R v Khelwaty & Khelwaty No. Sccrm-02-212, Sccrm-02-213

R v KHELWATY & KHELWATY
[2003] SASC 44
Court of Criminal Appeal: Doyle CJ, Mullighan and Besanko JJ

DOYLE CJ I would dismiss both appeals against conviction. I agree with the reasons given by Mullighan J for so deciding.
MULLIGHAN J The appellants, Habibullah Sayed Khelwaty and Sulaiman Khelwaty, were each found guilty by verdicts of a jury of two counts of threatening life contrary to s 19(1) of the Criminal Law Consolidation Act 1935. Each appellant appeals against his conviction.
For ease of reference I shall refer to the appellants by their first names. The charge arose out of an incident at the Marion Shopping Centre at about 8.00 pm on 4^th January 2001. The prosecution case was that the appellants, who were in company with other young men, approached two young men, Nicholas Seto and Belal Abiad. According to Mr Seto, Habibullah said to them in an aggressive manner, “You guys, are fucking dead. We didn’t get you last time, we will get you this time”. According to Mr Abiad, the words spoken by Habibullah were “We didn’t fuck you up last time, we’ll make sure we do it this time”. He was charged with two counts of threatening life. Count 1 relates to the threat to Mr Seto. Count 3 relates to the threat to Mr Abiad. The conduct constituting the alleged offences was the words which I have mentioned. The difference in the recollections of the two men as to precisely what Habibullah said is of no consequence.
The case against Sulaiman was that he then approached the two men. Habibullah held him and said, “Not here”. According to Mr Abiad, Habibullah started dragging him away. Sulaiman kept yelling and saying, “We’re going to fuck you guys up and you’re dead”. According to Mr Seto, Sulaiman said, “You guys are fucking dead. Fuck you. You guys are fucking dead”. The difference in the recollections of the witnesses as to precisely what was said is also of no consequence. These words are the subject of Counts 2 and 4. The words spoken by both appellants were spoken aggressively and when they were in close proximity to Mr Abiad and Mr Seto and to each other.
The reference by Habibullah to not getting the two men last time relates to an incident on 26^th February 2000 which occurred in Currie Street in Adelaide. Mr Abiad told the jury that he went to the city in a motor vehicle with a man called Steven Smith and Mr Seto to see Mr Seto’s brother at a café. After they left the vicinity of the café, they saw Habibullah and two other men in the street. One of the other men behaved aggressively to Mr Abiad and then punched him in the face, causing him to go to the ground and as he was getting up, this man stabbed him. Habibullah was present. Mr Seto confirmed the evidence of Mr Abiad up to the point when Mr Abiad went to the ground except that he did not say that Mr Abiad was punched. The other man then stabbed Mr Seto four times, once in the back of the neck, twice in the back and once on the side of the chest. He said that Habibullah assaulted him at the same time as he was being stabbed. However, he was not responsible for the stabbings.
Sulaiman was not present on that occasion but there was evidence from which the jury could conclude that he was aware of this attack on Mr Seto and Mr Abiad. On the prosecution case, this earlier incident gives a context to the words spoken by the appellants on the occasion which is the subject of the charges against them.
Habibullah was interviewed by Constable Denton on 6^th January 2001. He said that he, Sulaiman and another man with the first name of Anthony, went to the Marion Shopping Centre on the occasion which is the subject of the charges and that he saw Mr Abiad and Mr Seto but he walked past them. He denied speaking to them.
On 23^rd January 2001, Constable Denton interviewed Sulaiman. He said that he did go to the Marion Shopping Centre on 4^th January 2001 with Habibullah and another man but he did not see Mr Abiad and Mr Seto or speak to them. He denied the allegation that he had threatened either of them.
At the trial, the prosecution called Mr Faraz Sabetzadeh, who is a friend of Mr Abiad and Mr Seto. He said that he went with them to the Marion Shopping Centre on the occasion when the threats are alleged to have occurred. He was not present when the alleged incident occurred but he gave evidence of Mr Seto going to him at the Centre appearing to be upset and wanting to leave. The three men then left and went to the Adelaide Police Station. He did not say that he saw Mr Abiad in an upset state.
The prosecution also called Mr Constantinou who said that he knew of Sulaiman but had never said “hello”. He said he knew Habibullah and him as social friends. He said he went to the Marion Shopping Centre with Habibullah on the day when the incident is alleged to have occurred and that they met Sulaiman at the Centre. He said that he did not know Mr Abiad and Mr Seto, but he had heard of Mr Abiad. He also said that he was with Sulaiman most of the time they were at the Centre. He told the jury that he did not see either of the appellants threaten anyone or behaving aggressively.
