would not have jumped on the train tracks. He said three of the men were holding knives and said that one of them held the knife with his arm outstretched. The man said to him, “they’re my brothers, mother fuckers”.^[26] He could not recall what the other two were doing with their knives as it was three years ago, at the time of giving evidence.
26. Tcpt, 25 September 2019, p 91(30).
The victim agreed that the first photograph he had chosen during the ID parade was photograph nine (a photograph of the applicant). He agreed that he said the following to the police:

“This one. At the station, yeah, I seen his face at the station.”^[27]
27. Tcpt, 25 September 2019, p 97(16)-(18).

He then gave evidence:

“I picked him; you know why I picked number 9. I looked - I didn’t, like, - like I didn’t pick him at the first place. Like I looked, I looked at all the photos and then I came back to him. I was thinking and I said I don’t want to choose anyone of these photos, like someone wasn’t there, you know what I mean, so I was thinking, because I don’t want to choose someone that wasn’t there”.^[28]
28. Tcpt, 25 September 2019, p 97 (26)-(30).

The recording of the ID parade was played in the court and paused at different intervals for questioning. In the video, the victim said photographs three and four in the first group of photos shown to him, “50% looks like” the man sitting in the passenger seat during the McDonald’s incident.
The victim agreed that, during the video while viewing the second set of photos, he paused for 20 seconds to look at photograph nine. He continued to look at other photos and then returned to photograph nine. He looked at it for some time and then said, “this one … at the station, yeah, I seen his face at the station”.^[29] He agreed he then said, “when I went at the unit, no, he was - he is covered his face. I seen his face at the station, me, Junior, everyone.”^[30] It was suggested to the victim that he selected photograph nine because he recognised him as someone he had seen at the railway station. The victim responded, “Yeah, and then - and outside the unit, outside the blue, where the blue door.”^[31]
29. Tcpt, 1 October 2019, p 273(28)-(30).
30. Tcpt, 1 October 2019, p 273(32)-(34).
31. Tcpt, 1 October 2019, p 273(42)-(43).
When the police asked the victim what the person in photograph nine did, he responded, “Well, he’s the boss of them, first he was shouting, saying fucking this and that at the station”.^[32] The victim gave evidence that he also recognised this man from the unit. He agreed that up until this point in the ID parade, everything he had said about photograph nine involved recognition of the man from the railway station.
32. Tcpt, 1 October 2019, p 274(18)-(19).
The victim agreed that it was the police that introduced the question of whether he had seen the person in photograph nine at the Wilga Street unit. He agreed that he did not say he had seen him at Wilga Street before the officer introduced it, and said he did not know the name of the street. In response to further suggestion that it was only after the officer asked whether the person he had selected stabbed him that he answered yes, the victim said, “Yeah. But I remember his face. Like, I never forget his face…or my blood”.^[33]
33. Tcpt, 1 October 2019, p 276(46)-(49).
He agreed that his evidence was that it was dark in the stairwell and he could not see the faces of who was stabbing him, but he saw a man when he was standing outside the blue door swinging the piece of wood given to him by Mr Chlab.^[34]
34. Tcpt, 1 October 2019, p 277(28)-(41).
The victim was asked about another group of photos shown to him in the ID parade. He agreed that he looked at photograph four for some time and then pointed at it saying, “this guy, was that one there” while pointing at the photo from the previous selection. He said that what he was saying was “his brother”.^[35] He agreed he pointed at photograph four and said, “I was confused. That’s him”.^[36] He agreed he then pointed at photograph nine and said, “Not that one” and pointing at photograph four said, “this one … I swear, this one”.^[37] Photograph four was an image of Martin Hanna. Photograph nine was an image of the applicant.
35. Tcpt, 1 October 2019, p 278(39)-(41).
36. Tcpt, 1 October 2019, p 278(43)-(46).
37. Tcpt, 1 October 2019, pp 278(48)-279(5).
He was then asked by the police where he saw the person in photograph four and he responded:

“That’s the one who was wearing the white hat and hoodies and he was running after me. Then I jumped on the track, then he went back to Junior and he was talking to Junior. I went back and he asked me ‘what’s your background, what’s your nationality’. I said, ‘Iraqi’, he started chasing me, and I went back to jump on the track, yeah, this guy, 100% this guy.”^[38]
38. Tcpt, 1 October 2019, p 279(15)-(20).

He agreed that when asked by the police if he saw the person in photograph four when he was stabbed, he said, “yeah, this one when I went to the unit. He was after me, and the others were after him. He was the first guy, yeah, 100%.”^[39] He agreed that in the video he pointed at photograph nine and said, “no, no, he wasn’t there, not this guy. I seen on Fairfield”, and then “it was this guy” pointing at photograph four.^[40] The victim referred to the person in photograph nine as being the brother of the person in photograph four because this person said to them at the station, “you’re hurting my brother, you motherfuckers”.^[41] The victim gave evidence that the man in photograph four was the same man driving the red Camry at McDonald’s and who the victim punched on that night. The victim gave evidence that the man in photograph nine was the front seat passenger in the red Camry and was in the BMW at the railway station. He said the man in photograph nine was not at McDonald’s.
39. Tcpt, 1 October 2019, p 279(25)-(29).
40. Tcpt, 1 October 2019, p 280(26)-(30).
41. Tcpt, 1 October 2019, p 280(34)-(39).
It was put to him that he remembered the man in photograph nine from the railway station and the BMW because there was light in those areas. The victim said, “Yes, and I see it in, after I got stabbed, and, like, walked out of the blue door, and I seen, that’s why I said that’s true.”^[42] It was put to him that he may have confused the man he saw at the railway station and in the BMW with someone he saw later; the victim responded, “yeah”.^[43]
42. Tcpt, 1 October 2019, p 283(1)-(2).
43. Tcpt, 1 October 2019, p 283(9)-(11).
The victim gave evidence that, during the month before the ID parade, he was sick and was seeing a psychologist and psychiatrist. He could not sleep and was taking medication. He would get angry whenever he saw a photo of himself. He was having bad dreams and did not leave the house. The victim agreed that due to his condition there was some confusion during the ID parade.^[44] He started seeing the psychologist about two months after the incident on 7 August 2016.
44. Tcpt, 1 October 2019, pp 281(27)-282(22).

A summary of Mohammad (Ahmed) Chlab’s evidence

Mr Chlab lived at Wilga Street, Fairfield in August 2016. On 7 August 2016 between 10:00pm and 11:00pm, he heard someone screaming his name while he was in the kitchen. Mr Chlab went outside the unit with a large stick and saw some young men. It was dark outside but he thought he saw three men, other than the victim. The men ran away when he came out of the unit. Mr Chlab did not see any physical interaction between the victim and the three men.
He said that the men’s clothes looked black and it was dark. He saw the tallest of the three men with a long knife which was pointed at him. This knife was thrown at him. This happened immediately after he came out of the unit.
He said that one of the men was wearing “something, a mask on his face”.^[45] Mr Chlab said that this was something which was normally placed on the shoulders. This man, who was not the man who had thrown the knife at him, fell over. He did not see where the men went after one of them fell over.
45. Tcpt, 25 September 2019, p 107(35).
When Mr Chlab first saw the victim he had fallen down; the victim did not say anything to him. He helped the victim stand up, went inside the unit and then called the police (after the men had run away). He saw blood and noticed that the victim was bleeding very heavily. While attending to the victim, Mr Chlab gave the phone to his friend, Ibrahim Hadani, to speak to the police. Mr Hadani came to be at the unit because he had called the victim’s phone which Mr Chlab answered and asked him to come and help.

