R v Tabbaa

[2023] NSWDC 642

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Tabbaa [2023] NSWDC 642

Hearing dates:

17 May 2023

Date of orders:

17 May 2023

Decision date:

17 May 2023

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

The finding that the offence was committed, and the penalty imposed, are set aside.

Catchwords:

APPEAL – WHETHER CRIMINAL STANDARD OF PROOF SATISFIED IN LOWER COURT.

Legislation Cited:

Evidence Act 1995

Security Industry Act 1997

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Crown – R (NSW)
Appellant - Mohammed Munir Tabbaa

Representation:

Counsel:
Crown – Ervin, C.
Appellant – Self-represented.

Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW)
Appellant – Self-represented.

File Number(s):

2020/00145025

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

19 September 2022

Before:

Magistrate Daher

File Number(s):

2020/00145025

Judgment

1. HIS HONOUR: This is an appeal from a finding of the occurrence of a crime by Magistrate Daher, sitting in the Local Court at Sutherland on 19 September 2022.

2. Her Honour did not record a conviction but found the offence proved and made a Conditional Release Order. The appellant however is entitled to challenge the finding of the crime.

3. The appellant was charged by Court Attendance Notice, first returnable before the Local Court at Sutherland on 18 August 2020. The Court Attendance Notice contained this pleading:

"Between 3.30pm and 4.30pm on 11/05/2020 at Hurstville, the accused Mohammad Tabbaa did assault victim Usman Rashid Khokhar.”

That purported to be an offence contrary to section 61 of the Crimes Act 1900, the offence known as common assault."

4. The first thing that one should note is that it is completely inappropriate in a pleading to refer to a complainant as a victim. The person can only be a victim once the Court has found the offence proved.

5. The hearing did not take place until 19 September 2022, two years, four months and one week later. The only oral evidence adduced was from Constable Kim Vo and from the complainant Usman Rashid Khokhar.

6. The evidence of Constable Vo appears in a number of respects, to be unreliable. For example, the appellant raised on the voir dire an allegation that he only made certain admissions because he had been induced to do so by Constable Vo, prior to his participating in an electronically recorded interview with her and her partner. The Magistrate appears to have believed that before she could make any ruling on the voir dire, there had to be sworn evidence from the accused, raising the area which he said required the Court to reject the tender of admissions alleged by him. However, the Prosecutor very properly pointed out the correct procedure to her Honour.

7. Constable Vo was then cross examined on that issue on the voir dire. The relevant part of the cross examination is this:

"Q. Do you recall anything about the alleged victim in this matter requesting an apology?

A. Yes.

Q. And you informed me of that?

A. I believe we spoke about it, or I'm not quite sure, to be honest.

Q. When did we speak about it?

A. Sorry.

Q. When did we speak about it?

A. About the victim wanting an apology?

Q. Correct.

A. Could have been over the phone when I was just trying to figure out whether or not you're the right person, and just putting the incident before you.

Q. Can you remember what you said about the victim wanting an apology?

A. It would have just been something on the lines of: 'I wanted to know whether or not you or Mr Mohammad Tabbaa, because of the incident that occurred at Big W was at - it's alleged that you have assaulted a - the victim at the time and it was because that the alleged – Mr - the alleged - Mr Mohammad Tabbaa has pushed the alleged victim and it was because you wanted an apology'.

Q. No, I was saying, prior to that, I was raising a fact that you mentioned that the alleged victim in this matter wanting an apology. Can you remember that?

A. No.

Q. I posed that question to you earlier. You said yes.

A. Okay, sorry, I must have misunderstood. I recall the - the victim telling me that Mr Mohammad Tabbaa was there because he wanted the victim to apologise to you. That's what I meant.

Q. I'm suggesting to you that the conversation that we had prior to the interview - I was informed by you that this matter wouldn't go further if an apology was received by the alleged victim. Do you have anything to say about that?

A. I don't recall that, sorry."

8. Clearly, there was an internal inconsistency in Constable Vo's evidence on that very issue and if there had been a representation made by the Constable to the accused that the victim merely wanted an apology, there may have been the inducement alleged by the appellant. Her Honour then ruled on that application and admitted the admissions made by the accused in the electronically recorded interview.