Neither appellant gave evidence at the trial but each of them called one witness.
Mr Beizadeh, who was called by Habibullah, gave evidence about an incident in Rundle Mall in early December 2000. It is unnecessary to mention his evidence about that incident in any detail. It is sufficient to say that he told the jury that Mr Abiad spoke to him in an aggressive manner and made threats about Afghans and the appellants in particular. This incident was denied by Mr Abiad.
Mr Hasanzada was called by Sulaiman. He told the jury that he knew Habibullah and Sulaiman is his cousin. He said that he went to the Marion Shopping Centre on 4^th January 2001 with Sulaiman and a friend. At the Centre they met Habibullah and one of his friends. He said that they were in company with Habibullah for about four or five minutes and when they were together nothing happened. Mr Hasanzada was present throughout all of that period and he, the appellants and others left the Centre together. Mr Hasanzada told the jury that at no time did either of the appellants behave aggressively or threaten people. He said that he was with Sulaiman for the whole time they were at the Centre. He also said that he did not know Mr Abiad or Mr Seto.
The case presented by the prosecution against the appellants was not based upon common enterprise. The case was presented on the basis that each of the appellants threatened both Mr Abiad and Mr Seto and criminal responsibility attached to each of them only by reason of what he said and did.
Leave to appeal was granted on only one ground in relation to both appellants.
The main thrust of the appeal is common to both appellants. It is submitted that as the case against each of them was separate and distinct from the case against the other, the learned Trial Judge was obliged to make it clear to the jury what evidence was inadmissible against either of the appellants and to direct that such evidence could not be used when considering the case against that accused as the prosecution case was not presented on the basis of joint enterprise. Both appellants submit that the learned Trial Judge failed to appropriately discharge this obligation.
I first mention the directions given by the learned Trial Judge to the jury about the charges of threatening life. She began these directions as follows:
“It may have puzzled you in this case as to why there are four charges when you may conclude that the prosecution are alleging one threat by each man, but that threat extending to both alleged victims. Well, that is what I suggest they may be alleging. I am not sure that it has been put in so many words by the prosecutor, but it would be open to you to see it on that basis. There may be a technical answer to that, ladies and gentlemen, that is why there are four charges as against two, inasmuch as it might be argued that there must be a separate charge in relation to each threat against each victim. We need not pause to examine the technicalities of drafting charges. It is enough to say to you that the net result is that you must bring in four separate verdicts and, secondly, the seriousness of the alleged conduct does not change just because it may have been necessary to divide it up into four charges as has been done.”
I do not think there can be any valid objection to that explanation. The learned Trial Judge was explaining the basis of each charge to the jury. She then gave appropriate and accurate directions about each of the elements of the charges. I need not set them out in their entirety. A brief summary will suffice. She told the jury that, first, there must be a threat which means a declaration of hostile intention made seriously as opposed to “sounding off”. Secondly, the threat must be to kill another person and if the words used meant anything less, this element would not be proved. Thirdly, the person uttering the threat must have intended to arouse a fear that the threat was likely to be carried out or be recklessly indifferent as to whether such a fear was aroused. Fourthly, the threat must be made without lawful excuse. She correctly directed that there was no suggestion of a lawful excuse for making a threat. She reminded the jury that, on the defence case, no threats were made.
The jury were then reminded of the evidence as to the words spoken by each appellant which formed the basis of the charges and to how they related to each count. The learned Trial Judge then reminded the jury of the evidence regarding the incident and directed them as to the permissible use of that evidence. She said:
“Now I wish to give you some directions as to the use of the evidence relating to the stabbing incident in February 2000 in Currie Street. Usually the evidence presented to the jury in a trial like this is confined to the charged event. That is because in the normal course, only the circumstances of the charged event are directly relevant. Now here the stabbing incident does have a potential relevance to the incident at Marion. It is for you to say whether it is in fact relevant. Its potential relevance is this. It may help to explain what Habibullah meant when he allegedly said according to Seto, ‘You guys are fucking dead. We didn’t get you last time. We will get you this time.’, and according to Abiad ‘We didn’t fuck you up last time. We will make sure we do it this time’. In other words, it may explain what the ‘last time’ was. Further, it may throw light on Habibullah’s intention when he uttered those words, if he did. Remember the prosecution must prove an intent to arouse a fear that the threat was likely to be carried out. That the threats were allegedly uttered against the background of an occasion when both complainants were stabbed and that the threats by Habibullah referred to that occasion, may help in discerning what Habibullah’s intention was when he uttered the words, if he did. Further still, the stabbing incident and the alleged reference to it may help you in determining whether this was a threat to kill or something less. Of course, a threat to ‘fuck a person up’ or ‘get him’, might be a threat to kill, but it might be something less than that. The words attributed to Habibullah by Abiad do not include any reference to death or being dead. This charge, as I explained, requires a threat to kill as opposed to merely harm. And so you might find that the stabbing incident throws light on the nature of the alleged threat here.”
