R v Jacobs - [2004] NSWCCA 462

No judgment structure available for this case.

Reported Decision:
151 A Crim R 452

New South Wales

Court of Criminal Appeal

CITATION: R v Jacobs and Mehajer [2004] NSWCCA 462

HEARING DATE(S): 8/9/04

JUDGMENT DATE:
20 December 2004

JUDGMENT OF: Wood CJ at CL at 1; Sperling J at 349; Kirby J at 355

DECISION: Appeal by Mehajer; 1.Appeal against convictions dismissed; 2.Leave to appeal against sentence granted; 3.Appeals against sentence dismissed.; Appeal by Jacobs; 1.Appeal against convictions dismissed; 2.Leave to appeal against sentence granted; 3.Appeals against sentence dismissed.

CATCHWORDS: Criminal law - murder - robbery in company with infliction of grievous bodily harm - robbery in company with wounding - joint criminal enterprise - common purpose - constructive murder - conditional indemnity given to witness in exchange for evidence - consciousness of guilt - grounds pertaining to directions to jury - ss 3A and 21A of Crimes (Sentencing Procedure) Act 1999 - ss 164, 165 Evidence Act 1995 - s 18 Crimes Act 1900.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

CASES CITED: Bromley v The Queen (1986) 161 CLR 315
Craig Williamson Pty Limited v Barrowcliff [1915] VLR 450
Gilbert v The Queen (2000) 201 CLR 414
Gillard v The Queen (2003) 78 ALJR 64
Hui Chi-Ming v The Queen [1992] 1 AC 34
Johnson v The Queen [2004] HCA 15
Longman v The Queen (1989) 168 CLR 79
McAuliffe v The Queen (1995) 183 CLR 108
M v The Queen (1994) 69 ALJR 83
Markby v The Queen (1978) 140 CLR 108
Matusevich v The Queen (1977) 137 CLR 633
Osland v The Queen (1998) 197 CLR 316
Pearce v The Queen (1998) 194 CLR 610
Pollitt v The Queen (1991-1992) 174 CLR 558
R v Baartman [2000] NSWCCA 298
R v Bell (1987) 8 NSWLR 311
R v Brougham (1986) 43 SASR 187
R v Burke [1983] 2 NSWLR 93
R v Button; R v Griffen (2002) 54 NSWLR 455
R v Chen [2002] NSWCCA 174
R v Chen (2002) 130 A Crim R 300
R v Clough (1992) 28 NSWLR 396
R v Crowley [2004] NSWCCA 256
R v Crozier NSWCCA 8 March 1996
R v Downs [1985] 3 NSWLR 312
R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140
R v Elliott and Hitchins (1983) 9 A Crim R 238
R v Foster (1995) 78 A Crim R 517
R v Gutierrez [2004] NSWCCA 22
R v Hearne (2001) 124 A Crim R 451
R v Henning NSWCCA 11 May 1990
R v Horsey (1862) 3 F & F 287; 176 ER 129
R v JB [1999] NSWCCA 93
R v Johnston [2004] NSWCCA 58
R v Kalinowski; R v Timbury (1930) 31 SR (NSW) 377
R v King [2004] NSWCCA 20
R v Kyriakou & Ors (1987) 29 A Crim R 50
R v Leoni [1999] NSWCCA 14
R v McGarrity NSWCCA 10 June 1994
R v Mills NSWCCA 3 April 1995
R v Mohan [1967] AC 187
R v Ngo [2003] NSWCCA 82
R v Paek [1999] NSWCCA 184
R v Randell and McAlister [2004] NSWCCA 337
R v Serne (1887) 16 Cox CC 311
R v Shannon Foster NSWCCA 7 April 1995
R v Sharah (1992) 30 NSWLR 292
R v Simpson [2001] NSWCCA 534
R v Spathis and Patsalis [2001] NSWCCA 476
R v Spedding NSWCCA 11 December 1997
R v Stewart (2001) 124 A Crim R 371
R v Stokes and Difford (1990) 51 A Crim R 25
R v Surridge & Anor (1942) SR (NSW) 278
R v Tangye (1997) 92 A Crim R 545
R v Villar and Zugecic [2004] NSWCCA 302
Saraswati v The Queen (1991) 65 ALJR 402
Smith v Desmond [1965] AC 960
Tripodi v The Queen (1961) 104 CLR 1
Webb & Hay v R (1994) 181 CLR 41

PARTIES :
Regina
John Lou JACOBS
Mazin MEHAJER

FILE NUMBER(S): CCA 2004/1902; 2004/2215

COUNSEL: D Arnott (Crown)
J. C. Papayanni (Jacobs)
I Lloyd QC with C Pike

SOLICITORS: S Kavanagh (Crown)
Jeffreys & Associates (Jacobs)
S E O'Connor

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70227/02; 70074/02

LOWER COURT
JUDICIAL OFFICER : Studdert J

- 104 -

2004/1902
2004/2215

WOOD CJ at CL
SPERLING J
KIRBY J

Monday 20 December 2004

Regina v John Lou JACOBS

Regina v Mazin MEHAJER

Judgment

1 WOOD CJ at CL: The Appellants appeared for trial before Justice Studdert, and a jury, in April and May 2003, on three counts, charging them with:

(a) The murder of Shane Cole;

(b) Robbery in company with infliction of grievous bodily harm upon Shane Cole; and

2 Each offence is alleged to have occurred on 3 March 2000, at Colies Cafe Leumeah, of which business Shane Cole was the owner.

3 The Appellants, who had each been arrested on 15 October 2001, were convicted of all three offences. They were sentenced by his Honour on 2 October 2003 as follows:

Mehajer

Imprisonment for 18 years with a non-parole period of 13 years and 6 months, each commencing on 30 July 2003 for the offence of murder, and a concurrent fixed term of 5 years for the offence of robbery in company with grievous bodily harm.

A fixed term of 4 years imprisonment was imposed in respect of the offence of robbery in company with wounding to commence on 30 January 2003. The effective overall sentence was accordingly one of 18 years and 6 months with a non-parole period of 14 years.

Jacobs

Imprisonment for 16 years and 6 months with a non-parole period of 12 years 6 months for the offence of murder, and a fixed term of imprisonment for 5 years for the offence of robbery in company with grievous bodily harm, each to commence on 15 April 2002.

A fixed term of imprisonment for 4 years was imposed for the offence of robbery in company with wounding, commencing on 15 October 2001. The effective overall sentence was one of imprisonment for 17 years with a non-parole period of 13 years.

FACTS

Sightings in the Vicinity of the Cafe Prior to the Offences

4 It was the Crown case that the Appellants, John Jacobs and Mazin Mehajer, went to the vicinity of the cafe during the early part of the afternoon of 3 March 2000, either to case the premises, or to look for Mr Cole, who was a known supplier of drugs. Two men were seen by Kelly Rideout, from her office, walking down from Hollylea Road a laneway behind the cafe at about 1:45PM, an unusual time she said, for people to be in that area. She described them as having been 23 to 25 years of age. One she said was stocky, 170 to 175 cms in height, Italian or Lebanese in appearance, with short hair, and wearing board shorts down to the knees, a white singlet and wrap around sunglasses. The other man was also wearing shorts.

5 Later that afternoon, at about 4 PM she saw those men in the back lane again walking towards Hollylea Road, although she said that they were now accompanied by a third man. James Spry, who was with Kelly Rideout at this time, also saw these men. One he described as fairly big fellow with a Middle Eastern or olive complexion, who was about 6 feet tall, in his early to mid twenties, with black hair, and who was wearing olive green knee length shorts and a white singlet. The other two men were shorter, but he had no further recollection of their appearance. He said that he had seen these men earlier that afternoon, he thought at about 3:15 PM, walking along the road in the direction of the Red Rooster restaurant.

6 Roxanne Cassar who was with Ms Rideout and Mr Spry, also saw these men, after Ms Rideout drew attention to their presence. She similarly recalled that one of them was aged between 20 and 30 years, was about 5 foot 8 inches in height, stocky with streaked light brown hair, and wearing cargo shorts or something similar.

7 The three men were also noticed by Jeffrey Bond, the owner of a squash and tennis racquet repair business, which was located near the cafe. He said that he saw them in the laneway at about 3:30 PM. He recalled that one was wearing a singlet and looked like he had been “working out”. He said that they were “pretty big”, “strongish” men and thought that they looked “Mediterranean or possibly Arabic”.

8 That it was Jacobs and Mehajer who had been the first two men who were seen in the area, during the early afternoon, and that it was each of them, together with an indemnified witness, Christian Painter, who had later joined them, the Crown contended arose from the following circumstances:

(a) Painter’s evidence that during the afternoon, Mehajer, who he knew as “Mez”, had picked him up, in his car, some time after he had finished work at 2 PM, intending that they would go to the gymnasium. Mehajer introduced him to another man, who he did not know, as “John”. They drove via the freeway to Leumeah, and stopped near the Red Rooster where they had something to eat. As they passed the Colies Cafe, either Jacobs or Mehajer said “nobody there yet”. While waiting, he said, he made a telephone call to a friend (Darren Gough), which was fixed by call charge records to have been made at 4:17 PM.

(b) Jacob’s evidence at trial, firstly, that Mehajer had picked him up in his car, and had driven him and Painter to Leumeah, where they had driven past the cafe, and had then spent some time at the Red Rooster, before returning to the vicinity of the cafe; and secondly, that he had been wearing long board shorts while Mehajer had been wearing three-quarter length shorts and a T-shirt;

(c) Evidence of telephone calls having been made between services used by Jacobs and Mehajer at 11:35 AM and 1:01 PM on 3 March 2000, but not thereafter;

(d) Evidence of calls having been made by Mehajer to Painter’s mobile at 1:24 PM, 1:25 PM, 1:31 PM, 1:38 PM and 2:46 PM;

9 This evidence was relied upon to support Painter’s evidence, and to exclude him as having been the man who had been in the company of Jacobs at the time of the first observations. It may be noted, at this stage that there was an obvious conflict between the evidence of Painter and Jacobs as to which of them Mehajer had picked up first, as to who it was who had given the directions to Leumeah, and as to who it was who made the observation “He’s not there”. To that conflict I will return. Mehajer, in his evidence, denied having been anywhere near the cafe, at any time, so that there was a stark conflict between his evidence and that of Jacobs and Painter.

10 In summary then, it was the Crown case that Jacobs and Mehajer had cased the premises in the early afternoon, in the expectation of robbing Mr Cole of the drugs which he kept at the cafe, and/or of the money that he would be likely to have on his person; and that they had later returned with Painter and waited for his return before implementing their plan.

11 That the premises were known as a place from which drugs were sold, and that Mr Cole was a known drug supplier emerged from evidence given by Shane Phillips, and also by Brendan Denning who had spoken to the deceased at the shop, and by phone on 3 March, with the intention of buying some marijuana and speed from him. His wife Robyn Cole said that on that day the deceased had paid $3000 to $4000 to Adam Ballard for moneys owing in respect of previous dealings, that he had purchased 8 oz of Amphetamine from him, and that he had then sold half of those drugs to a man named Dennis for $500, which he had placed in his wallet.