9. Her Honour concentrated and referred in her ruling, only to s84 of the Evidence Act 1995. However, admissions are governed by Pt 3.4 of the Evidence Act, which contains ss 81 to 90. Section 84 concerns the exclusion of admissions influenced by violence and certain other conduct. There was no suggestion that s 84 applied in this case. Section 85 concerns criminal proceedings and the heading has a subheading of: “Criminal proceedings: reliability of admissions by defendants”. Section 85 of the Act is this:

“(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant—

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or

(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

Note—

Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and

(b) if the admission was made in response to questioning—

(i) the nature of the questions and the manner in which they were put, and

(ii) the nature of any threat, promise or other inducement made to the person questioned.”

10. One will note that evidence of an admission is not admissible unless the circumstances in which the admission was made, was such as to make it unlikely that the truth of the admission was adversely affected. In determining matters to be taken into account in making that decision, the Court can look at whether the admission was made in response to question, which this was, and if so, whether there was any threat, promise or other inducement made to the person in question. That appears to be what the appellant was relying upon, that he was made an inducement, a promise, that he would not be prosecuted if he gave an interview to the police.

11. The problem, however, for the appellant is this: that there is no evidence that the admissions which he did make were unlikely to be untrue, that is, there was no evidence that the admissions that he made were adversely affected by the inducement.

12. Another area of concern to the Court, is that Constable Vo maintained in her evidence that a request had been made by the management of the Big W store in the Westfield Shopping Centre at Hurstville, where the incident occurred, concerning a problem with the camera at the front of the store not recording, which had been reported by the store management prior to her attending upon the scene to take a statement from the complainant, Mr Khokhar.

13. That is patently untrue because Exhibit 2 in the Local Court was an email dated Tuesday, 12 May 2020 at 11:47am and was made by the store manager of the Big W store at Hurstville and the substance of the email is this:

"Store entry camera not working. Been fixed three times since 01/07/2019. Needs to be fully reviewed and fixed."

However, the Constable Vo had attended the Big W store not after 11:47am on 12 May 2020, but at 8.30pm on 11 May 2020.

14. Of greater significance, however, is the fact that in making her finding the Magistrate said this:

"I find that Mr Khokhar to be a truthful witness. He answered his questions as best he could; he gave cogent and reliable evidence; he made some concessions when he needed to. Based on the evidence that is currently before the Court, I am satisfied beyond all reasonable doubt that the accused did grab the complainant from the collar on his shirt and jacket, the accused pushed the complainant and that such conduct of the accused was without consent of the complainant and that such conduct was intentional, and that the conduct e[sic] without lawful excuse."

Why in the last clause the Magistrate used the subjunctive mood rather than the indicative mood, is quite unclear.

15. I have carefully reviewed the transcript and the evidence of the complainant. It contains a number of inconsistencies, which her Honour did not at all address.

16. The first thing to note is that the totality of the evidence of Mr Khokhar was confusing to say the least and very difficult to follow, because his English appeared to be quite imperfect. It did not even match the standard of vernacular English as spoken in Sydney, let alone the King's English. For example, the police prosecutor lead from the witness, he was working between 8.45am and 6pm at Hurstville Big W on 11 May 2020. He then went on to say that he started working at, "maybe 1 o'clock", and that after four and a half hours, he took a short break. The event in question appears to have occurred about 3.20pm.

17. The appellant’s partner Hanna had entered the Big W store with her father, who was aged, according to Mr Khokhar, about 40 years, pushing a pram containing the newborn infant daughter of the appellant and Hanna. The child was about four months old. It must be borne in mind that this was on 11 May 2020 during the early days of the coronavirus pandemic, when no vaccine was available for anybody.

