R v Abou-Chabake - [2004] NSWCCA 356

No judgment structure available for this case.

Reported Decision:
149 A Crim R 417

New South Wales

Court of Criminal Appeal

CITATION: R v Abou-Chabake [2004] NSWCCA 356 revised - 29/10/2004

HEARING DATE(S): 10/06/04
25/06/04

JUDGMENT DATE:
28 October 2004

JUDGMENT OF: Mason P at 1; Levine J at 2; Kirby J at 3

DECISION: (1) Leave to appeal against sentence granted; (2) The appeals against conviction and against sentence dismissed.

CATCHWORDS: Criminal Practice & Procedure - fresh evidence - principles - due diligence - whether tactical decision not to call evidence - whether evidence credible - whether manslaughter open - whether excessive self defence.

LEGISLATION CITED: Evidence Act 1995
Criminal Procedure Act 1986
Crimes Amendment (Self Defence) Act 2001

CASES CITED: R v Bikic [2002] NSWCCA 227
R v M [2002] NSWCCA 66
R v Sleiman [2003] NSWCCA 231
Ratten v The Queen (1974) 131 CLR 510
Lawless v The Queen (1979) 142 CLR 659
Mickelberg v The Queen (1989) 167 CLR 259
Gallagher v The Queen (1986) 160 CLR 392
Edwards v The Queen (1993) 178 CLR 193
Leuschel v Police (1999) 75 SASR 231
Ilic and Sammut (2000) 118 A Crim R 378
R v Abou-Chabake [2003] NSWSC 125
Pemble v The Queen (1971) 124 CLR 107
R v Taylor (2002) 129 A Crim R 146

PARTIES :
Regina
Andrew Abou-Chabake

FILE NUMBER(S): CCA 60397/03

COUNSEL: D Howard (Crown/Resp)
S Odgers SC (Appl)

SOLICITORS: S Kavanagh (Crown/Resp)
G Elias (Appl)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70034/02

LOWER COURT
JUDICIAL OFFICER : Howie J

60397/03

MASON P
LEVINE J
KIRBY J
Thursday 28 October 2004

REGINA v Andrew ABOU-CHABAKE

Judgment

1 MASON P: I agree with Kirby J.

2 LEVINE J: I agree with Kirby J.

3 KIRBY J: On the late evening of 6 May 2001, Romeo Nasr (the deceased) was driving a motor vehicle in Frederick Street, Campsie. His uncle, Fadi Nasr, was seated beside him as a passenger. Suddenly a gunman rushed towards the vehicle. He began firing a handgun, discharging seven bullets. Several hit the vehicle. One struck Romeo Nasr in the back, entering his heart. He died soon thereafter.

4 On 10 May 2001 Mr Abou-Chabake (the appellant) was arrested. He was charged with the murder of Romeo Nasr and the attempted murder of Fadi Nasr. On 19 November 2002 Mr Abou-Chabake stood trial before Howie J and a jury. He pleaded not guilty to each charge. On 2 December 2002 the jury found him guilty of the murder of Romeo Nasr, and not guilty of the attempted murder of Fadi Nasr.

5 The Notice of Appeal raises three grounds:

Ground 1: The appellant seeks leave to rely upon what is said to be "fresh evidence". He asserts that, had this evidence been before the jury, there is a significant possibility that he would have been acquitted.

Ground 2: It is said that Manslaughter by an Unlawful and Dangerous Act was open, and should have been left to the jury as an alternative to Murder. No such directions were given by the learned trial Judge.

Ground 3:

6 The appellant also seeks leave to appeal against sentence. He asserts that there was error in the sentence imposed by Howie J (20 years imprisonment with a non parole period of 15 years). His Honour ought to have found certain facts in mitigation.

7 I shall first describe the Crown case, attempting to follow a broad chronology. I will then deal with each ground of appeal and the complaints made against sentence.

The evidence called by the Crown.

8 At about 11.30 am on 6 May 2001, Romeo Nasr telephoned his cousin, Elias Sarkis. He wanted Mr Abou-Chabake's telephone number "just to sort things out". Mr Abou-Chabake managed a snooker hall and social club at Burwood. He lived with his parents and wife (Cheryl) on the ground floor of a block of units, 71 Frederick Street, Campsie.

9 Mr Bakhousse Hadid ("Bek") also lived in Frederick Street, Campsie. Mr Abou-Chabake rang Mr Hadid at about 4.30 or 5.00 pm on 6 May 2001. He told him "to come past, I am going to work". Mr Hadid did so. He sat down inside the lounge room and they talked. Their conversation was interrupted by a telephone call on Mr Abou-Chabake's mobile phone. Mr Hadid heard Mr Abou-Chabake say, "I'm coming out now". He left the room.

10 Shortly after Mr Hadid heard a loud bang "like a body hitting a colour bond fence". He went to investigate, as did Mr Abou-Chabake's father. He saw Romeo Nasr on top of Mr Abou-Chabake. Both were throwing punches. He and Mr Abou-Chabake's father pulled them apart. Mr Abou-Chabake was then given a hand gun.

11 Neither the appellant nor his father gave evidence. Mr Hadid was the only witness to the fight who gave evidence. However, both he and Romeo Nasr spoke to a number of people in the hours following the fight, describing what had occurred. Evidence was given of these conversations. They were used as a basis for cross examining Mr Hadid, and were the foundation for the suggestion that the real fight was between Bek Hadid and Romeo Nasr.

12 A number of matters concerning the fight were clear. First, it was a physical fight between Mr Abou-Chabake and Romeo Nasr, no-one else. Mr Abou-Chabake sustained certain injuries. Mr Hadid attributed to him the following words, spoken later that evening, an hour or so before the shooting (T51):

"My wrist is fucked, the way I smashed him, I smashed him."

13 Mr Hadid could see that Mr Abou-Chabake's hand was swollen. Senior Constable Lowry made the same observation the next day as he searched Mr Abou-Chabake's home. He saw the swelling close to the knuckles, and blood at the base of one finger. Senior Const Lowry also noticed a graze on his left hand (T371).

14 Secondly, there was no real doubt as to what Mr Abou-Chabake did, even though his motives remained obscure. Romeo Nasr gave a consistent account of what had occurred. Andrew Abou-Chabake had taken what he termed "a cheap shot", that is, he had punched him without warning. He told his uncle by telephone the following: (T194)

"I was walking up the driveway and got jumped by Andrew. He started punching me."

15 His account to his friend, Michael Ishac, was in similar terms. Andrew Abou-Chabake had "king hit him" from the side, and they got into a fight (T133).

16 Thirdly, having been pulled apart, the fight ended when a gun was handed to Mr Abou-Chabake. It was given to him either by Mr Hadid or the appellant's father. According to Mr Hadid, Romeo Nasr was then heard to say: (T41)

"I am not finished with you, I am still standing."

17 The only confusion concerned who had handed Mr Abou-Chabake the gun. If it was Mr Hadid, what inference could or should be drawn from that fact? Mr Hadid, in his testimony, denied that he had provided the gun. He said he first saw the gun as he walked back to the house after the fight. It was in the possession of Mr Abou-Chabake's father.

18 Mr Hadid's account was strongly challenged in cross examination. Alice Nasr recounted a conversation with Mr Hadid shortly after the incident. He told her that before the fight Mr Abou-Chabake handed Mr Hadid a gun and some cash from the snooker hall. Mr Hadid had an association with Mr Abou-Chabake in that business. Mr Hadid said, according to Alice Nasr, that he was holding the gun when he heard the commotion outside. He put the cash to one side and went outside, still holding the gun. Mr Abou-Chabake asked him for the gun, so he gave it to him. The account of Ms Alice Nasr was put to Mr Hadid and denied.

19 Shortly after the fight, Romeo's uncle, Fadi Nasr, rang Mr Sarkis, a cousin of the deceased. He said, referring to Mr Hadid, "Where's Bek, the little cunt? Did Bek run out with a gun and give it to Andrew, when he punched up with Romeo?" (T31). Fadi Nasr, according to Mr Sarkis, added: (T35)

"The little cunt wants to pull a gun on Romeo. Who does he think he is? He comes to my house to visit me. You bring him round. You catch up to him for me and get back to me."

20 Later that evening Mr Hadid telephoned Mr Sarkis. According to Mr Sarkis, the following conversation took place: (T34)

(Mr Hadid) "I heard that your uncle Fadi is after me?"

(Mr Sarkis) "What do you reckon, pulling out a gun on Romeo. What do you expect him to do?"