12 Additionally there was some evidence from Mr Cameron and Mrs Cole to the effect that after the killing, some amphetamine was found in a plastic bag on the serving counter at the cafe; and from Mr Kent and Mr Casey that the deceased had earlier that day sold something “for recreational use” in a bag to Mr Kent, who had accidentally left it at his place of work across the road from the cafe, and who had then arranged for a workmate, Mr Casey, to give it to the deceased, who was to come over to collect the package with the intention of it being returned to him. Mr Casey said that the deceased had collected the package at about 4:50 PM. Mr Phillips also said that he had been accustomed to buying cannabis from him, while Mrs Cole gave evidence confirming his drug dealing. Another witness Herbert Taru also gave evidence of seeing cannabis at the cafe, and of occasionally buying that substance from him.

13 Bronwyn Reeley who worked at the cafe gave evidence that the cafe, which was located in a light industrial complex, usually operated between about 7:30 AM and 2:30 PM, and that she had locked up that day at about 3 PM, taking with her the money from the day’s sales for safe keeping overnight, as was her usual practice.

The Commission of the Offences

14 Shane Phillips gave evidence of having met the deceased at about midday and of having initially planned to help him with some tiling work at the cafe. They changed this plan so that Mr Phillips could help the deceased clean out his garage, and restock the cafe with the soft drinks that had been stored in the garage. He borrowed some casual clothes from the deceased and after smoking some very poor quality marijuana, which left him unaffected, he helped to clean out the garage and to load the soft drink into the deceased’s car.

15 By his estimation, they left for the café at about 4 PM after receiving the keys from Mrs Reely who had been asked to take them over to the deceased after closing the shop. Mr Phillips left his Nokia mobile phone in the middle console of the car, on top of his clothes, while he carried the boxes of soft drink into the café. The deceased, he said, had been carrying his own mobile phone which he left on the serving counter. The deceased had with him his wallet and three gold chains, which he was wearing around his neck.

16 After moving all of the boxes inside, Mr Phillips, who was standing at the door, found it being pulled from his hands and saw a man with a knife. He backed into the café. This man, he described as being a bit taller than his own height of 6 foot, muscular, with dark brown collar length hair, clean shaven, with light brown skin, and of Lebanese appearance. He was about 26 years old and wore knee length black shorts with a T-shirt and yellow singlet with a white “USA” and the number 17 printed on it. This man, on the Crown case, was Mehajer. The knife which this man carried, Mr Phillips said, had a 130 mm blade with a single edge and a curved point.

17 He was forced to the floor by this man who said to him “Don’t touch the knife. I will use it”. He felt the knife against his throat. He heard a lot of noise, hurried footsteps, and sounds “like things collapsing…like if something was going through a box or going through some shelves.” He heard somebody ask, “Where’s the money? Where’s the cash?” He heard the deceased, whose voice sounded laboured as if he was in pain, say that his wallet was in the console of his car. Someone said “There’s more. Where is it?” He also heard the man standing over him ask the deceased, “Where’s the stash, I’m cutting your friend’s throat here”.

18 The man who was standing over him also asked him where the money was? He replied that he did not know, he had only come in to assist his friend for the day. He was told to crawl toward the deceased. He began to do so but froze when he reached the front counter.

19 He said that he could hear noises coming from the back of the café, which were consistent with a struggle occurring. He thought there were two or three voices. At one stage he heard the words “Yalla yalla”, which in Arabic can mean “hurry up”.

20 He began to get scared and tried to take a look at the deceased, but was kicked to the face. He heard someone say “No. Don’t”, and then realised that the assailants were leaving. He could feel blood on his face and beneath him. He saw the deceased lying on his back, in an awkward position. The deceased did not respond when he spoke to him, and he noticed that he had a cut to his face, and that his head looked to be “caved in”.

21 Painter gave evidence in the trial acknowledging his presence at the cafe at the time when the robberies took place, and when the deceased and Mr Phillips were attacked. His evidence was in some respects consistent with that of Mr Phillips, and in other respects inconsistent with it. It differed significantly from the account given by Jacobs, which is summarised later in these reasons.

22 Painter claimed that his involvement had been unplanned and minimal, and that he had not used any violence, himself.

23 He said that after walking back towards the cafe from the Red Rooster, either John (Jacobs) or Mehajer had said “they’re back”. He saw that there was a car pulled up in front of the café. It was his account that Mehajer went into the café first, followed by John, and then by himself. Mehajer grabbed the “taller man with a goatee and black hair” (Phillips), who was made to lie on the floor. John was holding a small man at the back of the cafe, who was sitting on the ground. Mehajer gave him some car keys and told him to have a look in the car. John stood over the other man (the deceased) who was sitting on the floor towards the back of the shop.

24 He said that he went outside and took a mobile phone from the car. When he returned the two victims were in the same positions. Mehajer was at the back of the shop conducting a search, while John was standing between the two men on the floor. When one of them (Phillips) made a movement as if to get up or to have a look, John kicked him in the head and told him not to move. He heard someone say “where’s your money?” and heard the deceased reply that he did not have any.

25 As Mehajer returned from the back of the café he punched the other man (the deceased) to the back of the head, with a “pretty strong” blow, which caused him to slump to the ground. He did not see him move again.

26 As they drove away there was a discussion about the phone and gold necklaces that had been taken. John had one phone, and he kept the other one, which he later gave to his girlfriend Tennelle Mitchell. He said that he did not see any knife at the scene, and that he had only seen the deceased punched once. The punch he thought had followed the kick to Mr Phillips.

27 Painter accepted in cross-examination that he had initially given an induced statement to the Crime Commission, which subsequently sought and obtained an indemnity for him. Later, he accepted, he had indicated that he no longer wished to give evidence against the Appellants, after which he and his brother were charged with an offence of perverting the course of justice. He later agreed to co operate by giving evidence. He eventually pleaded guilty to the charge of perverting the course of justice. That matter was dealt with in closed court and on 29 October 2001 he received a suspended sentence, as did his brother, in the expectation of him adhering to his agreement to give evidence. His indemnity in relation to the March 2000 offences was conditional upon him telling the truth at the trial. He denied having taken up the belief of the Crime Commission that he had only been incidentally involved and to have then woven a story around that by placing Jacobs in his shoes.

28 Mr Phillips said that after the assailants left, he phoned Scott Cameron and then the triple-0 number. The call charge records show that the call to Mr Cameron was made at 4:52 PM, and that the 000 call was made at 4:58 PM. In the various accounts which he gave to Mr Cameron and to hospital staff, he made mention of “four blokes coming out of nowhere” and of seeing a knife and gun.

29 Mr Phillips was conveyed to Campbelltown hospital where he was treated by Dr Khan. He received three stitches above his right eye and five stitches below that eye. He was also found to have sustained bruising to his head and a scratch to the Adams apple.

30 The deceased was treated by a neurosurgeon, Dr Van Gelden, who found that he had suffered a widespread traumatic subarrachnoid haemorrhage, as well as a pulmonary oedema consistent with the aspiration of vomit while unconscious. He died on 10 March 2000. In the opinion of Dr Van Gelden, as confirmed by Dr Langlois who carried out the post mortem examination, the cause of death was blunt trauma to the head. Dr Langlois also found that the deceased had suffered abrasions to the back of the head, and blocks of bruising or grazing to the body, which were consistent with impact by footwear.

31 Dr Van Gelden said that the injury to the skull, which he thought had been the cause of death, was not the sort of injury which was sustainable from a fall because of its location. Some of the injuries seen at the post mortem, Dr Langlois said, were consistent with drag injuries.

32 Mr Cameron gave evidence to the effect that when Mr Phillips phoned him he had said “Four Lebs had bashed him”. When he went to the cafe he said that Mr Phillips added: “Four blokes came out of nowhere and just hammered in, they had a knife and a gun…they were kicking into Colie and they were kicking into me, that blood is mine”.

33 It was later found that Mr Phillip’s mobile phone had been taken from the car, and that the mobile phone, which the deceased had left on the counter, had also been taken, as had his wallet and gold chains.

34 Detective Sergeant Hamshire went to the cafe at about 8:30 PM, and examined the crime scene. He noticed that the drawer of the cash register was open, and that it was empty. There were areas of blood spattering in the premises, as well as smear patterns in which there were partial shoe impressions. Some of these impressions were consistent with the shoes of Mr Phillips. No shoes were ever obtained from Jacobs or Mehajer for comparison. Shoes obtained from Painter and from Cameron Scott were not consistent with the impressions.

35 No fingerprints or DNA evidence was obtained to link either Appellant to the crime. Mr Phillips was not able to identify any offender from any of the photographs (including one of Mehajer), which were shown to him in January 2001 by police, who had not become alerted to the possible involvement of the Appellants until about June 2000.

36 About a week after the offences police created a Comfit picture using the description which Mr Phillips had given of the man who had forced him to the floor. Mr Phillips said that the Comfit picture was about 70% accurate, but he was not happy with the hair, although he could not pinpoint what was wrong with it.

37 Mehajer, it was established, was a man of Middle Eastern appearance, in his mid-twenties, with a solid build, who was about 185 centimetres tall, and who was clean-shaven with short dark hair.

38 The time of the commission of these offences was fixed as occurring between 4:41 PM when Mr Kent phoned the deceased and 4:52 PM, when Mr Phillips phoned Mr Cameron.

Recovery of the Stolen Property

39 Although the mobile phone of the deceased was recovered, his wallet and necklaces were not. There was evidence of calls being made to his phone after the robbery at 6:23 PM and at 6:25 PM from the mobile of Lisa Walker, which was in the possession of Jim Hegarty (also known as Pearce, by which name he will be referred hereafter), each of which was answered. Pearce, who was described as looking like a bikie with tattooed arms, had in fact visited the cafe during the morning of 3 March and had spoken to the deceased there. He had been asked to go to the cafe by Ms Reely to pay a Telstra bill for her. He returned later to give her the receipt.

40 There were also calls made to the deceased's mobile at 5:28 and 5:46 PM, which Denning said had been made by him. Another associate of the deceased, Paul Franklin, tried to call him on his mobile between 4:30 and 5:00 PM to inquire about the purchase of some car parts. He said that the first call was answered by someone with a strange accent, sounding like a Negro or Asian accent. Later calls were met with an engaged signal or voice mail.

41 Nathan Nilsen gave evidence of purchasing this phone from Jacobs on 10 March. He activated the phone with a Vodafone account on the following day. On 14 June 2000 a search warrant was executed at his home and the phone was found. He informed police that he had purchased it from Jacobs. Police explained to him that the phone had been stolen from the deceased.

42 There was also evidence of the recovery of Mr Phillips’ phone. After it was given by Painter to Tenille Mitchell, she put her own SIM card in it. Activation began on 23 March 2000. Police discovered it during a search of Painter's home on 14 June 2000. He initially claimed to have purchased it at the Green Valley Hotel, while in the company of his brother, and a friend Neil Kohler. He later acknowledged that this account had been untrue. To the significance of his initial lies to police and to the Crime Commission concerning this phone, I will return, but it was this account, and his brother’s support of it that led, later, to the pervert the course of justice charges.

