R v Ahmadi; R v Hosseini; R v A, N; R v M, A - [2018] SASCFC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v AHMADI; R v HOSSEINI; R v A, N; R v M, A
[2018] SASCFC 39
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Stanley and The Honourable Justice Parker)
17 May 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
Appeals against convictions. Appellants found guilty by jury of serious criminal trespass in a place of residence and offences of violence. Prosecution case relied on evidence given by a witness who identified the appellants, once unmasked, as they left the scene and described weapons carried by them. The witness knew the appellants. Weapons similar to those described were found by police in the vehicle of one of the appellants within 24 hours.
The prosecution led evidence of two prior incidents said to be connected to the crimes. The first was a fight which broke out after a party about a week before. One of the victims had intervened to help a man, Chan, who was being beaten by at least two of the appellants and a named associate of theirs. The victim helped the man get away from those attacking him. Later the appellants’ associate suffered an injury to his finger and Chan was suspected. This incident was said to provide a motive for the offences against the victim.
What the prosecution said was a sequel to that incident occurred two days later. Persons attended at the victims’ residence and damaged the front door. Repelled, and in retreat, one of those persons yelled, “We will be back”. The charged incident occurred four days later.
A number of grounds of appeal were taken.
1.       It was submitted by the appellant A that the second incident was inadmissible, and by all appellants, that, in any event, there was no link to any appellant and the directions about it wrongly left it as evidence of motive.
2.       The appellant Ahmadi led evidence of alibi. He argued, relying on R v Mohammadi, that the Judge wrongly failed to direct the jury that if they rejected the evidence of alibi they would need to go on to consider all the other evidence and determine whether the case against him was proved.
3.       All the appellants argued that the conduct of the prosecutor resulted in a miscarriage of justice. It was put that in suggesting to the jury that the identifying witness was not to know that “the exact same weapons” would be found by police in the vehicle of one of the appellants, the prosecutor wrongly implied that those weapons had been identified by witnesses, and, there was no evidence of what the witness knew (or when) about that issue.
Further, the appellants complain that in cross-examining the appellant Ahmadi’s witnesses to suggest that Ahmadi might have had longer hair at the time of the offences and might have had a haircut after them to change his appearance, the prosecutor was contradicted by material in his own brief, which had been disclosed to the defence, but which was not led at trial. Counsel for M argued, on the basis of a passage in Kalbasi v The State of Western Australia that this acknowledged error by the prosecutor gave rise to a miscarriage of justice without need of evaluating its significance in the trial.
4.       Counsel for Ahmadi, Hosseini and A sought permission to argue that the verdicts were unreasonable.
Held: The appeals should be dismissed.
1.       The evidence of the two prior incidents was admissible. The first could provide evidence of motive which was relevant to the correctness of the evidence of identification. The incidents could be seen as a course of events culminating in the charged offences. That not all the appellants were identified as involved in the first incident and that there was no identification of those involved in the second was not to the point. The directions on the incidents were not erroneous.
2.       The direction sought by Ahmadi with respect to his alibi evidence was not necessary. If the jury rejected the alibi evidence it was not obliged to treat the case as one in which Ahmadi called no evidence. The jury was entitled to take into account that Ahmadi chose to deny responsibility by putting forward a particular (and false) defence. To the extent that R v Mohammadi provides otherwise, it is inconsistent with R v Baden-Clay and should not be followed.
3.       The prosecutor’s submission to the jury about the “exact same weapons” was poorly framed and needlessly so. The same submission could have been made without reference to either the identifying witness’ knowledge, or the located weapons being exactly the same. The point was that the collection of weapons found bore a strong resemblance to those seen by the victims and the identifying witness. There was no suggestion that the prosecutor deliberately cross-examined on a false basis or put a submission to the jury that he knew was incorrect. No complaint was made at the time by any counsel. The conduct, though regrettable, could not have led to a miscarriage of justice in the context of the entirety of the trial.
Discussion of the further point of counsel for M that any irregularity in a trial amounts to a miscarriage, based on a passage in Kalbasi v The State of Western Australia. The argument involves a misreading of Kalbasi.
4.       It is not reasonably arguable that the verdicts are unreasonable. Criticisms made of the identifying witness were no more than matters for the jury. The finding of the weapons in M’s car was important evidence which tended to implicate not only M, but also tended to support the evidence of the identifying witness. Permission to appeal refused.
Goedecke v Western Australia [2013] WASCA 25; SGH v Western Australia [2016] WASCA 161; Whitehorn v The Queen (1983) 152 CLR 657; Mraz v The Queen (1955) 93 CLR 493; R v Baden-Clay (2016) 258 CLR 308; R v Schulz (2016) 126 SASR 476, applied.
R v Mohammadi (2011) 112 SASR 17, not followed.
Kalbasi v The State of Western Australia [2018] HCA 7; R v Baden-Clay (2016) 258 CLR 308, discussed.
The Queen v Apostilides (1984) 154 CLR 563; R v Karounos (1995) 63 SASR 451; R v Rigney [2005] SASC 264; Nudd v The Queen (2006) 80 ALJR 614; Shepherd v The Queen (1990) 170 CLR 573; Murray v The Queen (2002) 211 CLR 193; Douglass v The Queen (2012) 86 ALJR 1086; Liberato v The Queen (1985) 159 CLR 507; Richardson v The Queen (1974) 131 CLR 116, considered.

R v AHMADI; R v HOSSEINI; R v A, N; R v M, A
[2018] SASCFC 39
Court of Criminal Appeal: Vanstone, Stanley and Parker JJ

VANSTONE J: The appellants stood for trial in the District Court on charges of serious criminal trespass and offences of violence. On the same Information the appellant M was further charged with possessing a firearm without a licence. They were tried before a judge and jury and all were convicted as charged.
Each now appeals against those convictions. A number of the grounds and proposed grounds of appeal are common to several appellants. They complain of the conduct of the prosecutor, both in certain passages of cross-examination and in his final address, of certain directions given (or not given) to the jury by the learned trial Judge, and three appellants complain that the verdicts are unsafe and unsatisfactory. Permission to appeal has been given on a number of grounds. Where permission has been given to any appellant on a ground common to another, that permission should extend to all.
For the following reasons, I would dismiss the appeals. In my view, the conduct of the prosecutor, though not without some fault, did not lead to a miscarriage of justice. The Judge’s directions were sound and, on the evidence, it was well open to the jury to convict all four appellants.
Background
I propose to refer to the appellants, M, A as “M”, A, N as “A”, Mohsen Hosseini and Mustafa Ahmadi by their surnames and to do the same in relation to the witnesses.
The charges faced jointly by the appellants were as follows:
Count 1 –aggravated serious criminal trespass in a place of residence – that residence being the home of Brandon Lee Cox and Joshua Ian Morrissey;
Count 2 –aggravated causing serious harm with intent to cause serious harm – committed against Cox;
Count 3 –aggravated causing serious harm with intent to cause serious harm – committed against Jarrad Strange;
Count 4 –aggravated causing harm with intent to cause harm – committed against Morrissey; and
Count 5 –aggravated assault – committed against Mark Lester Attana.
The final charge was against M alone:
Count 6 –possessing a firearm without a licence.