21 Mr Hadid denied having pointed the gun at Romeo Nasr. He told Mr Sarkis he ran out and handed the gun to Andrew (Mr Abou-Chabake) (T36).

22 These conversations were the basis for the following suggestion put to Mr Fadi Nasr, the uncle of the deceased: (T236)

23 There was no evidence of any dispute between Romeo Nasr and Bek Hadid. Mr Hadid described himself as a friend of both Romeo Nasr and Mr Abou-Chabake. His Honour ultimately instructed the jury on this issue in these terms: (SU72)

"Mr Steirn did not put to the witnesses any other scenario as to what happened during the fight, and perhaps the only significance of this very truncated review of what is said to have happened in the fight is that there is no evidence to suggest let alone prove that it was Bec Hadid who had threatened the deceased with the gun. Quite the contrary, the account is that it was either the accused or his father."

24 After the fight, Mr Hadid went back inside Mr Abou-Chabake's unit. Mr Abou-Chabake was very angry. Soon after Mr Hadid walked home. He phoned Romeo Nasr. According to his evidence, the conversation proceeded as follows: (T43)

25 Some time after 6.00 pm Romeo Nasr telephoned a friend, Michael Ishac. He asked him to come to his home. Mr Ishac did so. Mr Steve Balbarki was already there. Larry Elters, a friend of both Romeo Nasr and Mr Abou-Chabake, was also present. Romeo Nasr had an icepack on his face. His face was swollen and bruised. He described what had happened. According to Mr Elters they talked for five or ten minutes before they went their separate ways. It was the night of the State of Origin football match. Each went home to watch the game.

26 According to Michael Ishac, before they parted, Romeo Nasr asked Steve Balbarki to call Andrew Abou-Chabake. He wanted them "to meet and have a go like a man and get it over and done with". If Michael Ishac and Steve Balbarki were present, it would be a fair fight. Steve Balbarki then made the call. Mr Ishac heard him say, "Hello Andrew" (T135). Mr Balbarki said that he was with Romeo who would like to "meet up". After the call the following conversation took place: (T136)

(Balbarki): "Didn't want to meet up."

27 The evidence put forward as "fresh evidence" is that of Mr Steve Balbarki. In essence (and I will come to the detail shortly) Mr Balbarki supports an alibi. He says that Mr Abou-Chabake was with him on the evening of 6 May 2001. They were alone watching the football. The game began some time after 8.00 pm. It ended soon after 10.00 pm. Mr Abou-Chabake remained for a further 20 minutes or more. The shooting was at 10.12 pm.

28 That evidence is completely at odds with the evidence of Mr Hadid, given at the trial. Mr Hadid said that Mr Abou-Chabake phoned him earlier in the evening. He suggested they go to Steve Balbarki's to watch the match. He picked him up in his car. Mr Balbarki lived around the corner at 44 Moore Street, Campsie. According to Mr Hadid, Mr Balbarki was on the phone when they arrived. He said he had been speaking to Romeo Nasr who wanted a fight "one on one". The appellant responded: (T50)

"I don't want to fight him. He will come and stab me or something."

29 They watched the game for a time. Someone telephoned Mr Hadid. He walked outside but could hear Mr Abou-Chabake speaking loudly to someone. Mr Abou-Chabake then said to Mr Hadid: "Let's go home." According to Mr Hadid, they then left in Mr Abou-Chabake's car. Mr Abou-Chabake dropped him off at his home at Frederick Street, Campsie, and continued on.

30 Having arrived home, Mr Hadid said that he remained there for half an hour. He then rang Steve Balbarki, who invited him back to watch the rest of the game. He walked over to Mr Balbarki's home, which was in an adjacent street. He saw Elias Sarkis and his friend, Errol Erkin. Aref Boutros arrived at Steve Balbarki's shortly after 10.00 pm, just as the game was finishing (although Mr Hadid later amended that time to 9.00 pm or thereabouts). He and Mr Boutros drove to a Chinese takeaway restaurant which was close by. They then drove back to the home of Steve Balbarki. Mr Hadid said that whilst he was sitting on Mr Balbarki's balcony, Mr Abou-Chabake "rocked up". Mr Hadid said he remained at Mr Balbarki's for a further 10 or 20 minutes.

31 It was put to Mr Hadid that he had made up the story about going to the Chinese restaurant to distance himself from the area at the time of the shooting (T79). Mr Hadid denied that suggestion.

32 Mr Boutros gave evidence. He said he telephoned Mr Hadid and made arrangements to pick him up at Mr Balbarki's home at Moore Street. He arrived between 9.00 and 10.00 pm. They then went to the Chinese restaurant, which closed at 10.00 pm. He drove Mr Hadid back to Moore Street. He saw a couple of people, including Mr Abou-Chabake.

33 Mr Boutros, it has to be said, was not a satisfactory witness. He made two statements to the police. The second contradicted the first, as he acknowledged (T187). He said in his second statement that he went to the Chinese restaurant by himself. He had not seen Mr Hadid and had not returned to Steve Balbarki's home. He had not seen Mr Abou-Chabake.

34 Mr Boutros explained the contradiction by saying that he had been bashed. He was a frightened man (T187). He was suffering from a psychiatric condition which had affected his memory. Nonetheless, he said in his evidence that the first statement was the truth. The second statement was false (T187). He had seen Mr Abou-Chabake at Mr Balbarki's home at a time, inferentially, which was after the match.

35 Fadi Nasr, the deceased's uncle, invited Romeo to his home to watch the match. Romeo arrived shortly after it began. His face was badly bruised. He was holding an icepack against it. He was agitated and distressed. He made a number of telephone calls during the match. Just before the game finished, Romeo said to his uncle that he was shocked by what had happened. He wanted to settle the score (T196). He wanted an explanation for what had happened. He intended to drive past Andrew's house. According to his uncle, he said this: (T215)

"Uncle, I want to go down and take the mother fucker one-on-one. Show him who is a man."

36 Mr Ishac gave evidence along the same lines. He said this: (T137)

The shooting.

37 Mr Fadi Nasr decided to accompany his nephew as he drove to Frederick Street. Romeo stopped the car outside Mr Abou-Chabake's home. He called out several times: (T198)

"Andrew, come out you dog. Come out and fucking finish what you started."

38 Fadi Nasr said that he saw the lights in the house go off. He saw someone through the curtains (T197). No-one came out.

39 Romeo Nasr then drove to the other end of Frederick Street. He intended to visit his cousin, Elias Sarkis. However, it was obvious that he was not at home. He then did a U-turn and again drove slowly up Frederick Street. About 20 metres along Frederick Street Fadi Nasr saw Mr Abou-Chabake "running out and just started shooting at us" (T199). He saw his face clearly (T199). He said this: (T199)

40 Mr Nasr said that the appellant was about 15 metres away when he started shooting. The vehicle was travelling at about 20 or 30 kph. The area was well lit. Mr Abou-Chabake was wearing "a grey sloppy joe sports jumper" and trousers like "black track suit pants" (T201).

41 A resident in the block next door to Mr Abou-Chabake, Ms In Sook Park was called. On the evening of 6 May 2001 she heard a male shout out, "Andrew". About a minute later she heard something that sounded like three or four gunshots.

42 Ms Julie Hong lived in the same block (69 Frederick Street, Campsie). She gave the following evidence: (T103)

43 Ms Hong saw an old blue Laser Hatchback (which was Romeo Nasr's car) drive past, down Frederick Street. One or two minutes later she saw the same car coming back along Frederick Street.

44 A resident in an adjacent street, Mr Darren Fellew, gave evidence of noises he heard at 10.12 pm, which were like a car backfiring or gunshots. He said this: (T147)

"A. Like there was three, then a pause, then one, then a pause, then another three."

45 Mr Anthony Karam was in Moore Street when he heard gunshots. He worked as a security guard and was familiar with the sound of a weapon being fired. It was about 10.10 pm. At that moment his mobile phone rang. He stopped his car on the corner of Moore Street and Frederick Street to take the call. He then noticed a male walking from Frederick Street into Moore Street. It was very dark. He could see, nonetheless, that the male was of medium build. He was wearing dark pants and a long sleeved top which was also dark, but not as dark as his pants (T57).

The identification evidence.

46 The police questioned Mr Nasr at the Canterbury Hospital. He was asked whether he knew the identity of the shooter. He said that he did not. He added:

"I do not know who would want to shoot at us."