43 It is sufficient, at this stage, to note that he maintained this initial lie during the first two occasions that he was examined before the New South Wales Crime Commission. When it was pointed out to him that Kohler, and the telephone call records, did not support his version, he eventually agreed to make an induced statement, and was later given the indemnity.

44 His account of events was contradicted by the evidence given by each of the Appellants, who also contradicted one another. To this I will return, although not before noting that it was the Crown case that Jacobs, when giving evidence, effectively placed himself in the shoes of Painter, so as to minimise his own involvement, and to pass the blame to Painter.

Other Possible Suspects?

45 During the trial, questions arose in relation to the possible involvement of members of the Rebels motorcycle club, and of other persons such as Pearce and Brendan Denning, in the offences. It would appear from the transcript that the first suggestion of motorcycle gang involvement came in the cross-examination of Painter, by counsel for Mehajer, and that it was thereafter pursued as part of Mehajer’s defence.

46 There was evidence that Pearce had been a friend of Bronwyn Reely, who worked at the cafe and who had been responsible for removing the cafe’s takings at the end of each day’s trading. She said that she had told Pearce, during one of his visits to the cafe, of the expected return of the deceased during the afternoon to restock the drinks fridge. Sometime after 5PM she said, she received a call from him making an arrangement to meet her at his motel. Shortly afterwards she received a call from Mrs Cole advising her of the robbery and asking her if she still had the takings. She assured Mrs Cole that she had. It may be observed that if it had been the case that the robbery had been set up by Pearce in conjunction with Ms Reely, as counsel for Mehajer suggested, it would seem unlikely that she would have said that she still had the takings.

47 In any event Ms Reely went to the motel in Campbelltown, where Pearce was staying. When she arrived there, she said there was a young man in the room who was around 25 years of age, about five foot eight inches in height, wearing a football jersey and shorts, and with brown hair. He left soon after her arrival. She saw some money on the bed. She informed Pearce of the robbery. While she was there, Brendan Denning, to whom the deceased had previously sold drugs, and his girlfriend arrived. Pearce sold some drugs to Denning, who had earlier attempted to contact the deceased to purchase some speed and marijuana from him .

48 She said that she had no knowledge of the 6:28 PM call which had been made on Lisa Walker’s mobile to the deceased’s mobile that evening.

49 On the following day, she said, Pearce left the hotel saying that he had to meet “Christian”. She said that she did not know Jacobs, Mehajer or Painter. Later she had gone to stay with Pearce who had moved to Taree to work in a tattoo parlour.

50 Denning confirmed that having been unable to meet up with the deceased on 3 March, he had bought the drugs he wanted from Pearce that night. He said that he had tried to phone the deceased a few times. When he placed a call to the deceased’s mobile, at 5:28 PM, the phone was answered by someone who was not the deceased, who said “leave your message on the fucken’ voice mail”. When he made further calls to this phone he heard someone, with a non-Australian accent, swear. He said that he did not know Jacobs or Painter, and denied any association with the Rebels or any involvement in the offences.

51 There was evidence of a large number of calls to the mobile of the deceased during the evening of 3 March, several of which were made by Catherine Amos who had some sort of relationship with him and who had expected to see him that night.

52 Pearce acknowledged his friendship with Ms Reely and his possession of Lisa Walker’s mobile on 3 March, but denied using it to ring the deceased’s mobile at 6:28 PM. He acknowledged having had an earlier discussion with the deceased about the purchase from him of some gold jewellery. He did not remember selling any drugs to Denning that night, although he recalled him visiting his hotel room with his girlfriend. He said that he had not known Denning before this night. He had no memory of the several phone calls about which he was questioned.

53 He similarly denied having been involved in the robbery, but acknowledged having been a drug dealer in the past, and to having been a nominee for the Rebels, five or six years earlier. He worked as a tattooist at a tattoo shop in Campbelltown owned by some members of that club.

54 Painter, in his evidence, denied knowing Pearce. He said that he knew of some people in the Rebels, although not personally. He had an uncle Glen Painter who occasionally rode with this club, but he did not believe that he was a member of it.

55 The possible involvement of the Rebels in the offences had been initially considered by the NSW Crime Commission, whose Assistant Director, James O’Connor, gave evidence in the trial. He agreed that before Painter had given an induced statement, he had been informed, in general terms, that the Commission had believed that he had not personally been responsible for any of the violence that had occurred during the robbery.

56 The line which was implicit in cross examination by counsel for Mehajer was that the offences were committed by someone who had inside knowledge of the fact that the deceased had planned to return to the cafe on the afternoon of 3 March 2000, at a time after its usual closure. Mehajer’s case theory was built upon the evidence of the visits of Pearce and Denning to the premises on 3 March; of apparent telephone contact between Denning’s phone and the phone of Lisa Walker which had been in Pearce’s possession, on and after 3 March; the attendance of Denning at Pearce’s motel room on the night of 3 March; the earlier contacts that day between Ms Reely and Pearce; the making of various calls from Denning’s phone to the mobile phone used by the deceased that day; and a stream of phone calls made on Lisa Walker’s mobile during the night of 3 March, and early hours of 4 March.

Lies Told by Jacobs and Other Conduct Potentially Revealing a Consciousness of Guilt

57 Leaving aside, for the moment, Jacob’s account of the events at that cafe, the Crown pointed to the lies which it was established that he told; and to the false stories which were shown to have been invented, in concert with Mehajer and with Nilsen, to conceal the alleged involvement of himself and of Mehajer in the offences.

58 First, there was evidence from Nilson to show that he telephoned Jacobs, on 4 August 2000 at 5:25 PM and asked him to come to his home as he had been taken to the “copshop” and “drilled”. He rang again at 6:41 PM asking Jacobs to come over. At 7:01 PM Jacobs phoned Nilsen and suggested they go for a walk, indicating that he had Cameron (Roach) with him.

59 When Jacobs arrived at Nilsen’s home, Nilsen informed him that that he had been questioned by police about the mobile and had told them that he had purchased it from him. At various stages he apologised and explained that he had believed that the phone had belonged to Jacob’s “missus”. Jacobs then informed him, in a conversation commencing at 7:04 PM, which was recorded pursuant to a lawfully placed listening device, that he had purchased the phone, which had been “hot”, at a hotel, and suggested that Nilsen had been with him when this occurred. Jacobs asked him to tell this to the police, and observed “Fuck, I’ve gotta go man, I’m fuckin’ gunna spew.”

60 Significantly there was then telephone contact between Mehajer and Roach at 7:26 when they arranged to meet at Jacob’s home, followed by a call from Mehajer to Jacobs at 8:15, asking where he lived. Later that evening police surveillance observed Jacobs, Mehajer and Cameron Roach leaving Chan’s 1000 Chinese Restaurant in Casula together at about 8:49 PM.

61 On the next morning, Jacobs phoned Nilsen at 5:51 AM and arranged to drive him to work. In the car he gave him instructions as to the story which he wanted him to tell to the police. It was to the effect that Jacobs had purchased the phone from a bikie outside the Crossroads Hotel, where he had been drinking with Nilsen, and had then gone inside the hotel and sold the phone to him. Nilson in due course relayed this story to police, and to the Crime Commission, but later ceased to support it.

62 Later that day (at 3:14 PM) Nilson phoned Jacobs and said that he had told police the story, that they had made it clear that they did not believe him and that they wanted to see him again on the following Monday. Later that day (at 3:24 PM) Jacobs phoned Nilsen and said to him “Oh seriously, fuckin’ stick to it, man…I fuckin’ sold you the phone. I got it from the pub”. Jacobs did his best to calm down Nilsen who was obviously very concerned and panicking about being accused of a murder in which he had played no part. Jacobs reassured him that he had bought the phone at a hotel.

63 On 11 August a telephone call was intercepted between Jacobs and an unknown person, in which he indicated that he was “fuckin’ shitting” and “laying real low”. On 14 August, a listening device installed in Jacob’s home recorded him rehearsing the story that he was to tell to police (which was consistent with that which he had asked Nilsen to tell), prior to telephoning Detective Box. Later that day (at 6:22) a call was intercepted between Jacobs and a Mr Ryan, in the course of which Jacobs acknowledged that he had been speaking to police and was going to get into “big trouble”.

64 On 21 August Jacobs attended Campbelltown Police Station where he took part in an ERISP. In the course thereof, he gave answers to the effect that he:

(i) denied knowing or hearing of Painter;

(ii) denied knowing anyone of Arabic descent, including Zaheer Sanoussi, although he later admitted knowing Mehajer when it was pointed out to him that the subscriber details in the name of Zahir El Sanoussi, for a mobile, which he had contacted, on 3 March 2000, included the residential address of Mehajer;

(iii) disclosed that he had known Mehajer from the Whitlam Leisure Centre where Mehajer assisted him with swim training because of his shoulder problem, but said that he did not know where he lived or what sort of car he had, and that he did not know him socially or address him other than by the name “Mazin”;

(iv) said that he had last seen him a couple of weeks previously;

(v) said that he had never been to Colies Cafe and did not know the deceased;

(vi) told the story which he had invented and rehearsed concerning his purchase of the phone at the Crossroads Hotel and its subsequent sale to Jacobs. He said in substance that he had purchased the phone, together with a charger, for $50 from a biker of Turkish or Lebanese appearance with a Kiwi accent, outside the Crossroads Hotel and had then sold the phone to Nilsen, after going back into the hotel. This transaction, he said, had occurred on the day of Cole’s death;

65 Police took him home after the interview, (which concluded at 7:04 PM) arriving there at about 7:50 PM. With his consent, police examined the numbers stored on his mobile phone address book, and found the number of El Sanoussi listed against the entry “Mez” (not Mazin).

66 Next there was evidence of Jacobs phoning Cameron Roach, at 7:56 PM, four to six minutes after police had left his home. Jacobs asked Roach whether he had seen “Thingo” (Mez) recently. Roach asked why? Jacobs replied:

“They fuckin’ traced all the numbers and all that. They’ve fuckin’ linked me up to him, and ah Thingo that kept an eye on him.”

67 The reference to “Thingo” on this second occasion would seem to have been a reference to Painter, although in his evidence Jacobs denied that this was the case. Rather, he said, he was referring to Mehajer. He was, however, quite unable to explain what he had meant by the words “Thingo that kept an eye on him”.

68 Jacobs then asked Roach to “ring him [Mehajer] on another number” and to say that “I’m just the young bloke that hassles him at the gym, how to train, alright. He knows nothing else.” He added “Serious, please man, cause they’re fuckin’ full on bro.”

69 Roach said that he could not ring from where he was, so Jacobs said that he would do it himself. He then went to a service station and phoned Mehajer at 8:13 PM. In this call, which was intercepted, he said:

“The coppers just went through my numbers and all Chris’ numbers and your number is the only one linkin’ us two up, right, just listen for a sec bro before you flip”.