The prosecution case was that, late in the evening of 3 September 2015, Cox and Morrissey were at home at a unit at Marden (“Unit 9”) along with a number of friends, including Strange. At about 1.00 am, the four appellants and an unidentified man burst into Unit 9 armed with weapons. One had a “machete”, another a handgun and another a star dropper. They attacked Cox, Morrissey and Strange. Each of the five wore a “hoodie” over his head and had his face covered with a bandana. Strange was stabbed a number of times and his injuries included a punctured lung. Cox was cut on the face with what was said to be the machete. They underwent surgery later that night. Morrissey was stabbed to the upper body.
A friend of the victims, Attana, had been present at Unit 9 prior to the incident. A little earlier, he had left to go downstairs to another unit in the complex. He said that he heard a commotion and moved into the doorway of the downstairs unit. He saw the five men leaving from the direction of Unit 9 and heading down the stairs. The men had, by then, pulled down their bandanas and Attana recognised four of them. They were the four accused men. Attana thought that each man was carrying a weapon. M looked to be carrying a grey steel pole. A was carrying what looked like a metal garden stake with a profile like a “crucifix”. The third person he saw was Ahmadi. He had a weapon but Attana could not recall it. The fourth person was Hosseini. Attana was unsure if he were carrying anything. As the men ran past him, Attana said that A “shoved” him and Ahmadi struck him in the arm with an object, cutting him. In cross-examination Attana ultimately said it was M who pushed him.
The emergency number was called immediately. Police attended Unit 9 at 1.25 am. Later that day, the four appellants were arrested and various items of clothing were seized from their homes or their persons. The clothing seized, although fairly nondescript, generally matched the description of the clothing worn by the males, including dark coloured hoodies.
At M’s home, police located and searched a Mitsubishi Magna. Within it was found an imitation firearm, a handgun which, although not identified by any witness, was claimed by the prosecution to be the one used in the attack. In the boot of the Magna, police located a number of items including a large chef’s knife, star droppers, a garden stake and a scarf answering the description of one of the bandanas worn during the attack. Under the spare tyre cover and not immediately visible, was the shaft of a golf club. The head of the club was found elsewhere in the car.
The prosecution claimed that this incident was connected to two prior incidents. On 28 August 2015, following a party at Thebarton, an individual by the name of Basir Nasiri had one of his fingers cut off. The party had been held at the Thebarton Community Hall for friends of Attana, called Tim and Stevie. Attana attended both as a guest and crowd controller. There were 300 or 400 people present. Attana had known Nasiri six or seven years previously and knew that Nasiri was friendly with the appellants.
Cox also attended the party, as did the appellants M, A, Ahmadi and Hosseini. Various fights broke out during the night and Cox became involved in an incident. Attana said that a Cambodian friend of his, one Chan, was being beaten by M, Ahmadi and the man who Attana said was the fifth assailant on 4 September. Attana went to his assistance. Attana sought the assistance of Cox, who was nearby, asking him to take Chan to safety. Cox ushered Chan out. The appellants’ group did not leave Chan alone and eventually Cox arranged for him to leave in the car of another. Cox recognised Ahmadi, Hosseini and a person bearing the same Christian name as A, but whose surname he did not know as persons whom he knew and who had been “around” Chan. It is unclear whether charges have been laid in relation to the injury to Nasiri’s finger, although police officer Milsom gave evidence that police suspect Chan. Attana said that Nasiri was present at that incident, but he did not know if Nasiri was involved.
An incident which the prosecution alleged was a sequel to that encounter occurred on 30 August 2015. On the evening of that day, Cox and Morrissey were at home at Unit 9. They heard a knock on the door. Morrissey asked several times who was there. There were then loud bangs on the door and the door splintered, a piece of it coming out. Fearing trouble, Morrissey took hold of a mop. Cox opened the door and Morrissey then chased three people downstairs. Cox followed to the second floor and from the landing saw three people, wearing black, running towards the car park. He did not see their faces or whether they had weapons. Morrissey saw the fleeing persons from a position in the first level stairwell. He saw that two of them were carrying what he believed to be golf clubs. They were wearing hoodies over their heads, one of which was black. As they were running off, one of them yelled back, “We will be back”. Morrissey said he did not recognise them. There was damage to the outside of the front door which could have been caused by impact from a golf club.
At the trial the prosecution called Cox, Morrissey, Attana and a number of other witnesses. The only evidence of identification came from Attana. He identified each appellant as being one of the five men he saw running down the stairs on 3 September. None of the accused men gave evidence. Ahmadi called evidence of alibi. His witness, Mohammed Riza Ghafori, said that Ahmadi was a family friend. He said that he saw Ahmadi on 3 September in the afternoon and they “caught up”, and then again at about 11.30 pm at Ghafori’s house. There, they watched the movie “Gladiator”. Ahmadi left at about 2.00 am.
A called his brother, HA. He said that A’s hair length on the night of his arrest was the same as it had been on 3 September when he had picked up A from school; and in the preceding two or three weeks. This was relevant to an aspect of Attana’s evidence. A also called another brother, AA, who said that he shared a bedroom with the appellant. He said that the appellant had been in their joint bedroom when the witness went to sleep that night and was sleeping when police arrived at “maybe around 8” the next day. The witness was unaware of A’s movements during the night as he was asleep. His brother’s hair was the same on 4 September as had been on 3 September.
Wherever possible, I propose to deal with the grounds of appeal in groups.
Before moving to the grounds I would make the observation that it is a striking feature of these appeals and the grounds on which they proceed that although numerous complaints are now made about the directions given by the Judge in her summing up, apart from one minor factual matter, none of the counsel who appeared at the trial made any complaint about the directions during or after the summing up, although they were specifically invited to do so by the Judge. Indeed, in advance of her summing up, the Judge told counsel that she would be directing that the Thebarton incident could provide evidence of motive. Those directions are now impugned. In Perara-Cathcart v The Queen [2017] HCA 9 the plurality noted, in the context of a complaint that a direction warning against misuse of evidence was not given, that counsel at trial had apparently neither apprehended that the jury might misuse the evidence, nor expressed any concern about that possibility: [55] and [66]. In the context of the present criticisms of the directions, the failures of defence counsel to raise any matters now complained of is a matter of significance.
Directions on previous incidents – Ahmadi ground 5; A ground 7; M grounds 3 and 4
These grounds assert that the trial Judge erred in her directions to the jury about the use that could be made of the evidence that three unidentified persons had gone to Unit 9 on 30 August and damaged the front door. It is said that the Judge was wrong to direct the jury that this incident might provide a motive for some or all of the accused men to commit the charged offences and that the Judge was wrong to direct the jury that this evidence could be relevant to their assessment of Attana’s reliability in his asserted recognition of the four appellants. It was pointed out that the evidence of the incident itself could not support an inference that any of the four accused men were among those involved in the incident. It is put that, accordingly, the Judge should have told the jury not to speculate about whether any of the four accused men had been present.