47 The police also asked for a description. The description provided by Mr Nasr was consistent with the appellant, but so general as to be worthless. That night Mr Nasr went with the police to the scene. Again, nothing was said to implicate Mr Abou-Chabake.

48 Mr Nasr later that evening made a formal statement. He did not identify Mr Abou-Chabake. Indeed, he said it was too dark. Everything had happened too quickly to be able to identify the person responsible. The statement made no reference to the fight that afternoon between his nephew and Mr Abou-Chabake. He did say, however, that Romeo was on his way to see "an Andrew".

49 The police interviewed Mr Abou-Chabake on 7 May 2001. The same day they searched his home. However, he was not charged. He was allowed to leave the police station.

50 The following day, 8 May 2001, a large group of relatives and friends of Romeo Nasr went to the Campsie Police Station. They asked to see Detective Wood, who was in charge of the investigation. They wanted to know why Mr Abou-Chabake had been allowed to leave. Detective Wood explained that there was no evidence against Mr Abou-Chabake. Shortly thereafter (as Detective Wood acknowledged) Mr Fadi Nasr presented himself, wishing to make a further statement. His second statement identified Mr Abou-Chabake as the person responsible.

51 When cross examined, Mr Nasr acknowledged that he had lied to the police when first questioned. He had deliberately withheld information because he said he was in a state of shock and was in fear. He had seen Andrew Abou-Chabake, whom he knew. Mr Abou-Chabake had also seen him (T225). He feared retribution. He said this: (T232)

"A. I concealed his identity because I feared for my life and my family's life. Simple as that."

52 Mr Nasr said that immediately after the shooting he trusted no-one. He had a young baby. He wanted to reassure himself that his family was safe (T230). Having satisfied himself that they were, he then made the second statement. He denied having made that statement at the urging of friends and relatives, turning surmise into recognition of the assassin.

53 Mr Nasr's evidence was attacked as implausible. Romeo was his favourite nephew. He was like a younger brother to him. He had been shot and was now dead. Mr Nasr, as a passenger in the vehicle, had also been put at risk. According to the appellant, had he known the identity of the shooter, he would have disclosed it immediately. The suggestion that he was in fear should be rejected. Even in his first statement, he had disclosed that Romeo had intended to see "an Andrew".

54 There is obviously some force in each of these arguments. Not surprisingly, his Honour warned the jury to approach the evidence of Mr Nasr with caution, conscious of these matters and conscious of the dangers of identification evidence (SU 36-62).

Suggestions of drug dealing.

55 A number of witnesses, including Mr Fadi Nasr, were cross examined concerning their knowledge of the deceased's involvement with drugs. The deceased had a criminal record. It included a conviction for supplying drugs, and convictions for robbery and fraud. There was no suggestion, on the other hand, that Mr Abou-Chabake was involved with drugs (T412). When the deceased's clothing was examined, two "deals" of cocaine were found concealed within his underwear. His girlfriend, Ms Paula Nassour, said that she could not introduce Romeo (whom she had known for a year) to her parents because he was known to be involved in drugs (T336). Mr Hadid said that he knew the deceased was a drug dealer because he had been to gaol for a drug offence. Mr Ishac, who regarded the deceased as one of his best friends, knew of his conviction. He had been required to undertake periodic detention. It was his belief, however, that he was no longer selling drugs (T145). Mr Larry Elters said that he had no knowledge of Romeo dealing in drugs, although he was more close to him than his own brother.

56 This material was used by the defence as the foundation for a suggestion that there was a reasonable possibility that the death of Romeo Nasr was in some way connected to drug dealing.

The Crown's circumstantial case.

57 Apart from the identification evidence of Fadi Nasr, the Crown relied upon a circumstantial case. The following circumstances, according to the Crown, irresistibly pointed to Mr Abou-Chabake as the person who fired the shots:

· First, in the context of a shooting of Romeo Nasr which occurred at 10.12 pm, there had been a fight between Romeo Nasr and Mr Abou-Chabake shortly after 5.00 pm. It had not been a trivial dispute. The deceased, according to the Crown, had been lured to Mr Abou-Chabake's home. Then, without warning, he had been forcibly struck on the jaw.

· Second, the fight had only ended after a gun had been given to Mr Abou-Chabake. Mr Abou-Chabake plainly had access to a gun later that evening.

· Third, the fight had not ended with the parties shaking hands. It had ended with a challenge by Romeo Nasr to the appellant ("I'm not finished with you.").

· Fourth, in the hours that followed, Romeo Nasr had endeavoured, through friends, and principally through Steve Balbarki, to arrange a "fair fight" with Mr Abou-Chabake. Mr Abou-Chabake had refused to meet him.

· Fifth, some time shortly after 10.00 pm, Romeo Nasr determined that he would look for Mr Abou-Chabake "to have the matter out". That was his intention according to his uncle, Fadi Nasr, and according to his friend, Michael Ishac, who spoke to him on the telephone.

· Sixth, Romeo Nasr had then driven with his uncle to Frederick Street, Campsie. He had stopped his vehicle outside Mr Abou-Chabake's home and again challenged him. The challenge was heard by neighbours, including Ms Hong. Ms Hong heard Romeo Nasr say: "Come out Andrew ... I know you're in there. I will come back for you."

· Seventh, a minute or so later, having driven to the end of the street and then made a U-turn, Romeo Nasr drove slowly along Frederick Street towards Mr Abou-Chabake's home. He was then shot in Frederick Street not far from the appellant's home.

· Eighth, there were two people in the vehicle, Romeo Nasr and his uncle. It was Romeo Nasr who was shot, not his uncle.

· Ninth, very shortly after the shooting, Mr Karam, whilst seated in his vehicle on the corner of Moore Street and Frederick Street, saw a male of medium build. Mr Abou-Chabake was a man of medium build. The person was wearing clothes consistent with those described as having been worn by Mr Abou-Chabake that day. He was walking towards Moore Street. Steve Balbarki lived in Moore Street. Mr Abou-Chabake was said to have "rocked up" to Steve Balbarki's home at a time which, by inference, was shortly after the shooting.

58 Against that background, the Crown made a submission in these terms, as recorded by his Honour in the summing up: (SU79)

"The Crown submits that, on this evidence considered as a whole, that you would find there is no possibility that coincidentally someone else had decided to shoot the deceased and chose Frederick Street to do it and at a time just after the deceased had left the accused's home and just before he returned to the vicinity of the accused's house."

59 Counsel for Mr Abou-Chabake sought to meet that case by pointing to a number of matters. First, it was said that there was no motive for Mr Abou-Chabake to carry out what was, in effect, an execution-style murder. Secondly, Mr Abou-Chabake was a person of good character. You would not expect such behaviour from a person of good character. Thirdly, Mr Abou-Chabake behaved after these events in a way which was not consistent with a person who knew himself to be guilty. At a time when the police were searching his home, he returned home. He attended the police station on 10 May, knowing the police wished to speak to him. He was then arrested.

The evidence of Constable May.

60 On the day following the shooting, the police canvassed the area. Constable May knocked on the door of Mr Abou-Chabake's home at 71 Frederick Street, Campsie. He spoke to the appellant and his father. He had with him a form which he completed as he went from house to house. He specifically asked whether anyone was home the previous night. The "younger man" (the appellant) said that he had been working at a club near Mac's Liquor in Burwood and did not see anything. The "older man" (his father) said that he had been out that night visiting relatives. Nobody was home.

61 When cross examined, Constable May acknowledged that he could not recall what everyone had said to him that day. He had simply completed the form, ticking a box according to whether they were home or not. He spoke to many people that day. He had been asked the following day by a senior officer to recall what had been said when he went to 71 Frederick Street. He then provided that officer with his best recollection, The following questions were asked by counsel for Mr Abou-Chabake: (T307)

62 Having set out the evidence at some length, I am now in a position to address each of the grounds of appeal.

Ground 1: A miscarriage of justice resulted from the absence at the trial of fresh evidence.

63 The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61-64; see also R v Sleiman [2003] NSWCCA 231 paras 101-105. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:

· First, a distinction is made between "new evidence" and "fresh evidence". Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.

· Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512).

· Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301).

· Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.

· Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399).

· Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:

· Is the evidence fresh?

· If it is, is it "credible" or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or "plausible" (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)?

· If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302.

· Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517).

64 Here, a new trial is sought. It was not suggested that the evidence put forward as "fresh evidence" demonstrated innocence or was of such cogency that, without more, it gave rise to a reasonable doubt. It was evidence to be weighed with other evidence called at the trial. According to the appellant, had it been before the jury, it is likely that he would have been acquitted. The appellant must therefore demonstrate that the evidence is both "fresh" and credible.