Leave was granted to the prosecutor to cross-examine Mr Chlab pursuant to s 38 of the Evidence Act 1995 (NSW). Mr Chlab was taken to his police statement made on 8 August 2016 where he said that when he first heard the victim screaming, he looked out his window and saw three people hitting a fourth. Mr Chlab said it was very dark and he did not recall saying that to the police. He accepted he might have said that on 8 August 2016.
In cross-examination, Mr Chlab agreed his evidence was that he came out of the unit with a piece of wood, went down the three stairs to the blue door and saw the victim lying down. The victim was wounded and moaning. Mr Chlab stood and stared at the people in front of the blue doorway. He agreed that when he came outside his unit and stood at the doorway of the blue doors, the victim was lying behind him on the ground.
He said the men then fled towards Wilga Street, he went to his unit with the piece of wood in his hand, threw the piece of wood, and went back to the victim who was still on the ground. He initially said he left the door to his unit open but later said that he shut the door because he was terrified before returning to the victim. He said there was “less than a minute”^[46] between when he passed the victim to go to his unit and when he returned to assist him. He said he helped the victim to his feet and took him to the unit, put him on the floor and tried to dress his wound. He said he was with him on the floor until the police and ambulance arrived.
46. Tcpt, 26 September 2019, p 132(43).
While he was on the floor with the victim, the victim received a call. Mr Chlab answered it and it was his friend, Mr Hadani. Mr Hadani arrived at the unit before the ambulance and police. Mr Hadani spoke to the police on the phone.
Mr Chlab initially said that after taking the victim into his unit he remained with him until the police arrived, but later said that he went outside to find Mr Hadani who did not know the location of the unit. He said he did not mention this in his previous evidence as he had not understood the question.
Mr Chlab gave evidence that he first saw the victim standing, before he fell down to the ground. Mr Chlab also gave evidence that he did not see the victim walk out of the blue door and never gave the victim the piece of wood he was holding.
He agreed that looking out from his kitchen window he would not be able to see the tiled area behind the blue door leading up to the three stairs.
The police did not ask him to participate in a photo identification exercise because he said it was very dark that night and he could not see any faces; covered or not.
In re-examination, Mr Chlab said it was before he brought the victim into his unit that he locked the door to it.

A summary of Ibrahim Hadani’s evidence

Ibrahim Hadani was outside his shop, Ibrahim’s Fruit and Grocery Market, on The Crescent in Fairfield on 7 August 2016. Around 10:00pm, he saw the victim running in the direction of the carpark of the railway station and in the opposite direction from the tunnel with someone chasing him. Mr Hadani initially said he did not know who the other person was but later said it was Roni Pottress shouting and chasing him. He heard Mr Pottress say something but he could not understand what he said. There were no other men nearby and he did not hear anyone call out to Mr Pottress. He then returned back to his shop.
Mr Hadani gave evidence that a few minutes later he received a call from “another Ahmed” (a reference to Mr Chlab) telling him that the victim had been stabbed and asking him to come and help. He went to the unit at Wilga Street and spoke to the police at some stage on the phone. He agreed it was his voice the jury heard saying, “[Roni, Roni,] he has the blue, have blue, the blue, blue jeans, blue”^[47] but he did not recall saying that. He met Mr Chlab outside the unit as he did not know the exact number.
47. Tcpt, 26 September 2019, p 152(34)-(37).
Mr Hadani gave evidence that when he arrived at the unit, he came from the tunnel and he saw Mr Pottress outside on the other side of the tunnel but Mr Pottress did not see him. When asked if Mr Pottress was close by the unit, Mr Hadani said he was not. When he saw the victim, he was shocked and went out and saw Mr Pottress outside. Mr Pottress saw him and ran. Mr Hadani thought that Mr Pottress ran away with other people that he did not know. He told the 000 operator then that the person with the knife was Mr Pottress. He was not sure about that while giving evidence but said that if he had not seen the knife in his hand, he said he would not have said that.
Leave was granted to the prosecutor to cross-examine Mr Hadani pursuant to s 38 of the Evidence Act. Mr Hadani agreed that in his statement on 8 August 2016 he told police that he heard Mr Pottress yelling loudly towards the victim as he was chasing him. He agreed he told the police the last time he saw Mr Pottress and the victim was as they ran towards Fairfield Hotel near the passageway under the railway line. He agreed that he told police that after 10 minutes he saw Mr Pottress walking back from near Fairfield Hotel to the railway station carpark by himself. He agreed that he saw Mr Pottress twice: the first time as the victim and Mr Pottress were running; and the second time about 10 minutes later when Mr Pottress came walking back from down near the Fairfield Hotel, walking towards the railway station carpark by himself. He agreed that his memory was better at the time of the statement. He remembered, as he had told police in his statement, that he saw two men on the RSL side of the railway station calling to Mr Pottress in Assyrian, but he did not recall what was said.
Mr Hadani agreed that he had called the victim’s phone to see what had happened to him after he saw him being chased. Mr Chlab answered that phone and asked him to come to the unit and help because the victim had been stabbed and was bleeding.
During cross-examination, Mr Hadani agreed that he told the 000 operator that there were eight people on the road.
He agreed with his police statement of 8 August 2016. He said the first time he saw Mr Pottress was outside his shop on The Crescent when Mr Pottress was running through the carpark of the railway station on The Crescent side. He knew Mr Pottress because Mr Pottress used to help him in his sweet shop sometimes. He told the police that Mr Pottress was wearing a dark blue coloured jumper and dark coloured long pants. He did not recall telling police that Mr Pottress had something on his head, but accepted that if he said it at the time then it was correct. Mr Hadani told police that it looked like Mr Pottress was chasing the victim. Mr Pottress was also yelling loudly at the victim. He recognised the victim who was a customer at his store. The victim was running and kept looking over his shoulder. He agreed his evidence was that he heard two men on the other side of the railway station calling out to Mr Pottress in Assyrian but he could not hear what they said. He could not recall what they looked like either.
He agreed with a summary of his evidence regarding the three times he saw Mr Pottress. He said the third occasion he saw Mr Pottress was on the phone to the police when he was asked to check if he could still see anyone. He went outside the unit and told police that Mr Pottress was still there. When asked when he saw Mr Pottress with a knife in his hands, Mr Hadani indicated that he could not recall, but then said it was on the third occasion.
Mr Hadani gave evidence that while he employed Mr Pottress at his former sweet shop, he had seen him hide knives and sticks in the carpark. He explained that he saw Mr Pottress hiding mostly pieces of wood, but once he saw him hiding knives. During re-examination, Mr Hadani said that he did not see Mr Pottress hide a stick or a knife from 2013 to 2016. He had not seen Mr Pottress use the knives he had hidden before 2013.