70 He then explained what their relationship was supposed to be, and asked that Mehajer change his name in his phone address book to “Unco Johny from the gym or something”. He advised him to get rid of all his “shit” and added:

They’re just fully onto it, bro’, they’ve fucken kept real low…don’t my other number ring it from a pay phone”.

71 He said that he was “ringing from the servo”, and indicated that if Mehajer was questioned about this call, he was to say to police that “I was fucken…your sister…askin’ what you wanted from Maccas”. This was obviously a suggestion for Mehajer to say to police, if asked, that the call came from his sister at a McDonalds fast food outlet, inquiring as to what he wanted from there.

72 He also advised him to “fucken keep low.” Mehajer asked him, during this call, whether they (the police) had mentioned his name, and he repeated the story about being from the gym and hassling him for advice.

73 At 8:38 PM Jacobs spoke to a man “Dingo” and indicated that he had been to the cop shop, and that “its not good at all man. I go down”. At 8:39 PM he phoned another man “Chubbsy” and again indicated that he was in trouble, and made some reference to Nilsen.

74 On 22 August 2000, Nilson spoke to Jacobs and inquired how he had gone, to which he replied “not too good but I fuckin’ got by”. On 24 August 2000 he rang “Mark” and discussed selling his bike and indicated that “I’m getting locked for sure, bro. It’s not good”.

75 On 15 September 2000 Jacobs also said to Roach, in an intercepted telephone call, that it was “not looking good” and that he felt like “leggin’ it to New Zealand”, and that they (the police) wanted to do him for conspiracy to murder. When Roach remarked that “it can only be a conspiracy if they know who it is”, he replied: “yeah, it doesn’t matter man, I’m fucked.”

76 In cross-examination he acknowledged having considered leaving the country, but denied that it was because he was guilty of the offences.

77 On 4 October 2000 Jacobs spoke to “Danny” and indicated that he might be going to gaol, but didn’t know how he was going to go yet. On 18 October 2000 a conversation was recorded via a listening device between Roach and Jacobs, between 6:25 PM and 6:31 Pm in the course of which Jacobs discussed the police investigations and at one stage said. “They know it. They talking about Mez and the drugs and everything man…they’re gunna try and hammer him…and fuck us as well”. At another point, he said “Christian’s gone for sure…they’ve got him in it everything they’ve got him fifty metres…from the place, I think he’s fucked.”

78 The listening device captured a further conversation between Roach and Jacobs between 9:15 PM and 9:45 PM in the course of which there was the following exchange:

Jacobs: I wonder if Christian’s going to fucken break man and say yeah fuck I did it?

Roach: What?

Jacobs: I reckon he will man, they’ve got more on him than me. Do you know who they think it is, I’ll tell you now man, they think it’s Mez and Chris, they only think two people went in the shop.

79 At another point he added, again obviously referring to his appearance before the Crime Commission:

“I said things differently…then corrected meself to, not making look like I lied…you know what I mean”.

“I wish the prick didn’t die man…I’m going to break man. I’ll go Mezin…you just feel like runnin’ man, fucken leave and go man. If I had enough money I would”.

80 In a conversation recorded between 10.00 PM and 10:15 PM he said “…if I do get charged for it, then I’m going to say…who stole the phones and shit” and “…I reckon they’re, might have fucken, … trying to get Mez and then, Chris. Then get Mez and then whatever he tells them.”

81 On 25 October 2002 Jacobs spoke by phone to an unidentified male in the course of which he remarked that Nilson was going to the Crime Commission that day and that he expected him to be “a dog”.

82 In yet another conversation with Roach, on 6 November 2000, captured by listening device, he said “the problem is he bought it from my house, the phone… from my house, then he went and told ‘em we got it up the pub, and they want him to say that he wasn’t up the pub when I bought it…think he’s going to fucken’ go on their side now and fucken’ shaft me”.

83 The police were able to establish, through the intercepts and call charge records, the fact of regular phone communications between Jacobs and Mehajer from 14 June onwards. Notwithstanding the caution which had been given by Jacobs to Mehajer during their conversation on 21 August 2000, only to communicate by pay phone, the telephone records show that they had spoken to one another by phone, on 23 occasions between the end of September 2000 and the beginning of May 2001.

84 In cross-examination at the trial, Jacobs accepted that he had phoned Roach on 9 August 2000 (in a conversation that was recorded at 7 PM), after learning that Nilsen had informed police of obtaining the deceased’s mobile phone from him, and that he had said to him:

“If anything happens I’m gunna get someone to fucken’ go and give him [Nilsen] a good hiding.”

85 He also agreed that he had been intercepted rehearsing the story which he had planned to give to police in relation to this phone, and additionally, that he had lied to them in the ERISP about the nature of his relationship with Mehajer.

Lies by Mehajer and Matters Potentially Revealing Consciousness of Guilt

86 Painter gave evidence of having spoken to Mehajer at the Miller Shopping Centre in relation to the evidence which he had given to the Crime Commission concerning the mobile phone, which he had obtained in the robbery. Earlier, he said, Mehajer had asked him if he still had the phone and explained that the man who he (Mehajer) had hit on the head had died. That had occurred, he said, about two weeks after the robbery.

87 After telling Mehajer what he had said to the Crime Commission, at the time of his second attendance, and reporting that he had been shown photographs of Mehajer he indicated that Mehajer had encouraged him to “stick to” what he had been saying, about where he had obtained the phone.

88 Mehajer acknowledged in cross-examination at the trial the fact of, and the terms of, the intercepted telephone conversation between himself and Jacobs at 8:13 PM on the night of 21 August 2000 previously mentioned. He accepted that he knew that Jacobs had been interviewed by police that day, but denied that there had been any arrangement that Jacobs would report back to him after the interview with police. He suggested that he did not know what Jacobs had been talking about in this conversation, but agreed that he had not asked him what he meant.

89 He claimed that it was his nature to listen and not to ask many questions. A somewhat different impression might however be discerned from the many telephone calls between Mehajer and Jacobs from September 2000 onwards.

90 He also denied that Jacobs had been inviting him to communicate in the future by pay phone, to keep a low profile, or to give police a false explanation for this call.

91 Mehajer was interviewed by police in an ERISP on 17 November 2000. In the course thereof he said that he:

(i) had met Jacobs at the Whitlam Centre swimming, and that while he had been to his house three or four times he did not know where he currently lived and did not socialise with him;

(ii) had not spoken to Jacobs over the telephone for more than a month and did not know whether he had his current phone number;

(iii) knew Painter, but had never spoken to him, or to Jacobs about the police investigation into the murder, or about the mobile phones that had been stolen;

(iv) had never been in the vicinity of Colies Cafe, and had no involvement in the offences which had been committed there;

(v) was able to speak Arabic fluently;

(vi) would describe Painter as being about 21 to 22 years of age, stocky, with blonde hair, white skin and about 5 cm shorter than his own 185 cm (a description which would have been totally inconsistent with that given by Mr Phillips of the man who had initially seized and then stood over him);

92 He agreed, in cross-examination, that his answers to questions 163, 168 and 170, concerning whether or not he had spoken to Painter and Jacobs about the offences and the police investigations, had been untrue. He said that he had said what had been recorded to protect Jacobs and Painter; although he also asserted, at one stage, that while at this time he had believed that Painter had been involved in the offences, he had not held that view in relation to Jacobs. He accepted that his evidence in chief to the effect that he became aware of police interest in him only when highway police had pulled him over, on the day of his ERISP, had not been correct, although he denied that it had been a deliberate lie.

93 He also accepted that he and Roach had helped Jacobs to move his house on 4 August 2000 from Casula to Minerva Place and that he had lied when telling the police that he did not know where Jacobs currently lived.

94 He also acknowledged that he had phoned Jacobs’ mobile just after 1 PM on 3 March 2000, and that there had been six calls to Painter’s mobile from his mobile, that afternoon. He could not explain why there had been five calls in succession, and he did not accept that the sixth call at 16:29:33, which was unanswered, had been an accidental redial. He suggested that during the period between that call, and the time of the next call at 17:36:33, he had been training at the gym. Although he indicated that he had signed in at the gym, there were no records available to prove or disprove his attendance there on the afternoon of 3 March 2000. He thought that he had signed in, on the occasion of this visit, but could not explain why he had told police in his ERISP that he had “just walked in”.

95 As elsewhere noted there was evidence of regular telephone conversations between Mehajer and Jacobs from 28 September 2000 onwards, the terms of which were only consistent with them being close friends and socialising well beyond training and gymnasium related activities.

Jacob’s Case

96 It was his case that he had been present at the cafe, but that he had not had any prior knowledge of any robbery being planned and had taken only a minor part, having been unaware that he was participating in a robbery. He denied knowing Pearce, Denning or Ms Reely but acknowledged knowing Mehajer and Roach.

97 He said that he had been a good friend of Mehajer for six months or so before the offences and that Mehajer helped him with his training at the Whitlam Centre, where they had first met. He was working as a construction steel fixer on 3 March 2000, and usually finished work at 2 PM.

98 After finishing work that day, he said, he went home, having arranged to meet Mehajer to go out and to have a meal later. When Mehajer arrived he went out to his car, where he was introduced to “Chris” (Painter) who was sitting in the front seat. He was told that they were going to Campbelltown because Chris had to pick up some money.

99 He said that Painter directed Mehajer to Hollylea Road Leumeah, where Colies’ Cafe was located. As they drove towards the cafe, he said that Painter instructed Mehajer to slow down and then said “He’s not there. We’ll get something to eat down at the Red Rooster until he’s back”. They went to the Red Rooster and then drove closer to the cafe. He said that Painter and Mehajer left the car while he stayed in his seat. Then, he said, he left the car and went to look for a pet shop which he had remembered being in the complex, from an earlier occasion when he had worked on a job nearby.

100 On the way to the pet shop, he said that he heard yelling from Colies’ Cafe. He looked through the window and saw one man lying on the ground and Painter throwing punches at another man behind the counter, as he was retreating. He said that he could not see his friend Mehajer, so he ran into the cafe. He saw a smaller man (the deceased) lying on the floor in the corner, and a large man (Mr Phillips) lying on the floor near the entrance. Painter who was standing between these men, instructed him to “watch these two guys” and then ran out the door. Painter, he said, returned with his hands full of things after half a minute or so. He said that when Mr Phillips started to get up, Painter said to him “What the fuck are you looking at?” and kicked him in the face. Jacobs said “He’s hurt”. Mehajer came out and asked “what are you going on about?”

101 Jacobs said that as he began to leave, Painter told him to grab the phone so he seized the phone which was on the counter. He did not know whose it was. On the way back to the car, he said that he remarked to Mehajer “your mate’s a fucking idiot”, to which Mehajer replied “tell me about it”. They got into the car, followed by Painter. He said that he handed the phone to Painter. He also said that Mehajer apologised to him. He claimed to have been in the shop, himself, for only a minute.