65 As mentioned, the evidence put forward as "fresh evidence" is that of Mr Steve Balbarki (supra para 27). The appellant also relied upon affidavits from Mr Georges Elias, his solicitor, and Mr Clive Steirn SC who appeared for Mr Abou-Chabake at the trial.

No evidence from Mr Abou-Chabake.

66 Before going to Mr Balbarki's evidence, I should deal with one aspect that arose in the course of argument. Mr Abou-Chabake did not give evidence at his trial. His solicitor and counsel each swore affidavits in which they stated that Mr Abou-Chabake instructed them, during the course of the trial, that he was innocent. He claimed he was with Mr Steve Balbarki at the time of the shooting. On this appeal there was, however, no evidence from Mr Abou-Chabake. In circumstances where he was seeking to persuade the Court that there had been a miscarriage of justice, there was argument as to whether the absence of an affidavit from the appellant might be used as the basis for an inference adverse to him.

67 The appeal having been argued on 10 and 25 June 2004, and the decision having been reserved, the appellant then sought leave to reopen the appeal in order to permit further affidavit evidence. The Court wrote to the appellant (with a copy to the respondent) requiring written submissions, accompanied by such affidavit evidence as the appellant sought to rely upon. On 11 August 2004 the appellant provided further written submissions, together with affidavits from Mr Abou-Chabake and his wife. The submissions included the following:

"4. The appellant seeks to have the hearing of the appeal re-opened so that this evidence may be received. The only purpose for adducing the evidence is to meet the concerns of the members of the Court regarding the drawing of possible adverse inferences from the absence of such evidence on the appeal. The evidence is not sought to be used in any positive way - it is accepted that the evidence was reasonably available at the time of the trial and cannot be regarded as fresh evidence.

5. Even if the evidence is not received, the appellant maintains the submission made in oral argument that the Court should not draw any adverse inference from the absence of such evidence (T69-72). In particular, reference is made to the submission made at T69.30 that it never occurred to counsel for the appellant that it would be necessary or appropriate that the appellant (and, by inference, his wife) should give evidence on the appeal ."

68 The Crown opposed the reopening. The evidence was not fresh, as the appellant acknowledged. The Crown added:

".... the Crown does not submit that an adverse inference against the appellant should be drawn by reason of this material not being given in evidence."

69 On 31 August 2004 the Court determined that it would not reopen the appeal. The affidavits of the appellant and his wife were not put forward as new evidence that ought to be received in support of a verdict of acquittal. They could not be regarded as fresh evidence (in support of a new trial). They should therefore not be admitted on this appeal. However, no adverse inference should be drawn from the absence of an affidavit from the appellant.

Is the evidence fresh?

70 Is the evidence of Mr Balbarki "fresh evidence", that is, evidence not available, actually or constructively, at the time of the trial? Mr Abou-Chabake (and his lawyers) certainly knew of Mr Balbarki and his whereabouts. They knew, on the appellant's case, that his evidence would assist the appellant, corroborating an alibi. However, the solicitor for the appellant, Mr Elias, said this:

"5. Before the trial, I made several attempts to speak to Steve Balbarki. I was never able to make contact with him. I formed the firm opinion that he was deliberately avoiding talking to me. I also formed the opinion that he was afraid of something in relation to the trial. I had no idea what he would say if he testified at the trial. In those circumstances, the defence team acting under instructions for the appellant at his trial made a decision not to subpoena Steve Balbarki to give evidence."

71 Mr Steirn SC had the same understanding. Detective Hallinan gave evidence in the Crown case that he had tried to interview Mr Balbarki and had been met with the following response: (T281)

"No, I'm not giving you a statement. You're going to have to deal with my solicitor if it comes to that."

72 However, the Crown submitted, and with some plausibility, that the decision not to pursue Mr Balbarki was an informed tactical decision. A subpoena could have been issued, and an attempt made to confer with him at court to determine what he would say. The accused may even have asked for a Basha type enquiry in the absence of the jury. Instead, according to the Crown, they saw it as "more tactically advantageous" to exploit Mr Balbarki's absence from the Crown case. In his closing address, Mr Steirn SC made the following submission: (T471)

There is a conspiracy of silence, we put to you, as to what actually occurred and the key witness in this matter, Steve Balbarki, has simply refused to assist police

if you come to that view that the court is not being told the full story you cannot convict my client. ..."

(emphasis added)

73 His Honour took up that aspect in his summing up where he said this: (SU 64)

"... you can have regard to the fact that some relevant evidence has not been placed before you, such as what Balbarki might have been able to say if he had been prepared to co-operate.

I do not mean by that that you can infer anything from his failure to give police a statement, or that you should speculate on what he might have said had he done so. But if you feel that there may be a gap left in the evidence led by the Crown in this part of the case, or that, as Mr Steirn put it, you are not being told the whole truth by the witnesses called, you may as a result be less likely to draw the inference that the Crown asks you to do from the facts that are before you. You might find that you are not prepared to draw the conclusion the Crown asks you to draw with sufficient confidence to be able to act upon it."

74 An issue arose during the trial which turned on whether Mr Balbarki (and another individual) could, for the purposes of the Evidence Act 1995, be regarded as "a person" who is "not available", permitting (under s65(2)) the reception of statements which would otherwise be excluded as hearsay. The Dictionary to the Act defines a person as "unavailable" if, amongst other things, the following were proved:

75 In the course of argument, the following exchange took place between counsel for Mr Abou-Chabake and his Honour: (T388)

"STEIRN: Well, I place my submission on the word 'reasonable', your Honour. We have had a Detective Sergeant of Police speak to him on the phone. I appreciate technically subpoenas should have been taken out and that sort of thing, but I just say by way of example, in the case of Balbarki, the prosecution made no attempt to take out a subpoena because they knew it would be useless in all of the circumstances. That's not uncommon.

HIS HONOUR: They don't have to rely upon a provision of an Act that has a definition. The difficulty for you is whether or not you have taken all reasonable steps to secure his or her attendance. It's hard to say they have without issuing a subpoena."

STEIRN: He has told Detective Sergeant Wood, even if your Honour was to issue a warrant, that would not succeed.

HIS HONOUR: I think a warrant might succeed."

76 Yet nothing was done to secure the presence of Mr Balbarki. Mr Balbarki, of course, gave evidence on this appeal, having been subpoenaed. The appellant would argue, no doubt, that the circumstances were different in that the appellant had since been convicted, which Mr Balbarki found disturbing because he believed him innocent.

77 I accept that before the trial Mr Balbarki had refused to make a statement to the police or to the solicitors for Mr Abou-Chabake. I further accept that he did not want to be involved. I would have expected, nonetheless, that attempts would have been made to at least subpoena Mr Balbarki to secure his presence at Court in the hope that he would speak to the lawyers acting for the accused.

78 Here, it is really not surprising that Mr Balbarki was not subpoenaed to appear at the trial. By the time of the trial, the decision had been taken as to the way in which the case would be run by the defence. Mr Steirn SC said that it was his understanding before the trial began that his client would not be giving evidence (T35). Mr Abou-Chabake would not rely upon an alibi. No alibi notice had been served, as required by s48 of the Criminal Procedure Act 1986. It would not be suggested that Mr Abou-Chabake was with Mr Balbarki.

79 Such a course had a number of advantages. Apart from the suggestion that the Crown case was deficient by reason of the absence of Mr Balbarki, it opened up another possibility. Senior Counsel, in his final address, said that the Crown had not excluded, as a reasonable possibility, that Mr Abou-Chabake was at work in Burwood on the evening of the shooting. This was an alibi of sorts (although different from the alibi that is now put forward), arising from the evidence called by the Crown. Mr Steirn SC made the following submission to the jury in his closing address: (T483-484)

You recall the evidence of Constable May who spoke to the deceased (sic; accused) the very next day and the deceased (sic; accused) told him that he was at work and there is no evidence to the contrary.

There is no evidence to suggest he was not at work.

80 Counsel added, referring to the evidence of Bek Hadid: (T485)

"He is the only person apart from Boutros who puts the accused in the immediate area. That much is inconsistent with what the accused told Constable May and it is inconsistent with what [Beck] told you, that the stated intention of the accused was to go to work that day. You have heard evidence of Detective Sgt Wood that the accused does or did in fact own a snooker parlour or billiard room in Burwood Road Burwood."

