R v Aljaroudi; R v Abdullah; R v El-Awar - [2012] SASCFC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ALJAROUDI; R v ABDULLAH; R v EL-AWAR
[2012] SASCFC 117
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nyland and The Honourable Justice David)
11 October 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT IN COMPANY
CRIMINAL LAW - PROCEDURE - VERDICT - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal by each appellant against conviction – appeal by Aljaroudi and El-Awar against sentence – appellants convicted by jury on joint charge of aggravated causing harm with intent to cause harm as a result of victim being stabbed with a knife – appellants found guilty on basis of two circumstances of aggravation being proved namely: being in company with perpetrator and foreseeing possibility that perpetrator intended to cause harm with a knife.
Aljaroudi
Appeal against conviction and sentence – complaint that verdict unreasonable and not supported by evidence as weakness in identification evidence of appellant as driver of car at the scene – complaint that finding by special verdict that aggravated circumstance of being in company was unreasonable - on prosecution evidence appellant had never left the car and was not present with perpetrator when victim stabbed – complaint that evidence did not establish beyond reasonable doubt that appellant foresaw possibility that perpetrator intended to cause harm or in the alternative that the perpetrator would cause harm with a knife.
Held: Strong and compelling evidence of identification of appellant as driver of car – complaint as to special verdict misconceived - case against appellant was that he was an accessory to the perpetrator who committed the offence in the company of others – ample evidence to establish that appellant knew perpetrator intended to cause harm to victim – Judge erred in failing to leave to jury alternative verdict on basis that use of a knife might not have been foreseen by appellant – appeal against conviction allowed in part - verdict substituted and appellant re-sentenced on basis that offence was aggravated by the circumstance that it was committed in company.
Abdullah
Application for permission to appeal against conviction – permission to appeal refused by single Judge - prosecution case was that Abdullah was perpetrator of the assault – complaint that concession made by Counsel for El-Awar that El-Awar was at the service station at the relevant time resulted in a miscarriage of justice – complaint that Judge erred in failing to discharge jury and failed adequately to direct jury on how they should treat the “concession”.
Held: In light of Judge’s directions not arguable that Jury would have given the concession any evidentiary weight – permission to appeal refused.
El-Awar
Appeal against conviction and sentence - complaint that Judge did not adequately direct the jury to consider the case against him separately and as to evidence inadmissible against him - further complaint that Judge failed adequately to direct jury on the significance of victim’s prior inconsistent statements to effect that appellant had come to his assistance and the correlation between those prior inconsistent statements and the testimony of another witness which may have supported that possibility – complaint that Judge did not sufficiently relate warning concerning the evidence of victim to case against appellant – complaint that verdict unsafe and unsatisfactory.
Held: Directions of Judge as to admissibility of evidence and to separate consideration adequate – submission that Judge did not repeat details of defence case in sufficient detail rejected – jury could not have failed to understand thrust of defence case – jury reminded by Judge of criticisms made by counsel in his address as to credibility of victim – direction by Judge on that topic was adequate - Judge erred in failing to leave to jury alternative verdict on the basis that use of a knife might not have been foreseen by appellant– appeal against conviction allowed in part – alternative verdict substituted and appellant re-sentenced on basis that offence was aggravated by the circumstance that it was committed in company.
Criminal Law Consolidation Act 1935 (SA) s 5, s 5AA(1), s 5AA(4), s 24(1), referred to.
The Queen v Brougham (1986) 43 SASR 187; Gillard v The Queen (2003) 219 CLR 1, discussed.
SKA v The Queen (2011) 243 CLR 400, considered.

R v ALJAROUDI; R v ABDULLAH; R v EL-AWAR
[2012] SASCFC 117
Court of Criminal Appeal: Kourakis CJ, Nyland and David JJ

KOURAKIS CJ: The appellants appeal against their convictions following a trial by jury on a joint charge of aggravated causing harm with intent to cause harm. The offence with which they were charged was committed shortly after 7.00pm on 17 September 2008, when WB was stabbed in the vicinity of a service station on Lower North East Road. The two aggravating circumstances alleged in the Information were that the offence was committed by the perpetrator using a knife and whilst in the company of others.
The Trial
WB testified that he was stabbed by the appellant Abdullah in the presence of the appellant El-Awar and another man, Ghamrawi, who was not tried with the appellants. WB testified that his assailants had travelled to, and were taken away from, the service station in a car driven by the appellant Aljaroudi. The testimony of WB was supported by a substantial body of circumstantial evidence.
The appellants did not give evidence.
In short, the circumstantial evidence strongly supported an inference that the appellants Abdullah and Aljaroudi were motivated to harm WB because he had not kept his part of an illicit drug deal. The evidence suggested that El‑Awar’s motive, although related to the deal, was different in that El‑Awar was angry with WB because he believed that WB had falsely blamed him for the failure of the transaction. There was no direct testimonial evidence that Aljaroudi and El‑Awar were aware that Abdullah was carrying a knife before the stabbing.
In their defence Aljaroudi and Abdullah attacked the credibility and reliability of WB’s evidence that they were at the service station.
On the other hand, counsel for El-Awar told the jury that El-Awar “did not shy away” from the fact that he was there. His counsel suggested to the jury that they might find “some comfort in that concession”. El-Awar’s counsel’s submission reflected his cross-examination of WB. He had put to WB that even though El-Awar was present he had not taken part in the attack on WB but had actually come to WB’s assistance.
The use of the word “concession” by El-Awar’s counsel caused some consternation at the trial. Abdullah’s counsel sought a mistrial on the ground that El‑Awar’s submission cut across Abdullah’s defence. The Judge declined to discharge the jury. Instead, and at the suggestion of the Judge, when the jury returned El‑Awar’s counsel told them that he had not meant to make a concession and that it was a slip of the tongue.