102 When they arrived at his home, he said that Painter passed him a mobile phone and said “Here keep it. It’s the guy’s”. He could not explain why he took it, but said that he later gave it to Nilsen, who had previously purchased a phone from him, which was found not to be working properly. He acknowledged having later asked Nilsen to lie to police about Jacobs having acquired the phone at the Cross Roads Hotel.

103 He denied having answered any incoming calls on the deceased’s mobile on 3 March, specifically those made by Denning and Paul Franklin, or from Lisa Walker’s mobile. He denied having known Denning, Ms Reely, or Pearce and also denied having any personal involvement or connection with the Rebels motorcycle club, although he disclosed that his father had once been a member (before he was born). He said that he did not see a knife at the cafe. He also claimed that the reason for not telling the police or the Crime Commission what had occurred was because he was not a “dog”. He said that he had lied about the phone because he did not want to go to gaol (for receiving a stolen phone) and about his relationship with Mehajer because he did not want to “dob him in”, and wished to minimise their relationship.

104 He indicated, in his evidence, that he had been wearing board shorts, while Mehajer had worn three quarter length shorts and a T-shirt. He also asserted that he had no relationship with the Rebels beyond seeing them occasionally at the Cross Roads Hotel where he had a part time job.

Mehajer’s Case

105 It was Mehajer’s case that he had not been present during the commission of the offence and that he had nothing whatsoever to do with it. Rather, he had been training at Ace Fitness at Liverpool. As previously mentioned he raised through cross-examination, and otherwise, the possibility of some of the witnesses having had connections with the Rebels Motorcycle Club, giving rise to an inference that the offences had been committed by unidentified club members.

106 Although no documentary evidence was available either to support or contradict his claimed alibi, there was some evidence called in his case (from Justin Law) to show that the Appellant’s hair, at the relevant time, had been cut short. Photograph 2 in Exhibit 9 was nominated as depicting a similar hairstyle.

107 He gave evidence of training at gyms in the Liverpool area, and of passing on training information to others, as he had an interest in diet regimes and weight training. Among the persons he was helping were Painter and Jacobs, neither of whom he said had been good friends in March 2000, their relationship having been nothing more than that of training partners. Cameron Roach, he said, was a mutual friend of himself and Painter.

108 He said at some time prior to being interviewed by Police (on 17 November 2000), Painter had contacted him, and suggested that they meet at a shopping centre. Painter, he said, informed him of having been asked by the Crime Commission about a robbery and about a phone that he had purchased at a hotel. Later, Painter informed him that they had said that someone had been bashed and died, and that they had shown him a photograph and asked questions about himself (Mehajer).

109 On another occasion, he said that he had met Painter and his brother, Jason, in Wollongong. On that occasion, he said, Painter had informed him that he had been to the Crime Commission again, that they were “putting pressure” on him, and that he had a story, and needed his (Mehajer’s) help. Painter said that if Mehajer was asked by police, he was to say that he (Painter) had purchased the phone at the Green Valley Hotel and assured him that he would not get into trouble by doing so. Mehajer said that he agreed to help him out, and he explained that this is what he did when he was spoken to by police. He said that he did not remember any further discussions with Painter in relation to the offences.

110 He was cross-examined in relation to the intercepted telephone call of 21 August 2000. He explained that when Jacobs asked him to change the name under which he had him listed in his mobile address book, and had said that their relationship was simply that of someone he sees at the Whitlam Centre, swimming, this was so they had similar stories to tell to the police, and not to disguise that they had a close relationship. He explained that when Jacobs told him, during this call, to “get rid of all your shit”, he was referring to steroids rather than to the proceeds of the robbery.

111 He denied knowing what Jacobs meant when he told him” they’ve just fully on it bro. They’ve fucken’ kept real low…don’t’ my other number ring it from a pay phone”. He acknowledged being aware that Jacobs was phoning from a service station but denied that, if he was questioned about the call, he was to explain that his sister had called him to ask what he wanted from McDonalds.

112 Mr O’Connor of the NSW Crime Commission, who was called by the Crown at the request of Mehajer, was asked by the latter some general questions in relation to the Commission’s investigation into possible criminal activities by the Rebels motorcycle gang. He was then asked by counsel whether Mr Painter was suspected of having links to the gang. The Crown Prosecutor objected to the question on the grounds of relevance but it was allowed. The cross-examination proceeded as follows:

PIKE: Q. You heard the question directed to Mr Painter?
A. I wouldn’t put it that high. But to the crime, yes, we certainly suspected initially that an outlaw motorcycle gang may have been involved in the crime, and Mr Painter was involved in the crime, so the link was that way.

Q. For example, one of the focuses of the inquiry, was the Cross Roads Hotel?
A. Yes, that’s correct.

Q. Indeed, there were persons in Campbelltown, such as Mr Hagerty, Mr Jim Hagerty now known as Mr Pearce, and he was suspected of being a member of the Rebels or - -
A. Being an associate, yes.

Q. Mr Jacobs, was he suspected of having connections with the Rebels?
A. Yes he was.

113 An application was then made by counsel for Jacobs for a discharge of the jury, on the basis that this was a question going to his character which should not have been asked, and which had not been flagged in advance. He indicated that had he anticipated that Mehajer’s defence would have taken this course he would have sought a separate trial. Counsel for Mehajer sought to justify the cross examination by a submission that it did not go to Jacob’s character as such, but to the defence case that the persons involved in the offence had Rebel motorcycle gang connections, whereas Mehajer had no such connections. It was that scenario, he submitted, that he had been pursuing through the cross examination of witnesses such as Painter, Pearce, Denning, Reely and so on, from the outset.

114 The application for a discharge of the jury was refused by his Honour, with an indication that it would be made clear to them that it was not part of the prosecution case to associate Jacobs with the Rebels.

115 There was no further cross-examination of Mr O’Connor on this topic.

116 This aspect of the cross-examination gives rise to one of the grounds of appeal by Jacobs and I will return to it.

APPEALS AGAINST CONVICTIONS

117 The Appellants relied essentially upon the same grounds of appeal, and it is accordingly convenient to deal with them globally. Where their appeals differ they will be dealt with separately.

COUNTS 2 AND 3 (BOTH APPELLANTS) -

1. HIS HONOUR ERRED IN LAW IN DIRECTING AND/OR FAILING TO DIRECT ADEQUATELY OR PROPERLY AS TO JOINT ENTERPRISE AND THE ELEMENTS AND EVIDENCE IN RESPECT THEREOF.

2. HIS HONOUR ERRED IN LAW IN DIRECTING AND/OR FAILING TO DIRECT ADEQUATELY OR PROPERLY:

(a) AS TO THE FACT THAT COMMON PURPOSE APPLIED;

(b) IF COMMON PURPOSE APPLIED, AS TO THE DIRECTIONS IN CONNECTION THEREWITH.

3. HIS HONOUR ERRED IN LAW IN DIRECTING AND/OR FAILING TO DIRECT ADEQUATELY OR PROPERLY:

(a) AS TO THE ELEMENTS OF COUNT 2 i.e. ROBBERY, IN COMPANY AND INFLICT GRIEVOUS BODILY HARM .

(b) AS TO THE ELEMENTS OF COUNT 3 i.e. ROBBERY, IN COMPANY AND WOUNDING;

(c) AS TO THE FACTS SUPPORTING EACH ELEMENT IN (a) AND (b).

118 These grounds are formulated in terms which were not only very general, but also opaque. They need to be understood in the light of the arguments, which were advanced by Mr Papayani for Jacobs, and adopted by Mr Lloyd QC for Mehajer. They seem to have involved several propositions.

119 Firstly that, while his Honour directed the jury in relation to the joint criminal enterprise, which the Crown contended was made out in relation to the counts of robbery in company with infliction of grievous bodily harm (Count 2), and robbery in company with wounding (Count 3), in accordance with R v Tangye (1997) 92 A Crim R 545, the directions were deficient in that they did not mention that the participation of the individual accused could only be proved either by his presence at the scene and physical commission of the crime, or by his presence and the provision of assistance or encouragement: R v Crozier NSWCCA 8 March 1996.

120 Secondly that the jury were not sufficiently instructed, in a case involving separate robbery offences, that the joint criminal enterprise had to be established in relation to each count. In this regards the submission appears also to have involved the proposition that the Crown case was not sufficiently clear as to whether the enterprise was one to rob the cafe and any person in it, or one to rob the two individuals, Cole and Phillips, and, as a result, was flawed by the absence of any evidence of an arrangement reached between the Appellants and Painter before they entered the cafe.

121 Thirdly, that there was error in the case being left as one which involved a joint enterprise which embraced a robbery in company which was committed with an intention to inflict grievous bodily harm (Count 2) and as intention to wound (Count 3), and in the alternative, which was committed in circumstances where the accused individually contemplated the possibility of such harm being inflicted as an incident of the robbery. In substance, it seems to have been contended that the case should only have been left as one of a joint enterprise simpliciter which involved the infliction of acts of violence (R v Kalinowski; R v Timburry (1930) 31 SR (NSW) 377) and that, as a result, the Appellant’s culpability was to be assessed solely by reference to the liability attaching to principals and accessories: R v Mohan [1967] AC 187 and R v Clough (1952) 28 NSWLR 396.

122 That was said to follow from the circumstance that the Crown could not prove which of the three persons present inflicted the relevant injuries.

123 It was also contended that the jury were not sufficiently directed that the agreement had to include an understanding that “acts of personal violence should, if necessary, be committed”.

124 Additionally, it seems to have been contended that, if common purpose was relied upon, then the summing up was deficient in that “no direction was given as to common purpose or as to an act foreign to the common purpose where the others are neither principals in the second degree or accessories.”

125 Fourthly, that the summing up was deficient in that “nothing was said to the effect that robbery was stealing or taking from the person or in the presence of another, in respect of the degree of force or terror as to induce any person unwillingly to part with his property”. This was said to have had a particular relevance for Count 3, in that the jury were not asked to determine whether Phillips’ mobile phone was taken in his presence, following demands made of him, as a result of apprehension on his part.

126 Associated with this ground was the contention that there was no evidence, or directions given, concerning the existence of a concert, to which the Appellants and Painter were parties, for the latter to take this phone. Painter’s act, it was argued, had been one which was a venture of his own, which had not followed upon any actual force or violence, or threat thereof, emanating from any person acting in concert. This was linked to a submission that the directions were unclear as to whether Phillips’ evidence of a knife being held at his throat was relied upon as part of the joint enterprise, or otherwise.

127 A similar submission was advanced in relation to Count 2 in so far as it was contended that the summing up was deficient since “no direction was given as to the facts to support robbery in company”.

128 Fifthly, it was submitted that the directions were deficient in relation to the element of being “in company”, in that “the facts should have been given in respect of each count and not treated in globo”.

129 Sixthly, a submission was advanced to the effect that while acts done by one accused in furtherance of a common purpose which constituted elements of the crime charged are admissible to prove the crime (Tripodi v The Queen (1961) 104 CLR 1), a direction should have been given that acts or declarations made after the commission of the crime were only admissible in relation to the Appellant whose acts and declarations they were.