81 In the tactical decision to pursue or not pursue Mr Balbarki, no doubt Counsel and the client were very conscious of the inconsistency between the suggestion that Mr Abou-Chabake was with Mr Balbarki that evening, and the account Constable May said Mr Abou-Chabake gave him the next day (that he was at work). If the defence put forward the suggestion (through Mr Balbarki) that Mr Abou-Chabake was with Mr Balbarki, the Crown could have sought a direction that the contradictory statements provided by the appellant as to his whereabouts were capable of being regarded as lies, told with a consciousness of guilt (Edwards v The Queen (1993) 178 CLR 193).

82 In short, I believe the decision not to further pursue Mr Balbarki was made for sound tactical reasons. One may doubt in these circumstances that his evidence can be regarded as "fresh evidence".

83 However, a number of authorities have emphasised the "great latitude" that must be accorded to an accused in determining whether evidence is "fresh" (Leuschel v Police (1999) 75 SASR 231; Ilic and Sammut (2000) 117 A Crim R 378). In Ilic and Sammut the accused were charged with unlawful wounding and other offences as a result of an incident outside a nightclub. On appeal, Ilic sought to rely upon evidence from three new witnesses. Two were crowd controllers who said that they had not gone to the police because of a confidentiality agreement with their employer. The other was Ilic's employer. Ipp J said this:

Lawless

Mickelberg

84 Speaking of the due diligence that can be expected of an accused person facing trial, Ipp J added:

In summary, prior to the trial, the attitude of these three witnesses was one of obstructiveness and complete unco-operation. In the circumstances, I do not think that their evidence was 'available' to Ilic.

[72] Secondly, although Ilic did not pursue inquiries with due diligence, and deliberately decided not to press Mirosevich and Johnston for information, I am satisfied that he did so because of his view of their personal attitude to him and his belief that they would not assist him. Relevantly, he did not refrain from making inquiries because he suspected that they would produce evidence against him, or because he was making a tactical decision in regard to the conduct of the trial. He was motivated solely by a subjective view that their feelings would be antagonistic to him and a belief that they would not help. In regard to the latter I consider, for the reasons I have expressed, that he was correct in his assessment."

85 Here, as stated, the failure to pursue Mr Balbarki arose, at least in part, from tactical considerations. It therefore requires some charity to view the material as fresh evidence. Without finally determining that issue, I am prepared to assume the evidence of Mr Balbarki is fresh evidence in order to examine the remaining issues. I will return to the issue of fresh evidence if it becomes necessary.

Mr Balbarki's evidence.

86 Mr Balbarki declined to make a statement or swear an affidavit for the purposes of this appeal. His account of the evening of 6 May 2001 (given on 10 June 2004) was provided some three years after the event. He said that he had known the appellant since he was "a kid". He had known Romeo Nasr for about the same time. In describing his relationship with the appellant he said, "We were very good friends" (T6).

87 He said that at about 6.30 pm Mr Abou-Chabake came to his home with Bek Hadid. They said "they had a fight" (T7) with Romeo, an answer capable of suggesting that Mr Hadid had been involved. However, it was clear from the balance of Mr Balbarki's evidence that the fight (as asserted by the Crown) was between "Andrew" (the appellant) and Romeo Nasr. Mr Balbarki said that Andrew had told him "it wasn't his fault" (T7). Mr Balbarki said that he later went to Romeo Nasr's home. Romeo said that he felt he had been "cheap shotted". He wanted "to have a go like a man" (T14). Mr Balbarki thereafter acted as the "go between" for Andrew and Romeo (T13). He telephoned Andrew stating that he was with Romeo. Romeo wanted to fight him again. Andrew Abou-Chabake declined (T15).

88 The only departure from the Crown case was Mr Balbarki's assertion that Romeo told him Bek Hadid pulled the gun, something denied by Mr Hadid. Mr Balbarki said that, having spoken to Romeo briefly, at Romeo's home, he returned to his own home, arriving home shortly after 7.30 pm. Mr Abou-Chabake was already there. No-one else was present. They spoke until about 8.00 pm. Mr Abou-Chabake then went home, returning at about 8.30 pm. They then watched the game. Mr Abou-Chabake never left his presence (T9). They were alone. Towards the end of the game his parents came home and went to bed. Mr Abou-Chabake left about half an hour after the game (T9). During that half hour he spoke to his wife, Cheryl, on the phone. Elsewhere in his evidence Mr Balbarki suggested that Mr Abou-Chabake may have remained 45 minutes after the game before going home.

89 The time of the shooting was fixed at about 10.12 pm. A document (Exhibit C) set out the following details in respect of the telecast of the match.

7.30 pm Programme starts

8.08 pm Kick off.

8.52 pm Half time commences.

9.09 pm Second half commences.

9.51 pm Final whistle.

90 Telephone records, including mobile phone records, were also tendered. A summary was tendered on this appeal and used in the cross examination of Mr Balbarki. The summary identified 35 calls between 3.30 pm on 6 May 2001 and 10.47.22 pm the same day, including the following (where the name of the person in possession of the mobile phone, according to the evidence, has been substituted for the name of the subscriber):

Item	Time	Call from subscriber's phone	Duration	Call to subscriber's phone
6	6.14.26	0400 993 633 Romeo Nasr	21 seconds	0411 154 458 Balbarki
7	6.16.50	0400 993 633 Romeo Nasr	33 seconds	0411 154 458 Balbarki
8	6.19.48	0411 154 458 Balbarki	0 seconds	0400 993 633 Romeo Nasr
9	6.20.12	0411 154 458 Balbarki	0 seconds	0400 993 633 Romeo Nasr

10
6.20.56 0400 993 633
Romeo Nasr 12 seconds 0411 154 458
Balbarki

22
10.05.36 0400 993 633
Romeo Nasr 15 seconds 0411 154 458
Balbarki

23
10.06.08 0400 993 633
Romeo Nasr 26 seconds 0411 154 458
Balbarki

25
10.13.08 02 9787 1658
Rose Abou-Chabake 60 seconds 02 9718 4264
T Balbarki

26
10.14.45 02 9787 1658
Rose Abou-Chabake 0 seconds 0411 154 458
Balbarki

27
10.15.05 02 9787 1658
Rose Abou-Chabake 6 seconds 0411 154 458
Balbarki

28
10.20.15 02 9787 1658
Rose Abou-Chabake 0 seconds 0400 665 522
Accused

29
10.20.31 02 9787 1658
Rose Abou-Chabake 0 seconds 0400 665 522
Accused

30
10.21.01 02 9787 1658
Rose Abou-Chabake 0 seconds 0411 154 458
Balbarki

31
10.21.11 02 9787 1658
Rose Abou-Chabake 0 seconds 0411 154 458
Balbarki

32
10.21.45 02 9787 1658
Rose Abou-Chabake 0 seconds 0411 154 458
Balbarki

33
10.22.37 02 9787 1658
Rose Abou-Chabake 56 seconds 0411 154 458
Balbarki

34
10.44.17 0411 154 458
Balbarki 45 seconds 02 9787 1658
Rose Abou-Chabake

35
10.47.22 0411 154 458
Balbarki 31 seconds 02 9787 1658
Rose Abou-Chabake

91 The account of Mr Balbarki was, as mentioned, completely at odds with that given by Mr Hadid and Mr Boutros, who each described a large number of people coming and going to Mr Balbarki's home at Moore Street, Campsie, during and after the match. Mr Balbarki said that he did not see Mr Hadid again after 7.30 pm (T10).

92 When cross examined upon the telephone records, Mr Balbarki stated that the call at 10.13 pm (for 60 seconds), from the landline at the appellant's home to the landline at his parents' home, was from the appellant's wife, Cheryl (T20). He remembered having told Mr Abou-Chabake to keep it short, since his parents were asleep. The telephone was next to their bedroom. He asked that Mr Abou-Chabake tell his wife to ring on his mobile, rather than the landline, which she did (T21). Calls 34 and 35 were, according to Mr Balbarki, telephone conversations with the appellant after the appellant had returned home, in which they discussed the game (T22). He said he first heard that Romeo had been shot between 11.00 and 11.30 pm that evening (T25).

The Luncheon adjournment.

93 The cross examination was interrupted by lunch. When the Crown resumed, there was a marked change in Mr Balbarki's evidence. Before lunch the Crown had asked the following: (T13)

94 After lunch Mr Balbarki lost that certainty. Plainly it was critical to know when, in relation to the game, Mr Abou-Chabake had left Moore Street to return to his home. The cross examination after the break included the following questions, referring to the time of Mr Abou-Chabake's departure: (T29/30)

95 Mr Balbarki also said that you would have to give or take 15 or 20 minutes from his estimates of time. He denied having had any discussion with anyone during the luncheon adjournment as to the length of time before Andrew left.