A summary of DA’s evidence

DA gave evidence that he was at Fairfield McDonald’s on 5 August 2016 with the victim and his cousin, DM. He was dropped off by his friend, Shaqi. As DA was walking to the carpark to see his cousin, he saw a red Camry come out of a driveway and park on the other side of the road. Two men got out of the car and ran towards him, the victim and his cousin, saying, “Come here, come here”.^[48]
48. Tcpt, 30 September 2019, p 181(42)-(43).
A fight then broke out between all of them. DA recalled that the two men were beaten up and went back to their car, saying to the three of them, “We’re going to get youse”.^[49]
49. Tcpt, 30 September 2019 p 182(38).
On 7 August 2016, DA was at the railway station with the victim, Junior, Ajaz, and TL. One of them, he could not recall who, was there to buy cannabis. After the drugs were purchased, the victim and DA noticed the red Camry from McDonald’s at the railway station. The car began following them as they walked to the railway station. He did not notice who was in the car and no one from the car said anything to them.
When they arrived at the station, two or three men in a BMW pulled up in the carpark and said to them, “come under the bridge”.^[50] DA gave evidence that at least two of them put hoodies on and pulled them up so their faces could not be seen. They did not go and stayed at the railway station waiting for the train. DA was challenged on this during cross-examination because originally he wrote in his statement to police that, “The red Toyota Corolla pulled up in the carpark, and said, ‘Come meet us under the bridge.’”^[51] DA disagreed with this statement and said the police may have written the wrong car down. He said it was the BMW that pulled up and the red Camry stayed under the bridge.
50. Tcpt, 30 September 2019, p 184(12)-(16).
51. Tcpt, 30 September 2019, p 196(38)-(41).
The same men came back again and started running at DA and his friends. He and his friends, including the victim, jumped onto the train tracks. DA did not recall the men saying anything to them or seeing anything in their hands. He did not see the victim again that night.
DA went to the police station. He did not go inside but waited around to make sure it was safe. He then called one of his friends who told him that the men had left. He returned to the railway station and took the train with his friends. The victim was not with them.
DA tried to call the victim once he went back to the railway station to catch the train with his friends, but he could not recall if someone answered or not. The victim did not answer. After he had boarded the train, he was told that the victim had been stabbed. He remembered he was told this when he had called the victim’s phone.
DA was asked to go to the police station to participate in an ID parade. He was shown two separate sets of about 20 photographs. In the first set of photos, he selected photograph 18, being Mr Hanna. DA was shown his statement and could not remember that the man he had identified was one of the men at the railway station, but agreed he told police that. DA did not recognise anyone in the second set of photos he was shown.
DA was involved in another incident on 6 August 2016 which he informed the police of. At about 6:45pm, he and his friend called a drug dealer. Both went to a multi-storey carpark at around 7:00pm to buy the drugs. A red Toyota with three men arrived. When DA saw the red car, he recognised it as the same one from McDonald’s the night before. He described the car as a Corolla to the police because he could not remember whether it was a Corolla or Camry, and he told the police this. Two men from McDonald’s were in the car. DA immediately attempted to conceal his identity by putting his head down and pulling up his hoodie. His friend concluded the drug deal. DA looked up and the two men saw his face. The driver said, “You’re the one that was in the fight last night”.^[52] He got out of the car. DA saw him holding something shiny which he thought was a knife. He was scared so he ran away. The driver chased him for a little bit until DA ran into a church.
52. Tcpt, 30 September 2019, p 193(25)-(26).
DA agreed he had told police what happened on 7 August 2016. At about 11:00pm, he was at the railway station with his friends Ajaz, Junior, TL, and the victim. One of his friends called the drug dealer asking for one stick of weed which cost $20. The dealer said he would arrive in 15 minutes and meet them at the usual spot. DA and the victim were not present when the drugs were purchased but waited around the corner as they knew the dealer would be one of the occupants from the red Toyota at McDonald’s and from the day before. The deal was concluded between the people in the car, Ajaz, Junior, and TL. He agreed that he told the police that the red Corolla was the same vehicle and inside it were the same two men that he had seen at McDonald’s two days earlier. The red Toyota kept doing U-turns and coming back past them. DA agreed he was not comfortable with what was happening considering it was the same car and people from the fight and he thought he had seen one of them with a knife the night before.
DA agreed that he told police that, at about 11:20pm or 11:30pm, a silver black BMW pulled up in the carpark near them. He agreed the BMW came after the Toyota. There were three people in the BMW. Two of the men got out of the car, the front passenger and the driver. He was not able to see the rear passenger as he stayed in the car.

A summary of Ali Ziadi’s evidence

Ali Ziadi lived at the unit with Mr Chlab. He was also friends with the victim.
Mr Ziadi dropped DA at McDonald’s on 5 August 2016 and saw the victim there. He noticed a red Camry come out of the drive-through and the driver of the car signal to the victim and DA by waving his hand and saying, “fuck you, fuck you, come on”.^[53] The car parked outside of the drive-through area of McDonald’s.
53. Tcpt, 30 September 2019, p 201(43)-(45.
He saw a fight break out between the victim, DA and the men in the red Camry. He did not know the other men. He left the scene after he saw the victim get kicked in the leg and punched in the face.
On 7 August 2016, Mr Ziadi received a phone call from the victim in the late afternoon requesting that he collect him from Cabramatta Railway Station and drop him off in Fairfield. Mr Ziadi gave the victim a lift. He could not recall what time it was, and when asked if it was about 8:30pm or 9:00pm he agreed it was late afternoon but could not recall if it was night.
Later that night, he received a call from Mr Chlab telling him that the victim had been stabbed. Mr Ziadi was not at home but with his friends at the time. Mr Chlab asked him to come home. Mr Ziadi and his friends arrived at the unit but the police did not allow them to go inside. By the time they arrived, the police and ambulance were already on the scene.