In his summing up the Judge told the jury that the case for El-Awar did not include a concession that El-Awar was at the service station. He reminded the jury that they must decide the case “on the evidence” and that the only evidence that El‑Awar was present came “from the prosecution case”.
WB had given inconsistent accounts of the attack to police in the course of their investigation. In one statement WB told police that El-Awar had come to his assistance. The testimony of an independent observer, B, at least on one view of his evidence, also contradicted WB’s testimonial account of El-Awar’s participation in the attack on him.
The Judge warned the jury to closely scrutinise WB’s testimony and to consider whether it was supported by other evidence. The Judge told the jury that special care was required because WB may have had reasons of his own to implicate the appellants and shift blame to them. The Judge told them that WB may have been shielding others or currying favour.
The Judge directed the jury that they may take into account a prior inconsistent statement adversely to the credibility of a witness. He specifically referred to WB in this respect but did not repeat the inconsistencies which had been emphasised by counsel for the appellants in their addresses.
The Judge admonished the jury that they must consider the case against each accused separately. The Judge directed them that “things said and actions taken by one accused in the absence of the other accused cannot be used against [the] other accused”.
The Judge directed the jury that if they were not satisfied that a knife was used in the attack, they could not be satisfied that the offence was committed and that he would take a verdict of guilty as a finding that the aggravating circumstance of being armed with a knife was proved. He directed them that, in the event that they returned a verdict of guilty, he would enquire only as to their finding on the circumstance of being in company. The Judge did not direct the jury that it was open to return a verdict of the non-aggravated offence with respect to any of the appellants. After the jury returned verdicts of guilty of the aggravated offence against all three appellants, they were interrogated as to their finding on the circumstance of aggravation and returned a special verdict that it was proved against all three accused.
Summary of grounds and their disposition
Aljaroudi’s primary complaint is that the verdict against him was unreasonable and not supported by the evidence because of weaknesses in WB’s testimony that he recognised the driver of the car as Aljaroudi. Quite apart from the inherent strength of the identification by WB because he knew Aljaroudi well, there was overwhelming evidence of Aljaroudi’s association with a car of the same description as that which carried the assailants to the service station and of his association with the assailants. The ground must be dismissed.
Aljaroudi also complains that the special verdict finding that the aggravated circumstance of being in company had been proved against him was unreasonable because on the prosecution evidence he never left the car and was not present with the perpetrator when WB was stabbed. This complaint is misconceived. The case against Aljaroudi was that he was an accessory to the perpetrator of the stabbing and that it was the perpetrator who committed the offence in the company of others.
Finally Aljaroudi complains that the evidence did not establish beyond reasonable doubt that he foresaw the possibility that the perpetrator intended to cause harm, or in the alternative that the perpetrator would cause harm with a knife. As to the first limb of this ground, the evidence that Aljaroudi and Abdullah went to the service station to exact retribution from WB was very strong. I have no doubt that Aljaroudi knew that Abdullah intended to cause WB serious harm and that he knowingly facilitated Abdullah’s offending by driving him to the service station. As to the second limb of the ground, for reasons I give below with respect to El-Awar’s appeal, I have concluded that the Judge erred in failing to leave to the jury the alternative verdict of guilty of the non-aggravated offence on the basis that the use of a knife might not have been foreseen. The Director of Public Prosecutions (the Director) accepted that in the event that this Court so decided, the appropriate order would be to enter a conviction on the non-aggravated offence instead of remitting the matter for retrial. It is therefore strictly unnecessary to determine whether the verdict is unreasonable but I nonetheless record my view that it was a verdict which was supported by the evidence. On substituting an alternative verdict it becomes necessary to resentence on the basis that the offence was aggravated only by the circumstance that it was committed in company. In accordance with the Director’s concession, I would proceed to resentence on that basis and it is therefore also unnecessary to determine Aljaroudi’s appeal against sentence.
Abdullah’s first ground of appeal complains that the concession, by El‑Awar’s counsel, that El-Awar was at the service station resulted in a miscarriage of justice. Abdullah complains that the Judge erred in refusing to discharge the jury. The second ground of appeal complains that the Judge failed to adequately direct the jury on how they should treat the “concession”.
Permission to appeal on these grounds was refused by a single Judge of this Court. In my view it is not arguable that the jury would, in the light of the Judge’s directions, have given the “concession” of El-Awar’s counsel any evidential weight. I would refuse permission to appeal.
El-Awar appeals against his conviction on five grounds.
First, El-Awar complains that the Judge did not adequately direct the jury to consider the case against him separately. The directions of the Judge were, in my view, adequate in the context of the relatively simple prosecution case and the large degree of commonality in the evidence against all of the appellants. El‑Awar’s related complaint, that the Judge did not do enough to identify evidence which was not admissible against El-Awar, largely understates the body of evidence which was admissible against him and overstates the prejudicial effect of some items of evidence which were not. The appeal on this ground should be dismissed.
Second, El-Awar complains that the Judge failed to adequately direct the jury on the significance of WB’s prior inconsistent statements to the effect that El-Awar had come to his assistance, and the correlation between those prior inconsistent statements and the testimony of the witness Bahr which, on one view, supported that possibility. The burden of El-Awar’s complaint is that the Judge did not repeat in sufficient detail, or emphasise strongly enough, the defence case. The appeal on this ground should also be dismissed. El‑Awar’s defence was a simple one which the jury could not have failed to understand. The Judge’s duty to remind the jury of the defence case is not a duty to reprise defence counsel’s address.