96 In re-examination, Mr Balbarki said that his parents returned home towards the end of the game. However, he could not remember whether at that time Mr Abou-Chabake was still present. He reaffirmed his evidence that Mr Abou-Chabake's wife had telephoned. Counsel for the appellant later submitted that the call from Cheryl Abou-Chabake must have been Call 25 at 10.13.08 pm. However, in the context of that call, Mr Balbarki added: (T31)

97 That cannot be right. By 10.13 pm the game had long since finished (9.51 pm), and the telecast as well (10.12 pm).

98 Later in the re-examination, Counsel for Mr Abou-Chabake returned to Call 25 (at 10.13 pm). He asked Mr Balbarki the following questions: (T33)

"Q. Can I take you to call 25, a phone call made to your phone at your house. Is that the phone call that you recall that you answered and the wife of Andrew Abou-Chabake spoke to you asking to speak to her husband ....

OBJECTION. WITNESS HAD BEEN TAKEN TO THAT CALL AND HAD GIVEN HIS ANSWER. QUESTION PRESSED.

99 Counsel concluded his re-examination with the following questions: (T33)

100 After Mr Balbarki left the witness box, the Crown said that certain matters had been drawn to his attention by the investigating police officer, Detective Wood, which were of concern. A number of witnesses thereafter gave evidence. Without recounting in detail what each said, the following emerged:

· First, that Mr Balbarki left Court at the luncheon adjournment and was approached by Mr Abdullah, a friend of the Nasr family, who had been sitting in Court. There was what Junior Counsel for Mr Abou-Chabake at the trial described as a "confrontation". Mr Abdullah said to Mr Balbarki, "You are helping them". Mr Balbarki protested that he was only telling the truth. Mr Abdullah suggested that they go into the toilet, which they then did, as did other members of the Nasr family.

· Secondly, that Mr Balbarki then went to lunch where he sat in a group which included members of the deceased's family, namely, his uncle, his sister, and his sister's fiancé (Mr Halou).

· Thirdly, although Mr Halou denied that Mr Balbarki's evidence was discussed (T51), it was plain from cross examination that it was. Mr Halou said that Mr Balbarki was "unsure about times" and "confused about the whole actual case" (T54).

101 The appeal was adjourned to a date to be fixed. The hearing resumed on 25 June 2004. Mr Balbarki was served with a notice to attend. He telephoned the officer in charge of the investigation on the morning of 25 June stating that he was undergoing an urgent ultrasound. The Crown indicated that it required Mr Balbarki for further cross examination.

102 Mr Odgers SC ultimately submitted that such damage as occurred after lunch, at the conclusion of Mr Balbarki's cross examination, had been satisfactorily repaired by re-examination. Mr Balbarki had, in his submission, maintained his evidence concerning the phone call between the appellant and his wife. Having regard to the time of that call (10.13 pm), the time of the shooting (10.12 pm), and the geographical separation between Mr Balbarki's home in Moore Street and the location of the shooting in Frederick Street, it was submitted that Mr Abou-Chabake could not have been the shooter, if Mr Balbarki's evidence were accepted. In these circumstances Mr Odgers SC (for the appellant) said this: (T75)

Is the evidence credible?

103 The credibility of the evidence of Mr Balbarki is to be assessed in the context of the evidence given at the trial (Mickelberg v The Queen (supra) at 301). That context does not include any evidence from Mr Abou-Chabake. It does include the statement attributed to Mr Abou-Chabake by Constable May, which contradicts the account of Mr Balbarki. It also includes the circumstantial case of the Crown, which the trial Judge, in his remarks on sentence described, accurately in my view, as "overwhelming" (R v Abou-Chabake [2003] NSWSC 125, Howie J, para 15).

104 An acceptance of Mr Balbarki's evidence ultimately depends, first, upon an acceptance that Mr Abou-Chabake was present for at least 20 minutes after the game, and secondly, an acceptance that his wife made call number 25 at 10.13 pm and spoke to her husband.

105 On the first issue, there was, of course, a marked difference between Mr Balbarki's evidence before and after lunch. After lunch, he could not even be certain that Mr Abou-Chabake was still at his home when the final whistle blew (T28). The final whistle blew at 9.51 pm, 20 minutes before the shooting. Mr Odgers SC, in re-examination, sought to anchor Mr Balbarki's evidence to certain events which demonstrated that he was still there at the end, and beyond the end. He was there when his parents arrived home. They arrived home "towards the end of the game" (T30). However, as stated, the end of the game (although not the telecast) was 9.51 pm. The scene of the shooting was only a couple of minutes away by foot. The testimony of Mr Balbarki on the first issue does not provide a convincing alibi.

106 Let me then move to the second issue, the call between Cheryl Abou-Chabake and her husband, said to have taken place at 10.13 pm. This is the critical issue. If the appellant's wife spoke to her husband whilst he was at the Balbarki home (being a minute after the shooting), it may be accepted that it was most unlikely that he was the shooter. Although Mr Balbarki also expressed uncertainty concerning that call at the end of his cross examination, he did appear to reaffirm his testimony in re-examination.

107 The context within which his evidence is to be assessed does not include evidence from the appellant's wife that she, in fact, made the call and spoke to her husband. An acceptance of Mr Balbarki is therefore dependent upon his recollection of the timing of one amongst many phone calls that evening. Mr Balbarki's uncertainty as to the time Mr Abou-Chabake left his home inevitably undermines his testimony concerning the phone call. If he left before the game ended, he was not involved in the phone call at 10.13 pm.

108 Although Mr Abou-Chabake did not give evidence, cross examination of Crown witnesses during the trial provided some insight into his version. It is instructive to compare the cross examination of Mr Hadid with the version put forward on this appeal by Mr Balbarki. They appear to be inconsistent. Mr Balbarki suggested that when he got home at about 7.30 pm, having returned from Romeo Nasr's, Mr Abou-Chabake was waiting for him (T7/8). They then talked. They were alone. They remained together until about 8.00 pm. Mr Abou-Chabake then left briefly, returning to Moore Street at about 8.30 pm. Thereafter he and Mr Balbarki watched the game. Mr Abou-Chabake left (on one version) some time after the game had concluded.

109 Contrast that version with the cross examination of Mr Hadid at the trial, which was as follows: (T94)

Q. I suggest you never ever went to the Asian restaurant?

110 The obvious purpose of asking Mr Hadid these questions was to buttress the suggestion that the appellant was at work that evening, confirming the account given by Constable May. The cross examination was consistent with Mr Hadid's account that he was at the home of Mr Balbarki that evening during the game.

111 Further, in assessing Mr Balbarki's credibility, one must take account of the lateness of his testimony. He said that he was a very good friend of Mr Abou-Chabake. His friend had been charged with murder. He was in a position to give evidence to demonstrate his innocence (as he claimed to the appellant's solicitor after the conviction). Yet he did not do so. His explanation was as follows: (T12/13)

112 Most would think that odd and discreditable. It may be accepted that Mr Balbarki was apprehensive about giving evidence. Mr Fadi Nasr, the deceased's uncle, likewise expressed fear, which he gave as his explanation for not having named Mr Abou-Chabake when first interviewed. However, Mr Abou-Chabake having been arrested, and the trial process having begun, many members of the same community gave statements and ultimately gave evidence. If Mr Balbarki was in a position truthfully to demonstrate his friend's innocence, it would be remarkable if he refrained from doing so.

113 To my mind the more likely explanation of the series of telephone calls following the shooting, including call 25, is that the appellant's wife, having heard the gun fire in the street, endeavoured to locate her husband. She spoke to Mr Balbarki, and thereafter continued to phone various numbers (including Mr Balbarki's mobile) in an effort to find him. It was, of course, the Crown case that Mr Abou-Chabake went to Mr Balbarki's after the shooting. Mr Karam gave evidence of having seen someone who, in a general way, matched the description of Mr Abou-Chabake, walking from Frederick Street to Moore Street immediately after the shooting. Mr Hadid gave evidence that after the match Mr Abou-Chabake "rocked up" to Mr Balbarki's home. Mr Boutros said the same. Call number 33 at 10.27.37 (56 seconds) was made ten minutes after the shooting. It was a call between the Abou-Chabake home and Mr Balbarki's mobile phone. It may even have been a call between Mr Abou-Chabake's wife and the appellant, after his arrival at Moore Street.