Ms Abbey, for A, took the main oral argument on this ground. She argued that, conceptually, the incident at the party at Thebarton and the incident involving damage to the door of Unit 9 could not amount to motive. They were, at most, prior occasions of aggression by persons said to be either some of the accused men or persons linked to the accused men. It was put that the Judge was wrong to leave these incidents, and particularly the door damaging incident, to the jury as potentially providing a motive for what occurred on the charged occasion. Furthermore, she argued that there was no evidence implicating A in violence towards Chan at Thebarton and neither was there any evidence that he was one of the three unidentified men on 30 August. Therefore, she argued, the earlier incidents were not linked to A and could not provide a motive for him; that the requirement of proof beyond reasonable doubt of A’s involvement in the 30 August door damaging incident before its use against him was not met, and indeed the 30 August incident could not, by its nature, provide a motive in any case. Directions along these lines should have been given. She argued that the finding of the golf club shaft and head in M’s car was of little significance because it was not until the trial that Morrissey said he saw golf clubs in the hands of the fleeing men and raised the suggestion that one or more golf clubs could have been used to damage the door.
Ms Abbey went further and argued that the door damaging incident on 30 August was irrelevant to the charges and was therefore inadmissible against the four accused men. She acknowledged that it was not objected to at trial and that no ground of appeal claimed that it was inadmissible. She acknowledged that this was a “problem” for her. She put that, even if no objection were made, there should have been a direction given to the jury that before using the 30 August incident they needed to be satisfied that A at least knew of that incident. There was no such proof. Therefore, the jury should have been told that the incident could not amount to motive.

Counsel for Ahmadi adopted Ms Abbey’s submissions.
Counsel for M, Mr Henchliffe SC, put that while the finger chopping incident could provide a motive for the charged offences, the door damaging incident could not. The prosecutor at trial did not contend otherwise. Mr Henchliffe focussed on certain words in the directions of the trial Judge on this issue. I shall set out a lengthy passage from the summing up and italicise the words complained of:
If you are satisfied that the accused had a motive to commit the crimes alleged against them, then you may take that fact into account as one of the circumstances surrounding the alleged offences from which you may infer, beyond a reasonable doubt, that the accused committed the offence.
In this case, the prosecution relies upon the events that were said to have occurred at the party at Thebarton on 28 August. At that party, a man called Chan was apparently set upon by a number of people. Mr Attana came to his aid and it was said by Mr Attana that he intervened and pulled off [M], who was attacking Mr Chan at that time. Mr Attana gave evidence that all four accused were at this party. He also gave evidence there was another person by the name of Nasiri at this party and that this person was in the friendship group with the accused.
Mr Attana gave evidence that he called in aid Brandon Cox, who was also at the party, and that Mr Cox assisted Mr Chan from the building and Mr Chan was then driven away. In due course, it seems that Mr Nasiri received an injury to his finger or fingers with them being cut off later on that night. Mr Chan, it seems, is now charged with this offence.
It is this incident and the involvement of Mr Cox in it that is said to give rise to the motive of these accused to go to the unit at the particular time when the offences were committed and to commit the offences against the complainants, being Mr Cox, Mr Morrissey, Mr Strange and Mr Attana.
In addition to this, there is the incident that is said to have occurred a couple of days prior to the charged offences. This incident involved a number of men, probably three, attending at the unit of Mr Cox and banging on the door, trying to get in. They were unsuccessful in getting in when his brother, Joshua Morrissey, grabbed a mop and opened the door and chased the men away. The inference is that these people were connected somehow to the incident that occurred on 4 September as when they were running away, one of the group said ‘We’ll be back’.
It is a matter for you to consider whether or not you are satisfied that there is a motive on the part of the four accused to have committed the offences at the units at Marden. If you are satisfied that there is a motive, then you can take it into account in determining whether you are prepared to accept the evidence of Mr Attana as to his recognitions beyond reasonable doubt.
Mr Henchliffe argued that this direction was apt insofar as the finger chopping incident was concerned, but should not have encompassed the door damaging episode. He argued that even if the finger chopping incident could have given rise to a motive, the door damaging incident could not. The Judge was wrong to link the earlier incidents in her discussion of motive.
Mr Henchliffe submitted that the Judge should not have directed the jury that the door damaging incident could bear on the reliability of Attana’s recognition evidence.
Counsel also complained of an earlier direction of the Judge which invited the jury to consider the evidence of the weapons located in M’s car, including the damaged golf club, when assessing the reliability of Attana. The impugned direction was as follows:
You are entitled to have regard to it in combination and in the context of all of the relevant evidence in this case that is before you. In this regard, you have the evidence of the weapons that were located in [M’s] car, including the garden stake, the golf club that was broken, the imitation handgun, a knife, multiple gloves and what appears to be a scarf. You also have evidence of motive that was led by the prosecution.
While Mr Henchliffe acknowledged that the finding of weapons said to have been carried by the accused men during the charged incident could be properly considered, he argued that the inclusion of a reference to the golf club found in the car was not justified by the evidence. That was so, he argued, because only if the jury determined that the door damaging incident was linked to the charged incident could the finding of the golf club add to the evidence directly supporting the charges. That, he said, involved circular reasoning.
Unlike counsel for A and Ahmadi, Mr Henchliffe did not argue that the evidence of the door damaging incident was inadmissible. He said it was admissible because no objection to it had been taken.
I start with the issue of admissibility. Plainly the finger chopping incident was admissible. The prosecution was entitled to lay before the jury evidence of potentially relevant incidents in the days leading up to the charged incident. As Mr Henchliffe acknowledged, the finger chopping incident, involving as it did Cox intervening to help Chan, was capable of providing a motive for the charged offences. It was not to the point that there was not clear evidence of all the accused men directly attacking Chan. It was sufficient by way of link that the men were friends and close associates and some of them at least were around Chan at the time of the attack. Assessment of the weight of that evidence was for the jury. There was no separate requirement of proof that each appellant knew of the incident.
The door damaging incident of 30 August was also admissible. That was capable of being seen as part of a course of events, culminating in the charged offences. That one of the fleeing men yelled, as he left, “We will be back”, plainly linked the second incident to the charged offences. That was a statement of intention which the jury were entitled to conclude was fulfilled. It is true that the door damaging incident, standing alone, could not have provided a motive. But at all times the Judge grouped the incidents together and it would have been clear to the jury that it was the finger chopping incident that potentially provided a motive and that the prosecution was putting both subsequent incidents as sequelae to the first one.
I do not agree that the reference to a golf club in the second direction involved circularity. The jury was entitled to have regard to all the evidence in determining whether the incidents were linked. It did not have to make a decision about each one before moving on. The golf club, found as it was, damaged and without the other accoutrements of golf, was an important part of the factual matrix. That Morrissey did not, until the trial, attribute the fleeing men with possession of golf clubs was a matter for cross-examination. It did not go to admissibility.
If the three incidents were linked, then that tended to indicate that the charged incident was not a random attack, but was carried out with a purpose in mind. In that event, it would be expected that the attackers would be known to the victims. This could account for the disguises they wore. The link between the incidents was capable of supporting Attana’s identification of four of the five attackers, because a revenge attack would be likely committed by persons known to the victims and the persons identified by Attana answered that description.
I can find no fault with the directions given by the trial Judge. There was no implication from the directions that the door damaging incident of itself provided a motive for the later offences. Rather, the jury was being invited to view the three incidents as one connected course of events.