A summary of Detective Senior Constable Alexander Guy’s evidence

DSC Alexander Guy was the officer in charge and oversaw the investigation.
He recalled attending the area of the stabbing at 11:30pm on 7 August 2016. He read from parts of his statement made on 24 August 2017. When approaching the unit on Wilga Street, he observed blood droplets in the common area. There were other police officers already on the scene and the victim was in the unit on the ground floor.
He was informed that police had detained Mr Pottress on the Dale Street side of the railway station and DSC Guy travelled to interview him. He noticed small stains on the front of Mr Pottress’ pants which appeared to be blood. DSC Guy placed Mr Pottress under arrest and transported him to the police station where his clothes were seized as evidence.
DSC Guy explained that after examination of Mr Pottress’ clothing, “There was a female profile located on one of the stains that I identified.”^[54] The stain was not linked to the victim in this matter.
54. Tcpt, 30 September 2019, p 206(9).
CCTV footage was obtained and two vehicles of interest were identified, being a red Camry and a BMW. On 10 August 2016, a search was conducted of 65 Lime Street, Cabramatta West, being a house associated with the applicant. A grey BMW, with the same identifying features as in the CCTV footage, was parked out the front.
On 6 September 2016, DSC Guy conducted an ID parade with the victim which was recorded by Detective Booker. DSC Guy agreed that the standard procedure was to place one person who is a person of interest within the group of photos in an ID parade.
On 20 September 2016, a search warrant was conducted at the applicant’s residence. A black Puma hoodie and a pair of black track pants were located at the house. The applicant was arrested. A police interview was conducted with the applicant on the same day.
The applicant answered no comment in relation to questions about what he was doing on 7 August 2016, if he knew Mr Hanna, identification of images in CCTV stills from the railway station on 7 August 2016, and whether he was a passenger of a BMW on 7 or 8 August 2016.
The applicant said the last time he was at the railway station was when he walked past within the last two or three days. When asked again what he was doing on 7 August 2016, he replied, “Straight up, I don’t remember, I, like, what I ate this morning, you know…Forgot.”^[55] He said he was not involved in the crime and had not hurt anyone. He said he did not want to answer questions because he was worried about incriminating himself for a crime he had not committed.
55. ERISP 20/9/16, p 6.
He consented to providing his DNA to the police and participating in an ID parade.
DSC Guy was shown the crime scene log, and confirmed the earliest time police attended the scene was 11:20pm. A line search was conducted, and police maintained a presence at the crime scene until 1:50am the next morning.
A search warrant was executed at the residence of Mr Hanna. A maroon-red Toyota Camry was seized; a McDonald’s’ receipt dated 5 August 2016 was found in the driver’s side door.
The registered owner of the Camry was Mr Hanna’s mother, who confirmed that her son, Mr Hanna, was using the vehicle on both occasions.
DSC Guy confirmed that the registered owner of the BMW was Dominic Nissan, who told police that he had sold the car to a man by the name of Olevar Merza.^[56]
56. Tcpt, 2 October 2019, pp 302(47)-303(7).
DSC Guy confirmed that Mr Hanna pleaded guilty to being involved in stabbing the victim.
When Mr Pottress was taken into custody, he provided DNA by consent. He was later released and never charged.
DSC Guy did not think he became aware until the following day that Mr Chlab said a knife had been thrown. He and other officers went back to the unit block and searched from the doorway entrance, along the grass and path area up to the road. No knife was found. No search was conducted beyond the perimeter of the fence. It was 20 to 30 metres from the blue door to the back fence.
DSC Guy agreed that the victim must have been attacked between 11:08:37pm, the time he was last seen on CCTV, to 11:12:02pm, the time of the first ambulance call. He agreed that if it was to be assumed for convenience that it took the victim 21 seconds to run the distance; that was a 3 minute period between then and the call. He agreed that the male (reference to Mr Hadani) said there were eight people still outside and said the person with the knife was Mr Pottress, and that this portion of the second call completed at four minutes into the call. He agreed if you added four minutes and 22 seconds (the 22 seconds being the time of the first 000 call) to the starting time of 11:12:02pm, the time would be 11:16:33pm. The last time the BMW was depicted was about 11:10:49pm. DSC Guy agreed that the speaker on the 000 call seemed to indicate 5 minutes and 10 seconds into the call that Mr Pottress was still outside. He agreed that 11:12:02pm plus 22 seconds plus 5 minutes 10 seconds took the time to 11:17:43pm. He agreed the BMW had been gone for approximately “six and a bit” minutes at this stage.

Otherwise, the applicant relied on inconsistencies as to matters of detail, primarily in the accounts given by Mr Chlab and the victim. These matters, taken individually and cumulatively, could cast an element of doubt on the identification of the applicant as present in the foyer of the unit. However, an assessment of the cross-examination of the victim, based on the transcript, did not demonstrate a material basis giving rise to reasonable doubt in our minds. He answered questions briefly, but responsively, and said when he did not know, or that he did know something not because he had been present but because he had been told about it later. The transcript does not reveal any basis upon which the jury ought to have formed a reasonable doubt as to his creditworthiness. By contrast, as noted above, aspects of the evidence given by the applicant were inherently implausible. If his explanations of the intercepted telephone calls were not to be accepted by the jury, they cast significant doubt on his credibility as a witness of truth in respect of the central issue, namely whether he was involved in the attack in which the victim was stabbed numerous times.
There were undoubtedly difficulties with the evidence of the victim. However, on the whole of the evidence, these difficulties were not such that they ought to have caused the jury, acting rationally, to entertain a reasonable doubt as to the applicant’s guilt of counts 2 and 3 on the indictment.
We would dismiss Ground 2 of the appeal.

Severity appeal

Section 44(2) of the Sentencing Procedure Act provides that the balance of the term of a sentence “must not exceed one-third of the non-parole period” unless the court decides that there are “special circumstances for it being more”. The sentence imposed in the present case (a 9 year non-parole period with a 3 year balance of term) complied with this provision.
When a court accumulates a new sentence on part or all of a pre-existing sentence, it may consider varying the length of the non-parole period to take account of the fact that the balance of term will be a smaller proportion of the total term of imprisonment than of the new sentence. The adjustment will result in a balance of term of the new sentence which is greater than one-third of the new non-parole period. The authorities confirm that a finding of special circumstances is available to permit such a variation in the proportion with respect to a new sentence, which would otherwise comply with s 44(2). However, there is no obligation to do so.
In written submissions, counsel for the applicant submitted that neither counsel had raised the matter before the sentencing judge (Colefax DCJ) and, there being no mention of the matter in the judgment on sentence, it may be inferred that the sentencing judge overlooked the effect of the accumulation on the existing sentence. However, although the first part of the submission may be correct (as to counsel not having raised the matter), the second proposition, and the accompanying inference, are not correct. The judge stated:

“[71]   I note that since the time you were arrested, you have served various other terms of imprisonment for totally unrelated matters.
[72]   Accordingly, the sentence which I shall soon impose will be backdated so as to commence on 26 September 2019.
[73]   In fixing that start date, and in fixing the aggregate sentence, I have had regard to totality.”

The judge had already concluded that whilst “rehabilitation remains a relevant factor, it is of reduced significance” and that the applicant’s “prospects of rehabilitation” were poor: at [63] and [64]. He continued:

“[65] They would not be enhanced by a longer period on parole – and in any event, the non-parole period that I intend fixing will be sufficient for that purpose.”

The effect of the proposed variation would be to provide a parole period of 3 years 9 months, which the trial judge considered unnecessary, and would reduce the effective non-parole period from 9 years to 8 years 3 months. The judge was entitled to take the view that the appropriate non-parole period was 9 years.
The fact that the judge was conscious of the period of backdating and the existence of earlier sentences, together with the reference to consideration of the principle of totality, demonstrate that the possibility of a variation in the sentence period and the non-parole period were not overlooked.
The challenge to the severity of the sentence for failure to find special circumstances must be rejected.