The learned Trial Judge went on:
“Now those are purposes which are available to you from the prosecution point of view. On the other side of the coin, from the point of view of Habibullah’s case, the incident may also be relevant in providing a motive for Abiad and Seto to get back at ‘the Afghans’, including Habibullah, and perhaps Sulaiman, as per the evidence of the witness Hooman Beizadeh. If you accept Hooman’s evidence, that benefit could flow through to Sulaiman as well.
Now all those are proper uses of that evidence. You are entitled to use that evidence in any of those ways if you see fit. But they are the only proper uses. You should not use that evidence, the stabbing incident, as demonstrating anything about the character, generally, of Habibullah or of Sulaiman, who of course was not present at the stabbing, or of their associates. In particular, you must not reason that because Habibullah was present at the stabbing incident, and allegedly played a role of some sort in it, you must not reason that therefore he is the type of man who would make the sort of threats alleged here. To reason in that way would be a misuse of that evidence, and is not permissible.”
Later, the learned Trial Judge reminded the jury of the case of each appellant. She directed them as to the use which could be made of the evidence of the Rundle Mall incident. She told them that should they accept Mr Beizadeh’s evidence, or if they were not prepared to discount it, it amounted to evidence of malicious intent on the part of Mr Abiad against the appellants.
At the end of the summing up, the learned Trial Judge directed the jury that they had to give four separate verdicts and that just because they reach a particular verdict in relation to one count did not mean that they must reach that same verdict in relation to another count.
The ground of appeal for both appellants is that:
“...... the learned Trial Judge erred in failing to direct the jury that they should consider the case against each accused separately and in particular that the evidence of what one [appellant] said to the complainant was not evidence admissible for the purpose of determining the intention of the other [appellant] at the time the other [appellant] uttered a threat.”
At the end of the summing up, and after the jury had retired, counsel for Sulaiman requested the learned Trial Judge to give a clear direction that the jury must treat the case against Habibullah as totally separate from the case against Sulaiman and not to use any part of the case against Habibullah in the case against his client. The learned Trial Judge declined to do so. She said that on the Crown case, Sulaiman uttered a threat against the background of Habibullah having threatened Mr Seto and Mr Abiad and that it would be quite wrong to separate the cases as suggested.
It is submitted by Mr White, who appeared on the appeal for Habibullah, that such a direction was essential because the Crown Prosecutor, in his final address to the jury, had said that the evidence of Mr Seto and Mr Abiad “is quite capable of proving each of these charges beyond reasonable doubt”. Later he said that their evidence had strong compelling force and was not contradicted in any significant respect. Of course, that submission was not correct. Both appellants contradicted the evidence when interviewed by the police and it was contradicted by the evidence of Mr Hasanzada and to some extent by the evidence of Mr Constantinou. The Crown Prosecutor went on to say that the evidence of Mr Seto and Mr Abiad is capable of being relied upon to prove the charges and the threats by both appellants were to the lives of Mr Seto and Mr Abiad.
Mr White submitted that given the lack of particularity of the Crown case, the request of Sulaiman’s counsel should have been accepted by the learned Trial Judge and a miscarriage of justice has occurred. The recollection of each of Mr Seto and Mr Abiad had to be the basis of the relevant charge relating to him. The jury could not reason that the behaviour or words alleged against one appellant could have any relevance to a specific charge against the other appellant.
The evidence of Mr Seto and Mr Abiad was relevant to all four charges. It is incorrect to say that the jury had to consider each charge only on the basis of the evidence of the victim of that charge as to what was said. The jury had to decide what words were said by each appellant and the evidence of both victims is relevant to that matter. Even though the jury may be considering the first charge relating to Mr Seto, they had to consider all of the evidence, including the evidence of Mr Abiad in order to decide what was said and what was meant by the particular appellant who uttered the words. There is no reason why, upon considering Count 1, they should not prefer the evidence of Mr Abiad even though the charge relates to Mr Seto. The same must be said with regard to all of the charges.