El-Awar’s third ground is that the Judge did not sufficiently relate the warning concerning the evidence of WB to the case against El-Awar. That ground also should be dismissed. WB was not an accomplice. There is no rule of law or practice which requires a trial Judge to warn juries to scrutinise with special care the evidence of alleged victims of offences because of their criminal associations. I acknowledge that the circumstances in which the offence with which the appellants were charged was committed were capable of affecting the credibility of WB. However, that would have been obvious to the jury. The credibility of WB on that score was heavily attacked by counsel for the appellants at trial. Their criticisms were referred to by the Judge. There is no reason to conclude that there has been a miscarriage of justice because of any imperfect appreciation which the jury may have had of that issue.
By the fourth ground of appeal, El-Awar complains that the verdict was unsafe and unsatisfactory and against the weight of the evidence. The ground so expressed is not one of the statutory grounds for interfering with the verdict of a jury. The formula is commonly used but it is apt to mislead. I will take the ground as a complaint that the verdict was unreasonable and not supported by the evidence. El-Awar’s primary contention is that the prior inconsistent statements of WB, together with the evidence of Bahr must raise a reasonable doubt about El-Awar’s involvement in the attack on WB. For reasons which I develop below, those matters do not cause me to doubt El-Awar’s guilt. If those matters had raised a doubt in my mind, the jury’s rejection of that doubt is plainly explicable by the advantage it had in hearing the testimony of WB.[1]
[1] SKA v The Queen (2011) 243 CLR 400.
Finally, El-Awar appeals his conviction on the grounds that the Judge failed to leave the basic offence to the jury and failed to take separate verdicts from the jury as to each alleged circumstance of aggravation. The second limb of this ground cannot be maintained because the Judge directed the jury that they could only bring in a verdict of guilty of the aggravated offence if they were satisfied beyond reasonable doubt that the knife was used by Abdullah in circumstances which were foreseen by the other appellants. The effect of so directing the jury, and then asking them separately, after they had delivered their guilty verdict of the aggravated offence, for their finding on the circumstance of being in company was to take a separate verdict with respect to each aggravating circumstance.
El-Awar’s contention that the Judge erred in failing to leave the basic offence to the jury should be accepted. It is an error of law not to leave to the jury a verdict which is open on the evidence.[2] For the reasons I give below, there was a real issue joined by the appellant Aljaroudi and El-Awar on the issue of their foresight of Abdullah’s use of the knife. A verdict of guilty of the basic offence should therefore have been left to the jury.
[2] Gillard v The Queen (2003) 219 CLR 1.
The Director submitted that in the circumstances of this case if this Court were to find that error had been made the most appropriate course would be to substitute a verdict of guilty of the aggravated offence by reason that the perpetrator, Abdullah, was in company with El-Awar and Ghamrawi. That submission should be accepted and for that reason El-Awar must, like Aljaroudi, be resentenced.
My reasons for the above stated conclusions follow.
The evidence
In January 2008 WB employed Aljaroudi in his business. Later in the same year WB met El-Awar and Abdullah. Aljaroudi left his employment with WB in August 2008. WB initially testified that shortly after leaving his employment Aljaroudi approached him at his home for financial assistance to pay a past drug debt. Later in his evidence WB conceded, albeit with much equivocation, that Aljaroudi had approached him to finance a proposed future purchase of illicit drugs. WB agreed that he subsequently met with the appellants Abdullah and Aljaroudi, and another man Ghamwari, to discuss how he might assist them to purchase the drugs.
Records of text messages sent to and from WB’s mobile telephone were received as exhibits. It can be inferred from those messages that WB agreed to finance Aljaroudi and Abdullah to purchase the drugs, or perhaps, to find a down‑line buyer of the drugs. It can also be inferred that they had bought drugs on the strength of WB’s undertaking but that WB did not provide the money he had promised. The text messages show that Aljaroudi became increasingly angry during September 2008 at WB’s failure to come up with the money. The text messages sent to WB by Aljaroudi carry express and implied threats that Abdullah, or the supplier of the drugs, were likely to harm WB or his family if he did not pay. The replies sent by WB complain that he had made it clear to them that the drugs should not be purchased until he had procured the funds to make the payment and that Aljaroudi and his associates were to blame for purchasing the drugs before he had done so.

WB’s sister, M, was a prosecution witness. She testified about an occasion in early September 2008 when Aljaroudi complained to her that he and others had “bought it” and had “smashed it”. It was open to the jury to infer from that and other evidence that Aljaroudi was referring to drugs and that the expression “smashed it” referred to diluting or mixing the purchased drug with another compound. Aljaroudi told M that a man, Abdullah, was going to be “pissed off”. M met Aljaroudi for a second time at a BP service station on Lower North East Road. He was with another man whom M did not recognise. M testified that the other man screamed at her in Arabic and threatened to kill WB. At that meeting Aljaroudi told M that he had bought a quantity of methylamphetamine for $100,000 and that WB had undertaken to find a buyer for the drugs. Aljaroudi complained to M that WB had not found a buyer and that, because the methylamphetamine had been mixed, it could not be returned.
M testified that the man who had screamed at her later came to her parents’ house. M saw him speaking to her father. She saw the man introduce himself as Abdullah. M identified the appellant Abdullah in the dock as that man.
M also testified that she received a telephone call from Abdullah in which he threatened her with sexual assault.
The appellant’s father, K, gave evidence that Abdullah came to his house. K testified that Abdullah complained to him that he had bought drugs to the value of $90,000 and that WB was responsible for half of that amount. Abdullah told K that if the purchase price was not paid the suppliers would kill Abdullah’s family. K testified that Aljaroudi was present during that conversation.