114 But whether the explanation for the series of phone calls be right or wrong, I do not find Mr Balbarki's evidence credible or plausible. I do not believe that his evidence, in the context of the evidence given at the trial, would have been likely to have caused the jury to have entertained a reasonable doubt as to the guilt of the accused.

115 I would reject ground 1.

Ground 2: Manslaughter by an unlawful and dangerous act.

116 It was submitted that, for a number of reasons, the jury may have doubted that the shooter intended to cause at least grievous bodily harm. While acknowledging that the shots were clearly aimed at the car, the jury, according to the appellant, may have doubted that they were intended to harm the occupants. It was open to them to regard the shots as having been fired to warn off or scare those in the vehicle.

117 The appellant pointed, amongst other things, to the following:

· First, although seven shots were fired, only three hit the vehicle. A fourth, presumably the fatal shot, apparently passed through an open window, hitting the deceased in the back. Those that struck the vehicle hit the body fairly low. One hit the rear bumper, another the rear passenger light, and a third the front mudguard.

· Second, there was evidence that the appellant did not want to fight Romeo Nasr. He refused more than once a further confrontation.

· Third, there was evidence that Romeo Nasr was a drug dealer. It was open to the jury to infer that Mr Abou-Chabake may have known that fact.

· Fourth, there was evidence that may, according to the appellant, have supported the inference that Mr Abou-Chabake feared the possibility that Romeo Nasr was armed, possibly with a gun.

· Fifth, it was conceded by the Crown that Mr Abou-Chabake was a person of good character. That fact was relevant to whether it was reasonably possible that he intended to shoot anyone.

118 It was acknowledged that no request was made to direct the jury that manslaughter was open. Indeed, counsel for Mr Abou-Chabake specifically asked the trial Judge not to do so. Rule 4 applies. However, insofar as manslaughter was reasonably open on the evidence, the trial Judge was obliged to leave it, even where defence counsel argued otherwise (Pemble v The Queen (1971) 124 CLR 107 at 117-118).

119 The Crown submitted that manslaughter by an unlawful and dangerous act was not reasonably open. The issue was carefully considered by the trial Judge. Indeed, it is instructive, according to the Crown, to examine the way in which the issue evolved. Howie J was well aware of Pemble v The Queen and the need to instruct the jury if the issue was reasonably open. After the conclusion of the evidence his Honour posed the following question to the Crown: (T436)

"HIS HONOUR: The principal count. I mean could the jury reasonably find there is insufficient evidence of intention to kill or do grievous bodily harm?

CROWN PROSECUTOR: I respectfully submit no. It is patently obvious the way the shots were fired, the deliberateness with which the shooter first of all approached and fired three shots in close proximity then continued to fire and hit the car twice as it was leaving the scene."

120 The following day, having reflected on the matter, his Honour stated his intention as follows: (T438)

"HIS HONOUR: Yes, now my present intention is to sum-up on manslaughter and unlawful and dangerous act, only on the basis that if the jury are not satisfied beyond reasonable doubt, firstly, that the accused was the shooter and he shot at the vehicle with intention to do grievous bodily harm. Only on that basis.

CROWN PROSECUTOR: If it please your Honour."

121 Mr Steirn SC responded:

"STEIRN: I would like it put on record that I have specifically asked your Honour not to do that."

122 Counsel for Mr Abou-Chabake indicated that he would not be submitting to the jury that the shooter did not intend to inflict at least grievous bodily harm. In the discussion that followed, his Honour identified the question which he needed to address. He said this: (T439)

"HIS HONOUR: I suppose, ultimately, it is my call to determine whether there is a reasonable possibility on the evidence that the jury could conclude that the person who fired the weapon at the vehicle did so other than with intent to kill or do grievous bodily harm. That is, intending perhaps to warn off the person or persons in the vehicle."

123 The Crown, in response, acknowledged the following possibility: (T439)

"CROWN PROSECUTOR: Yes. I guess the jury's chain of logic could be well we accept the accused fired the shots, accept he intended to shoot at the car, but we are not satisfied he necessarily intended to hit anyone."

124 Counsel then addressed. The Crown dealt with the ballistics evidence in some detail (T450-459). That evidence had been given by way of report. Two bullets had struck the deceased. Apart from the fatal shot, the bullet that entered the vehicle through the front mudguard also struck Romeo Nasr's leg. Counsel said this: (T451)

"Have a look at photo number 58. If you have a look at 58, you will see that that depicts one of the bullet holes going into the mudguard of the vehicle and then, if you turn the page, 59, and then go to 60, you will see that the trajectory of the bullet is actually traced by those rods. The first thing you might think about that is that it was certainly aimed at the driver. It virtually ends up, and you know that it actually makes contact with Romeo Nasr's left leg, the bullet was fired on that occasion. I would ask you to accept the intention there was to try and hit the driver of the vehicle. Just as importantly, this information indicates to you that the shooter was to the right and to the front of the vehicle and that is, of course, the explanation that Fadi Nasr gives."

125 The analysis continued, matching the ballistics evidence with the description provided by Fadi Nasr. Having heard that analysis, his Honour said this: (T468)

"HIS HONOUR: Mr Steirn I have thought about the matter of manslaughter while the Crown was addressing. I do not intend to leave manslaughter. I think what the Crown said about the shots just does not seem to me to be open. If a person was actually going to fire a shot to scare somebody he wouldn't be firing the shots at a motor vehicle continuously as the vehicle was going away one would have thought. That is what you want me to do and I tell the jury that there is no dispute whoever fired that weapon intended to at least do grievous bodily harm and the only question is when you get to the second count you are also satisfied he also attempted to kill. ..."

126 The summing up by his Honour was then given as follows: (SU32-33)

"The Crown says if you consider the number of shots fired and from where they were fired in relation to the vehicle and the direction in which they were fired, you would have no difficulty concluding that the person who fired the weapon intended to kill the occupants of the vehicle. The Crown submission is to the effect if you consider the trajectory of the bullets and the nature of the wounds to the deceased, you will have no doubt that the shooter intended to kill the deceased. The Crown says it could not possibly have been a case of simply wishing to scare the deceased and inadvertently striking him with a bullet. In effect, the Crown says that you would infer from the conduct of the shooter, whoever it was, the intention that has to be proved for the offence of murder.

Now, Mr Steirn for the accused has taken a commendably sensible approach to this trial and has not sought to put that matter in issue before you: That is, it has not been contended that the shooter, whoever it might have been, had other than an intention to at least inflict really serious injury upon the deceased and therefore be guilty of murder."

127 In my view there was no error. There was no basis upon which the jury might reasonably have entertained the possibility that the appellant's intention was only to warn or scare.

128 I would refuse leave to argue ground 2.

Ground 3: Excessive self defence.

129 By the Crimes Amendment (Self Defence) Act 2001, the Crimes Act was amended to insert Division 3 - Self Defence. That Division included s421 which was in these terms:

421 Self-defence - excessive force that inflicts death

(1) This section applies if:

(a) the person uses force that involves the intentional or reckless infliction of death, and

(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary:

(c) to defend himself or herself or another person, or

(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter."

130 The deceased was shot on 6 May 2001. However, the Division applies where proceedings (other than committal proceedings) were instituted after the commencement of the Division. Here the indictment was presented, and Mr Abou-Chabake arraigned, on 31 March 2002 (R v Taylor (2002) 129 A Crim R 146). Hence, s421 was available as a possible basis by which murder may be reduced to manslaughter, if it was open to the jury to view Mr Abou-Chabake's conduct as amounting to excessive self defence.

131 The appellant claimed that view was open for many of the same reasons set out in respect of ground 2. Although Mr Abou-Chabake did not give evidence concerning his state of mind, his belief could be inferred from material in the Crown case. Based upon that material it was, according to the appellant, open to the jury to regard as a reasonable possibility that Mr Abou-Chabake believed that it was necessary to shoot to hit Romeo Nasr to defend himself.

132 The Crown responded by asserting that there was simply no material before the jury as to the way in which the appellant perceived the circumstances in which the shooting occurred. He neither provided evidence, nor a version of events in a record of interview. In some cases, no doubt, an inference may be drawn as to the accused's state of mind. However the material in the Crown case did not allow that possibility. There was no possible basis for a suggestion of self defence. Further, the direction which the appellant now suggests should have been given was not sought by Counsel appearing at the trial. Rule 4 should be applied.