It was submitted that as the two appellants were being tried together, it was essential that the jury was directed as to the permissible and impermissible uses of the evidence. Mr White contended that the jury could have used the evidence of what Sulaiman did and said to reach the conclusion that Habibullah had the necessary intention when he spoke the words which are the subject of Count 1 and Count 3. It was submitted that the jury had to consider each of those counts upon the evidence of the victim relating to that count. I have mentioned the evidence of Mr Seto and the evidence of Mr Abiad and the difference in their recollections as to the words used by Habibullah. As has been mentioned, the jury had to decide what words were used. They could not use different versions when considering each count. There is no reason to suppose that they did not accept the evidence of Mr Seto. If they did accept his evidence, it would lead to a conclusion that Habibullah had the necessary intention when he spoke the words. If they accepted the version given by Mr Abiad, the same conclusion was open. It was for the jury to decide what Habibullah meant by the words “We didn’t fuck you up last time, we’ll make sure we do it this time”. These words alone could justify the conclusion that Habibullah had the necessary intention when he spoke them. However, their meaning had to be assessed in the context of the evidence that the words were spoken aggressively and against the background of the earlier incident in Currie Street. If the jury accepted that evidence, it was inevitable that they would be satisfied that the necessary state of mind had been proved beyond reasonable doubt.
It was also submitted that the directions given by the learned Trial Judge would have led the jury to use the evidence of Mr Seto and Mr Abiad as to the words and conduct of Sulaiman in deciding whether Habibullah had the necessary intent when he uttered the words alleged against him. The learned Trial Judge did not direct the jury that the case against the appellants was not based upon a common enterprise and that they had to consider the case against each of them separately and only upon the evidence admissible against each of them. I have set out the directions given by the learned Trial Judge. She did not give a specific direction identifying the evidence which was admissible on Counts 1 and 3 and Counts 2 and 4 and that evidence which was not admissible on one of the two categories of counts could not be used on the other category.
I have mentioned the direction which the learned Trial Judge gave towards the end of her summing up, including that because the jury gave a verdict on one count that did not mean that they would reach the same verdict on another count. It is submitted that this direction was inadequate as the learned Trial Judge should have directed the jury that merely because they found one appellant guilty on one count, it did not mean that they must find the other appellant guilty on the other counts relating to him and that the cases against the appellants were separate and the evidence which formed the basis of a verdict in relation to one appellant could not be used in reaching a verdict in relation to the other appellant.
I do not think that submission is entirely correct. It is plain that the jury could not reason that because they found one appellant guilty, they must necessarily reach the same verdict with respect to the other appellant. Usually a specific direction to that effect would be necessary. However, in the present case the jury was concerned with the utterances by each appellant within the same incident. Having reached the conclusion that Habibullah made the threat, according to the version of Mr Seto or the version of Mr Abiad, the verdicts of guilty were understandable and justified. I do not think that, in all of the circumstances, it was necessary for the learned Trial Judge to give the further directions as has been submitted. Both alleged victims and both appellants were together during a brief incident. On the prosecution case, Habibullah spoke first and in such a way that his words, against the background of the incident in Currie Street, established the case against him. I do not accept that there was a possibility that the reasoning of the jury miscarried because of having regard to the conduct of Sulaiman when considering the charges against Habibullah. Also, I reject the submission that because of the lack of a direction about the prosecution case not being based upon a common enterprise, the jury might have concluded that both of the appellants were responsible for what each of them said. There is no reason to suppose that the jury could have imported into their deliberations the concept of criminal responsibility by reason of common enterprise. There was never any suggestion that either appellant was responsible for the criminal conduct of the other. It was made clear to the jury that it was the conduct of each appellant which could form the basis of his own responsibility and nothing else.

I would dismiss the appeal by Habibullah.
Much the same submissions were made on behalf of Sulaiman except that Mr McEwen, who appeared for him, contended that they came more sharply into focus in his case. He submitted that the threat made by Habibullah, if proved, was admissible in the case against Sulaiman but only for the limited purpose of setting the context in which Sulaiman uttered his threat if that was proved. Otherwise the cases against each of the appellants were separate and distinct and there was the need for specific directions. He also contended that the jury should have been warned against inferring a common enterprise between the appellants or that their conduct, if proved, was pre-planned. The jury should have been warned against reasoning that the case against Sulaiman was in some way enhanced by the case against Habibullah. Also, they should have been directed that evidence of Habibullah’s motive or intention could not be used against Sulaiman and the case against the two men could not be approached in a composite manner.