WB testified that early in the afternoon of 17 September, Aljaroudi telephoned him and informed him that he and Abdullah would visit him at his home at 5.00pm. WB testified that shortly after that telephone call El-Awar called him and complained that WB had falsely blamed him for the unravelling of the drug deal.
WB’s mother, N, testified that Aljaroudi arrived at her home in a white Commodore at about 5.00pm. She saw the man Ghamrawi sitting in the front of the car with Aljaroudi. There was a third person in the rear seat whom she could not identify because of the window tinting. WB was inside at the time but N told Aljaroudi that he was out. Aljaroudi became angry and hit the steering wheel of the car.
After Aljaroudi left, WB drove into the city where he collected his friend, RN. WB then telephone El-Awar but he refused to speak to him. A mutual friend, SD, who was with El-Awar at the time of the call, agreed to meet WB at the BP service station on Lower North East Road. At about 6.30pm immediately after WB had called El-Awar, El-Awar phoned Aljaroudi. WB and RN travelled to the service station and met SD there at about 6.40pm. The service station is on the northern side of Lower North East Road.
There were a number of further telephone conversations between Aljaroudi and El‑Awar between 6.30pm and 6.54pm. The phone records showed that El‑Awar then telephoned SD at about 7.00pm. WB testified that he was present when SD received that call and that shortly thereafter a white Commodore arrived at the BP service station. The arrival of the white Commodore is recorded on video footage from a CCTV surveillance camera which was received into evidence. WB testified that Aljaroudi was the driver, although in cross‑examination he accepted the theoretical possibility that Aljaroudi was not driving. WB testified that he saw four persons step out of the Commodore. They were Ghamrawi, Abdullah, El-Awar and El-Awar’s brother Ryan.
When he saw them, WB ran from the rear of the service station where his car was parked. Ryan threw a bottle at him as he did so. WB testified that he then ran in a southerly direction along the northern side of Lower North East Road chased by Ghamrawi, Abdullah and El-Awar. He then crossed over to the southern side of Lower North East Road. His shoes fell off as he ran and his pursuers caught up with him.
WB testified that Abdullah then stabbed him after which El-Awar tried to punch him. According to WB that blow did not fully connect with the result that the blow was, in WB’s words, “not too hard”. WB testified that Abdullah threatened to kill his family if he did not pay $25,000 within 24 hours. WB’s evidence was that his friend RN then arrived at the scene and pushed Abdullah away bringing an end to the incident. WB testified that he saw Abdullah, Ghamrawi and El-Awar run towards the white Commodore which was parked in a side street, Jarrah Road. Jarrah Road runs in a south easterly direction from its junction on the southern side of Lower North East Road and leads to El-Awar’s house.
WB’s evidence that RN had intervened to protect him from Abdullah was strongly challenged in cross‑examination by reference to his statements to police. A police officer had spoken to WB at the Modbury Hospital within about an hour of the incident. The police officer asked WB who it was that had stopped Abdullah from stabbing him a second time. WB had answered “Um, Roger”. The police officer then continued “Roger did?”. WB responded “But then Roger tried to hit me in the head”. Roger is the first name of El-Awar. WB did not mention that any person had intervened to help him in the signed statement he first gave to police. In his second statement, WB asserted that it was SD who had pushed Abdullah away.
The prosecution witness, Bahr, was driving on Balmoral Road travelling towards Lower North East Road at about the time that WB was attacked. Balmoral Road runs in a southerly direction just before it forms a junction with Lower North East Road.
Bahr testified that he was stationary at the junction with Lower North East Road looking to his right for a break in the traffic when his passenger noticed people running across the road. Bahr then turned and saw three or four people running across Lower North East Road about 20 metres north east of the junction. They were dodging traffic as they crossed. Bahr’s vision was obstructed by passing traffic but he saw the men after they crossed. Bahr testified that he saw one of the men fall over and another get on top of him and punch him. There was then a break in the traffic and Bahr drove on to Lower North East Road and up towards the BP service station.
Appeal against conviction – Aljaroudi
Aljaroudi’s first ground of appeal is that the evidence failed to establish beyond reasonable doubt the identity of Aljaroudi as the driver of the Commodore in which WB’s assailants had travelled.
Aljaroudi’s counsel emphasised that WB had conceded in cross‑examination that he might be mistaken. However, answers like that are not uncommonly given by witnesses in cross‑examination when they are pressed to acknowledge the possibility of their own fallibility. WB’s response when he was asked whether it was possible that Aljaroudi was not the driver exemplifies that tendency:
QWhat I’m going to put to you is that on this occasion when this car, as we see it on the CCTV and from the stills, drove into the rear of the BP Service Station, I put to you that Ibrihim Aljaroudi was not the driver of that car, do you accept that’s possible or not.
AMy recollection no, but maybe it is possible.
A witness’s acceptance of the theoretical possibility that, despite his or her own recollection, he or she might be mistaken does not, of itself, preclude reliance on that witness’s testimony.
Aljaroudi’s counsel also relied on the poor lighting in the vicinity of the BP service station. Poor visibility may, of course, raise a doubt about an identification but much depends on the circumstances. Here it is of particular importance that Aljaroudi was well known to WB.
The submission that this Court should necessarily entertain a doubt about WB’s identification of Aljaroudi as the driver fails to have regard to the strong body of evidence which establishes that he was driving a white Commodore in the period shortly before the offence and that on some occasions Abdullah was a passenger in the car. The evidence showed that Aljaroudi had driven a white Commodore to WB’s home on several occasions. Aljaroudi’s association with the car and Abdullah was proven by the testimony of WB’s parents and his sister. In addition, their evidence and the text messages proved that he had a strong motive to harm WB. The combined force of the evidence to which I have just referred gave strong circumstantial support to WB’s identification.