133 In my view, manslaughter by excessive self defence was simply not open. There was no basis upon which it could be inferred, as a reasonable possibility, that Mr Abou-Chabake believed it necessary to shoot Romeo Nasr to defend himself. Before Romeo Nasr drove with his uncle into Frederick Street, Campsie, Mr Abou-Chabake was probably at home. He was certainly in a location in Frederick Street unknown to Romeo Nasr. He was armed. Romeo Nasr issued his challenge from the kerbside, and then drove off. A minute or so later he returned. He was driving a car. Mr Abou-Chabake chose to leave the safety of the house, or wherever he may have been concealed, and run towards the car. The circumstances hardly justified a pre-emptive strike. As the trial Judge remarked (infra para 139), the deceased had not been armed that afternoon when he went to Mr Abou-Chabake's home. He was not armed at the time of the shooting. He had that evening repeatedly asked for a fair fight. There was no basis to infer that Mr Abou-Chabake believed that he was armed with a gun. He had no reputation for violence. He got no closer to Mr Abou-Chabake than the kerbside outside his home. At the time he was shot he was, I repeat, driving a car. It is unsurprising that counsel appearing at the trial made no request for the direction which it is now suggested should have been given.

134 I would refuse leave under Rule 4.

Sentence.

135 The only complaint made by the appellant in respect of the sentence imposed by Howie J concerned his Honour's refusal to find, as a matter of probability, that Mr Abou-Chabake acted out of fear. Such a finding ought to have been made, according to the appellant, having regard to the following:

· First, the evidence of Bek Hadid that Mr Abou-Chabake said on the evening of 6 May that he did not want to fight Romeo Nasr: "He will come and stab me or something" (T50).

· Second, the fact that Romeo Nasr had been to prison for drugs, and it was reasonable to infer that the appellant would have been aware of that fact.

· Third, the possibility that Romeo Nasr may have been armed, including with a gun.

· Fourth, the repeated challenges from the kerbside in Frederick Street shortly before the shooting.

136 The task of his Honour was difficult because Mr Abou-Chabake neither gave evidence during the trial, nor on sentence. His Honour said this: (ROS6)

"I find it difficult if not impossible to understand how a young man, such as the offender, could possibly have laid in wait for the deceased in effect to ambush and kill just to avoid the consequences of a fistfight. Yet on the available evidence that is what the offender did."

137 When dealing with Mr Abou-Chabake's prospects of rehabilitation, his Honour made the following remark: (ROS8)

"As I have indicated, the killing was grossly disproportionate to the situation in which the offender found himself and is unexplained by any circumstances that might go any way to account for that reaction. I cannot conclude otherwise than that there was some motivation unknown to me that caused the offender to behave as he did or his conduct reflects a complete lack of regard for human life."

138 In dealing with the particular issue which is the subject of complaint, that is, whether Mr Abou-Chabake was actuated by fear, his Honour said this: (ROS 4)

"10 Mr Steirn SC, in his address on behalf of the offender in the sentencing proceedings, placed considerable weight on this piece of evidence in order to explain the offender's conduct in shooting the deceased. Although he accepted that self-defence was not open on any view of the evidence, Mr Steirn submitted that I should find that the offender acted out of fear of what the deceased would do when he was forced to confront him on the deceased's return. However, I have very serious misgiving about the reliability of any evidence given by Bek Hadid and I warned the jury that they should not place any weight upon his account. The fact that they convicted the accused of murder does not mean that they accepted his evidence."

139 His Honour added: (ROS4)

"11 But even if the offender did express that fear on hearing of the challenge, he had no basis for it on the evidence before me. There was no suggestion that the deceased was armed when he attended the offender's premises in the afternoon prior to the shooting and was there attacked and threatened with a firearm by the offender or his father. There was no evidence that the deceased was armed at the time of the shooting. There was no weapon of any sort found in his motor vehicle. There was nothing before the jury to suggest that the deceased was generally regarded as a violent person and there was no evidence that, prior to the incident at the offender's home, the deceased had threatened violence to the offender or his family. There was no evidence at all to indicate that the offender could have had any reason to fear that the deceased would do other than engage in a fistfight with him in order to settle the score as a result of the earlier incident. Quite the contrary, the deceased was expressing his intention of having a fair fight in front of his uncle, a young man not much older than him, but apparently with some standing amongst the young men in the community. Although the offender might have had some fear of coming off the worse in such a fight, there was nothing to suggest that he would have suffered any serious injury except to his pride and his standing in the community."

140 In my view it was open to his Honour, on the material he had, to form that view. No error has been demonstrated.

Orders.

141 The orders I would propose are:

1. That leave to appeal against sentence be granted.

**********

Last Modified: 11/01/2004

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Citations

R v Abou-Chabake [2004] NSWCCA 356

Most Recent Citation

Rich v The Queen [2014] VSCA 126

Cases Citing This Decision

116

GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314

Cases Cited

14

Statutory Material Cited

3

R v Bikic [2002] NSWCCA 227

R v M [2002] NSWCCA 66

R v Sleiman [2003] NSWCCA 231

CITATION:	R v Abou-Chabake [2004] NSWCCA 356 revised - 29/10/2004
HEARING DATE(S):	10/06/04 25/06/04
JUDGMENT DATE:	28 October 2004
JUDGMENT OF:	Mason P at 1; Levine J at 2; Kirby J at 3
DECISION:	(1) Leave to appeal against sentence granted; (2) The appeals against conviction and against sentence dismissed.
CATCHWORDS:	Criminal Practice & Procedure - fresh evidence - principles - due diligence - whether tactical decision not to call evidence - whether evidence credible - whether manslaughter open - whether excessive self defence.
LEGISLATION CITED:	Evidence Act 1995 Criminal Procedure Act 1986 Crimes Amendment (Self Defence) Act 2001
CASES CITED:	R v Bikic [2002] NSWCCA 227 R v M [2002] NSWCCA 66 R v Sleiman [2003] NSWCCA 231 Ratten v The Queen (1974) 131 CLR 510 Lawless v The Queen (1979) 142 CLR 659 Mickelberg v The Queen (1989) 167 CLR 259 Gallagher v The Queen (1986) 160 CLR 392 Edwards v The Queen (1993) 178 CLR 193 Leuschel v Police (1999) 75 SASR 231 Ilic and Sammut (2000) 118 A Crim R 378 R v Abou-Chabake [2003] NSWSC 125 Pemble v The Queen (1971) 124 CLR 107 R v Taylor (2002) 129 A Crim R 146
PARTIES :	Regina Andrew Abou-Chabake
FILE NUMBER(S):	CCA 60397/03
COUNSEL:	D Howard (Crown/Resp) S Odgers SC (Appl)
SOLICITORS:	S Kavanagh (Crown/Resp) G Elias (Appl)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70034/02
LOWER COURT JUDICIAL OFFICER :	Howie J

10	6.20.56	0400 993 633 Romeo Nasr	12 seconds	0411 154 458 Balbarki
22	10.05.36	0400 993 633 Romeo Nasr	15 seconds	0411 154 458 Balbarki
23	10.06.08	0400 993 633 Romeo Nasr	26 seconds	0411 154 458 Balbarki
25	10.13.08	02 9787 1658 Rose Abou-Chabake	60 seconds	02 9718 4264 T Balbarki
26	10.14.45	02 9787 1658 Rose Abou-Chabake	0 seconds	0411 154 458 Balbarki
27	10.15.05	02 9787 1658 Rose Abou-Chabake	6 seconds	0411 154 458 Balbarki
28	10.20.15	02 9787 1658 Rose Abou-Chabake	0 seconds	0400 665 522 Accused
29	10.20.31	02 9787 1658 Rose Abou-Chabake	0 seconds	0400 665 522 Accused
30	10.21.01	02 9787 1658 Rose Abou-Chabake	0 seconds	0411 154 458 Balbarki
31	10.21.11	02 9787 1658 Rose Abou-Chabake	0 seconds	0411 154 458 Balbarki
32	10.21.45	02 9787 1658 Rose Abou-Chabake	0 seconds	0411 154 458 Balbarki
33	10.22.37	02 9787 1658 Rose Abou-Chabake	56 seconds	0411 154 458 Balbarki
34	10.44.17	0411 154 458 Balbarki	45 seconds	02 9787 1658 Rose Abou-Chabake
35	10.47.22	0411 154 458 Balbarki	31 seconds	02 9787 1658 Rose Abou-Chabake