Clearly, a trial judge must make plain to the jury in a joint trial what evidence is inadmissible against an accused and that such evidence must not be used against that accused: R v Harbach (1973) 6 SASR 427 at 433 and Webb v R (1993-1994) 181 CLR 41 at 89. If evidence may only be used for a limited purpose, that purpose must be explained and the jury must be directed not to use the evidence for any other purpose.
As has been seen, the learned Trial Judge specifically directed the jury as to the threats which constituted each charge. They were directed as to which charges related to the threats made by each accused. There was never any suggestion made to the jury that criminal responsibility attached to either appellant through the threats made by the other. I do not accept that the jury could have reasoned that each appellant could be responsible for the threats made by the other on the basis of a common enterprise. They were clearly directed that it was their own words which had to be the basis of criminal responsibility. There is no reason to suppose that the jury would have inferred from the evidence that the appellants had pre-planned the threats in the sense of there being a common enterprise, or at all.
There was evidence that Habibullah told the police that he was at the Centre with Sulaiman and another person. Sulaiman told the police that he went to the Centre with friends. I have mentioned the evidence of Mr Constantinou and the evidence of Mr Hasanzada. Even if the jury accepted the evidence of what Habibullah told the police as true and rejected the evidence of these witnesses, there is no reason for them to suppose that there was a plan by the appellants made before either of them arrived at the Centre to make threats to Mr Seto and Mr Abiad. I do not think there was any need for the warning which was suggested should have been given.
In the circumstances the only way in which the case against Sulaiman could have been enhanced by the case against Habibullah is that the threats made by the latter, if proved, would provide the context in which the threats were made by Sulaiman and by the evidence of the Currie Street incident. As to the former, the evidence suggests that the appellants were close together when Habibullah made his threats, if they were made. As has been seen, there was evidence that when Sulaiman spoke, Habibullah restrained him verbally and physically. It was open to the jury to conclude that Sulaiman heard what Habibullah said. If the jury accepted that Habibullah made the threats alleged and that they constituted the crimes as charged, these matters were relevant to the intention of Sulaiman when he made the threats because he made them in that context. These are matters of common sense which would have been obvious to the jury. Consequently, it was not necessary for the jury to be warned that they could not reason that the case against Sulaiman could be enhanced by the case against Habibullah in any other way.
The Currie Street incident was relevant to the case against Habibullah for the reasons which the learned Trial Judge explained to the jury. It was also relevant to the case against Sulaiman. If the evidence of Detective Denton was accepted, it was established that Sulaiman knew of the Currie Street incident. Detective Denton told the jury that in March 2000 he told Sulaiman of an incident that occurred in Currie Street on 26^th February 2000 in which both Mr Seto and Mr Abiad were stabbed and that he told him again of that incident on 3^rd August 2000. There was no contest about this evidence at the trial. I reject the contention that this incident, relevant as it is to the case against Habibullah, was not relevant to the case against Sulaiman. As has been seen, it is capable of proving the context of the threats made by Habibullah and was therefore relevant to the case against Sulaiman as he heard those threats and was aware of the Currie Street incident before he uttered his threats.
It was submitted that the directions which had to be given as to the circumstances in which the threat made by Habibullah could be used in the case against Sulaiman was that Sulaiman heard the threat, that he was aware at least generally of what had happened in the stabbing incident, that he was aware of Habibullah’s involvement in that incident and that he made his threat in the knowledge of these matters. I do not think it was necessary to direct the jury in those terms. As I have said, the evidence was capable of establishing that Sulaiman heard the threat made by Habibullah. Indeed the evidence pointed strongly in that direction. There was no contest about Detective Denton’s evidence and there was no reason why the jury should not be satisfied that Sulaiman was aware of Habibullah’s involvement. It was not essential to the prosecution case that Sulaiman was aware of all of these matters because the words spoken by him, if the jury accepted the evidence of Mr Seto and Mr Abiad, spoke for themselves and disclosed in clear terms his intention.
The learned Trial Judge reminded the jury of the evidence in the prosecution case as to what Sulaiman said and his demeanour at the time. As has been seen, she explained to the jury the reason for the separate charge against each appellant in relation to each threat against each victim and, as I have mentioned, she directed the jury that they had to give a separate verdict on each count. In all of the circumstances, there was no need to warn the jury against using their conclusions about Habibullah’s motive and intention when considering the case against Sulaiman. It was not necessary to have regard to the evidence of Habibullah’s threat or the context of the Currie Street incident in order to reach the conclusion that when Sulaiman uttered his threat he meant what he said.