Aljaroudi’s counsel also attacked the credibility and reliability of WB because of his involvement in drug trading. That submission also fails to acknowledge that the evidence of that very same drug transaction showed that Aljaroudi, together with Abdullah and others, had a strong motive to harm WB. Other inconsistencies in WB’s evidence relating to matters of minor detail about Aljaroudi’s visits to his home are of no significance.
The second ground on which Aljaroudi’s counsel impugned the reasonableness of the verdict was the alleged illogicality of the finding that Aljaroudi committed the offence “in company” when on the prosecution case he was the driver of the car and was therefore not present alongside Abdullah when WB was stabbed.
In The Queen v Brougham[3] King CJ defined the element of being in company in these terms: [4]
A person commits a robbery, or an assault with intent, in company where that person participates in a robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons that are deployed against the victims. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused in one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required.
[3] (1986) 43 SASR 187.
[4] (1986) 43 SASR 187 at 191.
There can be no doubt that in this case the perpetrator of the stabbing, Abdullah, was in the company of, at the very least, Ghamrawi. It is equally plain that Aljaroudi having remained in the car was not sufficiently present to be in the company of Abdullah and Ghamrawi at the time WB was stabbed. However, there can be no doubt that Aljaroudi was proximate enough to facilitate the offence and to be an accessory to the offence committed by Abdullah which was an aggravated offence because he was accompanied by Ghamrawi. The verdict itself is therefore clearly supported by the evidence.
Moreover on the evidence it was clear that Aljaroudi must have foreseen that WB would be confronted with the combined force of more than one person.
The only difficulty in this aspect of Aljaroudi’s appeal is that, arguably, the direction of the Judge precluded a finding of aggravation by reason of being in company against Aljaroudi. The Judge directed the jury that:
If you find any accused guilty you will be asked one further question in respect of that accused, namely, whether the accused committed that offence whilst in company with another accused who is also found guilty. And that picks up the very last paragraph of the particulars of the offence. To be ‘in company’ means committing an offence with others who are also there committing the offence that is agreed upon between them.
(Italics added)
Understood literally, that passage directed the jury that to be guilty of the aggravating circumstance the accused had to be present when WB was stabbed. The Judge, mistakenly understood that to be the position at law, and for that reason, he declined to sentence Aljaroudi on the basis of that aggravating circumstance. A particularly astute juror may have appreciated that, in light of the directions on common purpose, it was sufficient that the accessory foresaw the risk that WB would be confronted with the combined force of more than just one of his accomplices. I accept that it may be doubted that the jurors applied the common purpose doctrine in that way in the absence of an express direction that they could do so. Nonetheless, the verdict shows that they must have appreciated the common sense of the principle that an accessory is liable for a circumstance of aggravation foreseen by him. In short, the circumstance that the jury’s verdict does not reflect literal adherence to the Judge’s direction is not sufficient to demonstrate a miscarriage of justice having regard to my conclusion that the evidence overwhelmingly supported the verdict.
Finally, Aljaroudi contends that the evidence failed to prove beyond reasonable doubt that he foresaw the use of a knife by the perpetrator of the stabbing. This ground does not need to be considered further because of my finding that the Judge erred in failing to leave the alternative verdict of guilty of the basic offence and because the Director does not ask that the matter be remitted for trial on that circumstance of aggravation. Accordingly Aljaroudi must be sentenced by this Court on the basis that that circumstance of aggravation has not been proved. However, for the reasons I have given in dismissing his second ground of appeal, the conviction for the aggravated offence will be affirmed. Paradoxically then, this Court will sentence Aljaroudi on the basis that the circumstance of aggravation is that the offence was committed in company, which circumstance the Judge ignored because of his, with respect, mistaken, opinion that the aggravated element of being in company required that Aljaroudi was one of the men who confronted WB.
Appeal against conviction – Abdullah
In terms of the prosecution case against El-Awar no difficulty was occasioned by the use of the word “concession”. In effect, El-Awar’s counsel simply adopted the strategy of raising as a possibility consistent with innocence that El-Awar was not present to assist the attack on WB by Abdullah. Indeed, the prosecutor would have been entitled, if he so chose, to ask the jury to have regard to the way in which WB had been cross-examined to more readily accept WB’s evidence that El-Awar was present.
Abdullah’s complaint is that El-Awar’s counsel’s submission might have been regarded by the jury as evidence of El-Awar’s presence in the case against him. Abdullah submits that the concession may have been regarded as evidence which supported WB’s testimonial account of events at and near the service station at least to the extent that El-Awar was present. If El-Awar had given evidence and had testified that he was present, there could have been no objection to the use of El-Awar’s evidence in that way but of course the same is not true of his counsel’s address.
In my view the jury would have understood El-Awar’s counsel’s “concession” to be limited to his defence of El-Awar. It is difficult to see how they could rationally have understood it to be otherwise. It was unnecessary to ask El-Awar’s counsel to withdraw his concession. He did not require any evidential basis, other than WB’s testimony, on which to base his trial strategy which was not to take issue with the testimony that El-Awar was present. The prior friendly relationship between El-Awar and WB, and WB’s prior inconsistent statement, were a sufficient and proper basis on which to put, as a possibility consistent with innocence, that El-Awar’s presence was accidental and that he went to WB’s assistance.
There was one aspect in the submission of El-Awar’s counsel which was loosely put. The effect of El-Awar’s counsel’s cross-examination was that El‑Awar was not at the service station but had come across WB further down Lower North East Road and between the service station and El-Awar’s home. To that extent, and only to that extent, was El-Awar’s counsel’s “concession” that El-Awar was present at the service station a slip of the tongue. However, that looseness only adversely affected El-Awar.