18. On the way out of the store, the appellant was led to believe by a complaint made to him on the telephone by Hanna, that the security guard, who was undoubtedly Mr Khokhar, had put his head into the pram, which raised concerns about his potentially infecting the child with the coronavirus and the appellant was also concerned that Hanna was working in an aged care facility and of course, if the child got the coronavirus, the mother could get it too and pass it on to the inhabitants of the aged care facility. In other words, the appellant had cause to be concerned.

19. After some time, the appellant turned up to remonstrate with Mr Khokhar. In chief, this evidence was adduced from Mr Khokhar as to being able to see inside the pram containing the infant:

"Q. Were you able to see inside the pram?

A. Not possible for anyone to be able to see inside the pram. If someone wanted to do to inside the pram, he need to bend his body exactly at the 90 degree, then had to turn another 180 degree, 120 degree. A normal man don't want to do this."

20. He shortly thereafter said this, about what the appellant said to Mr Khokhar when the appellant turned up:

"Q. Can you describe slowly to the Court what happens between you and this person?

A. For this person, it's nothing like - but is he - when he come in he's aggressive. So, he ask me to apologise to my wife because when I let him everything, because he told me that you have to put the pram, my - my head into the pram, and my - my children is got screaming. I told him, it's nothing there. And then, he was aggressive, so he needed to ask me."

21. However, in cross examination this evidence was given:

"Q. So, you obviously check into people's bags and whatnot. Is that correct?

A. Look, if I work for Big W, that is the conditions written on the main entrance of Big W. If someone come inside the Big W store, he need to show the bag which is asking by the staff member and the security as well. But, being the security, I don't have any authority touch the bag, to put a hand into the bag, because that is not a condition.

Q. How now, when you carry out your duties, but you check people's belongings is that right?

A. Yeah.

Q. Not physically, but you try to sight them. Is that correct?

A. I just request them.

Q. Okay. And you didn't look into the pram when it came past you?

A. No way. No.

Q. Do you usually look into prams?

A. No.

Q. And that's a part of your duties to check people's belongings, so, what's the reason you didn't look into this pram?

A. Buddy, if you know the pram, pram itself will show you all, it's open.

Q. You said previously you can't see anything in the pram, but now you're saying you can see everything in the pram. So, which is it?

A. Pram, look, pram, if pram is like this one is the top, and the one is the bottom. So I can see everything in the pram, and I never see anything in the pram."

22. Previously the witness had said that he could not see into the pram because the manoeuvre would be too difficult for a normal male. On this occasion he is saying that one could see clearly into the pram and there was nothing in it, presumably only the child who was in the pram that was being pushed by Hanna. That is a major inconsistency.

23. The other inconsistency is this: the Prosecutor opened the police case with this:

"Can indicate that, as far as the prosecution case insists to assist Mr Tabbaa, that the prosecution are relying upon a push on Mr Khokhar that occurs inside the Big W store."

I am quoting directly from the transcript there, but the "can" is not a reference to the Court Attendance Notice, but rather the transcript elides the first person singular pronoun, "I", so that the line should read:

"I can indicate that as far as the prosecution case consists, to assist Mr Tabbaa, that the prosecution are relying on a push of Mr Khokhar that occurs inside the Big W store."

24. The evidence adduced from Mr Khokhar is that the accused grabbed hold of the collars of the shirt and his jacket, the shirt being a white collared long sleeve garment having eight buttons and that the appellant was, "holding here and jerking me like this, and I am on the floor and he's over me at that time". The evidence then continues thus:

"Q. How did you get on to the floor?

A. Because he's much stronger than me actually. So, that's a slip and then on the floor.

Q. So, you slipped and on to the floor. Is that correct?

A. Yes.

Q. What part of -

A. Because he fought me, like when he fought me, and I like slip my foot and then I'm on the floor."

25. Mr Khokhar said that he landed on his back on both his shoulders. A little later on page 29 of the transcript, this question was put and answered in this fashion:

"Q. Did this person have your permission to bring you to the ground?

A. No way."

26. The ERISP given by the appellant he admitted taking the security guard by the collar and shaking him for about 30 seconds. He said that he was aware that the guard may have tripped after he had his interaction with him and he indicated that he shook the complainant, which is consistent with what the complainant said of being jerked. However, there was no evidence that there was any push, which is how the Prosecutor opened his case to the Magistrate. The Prosecutor very properly did not address the Magistrate because the appellant was then unrepresented, as he is today before me.