I would grant permission to appeal on these grounds but find they are not made out.
Complaints about the conduct of prosecuting counsel – Ahmadi grounds 6 and 7; Hosseini ground 4; A grounds 3 and 4; M grounds 1 and 2
These grounds assert that a miscarriage of justice resulted from conduct of the prosecuting counsel, first in suggesting certain matters to witnesses in cross‑examination without a basis and also in certain submissions put to the jury in counsel’s final address.
Attana said in evidence that when he saw A running down the stairs on 3 September, he was wearing a grey hoodie which was down, a bandana which was not covering his face and that his hair was short to medium in length and “long enough to put in a man bun”. This was in contrast with his police statements, in which he said that A’s hood was over his head. The length of A’s hair became an issue at trial. Upon the appeal, an affidavit of the prosecutor was tendered. He deposed that his brief contained CCTV footage of a number of the accused men, including A, taken at the Royal Adelaide Hospital on the night of 28 August, after the time of the incident at Thebarton and at a time when Nasiri was in the hospital having treatment for his finger injury. Still photographs taken from that footage were tendered upon the appeal. The photographs, although not very clear, show the shaved right side of A’s head and a narrow darker line of hair following the midline of his head from front to back.
The prosecutor deposed in his affidavit that, in his pre-trial discussions with the four defence counsel, he told them of that footage. At that time, the prosecutor was not intending to lead the finger chopping incident. Nor was the state of A’s hair an issue at that time. All defence counsel told him they did not want the Royal Adelaide Hospital evidence led. During the trial, he reconsidered his position about leading the evidence of the finger chopping incident. He did not plan to tender the Royal Adelaide Hospital evidence, as it did not occur to him. He further deposed that when cross-examining A’s witnesses regarding the state of A’s hair at the time of the charged offences, he did not advert to the fact that the footage showed A’s hair length about six days earlier. It is not suggested by any counsel that the prosecutor cross-examined or addressed in relation to this topic in a way that was deliberately at odds with material he had in his brief. However, his cross-examination, and in particular his address to the jury, might have led to the jury following a false line of reasoning, that is to speculate that A had cut his hair between the time of the charged offences and his arrest the following morning.
In cross-examining HA, the prosecutor suggested that A did not shave his head until the early hours of 4 September. The witness denied this and said that A had shaved his head two or three weeks before his arrest. The prosecutor then suggested that the witness had lied to assist A in court.
The prosecutor’s final address was given – as is usual – prior to those of defence counsel. He submitted to the jury that although the state of A’s hair at 4 September – whatever it was – might not shake their confidence in Attana’s evidence, his hair might have been shaved after the incident at Unit 9. He said:
Now you heard some evidence on [A’s] case, some evidence about what haircut [A] had, and you have D16 [A’s arrest photograph] with the shaved head. The significance of that - I’m sure you’ve picked it up - is that in cross-examination, Mr Attana says that [A] had a shaved side head and then long enough hair on the top to put it into a bun. Well, it’s clear on the evidence that at some point [A] had longer hair than appears in that photo, in D16. You might think whether he had long hair or a shaved head at the time doesn’t really shake your confidence in Mr Attana’s recognition. The hoods were there, he has seen the face, it’s the face that he has recognised, [A’s] face. The side of the head was still the same; on all accounts, the side of the head is shaved, consistent with that account.
We heard from [A’s] brothers and I won’t say too much about that, other than you’ll obviously bear in mind, when you are assessing their evidence, the fact of their close relationship with [A] and indeed of the elder brother, his interest in this matter, having read the statements and being involved from that time through to now. Of course the younger brother was asleep in the bed from 11 through to 8 a.m. the next morning, so he can’t assist you in any way about whether [A] left the house or not that night.
It’s a matter for you, ladies and gentlemen, what you make of that evidence, the significance of the different hairstyle if it was in fact different. It may well have been shaved that morning after [A] realised he had been spotted by Mr Attana. You have got D16, it certainly looks like a fresh haircut. You might think at the end of the day it doesn’t really matter too much one way or the other because Mr Attana told you he recognised the accused, and you might find he was honest and reliable when he told you that.
There is a further complaint about the prosecution address. Ahmadi (ground 7) and M (ground 2.1) complain that the prosecutor brought about a miscarriage of justice when he made a submission to the jury drawing attention to the coincidence of the weapons seen by Attana as the assailants fled and the weapons located in M’s car by police. The prosecutor said this:
What is found in [M’s] car on 4 September when the police attend; a firearm, a metal pole, a knife and a star dropper. Precisely the weapons used when that group of five men come back on 4 September and extract their revenge on the occupants of that house.
(emphasis added)
The prosecutor then went on to discuss in more detail Attana’s evidence of what he saw of the intruders coming down the stairs. He rehearsed Attana’s evidence as to what each man identified was carrying. He then went on to say:
I pause here to mention that Mark Attana didn’t know those various items he described, the items he says he saw, the metal pole, the knife, the star dropper, are the exact same items which are going to be found in [M’s] car. He didn’t have that information. He told you about these items he has seen and what do we know, unbeknownst (sic) to Mr Attana, those items are found the car of one of these four accused. One of the men he identified as part of that group of the attackers. The same car of the same accused, the same member of that group that contains a gun, a gun which Joshua Morrissey sees and Jarrad Strange sees during the course of the attack. As I mentioned, Joshua Morrissey, he too, describes the bladed weapon, he says it was a machete. You might think what he was thinking was a machete was, in fact, the knife. He too tells you about the star dropper. Mark Attana doesn’t know that but it is consistent with a description Mark Attana gives you of the weapons used and consistent with all four of those items being found in [M’s], one of the very group of men Mr Attana identifies as being involved in this attack.
(emphasis added)
The first complaint is that there was no evidence before the jury, or anywhere else, that the items described by Attana were the very same items which police found in M’s car. Certainly they were items which were consistent with Attana’s descriptions, but apparently and perhaps unsurprisingly, he was never asked to look at the items to see if he could identify them.
As I understand the complaint, it is to the effect that the jury might have been misled by this submission into thinking that evidence to which they were not privy indicated that Attana had claimed the items in M’s car to be the very ones he had seen on 4 September, and that Morrissey and Strange had identified the handgun seized from the backseat of M’s car as the very one seen by them. The prosecutor should not have put the identity of the weapons as a statement of fact.
Ms Abbey’s second argument about the “exact same weapons” submission to the jury was that there was no evidence about what Mr Attana knew or when. Thus, the submission asked the jury to engage in conjecture.
The Director of Public Prosecutions, Mr Kimber SC, emphasised that no counsel was suggesting that any of the asserted departures by the prosecutor were deliberate. He conceded that the prosecutor’s reference to Attana not knowing that items of the type he described would be found in M’s car and the reference to the weapons being the “exact same items” were regrettable. However, Mr Kimber noted that at the trial no counsel took exception to the submissions. No counsel responded to the submissions in the course of his defence address and no counsel asked the Judge to correct the misstatement. Mr Kimber argued that each of the submissions was, in effect, badly put, but if phrased differently, would have been legitimate. In relation to the cross‑examination about A’s hair and the submission made to the jury on the same topic, again, Mr Kimber acknowledged that the comment was regrettable having regard to information which was in the prosecutor’s brief. However, he argued that, especially in light of the Judge’s direction that it was not for A to prove that he had not cut his hair, the jury would not have been deflected from its proper task.