130 Seventhly, it was submitted that the evidence was so complex or contradictory as to what had occurred in the cafe, that his Honour should have dealt with the facts, in support of each element of the robbery counts, separately in relation to each Appellant: R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140.

131 Eighthly, it was submitted that the Crown case was flawed in so far as the blow to the head of the deceased was relied upon as giving rise to the element of grievous bodily harm that was necessary for Count 2, and also for the element of wounding that was required for Count 3.

132 Associated therewith was a submission that a question remained which was not properly addressed, concerning whether or not the blow to the head of the deceased was done before or during the robbery, or afterwards; and that, as a result, the jury were not directed as to the need to determine whether that blow was within the scope of the common enterprise or was beyond what could have been expected to occur: R v Duong at 148 per Mathews J and Markby v The Queen (1978) 140 CLR 108.

133 In that regard, it was contended that had the jury been properly directed, it would have been open for them to have held a reasonable doubt as to whether or not the act was an independent act by whoever was the assailant, and not something falling within the common enterprise, strictly understood, or in its extended form, so as to attract criminal responsibility to his associates.

134 No complaint was made at trial in relation to the directions, which were given in relation to Counts 2 and 3, and no directions of the kind now identified were sought.

135 In my view an examination of the summing up in relation to Counts 2 and 3 provides a complete answer to each of these submissions.

136 Commencing with Count 2, his Honour said:

“You see the Crown charges in count 2 that each of the accused, being in company with each other and with Christian Painter, robbed Shane Andrew Cole of a telephone, a wallet and its contents and a quantity of jewellery. And that at the time inflicted grievous bodily harm on Shane Andrew Cole. Now the Crown has to prove all those elements. Let us look at them in turn.

What is robbery? Robbery, members of the jury, is an aggravated form of theft. It is an aggravated form of taking the property of another without that person’s consent. It is a crime of violence, because it involves not only theft but an element of violence, be it either of actual force of violence, or the threat of it.

If you were to leave your house open, doors open and you had gone off down the street and there is nobody home, and I was to sneak in and take your wallet off the table, that would not be a robbery, it would be a theft, because there is no element of violence in that, or the threat of it. So that is what robbery involves, an aggravated form of theft, with the taking of property without consent, and it being a crime of violence, because it involves an element of violence, be it actual form of violence, or the threat of it.

The Crown has to prove then the elements of robbery and the notion of robbery also involves the intention of permanently depriving the owner of the property of it.”

137 After summarising the Crown case in relation to this element, his Honour next dealt with the element of being “in company”, explaining:

“This robbery has to be in company. What does the expression ‘in company mean’? There is, of course, the need for the involvement of no less than two people and, here of course, the Crown charges (and this is the prime charge) that there were three people involved, each of the accused and the accomplice Painter.

If a person robs somebody and there is a third party present, who is no more than a mere passive bystander, well, that robber is not acting in company with that person. To commit a robbery in company, the participants must share a common purpose to rob.

If the Crown proves beyond reasonable doubt, that the accused whose case you are considering, shared the common purpose to rob, then that person bears criminal responsibility for those acts of his companion, or companions, including any act contemplated as being a possible incident of the common purpose to rob.

You have been told something, from the bar table, about the concept of a joint criminal enterprise. Let me say this to you about that. The law is that where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other, or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused, the case against whom you are considering.

A joint criminal enterprise, members of the jury, exists when two or more persons reach an understanding, or an arrangement amounting to an agreement between them, that they will commit a crime. The understanding, or arrangement need not be written down, it need not be expressed in detail, or at all. Its existence may be inferred from all the circumstances. It need not have been reached at any particular time before the crime is committed.

The circumstances in which two or more people are participating in the commission of the particular crime, may themselves establish an unspoken understanding, or an arrangement amounting to an agreement formed between them then and there, to commit that crime.

Let me take an illustration far removed from this case. If you were walking along the street here this afternoon and you saw a person walking towards you being followed by two men, who suddenly rushed up to that pedestrian, knocked him down and systematically started going through his pockets and they then took off, you would not need to have been present at some meeting those two assailants had, before you could conclude that they were acting in a joint criminal enterprise. What they were doing reflected an understanding, or arrangement amounting to an agreement formed between them. I say that just to give you an illustration that is far removed from this case but to emphasize, the Crown does not have to prove that there was some express agreement reached and spelt out.

The Crown does not have to prove some document that records the terms of the agreement, nor does it have to call somebody who said, ‘I was present and I heard A and B discussing what they were about to do’.

The Crown here charges the existence of a joint criminal enterprise to which each party, each accused and Painter, was a party. The Crown has not called evidence that the accused and Painter had any conversation, or conversations to spell out an agreement to rob the deceased and/or Phillips. It does not have to do so, provided the evidence satisfies you beyond reasonable doubt, that in all the circumstances, you should infer the existence of such an agreement.”

138 His Honour then moved on to the next element which the Crown had to prove, namely the infliction of grievous bodily harm on Shane Andrew Cole at the time of the commission of the robbery in company, giving a conventional direction in the terms of it meaning a “really serious bodily injury”. This was followed by a reference to the evidence on that aspect of the case, and then by a direction in the following terms:

“Now it is not necessary for the Crown to prove that the harm suffered by Mr Cole was personally inflicted by the accused whose case you are considering provided you are satisfied beyond reasonable doubt that the accused whose case you are considering shared a common purpose to rob with the assailant, in which case that accused bears criminal responsibility for those acts of his companion or companions, including any act contemplated as being a possible incident of the common purpose to rob.

This means then unless the Crown has proved beyond reasonable doubt that the accused whose case you are considering personally inflicted the grievous bodily harm upon the deceased that the Crown must prove that that person contemplated the infliction of such harm as a possible incident of the common purpose to rob.

You see, a party to a common purpose to commit a crime bears criminal responsibility for such acts of his companion which he contemplated as being a possible incident of the crime which they agreed to commit. So the question is whether the accused whose case you are in the course of considering regarded it as possible that the infliction of grievous bodily harm would be committed.

It is not necessary that it be shown that he wanted the infliction of grievous bodily harm to be committed or that he intended that that harm be committed or that he thought it was likely that that harm would be committed. It suffices that the accused contemplated as a possibility that it would be an incident of the crime upon which they agreed.”

139 His Honour then moved on to the third count, observing:

“The elements to be proved in relation to the third count are very much the same, of course. The two differences are that it is a different victim and that this time the Crown does not have to prove the infliction of grievous bodily harm but robbery in company with wounding.

This count and, again you see it form the very expression of the indictment, charges the accused, in company with each other and with Christian Painter, of robbing Shane Phillips of a mobile phone and, at the time of doing so, of wounding him. So the Crown has to prove again the robbery of property, this concept that I instructed you on earlier – it is the very same concept – and that at the time of the robbery in company, the wounding of Shane Phillips.

I remind you again that what is involved in robbery involves these elements; the unlawful taking and carrying away of some property of some value. That it was taken away from under his immediate personal care and attention and protection – rather the taking of that property against the will of the person and an intention to permanently deprive him of the property.”

140 After summarising what was relied upon by the Crown to establish the robbery of Mr Phillips of his mobile phone, his Honour continued in relation to the remaining elements:

“Again the crown has to prove that this was a robbery in company, to which the accused were parties.

I remind you again of what I have already said in relation to the second count. The crown has to prove that the accused whose case you are considering, shared a common purpose to rob Mr Phillips in the execution of a joint criminal enterprise.

Again I direct you that if the Crown proved beyond reasonable doubt that the accused, whose case you are considering, did share such a common purpose to rob, then that person bears criminal responsibility for the acts of his companion engaged in that common purpose, including any act contemplated as being a possible incident of the common purpose to rob.

This then, leaves the issue of wounding. The Crown has to prove the wounding of Shane Phillips. To constitute a wounding, members of the jury, I direct you that there has to be an injury by which the skin is broken. That is what is necessary, in law, for there to be a wounding.”

141 The evidence which the Crown relied upon to establish the wounding of Mr Phillips and the manner of its infliction by a kick to his face, were summarised. His Honour then noted the difference in the versions of Jacobs, Painter and Mr Phillips as to who had kicked the latter, and concluded this aspect of the summing up with the reminder:

“The Crown, as I have made clear I trust, does not have to prove which of the offenders kicked Mr Phillips, but the Crown does have to prove that the accused, whose case you are considering, shared a common purpose with that assailant to rob Mr Phillips and, that the act of wounding him was contemplated as being a possible incident of that common purpose.”

142 In R v Tangye Hunt CJ at CL formulated a model direction in relation to a prosecution case which is based upon a “straight forward joint criminal enterprise”, in the following terms (at 556/7):

“So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines:

(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.

(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.”

143 Immediately preceding this paragraph, his Honour pointed out that:

“As I have said, common purpose becomes necessary only where there has been an agreement to carry out a particular crime (some text books call it the foundational crime) but some other crime has been committed which had been within the contemplation of the accused as a possible incidence in the execution of their agreed joint criminal enterprise (some text books call it the incidental crime) which is said to be within the scope of the common purpose.”

144 The error which occurred in Tangye arose from the intermingling of the concepts of joint criminal enterprise and common purpose in a case where there was no need for the Crown to rely upon an extension of the enterprise, since the “infliction of grievous bodily harm was clearly enough part of the joint criminal enterprise – either from the beginning or, at the latest when the participants…started to kick the victims” (at 588).

145 Tangye is not authority for the proposition that the doctrine of common purpose cannot be relied upon to extend culpability arising from a joint criminal enterprise to commit crime A to include crime B, where crime B was within the contemplation of the accused as a possible incident in the execution of their agreed joint criminal enterprise. Indeed, it recognises that, in a suitable case, it is entirely appropriate and permissible for the Crown to rely on extended joint criminal enterprise. There is, in any event, abundant authority to show that this is so: see for example McAuliffe v The Queen (1995) 183 CLR 108; R v Sharah (1992) 30 NSWLR 292 and R v Kyriakouand Ors (1987) 29 A Crim R 50. There is nothing in the statement of the relevant principle by the High Court in Gillard v The Queen (2003) 78 ALJR 64 at paras 109 to 112 to require any variation in this approach.

300 An application was made by counsel for Jacobs, for a discharge of the jury, once this line of questioning was developed by counsel for Mehajer. It was refused, and although directions were later given by his Honour to neutralise the cross-examination, it is now submitted that the evidence was so prejudicial that it could not have been cured by those directions.

301 After referring to the substance of the cross-examination, and after reminding the jury that the Crown had not sought to introduce this material, his Honour said:

Crimes are more often committed by bad people than good people. Jacob’s association with the Rebels would make it more likely that he was guilty of the crime charged than if he had no such association. Well, members of the jury, that in effect is reasoning by association only and you must not adopt such an approach in this case. Were you to do so this trial would miscarry. That would be altogether wrong as an approach.

Of course you have direct evidence from Mr Jacobs and it is a matter for you to evaluate it, that he is not and has never been a member of the Rebels motor cycle club.”