27. Her Honour found that the complainant was pushed, but there is no evidence to support such finding. That was the way the case was opened. As I said, in the evidence from the two witnesses called, was unsatisfactory. I cannot accept even admitting the better position of the Magistrate as being the person who saw and heard Mr Khokhar give evidence, to find that he was, "cogent and reliable", when his evidence is quite objectively to the contrary.

28. For those reasons, the finding that the offence was committed, and the penalty imposed, are set aside.

29. I should just add this. Part of the appellant's submissions relied upon the provisions of the Security Industry Act 1997. Sections 35 and 36 of that Act are these:

“35 Licence to be produced on demand

(1) A licensee must produce the licence for inspection on demand by—

(a) a police officer or any other member of the NSW Police Force, or

(b) any person with whom the licensee has dealings when carrying on any security activity.

Maximum penalty—50 penalty units.

(2) Subsection (1) does not require a licensee to produce a licence that has been lost, stolen, destroyed, defaced or mutilated or become illegible during the period in which the licensee is waiting for the issue of a replacement licence after notifying the Commissioner of that occurrence, and applying for a replacement licence within 14 days after giving that notification, in accordance with the regulations.

(3) A person, who has been granted the renewal of a licence but has yet to be issued with the renewed licence, complies with this section if the person instead produces the most recent licence issued to the person.

36 Licence to be worn by licensee

(1) The holder of a class 1 or class 2 licence must, at all times while carrying on a security activity, wear on his or her person so as to be clearly visible his or her licence, being an original and not a photocopy or other copy.

Maximum penalty—50 penalty units.

(1A) For the purposes of this section, a licence is worn by a person so as to be clearly visible only if—

(a) the licence is attached to the person’s outer clothing, and

(b) the licence is attached at or above the level of the person’s waist, and

(c) the licence is attached at the front or side of the person’s body, and

(d) the licence is attached with the front face of the licence clearly visible to a person standing in front of the person, and

(e) there is no material adhering to the licence that obscures any part of the licence from the view of such a person, and

(f) any other requirements prescribed by the regulations are complied with.

(2) This section does not apply to a licensee who is exempted by the Commissioner in writing from the requirement to wear the licence because of the special nature of the licensee’s duties.

(3) Subsection (1) does not require a licensee to wear a licence that has been lost, stolen, destroyed, defaced or mutilated or become illegible during the period in which the licensee is waiting for the issue of a replacement licence after notifying the Commissioner of that occurrence, and applying for a replacement licence within 14 days after giving that notification, in accordance with the regulations.

(4) A person, who has been granted the renewal of a licence but has yet to be issued with the renewed licence, complies with this section if the person instead wears (in the manner required by this section) the most recent licence issued to the person.”

30. There was no evidence that the complainant was complying with s 36(1). The appellant said in interview that he asked the complainant to provide his licence to him as he was permitted to do so under s 35(1) of that Act, and the complainant immediately covered up his security licence with his hand, the licence being on a lanyard around his neck. Whether it was outside both his shirt and his jacket or only outside of his shirt, is not at all clear, but the complainant said that when he fell to the floor, the licence was on the floor. The significance of that elludes me, other than that it might be his way of seeking to suggest that the licence had been ripped from him in some fashion or another.

30. The submissions of the appellant also relied upon the fact that the complainant gave evidence by AVL, but it was common at the time that this case was heard in the Local Court for evidence to be given by AVL because the COVID-19 provisions applied at that time and the appellant's objection to the lack of an appearance in person by the complainant is in my view, without any substance.

                                                        …….

Amendments

24 September 2024 - 1. Amend date at [1] to read '19 September 2022' instead of '17 September 2022'.

2. Add details of appeal: Before Magistrate Daher at the Local Court, decision given on 19 September 2024, decision under appeal, file number 2020/00145025.

Decision last updated: 24 September 2024