The duties of a prosecutor are extensive and exacting. I draw the following principles from Whitehorn v The Queen (1983) 152 CLR 657, 663-665; The Queen v Apostilides (1984) 154 CLR 563; R v Karounos (1995) 63 SASR 451, 465-466; R v Rigney [2005] SASC 264; SGH v Western Australia [2016] WASCA 161, [46] and Goedecke v Western Australia [2013] WASCA 25, [35].
In presenting the case for the Crown prosecuting counsel is required to act with fairness and detachment and with the objectives of establishing the truth and helping to ensure that the accused’s trial is a fair one. As a corollary, a prosecutor must not refrain from calling witnesses for tactical reasons, or convey to a jury by words or inference a personal opinion about the case generally or the persons involved; or cross-examine on a basis, or put a representation to the jury, which he or she knows to be false; or introduce a false line of reasoning, or tell a jury something which is not evidence. The prosecutor must not criticise the framework designed to ensure that the accused person receives a fair trial. Prosecuting counsel must not address the jury in language that is intemperate or overzealous in its nature. However, a criminal trial is an adversarial proceeding and the prosecutor is expected to put the case vigorously and fully. The prosecutor is not expected to adjudicate impartially on the issues between the parties.
If prosecuting counsel breaches his or her duty it will be for the appellate court to consider the significance of the departure in the context of the trial as a whole, including whether attention was drawn to the breach at the time and what, if anything, was done to redress it; Whitehorn at 664; Goedecke at [35]; SGH at [46].
I start by considering the cross-examination and submissions about whether A had altered his hair after the offences. It is noteworthy that no counsel apparently adverted to the capacity of the Royal Adelaide Hospital photographs to rebut the prosecutor’s suggestion to the jury that A might have had a recent haircut. Moreover, this must not have occurred to any defence counsel at the earlier point when the prosecutor was cross‑examining A’s witnesses. Because if it had, then presumably this would have been raised with the prosecutor and he could have abandoned that line of cross-examination in the presence of the jury. In any event, the witnesses denied the suggestion and the questions to them fell on barren ground. Once the prosecutor made this suggestion to the jury, had any defence counsel adverted to the relevance of the still photographs, the matter could have been raised with the prosecutor. No doubt, if necessary, he would have agreed to the tender of the photographs at that stage, or even to agreed facts which described A’s hair at that earlier time. A concession by the prosecutor would have been appropriate since the error was his. Alternatively, if the prosecutor was not amenable to redressing the situation, then the Judge’s assistance could have been enlisted. None of this apparently happened, because no counsel adverted to the relevance of the photographs. At first blush that might seem to be surprising. But in the atmosphere of a hard fought trial, where intense concentration is focussed on the evidence, it does not strike me as such. What it does tend to indicate is that, of the difficulties faced by defence counsel, speculation about a possible haircut in the middle of the night ranked low. Indeed, the spectre of A hurriedly leaving Unit 9, burdened with the realisation that Attana had recognised him, and in the face of that, determining to remove his “man bun” in an effort to weaken any anticipated identification, seems acutely unlikely.

It is significant that the Judge – despite being in ignorance of the availability of the Royal Adelaide Hospital photographs – directed the jury that it was for the prosecution to prove that A had had a haircut in the relevant period, and not for A to offer proof that he had not.
I turn to the other complaint. The two submissions by the prosecutor about the comparison of the weapons found in M’s car with those described by Attana were poorly framed and needlessly so. The submissions were both available and powerful, but needed to be put differently. It was unhelpful to focus on Attana’s knowledge of what the police might find. The legitimate submission was that Cox, Morrissey and Attana had nominated various weapons carried by the offenders; Attana recognised four of those offenders; and in the vehicle of one of the four was found, within a matter of hours, weapons consistent with those described. If Attana was wrong in nominating M as one of the men involved, then what chance M’s car should contain a handgun, a garden stake and a steel pole with a ‘crucifix’ profile? To that could be added a bandana. So put, the submission was not liable to criticism. That the impugned submission was, in essence, available robs the complaint of much of its power.
As Mr Kimber acknowledges, the way in which the submissions were put was regrettable. However, again, it is noteworthy that no defence counsel objected to the way in which the argument was made. Perhaps that was because, later in the submission, the prosecutor spoke, properly, of the weapons being “consistent” with the relevant descriptions. Plainly, that was the thrust of the submission. The jury would have understood it in that way. Had any complaint been made at the time, it could have been corrected forthwith.
Although more care should have been taken by the prosecutor in relation to his conduct giving rise to these complaints, I consider that they could not possibly have led to a miscarriage of justice. Ahmadi should have permission to amend his notice of appeal to add ground 7 and to appeal on that ground. M should be granted permission to appeal on his grounds 1 and 2; but the similar grounds taken by all appellants are not made out.
I refer at this point to Mr Henchliffe’s argument that the High Court’s recent judgment in Kalbasi v The State of Western Australia [2018] HCA 7 established that any slip or departure from the standards required of prosecuting counsel necessarily amounts to a miscarriage of justice, without reference to its significance in the trial. Kalbasi was concerned with the question whether the proviso should be applied in circumstances where there had been an error of law. The trial was conducted by the parties and the Judge on the incorrect basis that proof of the appellant’s possession of containers which he believed held drugs attracted a statutory presumption that he intended to possess drugs for sale or supply; which the appellant did not attempt to rebut. Plainly, this was a “wrong decision on any question of law” in terms of the Western Australian equivalent to s 353 of the Criminal Law Consolidation Act 1935 (SA) and the conviction could only stand if the Court of Appeal considered there was “no substantial miscarriage of justice”. The Court of Appeal so found.
In the High Court the appellant’s counsel asked the Court to reconsider Weiss v The Queen (2005) 224 CLR 300, arguing that the test as to when the proviso should be applied was unclear.
It was in this context that the Justices making up the majority made the statement relied on by Mr Henchliffe. Having discussed whether the question of substantial miscarriage should be assessed from the viewpoint of the jury which decided the case or a reasonable jury, the majority said at [12]:
Weiss settled the debate in an analysis that is grounded in the text of the common form provision. The apparent tension between the command to allow an appeal where the court is of the opinion that there was a miscarriage of justice, subject to the proviso that it may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred, is resolved by reference to history and legislative purpose. Consistently with the long tradition of the criminal law, any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the common form provision (here s 30(3)(c)). The determination of whether, notwithstanding the error, there has been no substantial miscarriage of justice is committed to the appellate court. The appellate court’s assessment does not turn on its estimate of the verdict that a hypothetical jury, whether “this jury” or a “reasonable jury”, might have returned had the error not occurred. The concepts of a “lost chance of acquittal” and its converse the “inevitability of conviction” do not serve as tests because the appellate court is not predicting the outcome of a hypothetical error-free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had.
(emphasis added; footnotes omitted)
Mr Henchliffe would read the italicised words as covering any departure, however minor, from the principles which govern presentation of the prosecution case. Thus he argues there is no need to evaluate the departure in the context of the case as a whole; any irregularity amounts to a miscarriage.
