Rasic v R

[2009] NSWCCA 202

New South Wales
Court of Criminal Appeal

CITATION:	Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202
HEARING DATE(S):	22 July 2009
JUDGMENT DATE:	18 August 2009
JUDGMENT OF:	Basten JA at 1; Hulme J at 2; Johnson J at 3
DECISION:	1. Leave granted to each Appellant to appeal against his convictions. 2. Dismiss the appeal of Simon Rasic. 3. Dismiss the appeal of Johnny Lee Vella. 4. Dismiss the appeal of Damien Charles Vella.
CATCHWORDS:	CRIMINAL LAW - conviction appeals - robbery in company - obtaining valuable thing by deception - whether verdicts unreasonable or cannot be supported by the evidence - appeals dismissed
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 Evidence Act 1995
CATEGORY:	Principal judgment
CASES CITED:	Williams v The Queen [1986] HCA 88; 161 CLR 278 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220 Yacoub v R [2008] NSWCCA 164 Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 Carlton v The Queen [2008] NSWCCA 244 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 The Queen v Hillier [2007] HCA 13; 228 CLR 618 The Queen v Keenan [2009] HCA 1; 83 ALJR 243 Burrell v R [2009] NSWCCA 193 R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 Chahine v R [2006] NSWCCA 179 BJR v R [2008] NSWCCA 43; 185 A Crim R 360 Browne v Dunn (1893) 6 R 67 R v Birks (1990) 19 NSWLR 677
PARTIES:	Simon Rasic; Johnny Lee Vella; Damien Charles Vella (Appellants) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/12856 ; 2007/12609; 2007/12610
COUNSEL:	Mr G Nicholson QC (Appellants) Mr P Leask (Respondent)
SOLICITORS:	Whitby Lawyers (Appellants) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/21/1133
LOWER COURT JUDICIAL OFFICER:	Williams DCJ
LOWER COURT DATE OF DECISION:	5 February 2008

2007/12856
2007/12609
2007/12610

BASTEN JA
RS HULME J
JOHNSON J

18 August 2009

SIMON RASIC v Regina

JOHNNY LEE VELLA v Regina

DAMIEN CHARLES VELLA v Regina

Judgment

1 BASTEN JA: I agree with the orders proposed by Johnson J and with his Honour's reasons.

2 RS HULME J: I agree with the orders proposed by Johnson J and with his Honour's reasons. Although that agreement extends to what has been said concerning the need for leave to appeal, I find it difficult to conceive of circumstances where leave would be refused in a case where there is any significant argument that, in the words of s.6(1) of the Criminal Appeal Act 1912, "the verdict of the jury ... is unreasonable, or cannot be supported (or) ... there was a miscarriage of justice...".

3 JOHNSON J: The Appellants, Simon Rasic, Johnny Lee Vella and Damien Charles Vella, each appeal against conviction on 22 October 2007, following trial by jury on a charge of robbery in company under s.97(1) Crimes Act 1900. In addition, the Appellants, Johnny Lee Vella and Damien Charles Vella, each appeal against conviction on three counts of obtaining a valuable thing by deception under s.178BA(1) Crimes Act 1900.

4 With respect to the matters which proceeded to trial and conviction by a jury, Williams DCJ imposed the following sentences on 5 February 2008:

(a) Simon Rasic - robbery in company under s.97(1) Crimes Act 1900 (maximum penalty 20 years’ imprisonment) - imprisonment by way of a non-parole period of 18 months commencing on 27 November 2007 and expiring on 26 May 2009 with a balance of term of 12 months commencing on 27 May 2009 and expiring on 26 May 2010;

(b) Johnny Lee Vella:


(i) robbery in company - imprisonment by way of non-parole period of 18 months commencing on 27 August 2007 and expiring on 26 February 2009 with a balance of term of 12 months commencing on 27 February 2009 and expiring on 26 February 2010;