I acknowledge that, in considering each case separately, the jury were required to perform the difficult task of assessing WB’s testimony and making their own finding on whether Abdullah and Aljaroudi were present without recourse to the “concession”. However, the Judge’s general directions and his particular directions on the proper use of El-Awar’s concession removed any risk of a miscarriage on that score.
It is for the above reasons that I would refuse Abdullah permission to appeal.
Appeal against conviction - El-Awar
El-Awar first complains that the Judge did not adequately direct the jury to consider the case against each accused separately. That ground is not made out. The Judge did direct the jury that they must consider the case against each of the appellants separately and that they were required to bring in separate verdicts in respect of each of them. He informed the jury that their verdicts may be different depending on their assessment of a case against each of the appellants.
The Judge also emphasised that “things said and actions taken by one accused in the absence of the other accused cannot be used against those other accused”. In an important respect that direction was unduly favourable to the accused. Plainly enough guilty knowledge cannot be inferred against an accessory from things said or done in his or her absence. Equally a statement against interest made by one of the participants in a crime will be admissible against him or her but not against the other participants. Even statements made in the presence of an accessory by another may be admissible if his or her reaction is probative, but again the evidence will not be admissible against another participant in the crime who is not present at the time.
Be that as it may, the actions by which the perpetrator commits the crime charged are admissible against the accessory who, for example, may be waiting in a get away car some distance away for much more obvious reasons. It is trite that to prove accessorial liability evidence must be given of the commission of the crime the alleged accessory has facilitated. Such is the nature of accessorial liability that the conduct of the accessory may take place sometime before, or some distance away from, the scene of the crime.
There is yet a further qualification of the rule that evidence of events occurring in the absence of one accused is not admissible in the prosecution case against him, of which this case serves as a good example. The evidence of WB’s family supported an inference that Abdullah and Aljaroudi were angry enough at WB to want to harm him. The conduct and statements of Abdullah and Aljaroudi which supported that inference took place in El-Awar’s absence. However, that evidence was nonetheless probative in the case against El-Awar in the particular circumstances of this case because WB had testified that El‑Awar travelled to the service station in the same car as Abdullah, Aljaroudi and Ghamrawi. That evidence supported the inference that El-Awar’s presence in the car was not accidental and was associated with the desire of the others to harm WB. The challenge to the reliability of WB’s account that El-Awar arrived in the car affects the weight of that circumstantial use of the evidence of their motive but does not affect the question of admissibility.
It follows that in the circumstances of this case there was relatively little evidence that was not admissible, for one purpose or another, against El-Awar.
The Judge also directed the jury that the prosecution was different in respect of each accused. His Honour told the jury that they needed to consider the cases separately because they were different. The Judge summarised the prosecution case against El-Awar saying that it was based on his presence when the action was taking place and his endeavours to hit Aljaroudi over the head. The Judge effectively limited the case for the consideration of the jury to the inferences that might be drawn from El-Awar’s presence at the petrol station and made no reference to the evidence of WB’s family about Abdullah’s and Aljaroudi’s earlier visits.

The Judge’s direction that there was circumstantial evidence against all three appellants, “particularly the build-up to the events on 17 September 2008 at Dernancourt” referred to events earlier on the day of 17 September 2008 and was factually correct. In particular on that day, but prior to the assault itself, there were a series of telephone calls between WB and El‑Awar and between El-Awar and Aljaroudi which formed part of an important circumstantial case against El‑Awar.
The text messages contained evidence that El-Awar believed that WB was responsible for the failure of the drug transaction and was angry that WB was falsely blaming him for it. On 17 September El-Awar sent WB a text in these terms, “you’re a little kid that doesn’t know anything. It shows when you try to put the blame on me for them YOUR FUCK UP”. The content of the text messages, El-Awar’s telephone contact with Aljaroudi shortly before the stabbing and El-Awar’s very presence at the service station circumstantially supported an inference that El-Awar was associated with and on the side of Abdullah and Aljaroudi, in the events at the service station.
I acknowledge that the Judge did not expressly tell the jury that they could not assume that El-Awar was aware of the hostility of Aljaroudi and Abdullah by reason only of the evidence of their conduct in El-Awar’s absence. Nor did the Judge expressly tell the jury that because El-Awar was not present on the occasions when Aljaroudi and Abdullah paid visits to WB and his family, that evidence could not, in itself, prove that he was a party to the drug transaction over which they had fallen out or that El-Awar was hostile to WB. However, there is no reason to suspect that the jury would have reasoned in such a patently irrational way.
In a similar vein, El-Awar complains that the trial Judge wrongly directed the jury that “no-one in this case … eventually shied away from all of these people being involved to some degree in some sort of drug deal”. The Judge continued “Quite what the degree of involvement of everyone is might never be known but no-one seems to have shied away from that fact”.
El-Awar’s complaint is that there was no admissible evidence of his involvement in an illegal drug transaction. That submission cannot be accepted. The SMS text exchanges between WB and El-Awar did include evidence of El-Awar’s involvement in the drug transaction. For example, on 2 September 2008 WB sent El-Awar a text in these terms, “Bro i think ibi got it but i told him not to unless we got cash”. That evidence and the very evidence of El-Awar’s presence at the service station, whether he went there with Aljaroudi or to check on WB’s welfare, is capable, circumstantially, of supporting the inference that El-Awar was involved in the drug transaction “in some way”. The evidence did not prove criminal involvement in a drug transaction beyond reasonable doubt but that was not the point of the Judge’s observation. The Judge’s observation dealt with the context in which the stabbing of WB occurred.