Drug offences – sentence appeal

On 15 February 2019 the applicant was sentenced in the District Court (O’Brien DCJ) as a leading member of a cannabis supply syndicate. He had continued to run the syndicate using mobile phones smuggled into the prison, following his arrest in September 2016. He had established residential locations as safe houses, which also continued to operate whilst he was in custody and, indeed, after being raided by police. At the time of his arrest on 20 September 2016 he was found in possession of 2.7kg of cannabis, with which he was originally charged, although the charge was withdrawn. It was agreed that between 20 September 2016 and 15 February 2017 the applicant was involved in the supply of more than 7kg of cannabis leaf. There was a further charge of dealing with the proceeds of crime. The applicant entered pleas of guilty to each count and was given a 25% utilitarian discount as a result.
There were, in substance, two errors alleged on the applicant’s behalf. One was that a period of five months between 20 September 2016 and 15 February 2017 had not been taken into account with regard to either the sentence imposed by Judge O’Brien, or the sentence for the wounding and the related offence imposed by Judge Colefax. However it was agreed, in response to the written submissions for the Director, that that was an error and the issue need not be pursued.
Judge O’Brien sentenced the applicant as one of seven co-offenders. The other alleged error was that in a passage in his written reasons (at p 14), under the heading “The roles played and objective seriousness”, the judge stated:

“The objective seriousness of his offending is also aggravated by the fact that Mr Merza has a significant criminal record including three prior convictions for supplying or taking part in the supply of prohibited drugs, in respect of which sentences of full-time imprisonment were imposed.”

The Director conceded that this statement involved an error in that the existence of a criminal record cannot affect the objective seriousness of the offending for which the person is to be sentenced. Given the conceded error, the Director did not oppose a grant of leave to appeal. It followed, in accordance with the principles stated in Kentwell v The Queen,^[98] that the Court should grant leave to appeal and re-exercise the sentencing discretion. Although the sentence is no longer being served, if it should have been shorter, that may affect the commencement date of the later sentence.
98. (2014) 252 CLR 601; [2014] HCA 37 at [42].
Whilst the Court should accept there was an error in the present case, the error rests on a linguistic convention which should be acknowledged.
Before the heading in the judgment noted above the judge had already identified a number of issues relevant to the objective seriousness of the offences. He said that the quantity of drugs supplied fell below the middle of the range between the indictable and commercial quantities, “a relevant factor to be taken into account in considering objective seriousness”: p 13. He had also noted that the monetary value would have been substantial and had regard to the sophistication and organised nature of the enterprise, inferring that the drugs were supplied for financial gain. By contrast, the language used in the passage under the heading “The roles played and objective seriousness” was not so confined. The judge stated that the roles played were “obviously significant in determining the respective criminal culpability of each offender.” The term “culpability” was also used in making an assessment of the differing levels each played in the organisation. As the head of the syndicate, according to the agreed facts, the judge expressed the view that Mr Merza was “the most morally culpable of all of the offenders.”
When the judgment is read as a whole, it appears that the term “objective seriousness” was generally referrable to the offending, and “culpability” to the offender. Further, the headings found in the judgment did not necessarily confine the considerations contained in the ensuing text. Thus, whilst read literally the impugned statement was erroneous, there might have been good reason not to read the statement literally.
Statements of principle which require hard lines to be drawn between different aspects of sentencing are, as Spigelman CJ noted in R v McNaughton,^[99] hard to reconcile with the “instinctive synthesis approach to sentence.”^[100] However, the Chief Justice observed that the need to assess separately the objective seriousness of the offending was derived from the judgment of the High Court in Hoare v The Queen.^[101] In Hoare the High Court held that a sentencing judge should not increase an otherwise appropriate sentence to make allowance for remissions which were likely to reduce the actual sentence served in custody. Two reasons for adopting that approach were noted: first, there was no right to remissions and they might not be applied. The second reason was as follows:^[102]

“Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances …. It would represent a departure from that basic principle if a judge, instead of imposing a sentence within the limits of what represented appropriate or proportionate punishment for the crime, were to ‘impose a longer sentence merely because the offender may possibly earn remissions for good conduct’ ….”
99. (2006) 66 NSWLR 566; [2006] NSWCCA 242.
100. McNaughton at [16].
101. (1989) 167 CLR 348; [1989] HCA 33.
102. Hoare at 354.

In the first sentence quoted, the word “objective” is italicised in the original and a reference is made to Veen v The Queen [No 2].^[103] However, the principle in Hoare actually operated to prevent the increase of a sentence deemed appropriate following the whole process of instinctive synthesis, including the personal circumstances of the offender. The possibility of future reduction by remissions was simply an irrelevant consideration.
103. (1988) 164 CLR 465 at 472, 485-486, 490-491, 496; [1988] HCA 14.
The ultimate source of the principle was the troubling case, Veen [No 2]. It is sufficient to refer to the joint reasons of Mason CJ, Brennan, Dawson and Toohey JJ in Veen [No 2]. The issue was the manner in which the purpose of protecting society could be applied in the case of a person who had committed more than one homicide, but suffered from diminished responsibility. In dealing with statements by Jacobs J in a previous case involving Mr Veen, the majority in Veen [No 2] stated:^[104]

“The sentencing principle which his Honour laid down is that a sentence should be ‘proportionate to the gravity of the offence’ unless, perhaps, the applicant’s history warrants some departure from the principle.
…
The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No 1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender….”
104. Veen [No 2] at 472

After noting “the troublesome nature of the sentencing discretion” and the need to give weight to different purposes of criminal punishment, the joint reasons continued:^[105]

“There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences …. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.”
105. Veen [No 2] at 477-478.

The introduction of standard non-parole periods gave statutory effect to the phrase “middle of the range of objective seriousness for [specified] offences”.^[106] It now refers to “objective factors affecting the relative seriousness of [an] offence”. It is not necessary to the scope of the statutory language, nor the cases discussing its operation.^[107] At least on one view, the idea that there is a bright line distinction between objective seriousness and moral culpability as integers of the sentencing process is not to be found in this line of authority. However, as error has been conceded, it is necessary for this Court to proceed to resentence.
106. Sentencing Procedure Act, s 54A(2) as enacted.
107. See, eg, R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [85]-[86]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27], [31], and their progeny.

Resentencing

In considering the objective seriousness of the offence of supplying prohibited drugs, it was clearly relevant that the quantity of drug was approximately 30% of the commercial quantity. However, the supply took place as part of the sophisticated and organised nature of the enterprise described by the sentencing judge which was a commercial operation. The role played by the offender was agreed to be that of the person who directed the activities of the syndicate and thus was a principal in respect of the supply offence and the charge of knowingly directing the activities of a criminal group contrary to s 93T(4A) of the Crimes Act 1990 (NSW). A significant element of the latter offence was that it was an activity conducted from prison by way of mobile phones, possession of the phone being an offence contrary to s 27DA(1) of the Summary Offences Act 1988 (NSW), which was included on a Form 1.
The offence of dealing with proceeds of crime arose from activities of the applicant and his associate Antonio Hermiz in laundering through a TAB account money obtained by the drug syndicate from the sale of cannabis. There is no doubt, and it was agreed, that the applicant knew that the money was the proceeds of crime.
The objective seriousness of the offending may properly be addressed first as a general question, as each of the offences formed part of one ongoing activity. None of the offences involved a standard non-parole period, so it is not necessary to identify the seriousness by reference to objective factors placing it in or outside the middle of the range of seriousness, as would be required by s 54A(2). It is sufficient to say that the seriousness lies near the mid-point. This assessment will have different consequences for the individual offences.
So far as the personal circumstances of the applicant are concerned, the findings of the sentencing judge should be accepted. Although his family fled from Iraq to Jordan when he was four years old and came to Australia when he was five, there is no evidence linking his criminal history with his disrupted earlier years or upbringing in a new country. He completed Year 10 at Fairfield High School and subsequently obtained employment. According to the report of his psychologist (the applicant did not give evidence on sentence), he commenced using alcohol and cannabis when he was 15 years of age and cocaine at 17. He also claimed to have a gambling problem. According to a sentencing assessment report dated 30 October 2018 he admitted to ongoing use of cannabis whilst in custody.
The sentencing report assessed his risk of reoffending as “medium”; the judge was “guarded” in respect of prospects of rehabilitation. He expressed hopes that, being a relatively young man, the applicant “may yet be able to live a social life within the community.”
The trial judge in effect rejected his written claims of remorse and noted that the author of the sentencing assessment report concluded that he had “largely minimised and rationalised his offending behaviour” and “has no recognition in regard to any individual victims.”
Evidence tendered by the Director on the appeal revealed a significant course of misconduct whilst in custody which removes the possibility of a more favourable assessment at the present time.
It was clear from the applicant’s criminal record that he was entitled to no leniency. His criminal record, his current offending and subsequent conduct demonstrate a flagrant disregard for the criminal law: it is apparent that specific and general deterrence loom large in considering an appropriate sentence. Any diminution of the sentence below that imposed by the sentencing judge must have regard to the careful gradation of sentences imposed on the group of offenders sentenced at the same time.
The sentencing judge indicated the sentences which would have been imposed for the individual offences as follows:

Count 1: 5 years imprisonment less 25% the plea of guilty, indicating a sentence of 3 years and 9 months;

Count 2: a sentence of 4 years imprisonment less 25% for the plea of guilty, indicating a sentence of 3 years imprisonment;

Count 3: a sentence of 2 years imprisonment less 25% for the plea, indicating a sentence of 18 months imprisonment.

The aggregate sentence was a term of 4 years and 6 months with a non-parole period of 3 years.

In our view, the second offence, directing the activities of a criminal group, which carried a maximum penalty of 15 years’ imprisonment would have warranted a higher starting point. The manner in which the activities were conducted, including from the gaol, suggested that the culpability of the applicant was significantly above the mid-point. Because of his youth, a crushing sentence would not have been imposed, but a starting point of 6 years imprisonment would have been appropriate, giving a discounted putative sentence of 4 years 6 months. If the supply of cannabis were treated as an isolated offence, we would have proposed a sentence of 3 years 6 months, discounted to 2 years 7 months for the guilty plea. We agree with the putative sentence for the dealing with the proceeds of crime, namely 2 years, discounted to 18 months.
If individual sentences had been imposed, there would have been a high level of concurrency so as to avoid double punishment for related conduct. However, the aggregate sentence would not have been less than 4 years and 6 months. Given that sentence, the 3 year non-parole period was the appropriate sentence. Accordingly, in our view no lesser sentence was warranted and the appeal should be dismissed.

HAMILL J: I have had the advantage of reading the draft judgment of Basten JA and Price J. I adopt their Honour’s comprehensive summary of the evidence given at the applicant’s trial. I agree with their Honours, essentially for the reasons provided, that the appeal against conviction should be dismissed. I also agree that the ground of appeal advanced in the appeal against the sentence imposed by O’Brien DCJ should be upheld but that the appeal should nevertheless be dismissed. However, I have reached a different conclusion in relation to the appeal against the sentence imposed by Judge Colefax SC. I would uphold that appeal and exercise the sentencing discretion afresh. In doing so, I would find special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 and reduce the non-parole period.

Conviction appeal

Ground 1

I agree with Basten JA and Price J that, in the circumstances of the applicant’s trial, the directions concerning the standard of proof and the use of the facts behind count 3 to support an inference that the applicant demonstrated a consciousness of guilt with respect to the offences charged in counts 1 and 2, did not give rise to any unfairness. The way the summing up and relevant directions unfolded, as described in the joint reasons, satisfies me that the jury would have understood that the facts underpinning count 3 needed to be established beyond reasonable doubt and that understanding would almost certainly have constrained their use of that evidence as “consciousness of guilt” evidence when considering count 1 (where there was a verdict of not guilty) and count 2 (which resulted in a conviction). The re-direction given at the request of the Prosecutor, reproduced in the joint reasons at [19], was the last thing the jury heard before retiring to consider its verdict. In those circumstances, there was no risk that the jury would misuse the evidence.
Again, as the joint reasons point out at [29], the trial Judge did not direct the jury that the matters giving rise to count 3 could be used as consciousness of guilt evidence in respect of the other counts even if it was not satisfied of those matters beyond reasonable doubt.
I accept that cases may arise where there is a danger of a kind of circular reasoning process when the facts of one count are used in support of another count and the jury is not directed as to the standard of proof. That circularity of reasoning is that the jury (i) is satisfied to some lesser standard of the evidence supporting (in this case) the public justice offence, (ii) uses that evidence to reach a finding of guilt in relation to another count, and (iii) reasons to satisfaction beyond reasonable doubt of the public justice offence by reference to its finding of guilt in relation to the other offence. In such a case, the trial Judge will have to be careful in framing the necessary directions. However, as explained in the joint reasons and in the foregoing paragraphs, that danger did not arise in the present case.
I agree with Basten JA and Price J that ground 1 cannot be upheld.

Ground 2

As Basten JA and Price J point out, Ground 2 was addressed to the conviction of the applicant on count 2. Having reviewed the record at trial, I am satisfied that it was open to the jury – in the sense discussed by the High Court in M v The Queen^[108] and the cases referred to in the joint reasons at [225]-[228] – to be satisfied beyond reasonable doubt of the applicant’s guilt in relation to the offence of wounding with intent to inflict grievous bodily harm.
108. M v The Queen (1994) 181 CLR 487; [1994] HCA 63.
Despite the obvious problems with the identification procedure and the evidence adduced from the victim, AA, the circumstantial case supporting the case that the applicant was one of the three men present at the time of the stabbing was very strong. He had motive and opportunity, was acting aggressively towards the victim at the train station shortly before the stabbing, was a passenger in the BMW from which the assailants emerged, and conducted himself after the incident in a way that almost certainly betrayed a consciousness of guilt.
In addition to those matters, the scarf found at the crime scene was similar to the item worn by the applicant shortly before the incident and the jury was entitled to consider that his explanation of its whereabouts (and tender into evidence in re-examination) was unconvincing. The applicant was examined in chief as follows:

“Q. Did you have a scarf on at some stage in the evening?
A. Yes, I did.
Q. Did that scarf stay with you from when you left the station to when you took off, as you say, in the car down Wilga Avenue?
A. Yes, yeah, my mum still has that scarf til now.”^[109]
109. Trial tcpt, 08/10/19, p 497.

The applicant was cross-examined as follows:

“Q. I want to suggest that the scarf that you're wearing is the same scarf you were wearing when you had gone to the block at 20 26 Wilga Street at Fairfield, on this night?
A. No, Miss That was Martin's scarf, my scarf is still here.
Q. And that you had dropped this scarf on your way out?
A. No, Miss, not correct. I still have my scarf, Miss. The police never seized it during the search, which was pretty suspicious.
Q. You still have that scarf, do you?
A. Yes, Miss.
Q. Have you gone and got another scarf, or had your family get another scarf that looks similar, Mr Merza?
A. No, Miss You would have heard on the phone taps, wouldn't you?”^[110]
110. Trial tcpt, 08/10/19, p 519-520.