For these reasons I reject that interpretation. First, the irregularity under consideration in the passage just set out, is not any irregularity, but is an irregularity in relation to the rules of procedure or evidence. Were it the case that any blemish in a trial amounted to a miscarriage of justice, then cases such as Nudd v The Queen (2006) 80 ALJR 614, and SGH and Goedecke, referred to earlier – which require an assessment of the relevant departure in the context of the case to determine whether there was a miscarriage – would be implicitly overruled. Moreover, there is earlier High Court authority which confronts the point directly. In Richardson v The Queen (1974) 131 CLR 116 the High Court dismissed an appeal in which the sole ground was a complaint that the prosecutor failed in his ‘duty’ to call a material witness. The Court took the opportunity to discuss the role of the prosecutor in determining what witnesses would be called in the prosecution case. Confirming that there was no duty, as such, on a prosecutor to call all witnesses who could testify as to the relevant events, the Court, consisting of Barwick CJ, McTiernan and Mason JJ, said at 121-122:
Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call particular witnesses, it becomes apparent that the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice.
This statement makes plain that before a miscarriage is found to have resulted from a failure by prosecuting counsel, the nature and effect of the failure must be assessed in the context of the case as a whole.
Secondly, in the italicised part of the passage from Kalbasi relied on by Mr Henchliffe, there is a reference by footnote to a passage from the reasons of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514. Indeed, the passage in Kalbasi appears to be a restatement of the same principle. The statement by Fullagar J is:
It is very well established that the proviso to s. 6 (1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried.
There, it is even clearer that it is a failure to correctly explain the law or to strictly follow the rules or procedure and evidence which necessarily amounts to a miscarriage, not any irregularity at all.
For these reasons I find that, notwithstanding counsel’s interpretation of the statement in [12] of Kalbasi, it is still the law that not all blemishes, departures from good practice or misstatements of fact will give rise to a miscarriage of justice.
Failure to direct regarding lack of evidence of haircut – A ground 5
This ground, upon which permission is required, was framed as follows:
The Learned Trial Judge erred in failing to direct the jury that there was no evidence before them that [A] had had a haircut between about 1.00 am and 8.00 am on 4 September 2015.
The background to the complaint has already been set out. The argument is essentially that, in light of the prosecutor’s persistent suggestions that A might have had a haircut prior to his arrest, the Judge should have instructed the jury that there was no evidence that he had done so.
In my opinion the argument lacks force. It is true that there was no general direction to the effect that counsel’s questions did not amount to evidence; as there was with respect to the police questions in Ahmadi’s interview. However, as much was plain from the quite extensive general directions given by the Judge about assessing the truthfulness and reliability of witnesses. In addition, the Judge specifically directed the jury on this topic when summarising A’s case. Her Honour said:
The prosecution must, of course, prove beyond reasonable doubt that it was [A] that Mr Attana saw in the hallway. The evidence that has been led in [A’s] case is to the effect that as at 4 September, and for some time before he had not had such a hairstyle. His hairstyle had been similar, if not identical, to the haircut as seen in D16. Quite rightly, counsel for [A] says that it is not for the defence to prove that he did not have a haircut between 1 a.m. and 8 a.m. on the morning of 4 September; rather, it is for the prosecution to prove that he did.
The clear implication from this direction is that there was no evidence of A having had a haircut at the relevant time.
In my opinion there was no lack of clarity in the direction. Permission to appeal on ground 5 should be granted, but the ground is not made good.
Complaint regarding directions on separate consideration – A ground 6; Ahmadi grounds 2 and 4
A argues that there were a number of defects or omissions in the way in which the Judge invited the jury to consider the case against A. While Ms Abbey acknowledged that the jury were properly directed that they should consider each charge upon its merits and each accused person separately, she asserts that there needed to be, and was not, any particular reference to A in terms of what evidence was and was not admissible against him. Ms Abbey argues that, particularly in circumstances where the jury was properly directed that M bore an evidential onus in relation to the charge of possessing a firearm, the jury should have been specifically warned that A did not bear any onus.
Then Ms Abbey complained of a general direction which was given early in the summing up to this effect:
The joint criminal enterprise is usually a matter of inference from proven conduct. You look at the proven acts of each of the accused in light of the evidence as a whole, including any explanation which he may have offered.
Ms Abbey argues that this direction carried the risk that the jury would reverse the onus of proof, particularly bearing in mind M’s position in relation to his separate count, and that Ahmadi chose to be interviewed by police. Counsel said that it should have been made clear to the jury that A was not obliged “to have offered some explanation about joint enterprise or anything else”.
Counsel further argued that the jury should not have been told that Attana’s evidence of recognition of the four accused persons was supported by the finding of the weapons in M’s car. Here counsel referred to the Judge’s directions as follows. The first passage occurred after the Judge had discussed in general terms the difficulties associated with recognition evidence:
However, when you do consider the evidence of Mr Attana and his evidence of recognition, you do not need to do that in isolation. You are entitled to have regard to it in combination and in the context of all of the relevant evidence in this case that is before you. In this regard, you have the evidence of the weapons that were located in [M’s] car, including the garden stake, the golf club that was broken, the imitation handgun, a knife, multiple gloves and what appears to be a scarf. You also have evidence of motive that was led by the prosecution.
And further in the context of discussing the prosecution case:
[Attana’s] evidence in relation to his recognition of these men is supported on the prosecution case by the finding of the police in [M’s] car later on the same morning, a weapon being the gun that may have been used in the attack, the damaged golf club, star dropper, steel pole and a knife in addition to other items.
Counsel argues that even if this evidence were admissible in the context of the case as a whole (which she disputed) there was no evidence of any link between the weapons and A and therefore the finding of the weapons provided no support for Attana’s recognition of A.
Mr Armstrong for Ahmadi, put his argument in a slightly different manner. He relied on the fact that Attana attributed to Ahmadi the possession of a small blade (with which Attana was cut) but the only knife found in M’s car was a large kitchen knife. In cross-examination Attana was not sure that he had actually seen in Ahmadi’s possession the implement which cut him. Therefore, counsel submitted there was no proven link between the knife in M’s car and Ahmadi. As I understood the submission it was that before the finding of the weapons could be used against Ahmadi the jury had to be satisfied that there was a link between him and one of the weapons. Mr Armstrong submitted in his written argument that the link had to be proved beyond reasonable doubt, relying on Shepherd v The Queen (1990) 170 CLR 573 at 579.
Mr Armstrong also argued that the jury should have been directed that any admission on the part of M about being in charge of the car was not evidence against any other accused person, and that the legislative provision which operated in these circumstances related, anyway, only to the handgun. The background to this submission was that in a statement of ‘Agreed Facts’, Exhibit P8, all appellants admitted that the Magna belonged to M and that he was in charge of that vehicle “on and around 4 September 2015”. In the absence of proof to the contrary, those admissions were such as to amount to proof of M’s possession of the firearm, by operation of s 6 of the Firearms Act 2015 (SA). There was no proof to the contrary.