Moreover, the Judge’s observation that none of the appellants at trial shied away from involvement is accurate. El-Awar did not give evidence and obviously enough therefore did not deny involvement in the drug transaction testimonially. El‑Awar’s counsel did not argue that El-Awar was not in any way involved in the transaction. The jury is unlikely to have been readily persuaded by such a submission if it had been made. Indeed, El-Awar’s counsel told the jury that it was obvious that WB was involved “in some form of drug deal” in August and September 2008. He then concentrated on raising the possibility that El-Awar went to the BP service station to help WB. El‑Awar’s counsel relied on the evidence that WB was anxious to speak to El-Awar on that afternoon. He argued that El-Awar’s attendance at the service station might have been arranged after speaking to DB. He suggested that El-Awar’s presence at the scene of the stabbing was as a friend of WB and not as one of the assailants.
El-Awar made an associated complaint about a passage in the cross-examination of WB concerning El-Awar’s possible involvement in the drug transaction. Counsel for Aljaroudi asked WB in cross-examination about a signed statement he had given to police. In that statement El‑Awar reported a conversation with Aljaroudi in which Aljaroudi asked him whether El-Awar might be interested in taking part in the transaction. No part of the statement read to WB in the course of that cross-examination asserted that El‑Awar had agreed to be involved and WB did not testify that El-Awar had done so. The purpose of the cross-examination was to test the credibility and reliability of WB. El-Awar’s complaint is that the Judge did not direct the jury that the cross‑examination was not evidence that El-Awar was involved in the drug transaction. There is no reason to think that the jury would have speculated from the contents of WB’s out of court statement that he had telephoned El-Awar at Aljaroudi’s request and that El-Awar had agreed to be part of the transaction. There was just no evidence that he had done so, and the general directions of the Judge adequately admonished the jury against speculative reasoning of that sort.
El-Awar next complains that the Judge’s directions on the use of WB’s prior inconsistent statements were inadequate. The Judge directed the jury about the use of the inconsistent statements generally in this way:
If a witness gives evidence that is shown to be inconsistent with an earlier statement of that witness or perhaps earlier evidence of that witness, then that is a matter that you may take into account adverse to that witness’s credibility and reliability but much would depend however, on how important the difference was and any explanation given for any difference or inconsistency.
One of the ways here it was suggested that [WB] should not be accepted is because of inconsistencies between his police statements and his evidence and that will be a matter obviously for you to weigh up as part of your deliberations.
The passages cited accurately and, in the circumstances of this case, adequately explain the law of evidence as to the use of prior inconsistent statements.
In his closing address to the jury El-Awar’s counsel relied on the inconsistent statements made by WB about who had stopped Abdullah from stabbing him a second time. El-Awar’s counsel emphasised the statement made to the detective in the Modbury Hospital in which WB said that it was El-Awar who had stopped Abdullah from stabbing him a second time. El-Awar’s counsel argued that if that account was reasonably possible WB’s testimony that El-Awar had punched him could not be accepted beyond reasonable doubt. The jury were therefore well aware of the relevance of the inconsistent statements. In summarising El‑Awar’s counsel’s closing address, the Judge reminded the jury that he had drawn attention “to the fact that on [WB’s] account he seemed to have, at various times, nominated as many as three people who did the pushing of Abdullah to one side”. His Honour reminded the jury that El-Awar’s counsel had drawn particular attention to the Modbury Hospital statements on the very night of the offence.
Finally on this ground El-Awar complains that the Judge did not direct the jury that they could not use that part of the Modbury Hospital statement, in which WB asserted that El-Awar had hit him on the head, to bolster the testimony of WB to the same effect. The failure to give that direction has not resulted in a miscarriage of justice. The dissection of WB’s statement in that way could only have served to confuse the jury. The jury were directed that prior inconsistent statements did not of themselves have any evidential value. The Judge directed the jury that the use of out of court statements was limited to assessing the credibility and reliability of the testimony given in court. El-Awar had attacked WB’s credibility on the basis of the Modbury Hospital statement and the whole of that statement had to be considered in assessing WB’s testimony. There is no reason to think that, contrary to those directions, the jury would have reasoned impermissibly.
The third ground upon which El-Awar appeals against his conviction is that the Judge’s warning about the dangers of relying on the evidence of WB was inadequate. WB did not fall into a category of witness requiring a warning either as a matter of practice or law. WB was not an accomplice to the assault committed against him. In my view it was unnecessary to warn the jury in the terms used by the Judge.
True it is that the offence against WB occurred in the context of WB’s unlawful involvement in a drug transaction. The evidence of persons about offences committed against them in the course of their own illegal criminal activity should, obviously enough, be weighed against their preparedness to engage in that illegal activity. However, the need for caution before acting on the testimony of a person who is prepared to participate in criminal activity is a matter of commonsense. The warnings given by the trial Judge would have underscored that consideration which would already have been obvious to the jury. No further elaboration was necessary.
El-Awar’s fourth ground of appeal is that the verdict was unreasonable and can not be supported by the evidence. The primary matter relied upon by El‑Awar is his friendship with WB and the associated improbability that he would throw his lot in with Abdullah and Aljaroudi. El-Awar’s counsel made that argument to the jury clearly and strongly. The possibility that El-Awar had walked from his home to the nearby service station to speak to WB who was there with their mutual acquaintance SD, as a friend, was the foundation stone of El-Awar’s counsel’s address. The Judge fairly summarised El-Awar’s counsel’s address in the summing up.
There is no reason to doubt El-Awar’s guilt having regard to the jury’s advantage in assessing WB’s testimony. This ground also should be dismissed.