302 The cross-examination was somewhat imprudent, particularly as none of the witnesses, who had otherwise been accused by Counsel for Mehajer of having an association with the Rebels, had accepted that to have been the case. There was no prospect of any Rebels involvement being established, and at best the cross-examination was of the speculative kind that was designed to throw dust into the air. However, imprudent as it was, I am satisfied that it was effectively neutralised by the directions that were given, and that this ground has not been made good. Additionally it was the case that the evidence which was adduced was somewhat vague being cast in terms of this Appellant “having connections with the Rebels”, a concept falling short of him being a member, or a nominee or an associate of the Rebels. Moreover the matter seems not to have been taken up at any later stage of the trial.

303 I am not satisfied that his Honour erred in the exercise of his discretion in declining to discharge the jury. This ground is not made good.

GROUND 10 (BOTH APPELLANTS) – His Honour Erred in Law in Failing to Direct on Manslaughter

304 It was submitted that, in the absence of any intention to kill or inflict grievous bodily harm, and in circumstances where the evidence was confusing in respect of the roles of those involved, manslaughter should have been left as an alternative to Count 1. This was necessary, so it was argued, in case the jury were not satisfied as to which of the persons had done the act causing death.

305 Although it was recognised that this would have given “an air of unreality to the case (of the Appellants), nevertheless it was submitted that the issue of manslaughter should have been left, consistently with the decisions in Gillard v The Queen (2003) 78 ALJR 64; Gilbert v The Queen (2000) 201 CLR 414 and R v Stokes and Difford (1990) 51 A Crim R 25.

306 So far as this ground depends upon a submission that there was no case to answer of constructive murder because the Crown could not prove which offender struck the fatal blow, this has already been addressed.

307 The principal submission relates to the question whether, even though defence counsel had not made a request that manslaughter be left, nevertheless it was mandatory for his Honour to have done so, of his own motion.

308 Smart AJ gave consideration to this question recently in R v King [2004] NSWCCA 20 at [110], where he suggested that the following principles emerge on the authorities (particularly Gilbert v The Queen and Gillard v The Queen:

“(a) Where on a trial for murder, there is a viable case of manslaughter to be left to the jury, the refusal to do so constitutes a wrong decision on a question of law: Gillard v The Queen 2003 HCA [par 26]; [par 32]; [par 85]; [par 106].

(b) This raises the question of the proviso. It is not an answer to such refusal or failure that the jury were correctly instructed on the elements of murder and that since they convicted the accused (appellant) of murder there is on that account alone, no miscarriage of justice. The jury were deprived of the opportunity to consider an intermediate position.

Gillard

Fairbanks

,

Maxwell

,

Gillard

and

Elfar

(

Fairbanks

;

Maxwell

at 1269)

Fairbanks

Maxwell

(d) If the Crown wishes the jury to consider the alternative offence in the event of them finding the accused not guilty of the principal offence the Crown must open the alternative offence to the jury.

309 Although the view was once held, as Lee J stated (with the concurrence of Street CJ and Enderby J) in R v Elliott and Hitchins (1983) 9 A Crim R 238 at 251 that “manslaughter has no relevance to a charge of murder based only on felony-murder” that view no longer has concurrency. In Spathis and Patsalis [2001] NSWCCA 476, Carruthers AJ (with whom Heydon JA and Smart AJ agreed) held that the alternative verdict of manslaughter, in a case where the Crown relied solely upon felony murder, was available “in an appropriate case”. His Honour said [at 248]:

“One can readily think of examples. There may be an issue of fact to be resolved by the jury as to whether the act causing death occurred immediately after the commission of the foundational offence, or whether such act was too remote in time. If the jury were not satisfied that the relevant act occurred sufficiently proximately to the commission of the foundational offence, it would, nevertheless, be open to them in an appropriate case, to convict the accused of manslaughter on the basis that the act which caused death was an unlawful and dangerous act.”

310 The present case would not fall within the scope of this example since the blow or blows causing death clearly occurred during or immediately after, the commission of the foundational offence, whether that was the offence charged in Count 2 or that charged in Count 3.

311 In this regard the expression “immediately after” had been given a common sense interpretation. For example, in Elliott and Hitchins Lee J said:

“In my view counsel’s submission should not be upheld. What s. 98 plainly contemplates is that the act of wounding is to have a relationship both in fact and in time to the robbery and not to be regarded as a matter unassociated with that event. But the word ‘immediately’ does not require to be given a meaning which would restrict the application of the section to an event occurring within second or minutes of the termination of those particular actions which constituted in law a robbery of the victim. The whole of the circumstances involved in the robbery must be looked at and a decision made against the entire context of the evidence in regard thereto.”

312 The present is a case where the attack on the deceased was intrinsically involved in the commission of the two robberies, having been made while searches were being carried out of the cafe and motor vehicle, and while pressure was being applied to the victims for the disclosure of where the “cash” and/or “the stash” were. It would have been fanciful to regard this as a case where the relevant act was too remote from the foundational crime to exclude constructive murder.

313 Moreover this was not a case where the Crown could have established manslaughter against either accused by reference to an independent unlawful and dangerous act, falling outside the joint enterprise, whether in its basic or extended form. That arises from the circumstance that it could never have proved who struck the fatal blow or blows.

314 In summary, this was not a case where manslaughter was a viable alternative. To have left it as an alternative could only have complicated an already complicated case, and may even have been unfairly prejudicial to the Appellants. If the offence of constructive murder was not established then they were entitled to an outright acquittal on Count 1.

315 I would dismiss this ground of appeal.

316 Three further grounds were pursued by Mehajer, which were numbered 12 to 13 (Ground 11 being that which was formulated by Jacobs in relation to the sentence appeals.

GROUND 11

317 This a ground relating to the application for leave to appeal against sentence, to which I will return.

GROUND 12 (MEHAJER) – The trial miscarried by reason of the trial judge allowing into evidence certain inadmissible and prejudicial material.

318 This ground relates to the admission into evidence, over objection by counsel for Mehajer, but not counsel for Jacobs, of that part of the intercepted telephone call between the Appellants, on 21 August 2000, when Jacobs instructed Mehajer “get rid of all your shit”. This had followed upon Jacobs speaking to police, and it was relied upon by the Crown as advice to get rid of anything which was in Mehajer’s possession and which had been taken from the cafe in the course of the robberies.

319 Counsel for Mehajer however contended that there was a risk of the jury drawing an inference from it that he was a dealer in drugs, in which event its prejudicial effect would have substantially outweighed its probative value to the point where it should have been excluded.

320 It is improbable in the extreme that the jury would have understood this instruction, when read in the context of the entire conversation, in this way. That followed from the fact that the conversation, on its face, was dealing with only one topic, namely Jacob’s meeting with police and the false story which he had given to them. Even if it was the case that the ordinary member of the community would have had an understanding that the expression “shit” is sometimes used to mean drugs, this would not, in any event, have been unfairly prejudicial, in a case where the Crown alleged that the purpose of the criminal enterprise was to steal drugs and/or money and where evidence had been led of an inquiry by one of the offenders as to the location of “the stash”.

321 I am not persuaded that his Honour erred in allowing this portion of the conversation to go into evidence, as being relevant to the issue concerning Mehajer’s involvement, and participation in the presentation of a false story to police. In this regard it formed but part of a very relevant conversation which followed Jacob’s visit to police and Mehajer’s inquiry as to whether police were, in effect, interested in him. There was, in my view, no occasion to edit the conversation, in circumstances where, on my assessment, there was no tangible risk of the jury attaching to this brief passage an interpretation that would have been unfairly prejudicial.

322 This ground is not made good.

GROUND 13 (MEHAJER) – The Verdicts of the Jury were Unsafe and Unsatisfactory Given all of the Above Matters and Considering a Number of Inconsistencies Between and Relating to the Evidence of Important Prosecution Witnesses.

323 This ground relied upon what were said to be material inconsistencies between the objective evidence, the evidence of Mr Phillips, and the evidence of Painter.

324 This ground has been separately addressed, and it is not made good.

GROUND 14 (MEHAJER) – A Miscarriage of Justice Resulted from a Combination of the Matters Stated in the Preceding Grounds.

325 It was submitted that the combination of misdirections, failures to direct, and allowance into evidence of inadmissible evidence led to the trial of Mehajer miscarrying: R v Clough (1992) 28 NSWLR 396 at 408 and R v Giam (1999) 104 A Crim R 416 at 422/3. Since none of the other grounds argued had been made good, this ground fails.

APPEALS AGAINST SENTENCE

326 The Appellants relied upon essentially the same grounds in support of their applications for leave to appeal against the sentences that were passed. Those grounds were as follows:

THE SENTENCES WERE EXCESSIVE:

(a) IN THAT COUNT 1 WAS CONSTRUCTIVE (OR FELONY/MURDER).

(b) THE PRINCIPLES OF TOTALITY DID NOT APPLY.

(c) THE SENTENCE IN COUNT 3 SHOULD NOT HAVE BEEN PARTLY CUMULATIVE.

(d) COUNTS 2 AND 3 WERE FOUNDATIONAL CRIMES.

(e) HAVING REGARD TO GROUND 5.

327 Additionally, Mehajer relied upon the following ground:

THE SENTENCING JUDGE ERRED IN RELATION TO CERTAIN FACTS FOUND ADVERSE TO THE APPELLANT MEHAJER IN THE SENTENCING PROCEEDINGS AND AS STATED IN THE REMARKS ON SENTENCE.

328 In substance it was contended that since the foundational crime relied upon for Count 1 was that charged under either Count 2 or Count 3, those counts should have been charged in the alternative. It followed, so it was submitted, that there was double jeopardy involved which would have been avoided had the foundational crime reflected a combination of Counts 2 and 3.

329 Next, it was submitted, on behalf of both Appellants, that the sentences for Count 1 were outside a legitimate range for sentencing discretion in relation to an offence of constructive murder.

330 Simply because Counts 2 and 3 were foundational crimes did not mean that they could not be separately charged, or that sentences should not have been imposed for both. The permissibility of doing so is established by long standing practice: see R v McGarritty NSWCCA 10 June 1994. By reason of the fact that the sentence for Count 2 was wholly concurrent with the sentence for Count 1, there can be no question of the Appellants having been punished twice for the offences that were committed in relation to the deceased.

331 In order to give effect to the principles of totality, in a case where there were two victims, who each became the subject of serious criminality, there had to be some accumulation of sentence. His Honour’s sentence did not offend the principles established in Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15, and it is plain from the remarks on sentence that the accumulation was directed by reason of the additional criminality involved in a case where there were two victims.

332 Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills NSWCCA 3 April 1995. Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender’s conduct and the part which he or she played in the events giving rise to death: R v JB [1999] NSWCCA 93.

333 On any view this was a very serious case of constructive murder, being one in which three men went to the cafe with the intention of carrying out a robbery, where very significant violence was inflicted, where a knife was used and where the victims were callously abandoned at the premises.

334 There is nothing in his Honour’s reasons to suggest that he overstated its seriousness, or that he failed to pay regard to ss 3A and 21A of the Crimes (Sentencing Procedure) Act, to which he made express reference.