He was then re-examined on the issue:

“Q. You were asked some questions about a scarf and you said you've still got the scarf that you were wearing on that night?
A. Yes, your Honour. Yes.
Q. I show you an item. Would you just take that out of the plastic bag and have a look at it for me please?
A. Yeah.
Q. Would you hold it up, please? What do you tell the members of the jury about that item that's in your hands?”
A. It's my scarf, they never ceased [seized] it from the police raid, they left it out, so it could suit their case, because they found the scarf, mine and Hana's scarf and they didn't seize my scarf for that.
Q. Were you wearing that scarf on the night in question?
A. Yes, I was.” ^[111]
111. Trial tcpt, 08/10/19, p 528.

At this distance, the applicant’s evidence appeared to be implausible on a number of levels and did not withstand scrutiny.
The verdict of guilty on count 2 was not unreasonable and was able to be supported having regard to the evidence. I agree with Basten JA and Price J that ground 2 must be rejected.

The appeal against the sentence imposed by Judge O’Brien

The applicant was sentenced by Judge O’Brien on 15 February 2019 in relation to drug, proceeds of crime, and criminal group offences that were unrelated to the wounding and perversion of justice offences. His Honour imposed an aggregate sentence of 4½ years with a non-parole period of 3 years. The sentence commenced on 15 February 2017 and the non-parole period expired on 14 February 2020.
This sentence was the subject of a separate application for leave to appeal and the applicant was represented by different counsel. The appeal hearing was extremely brief and it was accepted that the exercise was somewhat academic because the non-parole period had already expired and did so after the commencement date of the sentence imposed by Judge Colefax in relation to the wounding offence.
I agree with Basten JA and Price J, for the reasons given at [250]-[254] that there was a legal error in the sentencing Judge’s assessment of the applicant’s objective criminality. I also agree, that no lesser sentence is warranted, and the appeal should be dismissed in spite of the error.

The appeal against the sentence imposed by Judge Colefax

After the trial to which the conviction appeal relates, Judge Colefax SC imposed an aggregate sentence of 12 years with a non-parole period of 9 years. The indicative sentences for the purpose of s 53A(2)(b) were 10 years with a non-parole period of 7½ years for the wounding offence and 3½ years for the offence of attempting to influence the witness. No issue was taken with the total length of the aggregate sentence (12 years) or with the putative sentences indicated for the two individual charges. The proposed appeal against sentence was solely concerned with the length of the (aggregate) non-parole period and the failure of the sentencing Judge to consider or find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999.
The sentence was ordered to commence on 26 September 2019 which meant that it was accumulated (in part, and by the extent of around 2 years and 7-8 months) on the sentence imposed by Judge O’Brien. As I have said, the earlier sentence commenced on 15 February 2017 and included a non-parole period of 3 years. The effect of the order made by Judge Colefax was that the total accumulated sentence was around 14 years and 7½ months with a total accumulated non-parole period of around 11 years and 7½ months. That means the total effective non-parole period was around 80% of the total accumulated sentence.
As the joint reasons point out at [242]-[243], there is no obligation under s 44 or otherwise for a sentencing Judge to vary downwards a non-parole period so that it is 75% of the total sentence. A finding of “special circumstances” is only required if the balance of term is to exceed one third of the non-parole period. This is well established, including by authorities decided under earlier sentencing legislation in similar terms to s 44: see, for example, R v GDR (1994) 35 NSWLR 376 at 381-382. It is equally well established that the impact of accumulation may amount to special circumstances and justify a reduction of the non-parole period so that it is in the order of 75% of the total sentence: see, for example, R v Simpson (1992) 61 A Crim R 58 at 60-61, R Close (1993) 31 NSWLR 743 at 748, Matthews v R [2014] NSWCCA 185 at [27] and GP v R [2017] NSWCCA 200.
In McKittrick v R [2014] NSWCCA 128, Simpson J (as her Honour then was) said at [36]-[37]:

“This has come to be called the ‘statutory ratio’, which is not to be departed from unless special circumstances are found. The effect of s 44(2) is that a sentence in accordance with ‘the statutory ratio’ will be made up of a non-parole period that is 75 per cent of the head sentence. Where the court decides to impose a non-parole period in a lesser proportion, it is required to state its reasons for doing so.
There is no equivalent requirement for reasons where the non-parole period exceeds 75 per cent of the head sentence. Nevertheless, it is usually considered appropriate that reasons be given for such a decision.”

Her Honour discussed the history of the provision and referred to the second reading speech introducing the 1989 legislation. Her Honour said at [42]:

“Nowhere in the speech was any explanation given for the selection of 75 per cent as the proportion of the overall sentence required to be served in custody (other than to meet an election promise). What is plain is that the intention was that the proportion should apply, in cases of multiple offending, to the overall sentence, that is, the total of the sentences imposed. The structure of individual sentences is, at most, a secondary consideration.”

Adamson J said at [154]:

“The statutory prohibition in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on structuring a sentence such that the ratio is smaller than the statutory ratio unless special circumstances are found requires reasons to be given for any such finding. There is no requirement for reasons to be given when the ratio between the non-parole period and the total term exceeds the statutory ratio. However where reasons are not given for the excess, there is at least an implication that the Sentencing Judge has not appreciated the mathematical effect of two sentences on the overall ratio. I am satisfied that this is what has occurred in the instant case.”

In Lonsdale v R [2020] NSWCCA 267, Beech-Jones and Adams JJ considered the issue at [65]-[66]:

“[65] Section 44(2) of the Sentencing Act has no direct application to any analysis of a total effective sentence that results from the operation of two or more sentences. Nevertheless, it is common to make a finding of special circumstances under s 44(2) to ameliorate the effect of accumulating sentences that would otherwise result in the ratio of the ‘effective’ non‑parole period exceeding 75% of the effective total term (see GP v Regina [2017] NSWCCA 200 at [16]; ‘GP v R’; CM v R [2020] NSWCCA 136 at [35]; ‘CM v R’; R v Simpson (1992) 61 A Crim R 58 at 60-61.) Further, it has been accepted that it is incumbent on a sentencing judge to consider or advert to the effect of accumulated sentences they may impose where the ratio of the effective non-parole period exceeds 75% of the total effective term (McKittrick v R [2014] NSWCCA 128 at [154]; GP v R at [22]). In such cases, the question is “whether the record of proceedings leads to an inference that the matter was considered or adverted to or not” (GP v R at [22]). Thus, in CM v R it was concluded that the sentencing judge did not intend ‘a result which would require the applicant to spend 87.5% of the “effective” term of imprisonment in custody’ (at [40]).
[66] However, these principles are not hard and fast rules. Their application in a given case involves matters of degree. In this case, the ratio of the effective non-parole period to the effective total sentence was 76.47%. The sentencing judge considered questions of both totality and special circumstances at length. In those circumstances, we do not accept that his Honour failed to consider or advert to the very modest amount by which the accumulation of the two sentences meant that the effective non-parole period exceeded 75% of the total effective term. Otherwise, given the trivial amount by which it was exceeded in respect of the accumulated sentences, no obligation to “flag an intention … to do so” was engaged.”