The next submission by Mr McEwen is that the failure to give the warnings which I have mentioned was compounded by expressions of confusion about the meaning of the Information, several instances of expressing issues in composite terms and directions relating to the alleged threat by Habibullah but leaving it open to the jury to use that evidence against Sulaiman. As, in my view, there was no need to give any such warnings, these additional matters may be considered briefly. I understand the reference by Mr McEwen in his submission to “composite terms” as meaning that the learned Trial Judge referred to the incident at Marion as one incident and did not direct the jury to consider each part played by each of the appellants separately.
I have set out the directions of the learned Trial Judge about the reason for there being four charges. There is no reason to suggest that there was any confusion about the charges in the Information. Her Honour began her direction by saying that the jury may have been puzzled by the four charges because each appellant made only one threat. She then gave a clear and accurate explanation as to the probable reason why there were four charges. Later she said to the jury:
“It is those words which, as I understand it, are, in sofar as they constitute the threat against [Mr] Abiad, the basis for count 3 on the Information, and if you take the view that what is really being alleged by [Mr Abiad and Mr Seto] is one utterance by each accused threatening both complainants, rather than four separate utterances ..........”.
The jury could use the evidence of Mr Abiad and Mr Seto when considering Count 1 in order to decide whether a threat was made and, if so, in what terms. The same applies as to whether either appellant made a threat and, if so, by what words.
It was submitted that this was not a direction about considering four separate cases but was really a direction about reaching a decision about one composite incident and then dividing it up into four different parts. In my view the total effect of the summing up was to instruct the jury that the case against each appellant had to be considered separately and upon the basis of what each of them said.
The next complaint about directions being given in “composite” terms is the direction about the relevance of the stabbing incident which I have set out in full. It may be seen that in the course of that direction, the learned Trial Judge said:
“Now here the stabbing incident does have a potential relevance to the incident at Marion.”
I do not regard this expression as indicating that the jury could, or should, take a composite view about the incident at the Marion Shopping Centre. As has been seen, the learned Trial Judge directed the jury specifically as to the relevance of the stabbing incident in the case against Habibullah. When referring to the “other side of the coin”, she specifically referred to Habibullah’s case and to the circumstances in which it could be relevant to the case against Sulaiman, namely that it could provide a motive for Mr Seto and Mr Abiad to “get back” at Habibullah and perhaps Sulaiman.
I do not think that there can be any valid complaint against the direction of the learned Trial Judge on the basis that she expressed issues in composite terms. It was made plain to the jury that they had to consider each charge separately. Indeed, near the beginning of the summing up the jury were directed that the prosecution must prove beyond reasonable doubt the elements of each charge and, further, that an accused person is not to be convicted unless each element of each charge has been proved beyond reasonable doubt.
It was also submitted that the failure by the learned Trial Judge to adequately direct the jury to consider the case against each appellant separately, which I reject, was compounded by her not separately and adequately putting the defence cases. The effect of the summing up as a whole was to make this matter clear to the jury. She reminded the jury of Habibullah’s case and referred to the evidence of Mr Beizadeh. She then turned to Sulaiman’s case and reminded them of evidence bearing upon his defence, including the evidence of Mr Hasanzada.
Whilst it is correct to say that the learned Trial Judge did not say expressly that the case against each accused had to be considered separately or specifically identify the evidence relating to each accused, when the summing up is considered as a whole the jury were adequately directed as to those matters.
I accept that the learned Trial Judge did not give certain directions which are often given in a joint trial, namely that each charge against each accused had to be considered separately upon only the evidence relating to that charge and that the finding of guilt in relation to one accused did not mean that the same verdict had to be given with respect to the other accused. However, the summing up must be considered in its entirety in order to ascertain if there is a possibility that the directions given, and any directions not given, could possibly have led to a miscarriage of justice. I think that the total effect of the summing up was that the jury had to reach a conclusion about each accused based upon what he said and what he meant. In my view, the summing up was adequate and there was no possibility of a miscarriage of justice.
I would dismiss both appeals.
BESANKO J I agree that both appeals against conviction should be dismissed. I agree with the reasons of Mullighan J and there is nothing I wish to add.

[2003] SASC 44

25 February 2003