In my opinion there is no force in these complaints. The directions of the trial Judge in relation to joint enterprise and consideration of the case against each man separately (to the extent that was needed) were clear. The general directions about the onus of proof and presumption of innocence were clear and comprehensive. The Judge made it plain that the evidential onus borne by M related only to the separate charge he faced and had no relevance elsewhere. The Judge also made it plain that things said by any accused person to police or anyone else were not admissible against the other accused persons. The admissions relating to M’s ownership and control of the vehicle were admissions made by all the appellants. The import of that admission was to link the contents of that car to M, and, on Attana’s evidence, to the other appellants. The limited role of the legislative provision was made clear by the Judge. As I have already indicated, I consider that the Judge was correct in directing the jury that the finding in M’s car of weapons consistent or comparable with those described by Cox and Morrissey and Attana was capable of providing support for Attana’s recognition evidence. While the evidence tended to directly implicate M, it also affected the other appellants because it supported Attana’s credibility generally.
In respect of Ahmadi’s separate complaint, the asserted inconsistency with Attana’s description of the implement carried by Ahmadi, as against the knife found in M’s car, was a matter for the jury to assess. Counsel’s point about a requirement for a link between a weapon in the car and the weapon said to be carried and used in the stairwell is misconceived. What mattered was the co-incidence of the collection of weapons carried by the assailants and the collection of weapons bearing similarities found in the car, not which accused man carried which weapon. In a context where some items consistent with the descriptions given were found, it would not really matter whether a knife was found at all. There was no requirement for the jury to reach a point of satisfaction about the relevance of any one or more of the weapons in the car before using that evidence. The argument misunderstands Shepherd. Ahmadi’s point, which is ground 2, carries no weight.
Permission to appeal on ground 2 should be refused.
The grounds are not made out.
Complaint regarding directions on alibi – Ahmadi ground 3
Ahmadi argues that the Judge failed to adequately direct the jury as to how to approach the case against him in the event that they rejected his alibi evidence. He argues that having directed the jury, correctly, that it was not for Ahmadi to prove that he had an alibi, the Judge should have also directed the jury that, if they rejected his alibi as a reasonable possibility, they should go on to consider all the other evidence and determine if the case against him was proved beyond reasonable doubt. As I understand the submission it is to the effect that once the alibi evidence was rejected, the jury should put the alibi evidence aside, treat the case as one in which no evidence of alibi was given, and go on to consider the prosecution case against him.
Mr Armstrong relied on the judgment in this Court in R v Mohammadi (2011) 112 SASR 17 at [80]. There, the conviction was quashed on account of excessive judicial intervention leading to a miscarriage of justice. In addition there was discussion of the directions required when evidence of alibi is given. The facts in Mohammadi raised a situation comparable to the present one. There, Mohammadi gave and called evidence of alibi. In directing the jury about that evidence the trial Judge summarised it, but did not, in the course of the summary, remind the jury that the accused bore no onus to prove his alibi. The general directions about onus were left to do that work. David J, with the agreement of Gray and Sulan JJ at [40], made this general statement about the obligation on the judge. The part relied on by Mr Armstrong has been italicised:
[80]When a defence of alibi is presented, namely, when an accused denies having been present at the scene of a crime at the time when it was committed and has called a witness to support that fact, it is important for the jury to be directed in clear terms that there is no onus on the accused to satisfy the jury of the truth and reliability of his alibi. It was also important to direct the jury that if it was reasonably possible that the alibi put forward was true, then they must acquit. Further, it was important to direct the jury that the rejection of the alibi evidence standing alone does not necessarily lead to a conclusion that the accused is guilty. They should have been directed that, if that was the case, they must then go on to consider all other evidence as to whether the prosecution had proved all the elements of the offence beyond reasonable doubt. …
David J went on to say that the omission to direct in those terms might not have been fatal, had it stood alone: [81].

The suggested deficit relied on by Mr Armstrong is a failure to direct that rejection of the alibi evidence, standing alone, does not necessarily lead to a conclusion that the accused is guilty.
I do not agree that the direction for which Mr Armstrong contends was necessary. While it is true that the jury’s task with respect to Ahmadi would not be completed immediately upon having rejected that evidence, such a direction has the vice that it might imply that the rejected evidence should be thereafter ignored. Why should the jury treat the case as one in which Ahmadi had called no evidence at all? Of course the jury would not return a verdict of guilty unless it were satisfied beyond reasonable doubt of Ahmadi’s guilt by the evidence called by the prosecution; in this case, importantly, Attana’s evidence. The Judge’s general directions ensured as much. However, in assessing that evidence the jury was not obliged to ignore the fact that, on the jury’s own assessment, Ahmadi had chosen to present false evidence of alibi. That was the battle ground on which Ahmadi chose to defend the allegations and he had failed in that arena.
In R v Baden-Clay (2016) 258 CLR 308 the High Court made it clear that the evidence of an accused person, even if rejected by the jury, potentially remains important. To put it differently, the jury is not, in that situation, obliged to treat the case as one in which the accused did not give (or call) evidence at all. It is entitled to take into account that the accused person chose to deny responsibility by putting forward a particular (and false) defence.
Baden-Clay gave evidence in his own defence denying any connection to his wife’s murder. He was convicted. Upon appeal, the Court of Criminal Appeal of Queensland held that the evidence was not capable of excluding a reasonable hypothesis that Baden-Clay killed his wife, but without the requisite mental element of murder.
On appeal by the Director of Public Prosecutions, the High Court restored the conviction. The Court said this about the relevance of Baden-Clay’s evidence:
[57]… To say that the respondent’s evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent’s innocence of murder. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.
[58]The Court of Appeal should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of the death of the deceased on the basis that the respondent’s evidence could be disregarded as if it had not been given at all.
If the trial Judge in the present case were to have given the additional direction for which Mr Armstrong argues based on David J’s reasons at [80], it would have been along these lines:
Even if you reject the evidence of alibi called by Ahmadi, that alone does not necessarily lead to a conclusion that Ahmadi is guilty. In that event you would need to go on to consider all the other evidence to determine whether the prosecution has proved its case against him.
In my view such a direction could well mislead the jury unless accompanied by a rider such as this:
However, if that is the position you reach, you would not be obliged to ignore the fact that Ahmadi chose to put before you evidence that he was not at Unit 9 at Marden at the relevant time and that he was in another place, and that you rejected that evidence. You would need to consider whether the decision to defend the case in that way – a way you rejected – arose from a consciousness of guilt.
I doubt that such an additional direction, with the rider I have added, would have advantaged the defence. In any event, it was unnecessary. The general directions given by the Judge on the burden and onus of proof, coupled with the direction that Ahmadi did not need to prove his alibi affirmatively, were all that was required.