Finally El-Awar complains that the Judge erred in failing to leave the alternative verdict of guilty of the basic offence. Section 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) provides:
24—Causing harm
(1)     A person who causes harm to another, intending to cause harm, is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 10 years;
(b)     for an aggravated offence—imprisonment for 13 years.
Section 5 of the CLCA defines the terms “aggravated offence” and “basic offence” as follows:
aggravated offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA);
basic offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non-aggravated form (see section 5AA).
The use, or threatened use, of an offensive weapon[5] and the commission of an offence in company with one or more other persons[6] are aggravating factors.
[5] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(b).
[6] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(h).
Section 5AA(4) provides:
5AA—Aggravated offences
(4)If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors it finds to have been established (but a failure to comply with this subsection does not affect the validity of the jury's verdict).
In Gillard v The Queen (2003) 219 CLR 1 the High Court held that it was an error of law to fail to leave an alternative verdict when it was proper to do so, but the test was formulated in several different ways. Gleeson CJ and Callinan J held that “a viable case” for an alternative verdict must be left to the jury.[7] Hayne J, with whom Gummow J agreed, described the necessary evidential basis as one in which there was an “available view of the facts” on which it was “open to the jury” to return the verdict.[8] Hayne J concluded that in the circumstances of that case it was open to the jury to return a verdict of manslaughter and that it was a wrong decision on a question of law not to leave it.[9]
[7]    Gillard v The Queen (2003) 219 CLR 1 at [26].
[8]    Gillard v The Queen (2003) 219 CLR 1 at [125]-[126] per Hayne J.
[9]    Gillard v The Queen (2003) 219 CLR 1 at [129] per Hayne J.
The hostility that Abdullah bore to WB was not such as to exclude the possibility that he would, together with the others, merely beat WB without recourse to a weapon. There is no evidence that Abdullah produced, or even referred to, a knife before WB was stabbed. It was therefore an available view of the evidence in this case that there was a possibility that Aljaroudi and El-Awar were unaware of Abdullah’s intention to use a knife before he stabbed WB. The defence that El-Awar and Aljaroudi did not contemplate the use of the knife was a viable one and should therefore have been left to the jury.
It only remains to explain why the guilt of Aljaroudi and El-Awar for the basic offence did not depend on proof of their foresight of the particular form of harm, the knife wound, which was inflicted by Abdullah. The reasons for my view need not be set out in any depth in the circumstances of this case. It is sufficient to observe that if the jury accepted the evidence of WB, it was clear that Aljaroudi and El-Awar must have intended to facilitate, at the very least an assault, and in those circumstances it was not necessary to prove that they appreciated the particular way in which the harm might intentionally be inflicted on WB to establish their guilt of the basic offence.
Sentence
Having allowed the appeal for the purpose of amending the conviction so that the aggravating circumstance found with respect to the offending of Aljaroudi and El-Awar is being in company and not being armed, it is necessary to resentence both of them.
The maximum period of imprisonment for aggravated causing harm with intent to do so is 13 years.
On 20 April 2012 the Judge imposed the following sentences of imprisonment:
·Abdullah – four years with a non-parole period of three years.
·Aljaroudi – four years with a non-parole period of two years
·El-Awar – four years with a non-parole period of 18 months.
The sentences were not suspended. They were backdated to 17 February 2012 when the appellants were taken into custody following their convictions. At an earlier time Abdullah had spent an additional three months in custody before he was released on strict home detention bail for a period of five and a half months. The Judge properly took those periods of time into account in sentencing Abdullah. The earlier time in custody and the strict bail which followed sufficiently justifies the decision of the Judge not to further differentiate between Abdullah and his accomplices in the head sentences which he imposed.
There was no reason to impose a lesser sentence on Aljaroudi because he was the driver and not present when WB was stabbed. His role was still an important one. Moreover, he had provided assistance to Abdullah throughout that day and for some time before in pursuing WB. The differences in the non-parole periods fixed by the Judge properly reflect the varying prospects of rehabilitation of each of the appellants.
A further reduction should now be made to the sentences of Aljaroudi and El-Awar to take into account the failure to establish the aggravating element of foresight of the use of the knife. The circumstance of aggravation of assaulting another in company is serious. It is morally more culpable to attack in numbers and it increases the risk of greater injury. Aljaroudi’s role was, as I have said, an important one even though he remained in the car.
I would reduce the term of the head sentences of both El-Awar and Aljaroudi by six months and would reduce their non-parole periods by three months.
Orders
The orders I would make in respect of Aljaroudi are:
1 Appeal against conviction allowed in part.
2Amend the conviction recorded in the District Court to remove from the particulars thereof the aggravating circumstance of the use of the knife.
3Appeal against conviction otherwise dismissed.
4Appeal against sentence allowed.
5Set aside sentence imposed in the District Court and impose instead a sentence of three years six months with a non-parole period of 21 months, backdated to 17 February 2012.
The orders I would make in respect of El-Awar are:
1 Appeal against conviction allowed in part.
2Amend the conviction recorded in the District Court to remove from the particulars thereof the aggravating circumstance of the use of the knife.
3Appeal against conviction otherwise dismissed.
4Appeal against sentence allowed.
5Set aside sentence imposed in the District Court and impose instead a sentence of three years six months with a non-parole period of 15 months, backdated to 17 February 2012.
The order I would make in respect of Abdullah is:
1 Permission to appeal refused.
NYLAND J: I agree with the reasons of the Chief Justice and I agree with the orders proposed.
DAVID J: I would allow the appeal for the reasons given by the Chief Justice. I agree with the orders he proposes.