(ii) obtain valuable thing by deception under s.178BA(1) Crimes Act 1900 (maximum penalty five years’ imprisonment) - on each count, imprisonment for a fixed term of 12 months to date from 27 February 2007 and to expire on 26 February 2008;

(c) Damien Charles Vella:


(i) robbery in company - imprisonment comprising a non-parole period of 18 months commencing on 27 August 2007 and expiring on 26 February 2009 with a balance of term of 12 months commencing on 27 February 2009 and expiring on 26 February 2010;

(ii) obtain valuable thing by deception (three counts) - on each count, imprisonment for a fixed term of 12 months to date from 27 February 2007 and to expire on 26 February 2008.

5 In addition, the Appellant, Simon Rasic, was sentenced with respect to three counts of obtaining a valuable thing by deception under s.178BA(1) Crimes Act 1900 to which he had pleaded guilty. On each of the three counts, he was sentenced to imprisonment by way of a fixed term of nine months to commence on 27 May 2007 and to expire on 26 February 2008.

6 Each Appellant seeks to challenge his conviction on the matters which proceeded to trial. No appeal is brought with respect to sentence.

Grounds of Appeal

7 The three Appellants were represented at trial by Mr Nicholson QC, who appeared for each of them on the present appeal. On 24 April 2009, identical grounds of appeal were filed with respect to each Appellant in the following terms:

1. The verdicts are unreasonable and cannot be supported having regard to the evidence at the trial.

2. The trial miscarried by reason of the conduct of the Prosecutor.

3. The summing up lacked fairness and balance.

4. The summing up was confusing and failed to adequately marshal the trial evidence and arguments relied upon for the Defence.

5. The trial Judge erred in failing to put adequately the Defence case to the jury.

6. The trial Judge misdirected the jury concerning the onus of proof in Count 1.

8 On 24 April 2009, three sets of written submissions prepared by Mr Nicholson QC were filed in the Registry, one set for each Appellant. The written submissions extended to 44 pages, 46 pages and 47 pages respectively. The vast bulk of the written submissions appeared to be electronically generated copies of near-identical submissions, with limited variations. The Court (and the Crown) were confronted with 137 pages of submissions, and the task of attempting to discern the differences as between the three documents.

9 At the commencement of the appeal on 22 July 2009, this issue was raised with Mr Nicholson QC, who could provide no satisfactory explanation for the undue repetition of submissions in the three documents with the accompanying challenge of, in effect, spotting the differences between the documents. It is true that there are three Appellants, and submissions filed in support of each appeal ought state the arguments advanced in that respect. That said, the practice adopted in the present appeals is to be strongly discouraged. The obligation of counsel appearing in this Court on a conviction appeal is to set out arguments, in a manner which assists the Court in the determination of the appeal in accordance with the requirements of paragraph 19 of Practice Note SC CCA 1 (V2). This Court is not assisted by wholesale electronic repetition of submissions in different documents. In the circumstances of these appeals, the sensible and appropriate course was to produce a single document addressing the identical grounds of appeal, with specific reference to aspects which related solely to a particular Appellant. As the same counsel appeared for each Appellant, this course should have been adopted.

10 The Crown produced a single set of written submissions addressing the grounds of appeal, containing arguments advanced with respect to them. The Crown submissions demonstrated the common sense of a single document addressing the grounds of appeal in this case.

11 Having grappled with the lengthy and repetitive written submissions filed for the Appellants, the Court was informed by Mr Nicholson QC, at the commencement of the hearing on 22 July 2009, that the first ground of appeal only was being pressed. A combination of the late notification of this development and the lengthy and repetitive submissions proffered in support of the appeals did not assist the Court, and the effective use of judicial time, in preparation for the hearing of the appeals.