The reference to GP v R is a reference to my judgment where I said at [22]-[23] (Macfarlan JA and Button J agreeing):

“[22] Ultimately, the parties agreed that the question is whether the record of proceedings leads to an inference that the matter was considered or adverted to or not. Ordinarily, where a sentencing judge is accumulating sentences and the non-parole period is to become greater than 75% of the total sentence, it is preferable that some express comment in the remarks on sentence makes it clear that the Judge is aware of the impact of the accumulation. That was not done in this case. Both the transcript and the judgment on sentence are silent on the issue. There is a discussion of the principle of totality both in submissions and in the remarks on sentence. It is clear that her Honour appropriately and properly applied such principles in assessing the degree of accumulation in terms of the total effective sentence.
[23] However, there is nothing to support the inference that the sentencing judge turned her mind to the impact of the accumulation on the non-parole period. In particular, her Honour made no remark concerning the fact that the proportion settled upon by Judge Payne (62.5%) would, as a result of the accumulation, become 81.5%. Equally, there is nothing in the arguments or in the remarks on sentence to suggest that her Honour considered the fact that the 3 year balance of term settled upon by Judge Payne would be reduced to 2 ½ years upon the accumulation of the sentence.

See also Huang v R [2019] NSWCCA 144 at [52]-[53], Zreika v The Queen [2020] NSWCCA 345 and Vincent v R [2020] NSWCCA 271 at [64]-[66].
The sentencing Judge in the present case did not indicate that he had turned his mind to the impact of the accumulation on the proportion of the non-parole period to the total sentence. His Honour’s remarks included the following:

“[71]   I note that since the time you were arrested, you have served various other terms of imprisonment for totally unrelated matters.
[72]   Accordingly, the sentence which I shall impose will be backdated so as to commence on 26 September 2019.
[73]   In fixing that start date, and in fixing the aggregate sentence, I have had regard to totality.”

Unlike the majority, I am unable to conclude that these remarks demonstrate that his Honour considered the matter or that he did not overlook the possibility of making a variation to the non-parole period. There is no further explanation as to the choice of commencement date, no reference to the question of special circumstances, and no elucidation as to how his Honour “had regard to totality”. Most significantly, as I have said, there was nothing to suggest his Honour adverted to the impact of the accumulation of the proportion between the total sentence and the non-parole period.
As to the commencement date, a footnote to the respondent’s written submissions was in the following terms:

“The basis for the calculation of the commencement date was as follows: as at the date of the sentence proceedings, 3 April 2020, the applicant had been I custody since 20 September 2016 (a period of 1291 days). Of that period, 1101 days were spent serving sentences of imprisonment for unrelated offences. It followed that the applicant had been in custody on this matter alone for a period of 190 days. The sentence date of 26 September 2019 reflected the backdating of the sentence by 190 days.”

If this is correct, it demonstrates that the selection of the commencement date did not reflect the application of the principle of totality but the necessary back-dating of the sentence to take into account pre-sentence custody that the parties agreed was solely referable to the offences to which the sentence related.
While it is true that neither counsel at first instance referred to the issue of the accumulation, special circumstances or the impact on the proportion of the non-parole period to the head sentence, I am satisfied the applicant has established error.
Senior Counsel for the applicant did not submit that any further adjustment should be made to the sentence and did not contend that the total aggregate sentence or the indicative sentences were infected with error.

Orders

Accordingly, the orders I favour are as follows:

Where necessary grant leave to appeal against conviction, but dismiss the appeal.

Grant leave to appeal against the sentence imposed by O’Brien DCJ on 15 February 2019 but dismiss the appeal.

Grant leave to appeal against the sentence imposed by Colefax DCJ on 15 May 2020 and allow the appeal.

Quash the sentence imposed by Colefax DCJ and in lieu thereof impose an aggregate sentence of 12 years commencing on 26 September 2019 and expiring on 25 September 2031 with a non-parole period of 8 years and 3 months expiring on 25 December 2027.

Confirm the indicative sentences nominated by Colefax DCJ.

The applicant will be eligible for release to parole at the expiration of the non-parole period.

**********

Endnotes

Decision last updated: 10 November 2021

Medium Neutral Citation:	Merza v R [2021] NSWCCA 269
Hearing dates:	19 July 2021
Date of orders:	10 November 2021
Decision date:	10 November 2021
Before:	Basten JA and Price J at [1]; Hamill J at [270]
Decision:	In matter 2016/281692: 1. Grant the applicant an extension of time within which to seek leave to appeal against his convictions and aggregate sentence imposed on 15 May 2020. 2. Grant the applicant leave to appeal against his convictions, but dismiss the appeal. 3. Grant the applicant leave to appeal against sentence, but dismiss the appeal. In matter 2017/49186: 1. Grant the applicant an extension of time within which to seek leave to appeal against the aggregate sentence imposed on 15 February 2019. 2. Grant the applicant leave to appeal against sentence, but dismiss the appeal.
Catchwords:	CRIME – appeals – appeal against conviction – unreasonable verdict CRIME – directions to jury – direction regarding use of phone call evidence – inference of consciousness of guilt – no further direction sought – chance of prejudice from not giving further direction remote EVIDENCE – evidence of consciousness of guilt – alternative inference – burden of proof – intermediate facts – inference constituting link in chain on one offence and an essential element of another offence SENTENCING – appeal against sentence – alleged failure by sentencing judge to make a finding of special circumstances – sentence partly accumulated on prior term – variation of statutory ratio – no finding of special circumstances – effect on earlier sentence not overlooked SENTENCING – appeal against sentence – criminal record taken into account in assessing objective seriousness – error conceded – re-exercise of sentencing discretion – aggregate sentence unaffected
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A Crimes Act 1990 (NSW), s 93T Criminal Appeal Act 1912 (NSW), s 5 Evidence Act 1995 (NSW), ss 32, 38 Summary Offences Act 1988 (NSW), s 27DA
Cases Cited:	Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 GP v R [2017] NSWCCA 200 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Huang v R [2019] NSWCCA 144 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lonsdale v R [2020] NSWCCA 267 Matthews v R [2014] NSWCCA 185 McKittrick v R [2014] NSWCCA 128 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R Close (1993) 31 NSWLR 743 at 748 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v GDR (1994) 35 NSWLR 376 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Simpson (1992) 61 A Crim R 58 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 Vincent v R [2020] NSWCCA 271 Zreika v The Queen [2020] NSWCCA 345
Category:	Principal judgment
Parties:	Olevar Merza (Applicant) Regina (Respondent)
Representation:	Counsel: 2016/281692: Mr D Dalton SC (Applicant) Ms M Millward (Respondent) 2017/49186: Mr D Barrow (Applicant) Ms M Millward (Respondent Solicitors: 2016/281692: Kiki Kyriacou Lawyers (Applicant Solicitor for Public Prosecutions (Respondent) 2017/49186: Sayad Sahinovic Legal (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/281692; 2017/49186
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Citation: [2020] NSWDC 189 Date of Decision: 15 May 2020; 15 February 2019 Before: Colefax SC DCJ; O’Brien AM DCJ File Number(s): 2016/281692; 2017/49186