Mohammadi’s Case did not turn on the directions about the defence case. Furthermore, it was decided before the decision in Baden-Clay. To the extent that it is authority that the direction sought here was required, I consider it is contrary to Baden-Clay and should not be followed. In R v Schulz (2016) 126 SASR 476 this Court discussed the caution which must be employed if the decision is made to direct juries on the consequences of accepting or rejecting defence evidence. Drawing on passages from the High Court cases of Murray v The Queen (2002) 211 CLR 193, Douglass v The Queen (2012) 86 ALJR 1086 and Liberato v The Queen (1985) 159 CLR 507 I advised trial judges to avoid discussing defence evidence in terms of the jury “accepting” it. I said at [35] (with the agreement of Blue and Lovell JJ):
As mentioned, this particular passage in Murray was specifically approved in Douglass. It seems to me that this amounts to strong advice to trial judges to avoid discussing an accused person’s evidence in terms of acceptance of it. Much depends on the structure of the summing up and the way in which the judge discusses the defence case. If there is a reference to the possibility of “accepting” the defence evidence, then plainly the full spectrum of other possibilities must be put as well. However, it would appear to be a better course to simply direct the jury to consider the defence evidence, direct them as to proof of which element is put in issue by it, and instruct them that the question for decision is whether, on the whole of the evidence, and notwithstanding the defence evidence and argument, the prosecution case has been proved.
This advice naturally extends to discussion of rejecting defence alibi evidence, although the dangers inherent in it include slightly different ones, as already discussed.
To summarise, there is no need to direct the jury that even if it rejects the defence evidence it cannot convict unless the whole of the evidence proves the accused’s guilt. The general directions on the onus and standard of proof and the elements of the offence will make this unnecessary. It is wrong to tell the jury that once defence evidence is rejected it should be set aside, or that the case should be treated as one in which the defence called no evidence. As Baden-Clay demonstrates, rejected evidence can remain relevant.
Permission to appeal on this ground should be granted but the ground is not made out.
Proposed ground that verdicts are unreasonable – Ahmadi ground 1; Hosseini ground 1; A ground 1
Permission to appeal has not been granted on these grounds.
I deal first with the argument mounted by Hosseini. On the appeal hearing Hosseini abandoned ground 2, on the basis that it was subsumed into ground 1. Like other counsel, Ms Demertzis for Hosseini pointed to a number of suggested frailties in Attana’s evidence, not all related to her client. She pointed to evidence which tended to establish that A’s hair was too short to be placed in a “man bun” as at 4 September. She pointed to the alibi evidence called on behalf of Ahmadi. She noted that, while there was said to be clear evidence that Ahmadi was wearing a cast on his arm at the relevant time (including upon his arrest) Attana had made no mention of seeing it. Ms Demertzis referred to cross-examination of Attana which showed that he did not mention Ahmadi’s name to police in the first instance, and that he did not initially give the correct surname of Hosseini. Counsel also pointed to the conflict in the evidence as between Cox and Attana as to why Attana was at Unit 9 in the first place on the night of 3 September.
Counsel referred to a suggested conflict between the evidence of Attana, as against the evidence of police officer Lance about an interaction between them at the Hindley Street Police Station on 3 February 2017. This incident was the subject of quite extensive evidence in the trial. In essence, Attana said that on that date he was in a bar in Waymouth Street, Adelaide when approached by Hosseini. Hosseini told him that he had nominated the wrong people (in relation to the events of 4 September). Hosseini asked Attana to go to the police station with him. Attana said he felt intimidated when Hosseini was joined by others. In cross-examination Attana conceded that during that interlude he had apologised to Hosseini for going to the police, but he said he was scared that he would be taken “around the corner” by the men who were with Hosseini. Later on that night Attana was in another bar in Hindley Street and again encountered Hosseini and his group. Hosseini asked him whether he was “ready to go”. They then walked to the Hindley Street Police Station. Attana said he went along with this believing that it would buy him time and that police would realise that Hosseini was in breach of the terms of his bail.
Once at the police station, Attana said that he spoke to an officer at the front desk, Constable Lance. Attana said that when he spoke to Lance, Hosseini was by his side, in effect whispering a script to him. He told Lance that the people he had named as the assailants were not the right people and that he had named them out of spite. Lance then made enquiries and realised that Hosseini was breaching the terms of his bail by being with Attana, and also was in breach of a curfew imposed as a condition of his bail. She then separated them. However, in her evidence, Lance said that Hosseini, who had been perhaps four feet behind Attana and facing in the same direction as him, had not spoken during the period she was speaking to Attana; except that, when she told them they must separate, they said goodbye to each other.
Clearly this incident was capable of reflecting poorly on Hosseini. However, in my mind it did not necessarily do much, if any, damage to Attana’s credibility. First, if Hosseini was giving Attana a script, he would plainly not do it in such a way as Lance would hear him. But in any event, the point upon which counsel focusses is a small one. Counsel who appeared for Hosseini at the trial contrasted the two versions of the interaction in his address to the jury, but, in my mind, the argument rises no further than an argument to be made at that time.
For his part, counsel for Ahmadi referred to a lack of clarity in Attana’s evidence as to whether he actually saw the item which was used to inflict injury on him in the stairwell. He also relied on differences in the evidence of Attana in respect of the Thebarton party incident as against the evidence of Cox. In relation to the 4 September incident he put that Attana’s evidence was the subject of considerable variation, was sometimes unclear and was often shown to be inconsistent with other statements made by him.
Ms Abbey for A, put that Attana’s evidence lacked cogency and was unreliable. She suggested that it was internally inconsistent at times and that there were significant inadequacies about it. In her written argument counsel provided a table drawing attention to a number of suggested inconsistencies under several different headings. For example, Attana was unsure and inconsistent about who pushed him on the stairwell, eventually settling on M. He had told police it was A. Then, there was inconsistency between Attana and Cox as to the reason which took Attana to Unit 9 on 3 September. Further, there was inconsistency in Attana’s recollection as to the period over which he had known A. Attana was also inconsistent as to whether he had identified the fifth man to police and as to whether he knew the fifth man at all. This was in circumstances where one of the investigating officers claimed that Attana had given the name “Ali Dosti” in relation to the fifth man.
None of these matters seems to me to amount to compelling reason to doubt Attana’s credibility. That is particularly so when regard is had to the finding of the collection of weapons in M’s car on the following day, and, to a lesser extent, the evidence of motive dating back to the Thebarton party incident. It is hardly surprising that Attana should be unsure of some details of what he saw on 4 September. The fleeing men would have been in his sight for only a short period and during that time he was injured. Much the same could be said of observations made of the Thebarton party incident. Plainly, persons who saw that from different vantage points would take away different memories of it. The points raised by counsel in this Court were the subject of argument to the jury. There is no reason to doubt that the jury considered the arguments.
As I said, the finding of the collection of weapons in M’s car, including an imitation firearm, was important evidence which tended to implicate not only M, but also tended to support Attana’s identification of all four men.
In my opinion this ground is not reasonably arguable and I would refuse permission to appeal in each instance.
Conclusion
For the foregoing reasons I would make the following orders. In relation to Ahmadi I would grant permission to amend his notice of appeal to add ground 7. I would grant permission to appeal on grounds 3, 5 and 7, but refuse permission on grounds 1 and 2. I would dismiss Ahmadi’s appeal.
In relation to Hosseini I would refuse permission to appeal on ground 1, and dismiss his appeal.
I would grant permission to M to amend his notice of appeal. I would grant M permission to appeal on his grounds 1, 2, 3 and 4, but dismiss his appeal.
With respect to A I would grant permission to appeal on grounds 5, 6 and 7, refuse permission on ground 1, and dismiss his appeal.
STANLEY J: I agree with the reasons of Vanstone J and the orders proposed.
PARKER J: I agree with the reasons of Vanstone J and the orders that she proposes.