335 Nor is there any reasonable basis upon which to suggest that he was in error in the following finding:

“I am satisfied beyond reasonable doubt that each of the prisoners entered Colie’s Cafe sharing the common purpose of robbing the deceased and his companion. I am further satisfied beyond reasonable doubt that during the course of that robbery in company, grievous bodily harm was inflicted upon the deceased. I find further that such infliction was a contingency which each of the prisoners had in mind as being such as might occur during the robbery in company. I add that I find that Mehajer entered the cafe armed with a knife. I am satisfied he was the first of the intruders to enter the cafe and that he used the knife in the manner described by Phillips. I am satisfied beyond reasonable doubt that Jacobs entered the cafe whilst Mehajer was using the knife in the manner described by Phillips and to my mind the conclusion is inescapable that Jacobs was aware that Mehajer was using the knife in the way Phillips says that he was.”

336 Elsewhere his Honour noted that as the proprietor of a small business, the deceased was in a position of vulnerability. His Honour also rejected the proposition that Jacobs’ role was merely peripheral, finding him to have actively participated in the enterprise.

337 There is nothing in the reasons for sentence to suggest that his Honour overlooked the subjective circumstances of the Appellants, which were generally favourable, and which led to an assessment that their rehabilitation prospects were “reasonably good” (Mehajer) and “favourable” (Jacobs). As his Honour noted, however, neither had expressed or manifested any contrition for the crime.

338 His Honour directed his attention to whether there were special circumstances, and found that there were none. There was no error in this regard since the case was one for which the principles considered in R v Simpson [2001] NSWCCA 534 applied.

339 Reference to the sentencing statistics, which the Appellants submitted would show that the sentences fell outside a legitimate range of sentencing discretion, does not assist. As the Crown pointed out, the statistics for an offence of murder committed at about the time of this offence, were said in R v Hearne (2001) 124 A Crim R 451 to reflect a median full term for all offenders of about 18 years with a median minimum term or non-parole period of 14 years.

340 I am not persuaded that the sentence imposed for any of the three counts was outside a legitimate range of sentencing discretion, for offenders who were each aged in their twenties at the time of the offences, and who were not entitled to any discount for pleas of guilty, or for contrition.

341 In relation to Mehajer’s additional ground, it was submitted that the evidence did not support his Honour’s findings beyond reasonable doubt, that:

(a) He had been equally responsible for the blows that were inflicted and that it was he who had punched the deceased after Mr Phillips has lost consciousness; and that

342 In relation to these last mentioned submissions, counsel suggested that there was evidence available to suggest that the man of Lebanese appearance who had been found to be Mehajer had:

(i) been standing over Mr Phillips when Jacobs or Painter kicked him and therefore had not himself caused his wounds;

(ii) actually discouraged any further violence towards Mr Phillips;

(iii) had been restraining Mr Phillips when the latter heard the deceased’s breathing becoming laboured, thereby suggesting that it had been Jacobs or Painter rather than he who had inflicted the fatal blow; and

343 It was contended that the evidence of Painter and Jacobs did not provide a reliable basis for an apportionment of responsibility between the three men who were present, particularly having regard to the medical evidence suggesting that the deceased received multiple blows, and Mr Phillips’ evidence of a struggle occurring out of his sight while he was stood over by the man of Lebanese appearance. In these circumstances it was submitted that there was no proper basis for differentiating between Jacobs and Mehajer in relation to the sentences that were imposed, particularly as their subjective circumstances were similar.

344 His Honour’s findings in relation to Mehajer having a somewhat greater role than Jacobs, were based upon his assessment that Mr Phillips had been an honest and reliable witness, who had not been mistaken as to having been threatened by Mehajer with a knife; that Mehajer had driven Painter and Jacobs to the cafe; that Mehajer had led the other intruders into the premises; that Mehajer had asked “where is it, where’s the cash, where’s the stash. I am cutting your friend’s throat here”; that Mehajer had introduced Painter and Jacobs before driving out to the cafe; and that Jacobs had not been armed.

345 While it is the case that his Honour did not find it possible to determine beyond reasonable doubt which of Painter and Jacobs first struggled with the deceased, or which of Painter, Jacobs or Mehajer struck the blows that brought about the death of the deceased, I am not persuaded that the case was one where there was insufficient evidence to justify his Honour’s assessment that Mehajer had been the ring leader.

346 This Court is a court of error. It is not a court of rehearing or a primary fact finding tribunal: see R v Crowley [2004] NSWCCA 256 and R v Randell and McAlister [2004] NSWCCA 337.

347 In those circumstances I am unpersuaded that his Honour was in error in differentiating between the two offenders, and the appeals against sentence are not made good.

348 I would propose the following orders:

Appeal by Mehajer:

1. Appeal against convictions dismissed;
2. Leave to appeal against sentence granted;
3. Appeals against sentence dismissed.

Appeal by Jacobs

349 SPERLING J: I have read in draft the judgement of Wood CJ at CL in these appeals. I agree with the orders which he proposes, and with his reasons with a modest qualification.

350 Ground 8A (Mehajer) is dealt with at [265] and following of the judgment. I would prefer to put my decision rejecting that ground of appeal on the following footing.

351 In Johnston [2004] NSWCCA 58, as in the present case, there was no request for a warning pursuant to s165(2) of the Evidence Act 1995. In consequence, s165 had no application. The common law, which is preserved in relation to this topic by s165(5), applied. That is the situation in the present case.

352 James J (with whom Santow JA and Whealy J agreed), at [145], cited Webb (1993 – 1994) 181 CLR 41 for a convenient statement of the position at common law. Relevantly it is this. Where the alleged accomplice who testifies is one of the accused, there is no common law rule that an “accomplice” warning must be given; whether to do so is discretionary: per Toohey J [at 94 – 5], Mason CJ and McHugh J [at 56] and Deane J [at 80] agreeing, and per Brennan J [at 66]. James J also cited Henning (CCA, 11 May 1990), which is to the same effect.

353 Conformably, James J went on to say, [at 147]:

Henning

Webb

354 Having regard to the considerations relative to the present case which are mentioned by Wood CJ at CL, an “accomplice” warning was unnecessary in this case. There was no error by the trial judge in not giving such a warning.

355 KIRBY J: I agree with Wood CJ at CL.

**********

Last Modified: 12/21/2004

Citations

R v Jacobs [2004] NSWCCA 462

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CITATION:	R v Jacobs and Mehajer [2004] NSWCCA 462
HEARING DATE(S):	8/9/04
JUDGMENT DATE:	20 December 2004
JUDGMENT OF:	Wood CJ at CL at 1; Sperling J at 349; Kirby J at 355
DECISION:	Appeal by Mehajer; 1.Appeal against convictions dismissed; 2.Leave to appeal against sentence granted; 3.Appeals against sentence dismissed.; Appeal by Jacobs; 1.Appeal against convictions dismissed; 2.Leave to appeal against sentence granted; 3.Appeals against sentence dismissed.
CATCHWORDS:	Criminal law - murder - robbery in company with infliction of grievous bodily harm - robbery in company with wounding - joint criminal enterprise - common purpose - constructive murder - conditional indemnity given to witness in exchange for evidence - consciousness of guilt - grounds pertaining to directions to jury - ss 3A and 21A of Crimes (Sentencing Procedure) Act 1999 - ss 164, 165 Evidence Act 1995 - s 18 Crimes Act 1900.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
CASES CITED:	Bromley v The Queen (1986) 161 CLR 315 Craig Williamson Pty Limited v Barrowcliff [1915] VLR 450 Gilbert v The Queen (2000) 201 CLR 414 Gillard v The Queen (2003) 78 ALJR 64 Hui Chi-Ming v The Queen [1992] 1 AC 34 Johnson v The Queen [2004] HCA 15 Longman v The Queen (1989) 168 CLR 79 McAuliffe v The Queen (1995) 183 CLR 108 M v The Queen (1994) 69 ALJR 83 Markby v The Queen (1978) 140 CLR 108 Matusevich v The Queen (1977) 137 CLR 633 Osland v The Queen (1998) 197 CLR 316 Pearce v The Queen (1998) 194 CLR 610 Pollitt v The Queen (1991-1992) 174 CLR 558 R v Baartman [2000] NSWCCA 298 R v Bell (1987) 8 NSWLR 311 R v Brougham (1986) 43 SASR 187 R v Burke [1983] 2 NSWLR 93 R v Button; R v Griffen (2002) 54 NSWLR 455 R v Chen [2002] NSWCCA 174 R v Chen (2002) 130 A Crim R 300 R v Clough (1992) 28 NSWLR 396 R v Crowley [2004] NSWCCA 256 R v Crozier NSWCCA 8 March 1996 R v Downs [1985] 3 NSWLR 312 R v Duong, Lu, Do and Tran (1992) 61 A Crim R 140 R v Elliott and Hitchins (1983) 9 A Crim R 238 R v Foster (1995) 78 A Crim R 517 R v Gutierrez [2004] NSWCCA 22 R v Hearne (2001) 124 A Crim R 451 R v Henning NSWCCA 11 May 1990 R v Horsey (1862) 3 F & F 287; 176 ER 129 R v JB [1999] NSWCCA 93 R v Johnston [2004] NSWCCA 58 R v Kalinowski; R v Timbury (1930) 31 SR (NSW) 377 R v King [2004] NSWCCA 20 R v Kyriakou & Ors (1987) 29 A Crim R 50 R v Leoni [1999] NSWCCA 14 R v McGarrity NSWCCA 10 June 1994 R v Mills NSWCCA 3 April 1995 R v Mohan [1967] AC 187 R v Ngo [2003] NSWCCA 82 R v Paek [1999] NSWCCA 184 R v Randell and McAlister [2004] NSWCCA 337 R v Serne (1887) 16 Cox CC 311 R v Shannon Foster NSWCCA 7 April 1995 R v Sharah (1992) 30 NSWLR 292 R v Simpson [2001] NSWCCA 534 R v Spathis and Patsalis [2001] NSWCCA 476 R v Spedding NSWCCA 11 December 1997 R v Stewart (2001) 124 A Crim R 371 R v Stokes and Difford (1990) 51 A Crim R 25 R v Surridge & Anor (1942) SR (NSW) 278 R v Tangye (1997) 92 A Crim R 545 R v Villar and Zugecic [2004] NSWCCA 302 Saraswati v The Queen (1991) 65 ALJR 402 Smith v Desmond [1965] AC 960 Tripodi v The Queen (1961) 104 CLR 1 Webb & Hay v R (1994) 181 CLR 41
PARTIES :	Regina John Lou JACOBS Mazin MEHAJER
FILE NUMBER(S):	CCA 2004/1902; 2004/2215
COUNSEL:	D Arnott (Crown) J. C. Papayanni (Jacobs) I Lloyd QC with C Pike
SOLICITORS:	S Kavanagh (Crown) Jeffreys & Associates (Jacobs) S E O'Connor

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70227/02; 70074/02
LOWER COURT JUDICIAL OFFICER :	Studdert J