12 It is clear that the ground now relied upon does not involve “a question of law alone”. As a result, the Appellants must be treated as applicants for leave to appeal against conviction: s.5(1) Criminal Appeal Act 1912 (NSW). The fact that a ground which involves a mixed question of fact and law is not a question of law alone is beyond argument: Williams v The Queen [1986] HCA 88; 161 CLR 278 at 287 (Gibbs CJ, Wilson and Dawson JJ agreeing) and 301-302 (Mason and Brennan JJ). The failure of offenders seeking to challenge convictions on such grounds, without seeking leave to appeal, has been the subject of remarks by this Court on a number of occasions: see, for example, Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220 at [2]; Yacoub v R [2008] NSWCCA 164 at [2]; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44] and at [68]-[71]; Carlton v The Queen [2008] NSWCCA 244 at [10]-[12]. The statutory requirement of leave to appeal should not be treated as a mere formality. There will be circumstances in which leave will be refused. Where such circumstances arise, counsel should not assume that the Court will accept inadvertence as a reason for neither seeking leave nor being in a position to address any relevant issue. In the present case, no point having been taken, it is appropriate that there be a grant of leave to appeal in each case.

The Crown Case

13 On the afternoon of 28 June 2006, the three Appellants were drinking at the Wallacia Hotel. At that time, George Psaroudis was present at the hotel servicing pool tables and the jukebox. At one point during the afternoon, Mr Psaroudis left the hotel through a side exit door, apparently to obtain something from his vehicle parked in the hotel car park. Almost immediately, Mr Rasic followed, then Johnny Vella and then Damien Vella left the hotel by the same door. Events inside the hotel, including the departure of the four men through the door, were captured on CCTV camera.

14 Upon leaving the hotel, Mr Psaroudis was struck from behind and he fell to the ground. He was kicked while he was on the ground and was robbed of his wallet during the attack.

15 Silvia Radakovic was working with Mr Psaroudis at the hotel on that day. She came out of the hotel door and saw the attack upon Mr Psaroudis taking place. She went to assist, then ran back inside the hotel, to get help, and then went back outside carrying a barstool. Shortly after she exited, the bar stool was thrown back through the door and Ms Radakovic followed soon after.

16 The Appellants came back into the hotel briefly to pick up some personal belongings and then left.

17 Contained in Mr Psaroudis’ wallet was an American Express Platinum card in his name. Soon after the attack on Mr Psaroudis at the Wallacia Hotel, his American Express card was used to make three purchases at the MCA motorcycle shop at Liverpool. The card was used to purchase a high-performance Harley Davidson motorcycle engine worth $17,500.00. Minutes later, the card was used to purchase a further Harley Davidson engine, together with a frame and swing arm for a total sum of $14,100.00. Soon after, the card was used for a third transaction as payment of $7,800.00 for a range of motorcycle parts. Events inside the MCA motorcycle shop at Liverpool, on the afternoon of 28 June 2006, were captured on CCTV.

18 It was admitted, at trial, that Mr Rasic had used Mr Psaroudis’ American Express card on these three occasions that day, and that the other Appellants had assisted Mr Rasic to carry from the shop the motorcycle parts and components purchased in the three transactions in question.

19 The Crown case involved a range of evidence, including the CCTV footage and evidence of Mr Psaroudis and Ms Radakovic, together with other witnesses outside the hotel who observed the attack upon Mr Psaroudis, and evidence of use of the American Express card, for the purpose of substantial purchases in which the three Appellants were directly involved.

The Defence Cases at Trial

20 Each of the Appellants gave evidence before the jury. Put shortly, it was the case of the Appellants at trial that they observed other persons attacking Mr Psaroudis outside the hotel, and that the Appellants intervened in an attempt to rescue Mr Psaroudis. The Appellants said that they did not remain at the hotel because each became aware that the police were being called, and that Ms Radakovic was likely to assert that the Appellants were the attackers.

21 Mr Rasic stated that he located Mr Psaroudis’ wallet on the ground outside the hotel and picked it up. Having located the American Express card in it, he decided to use it to make purchases at the MCA motorcycle shop at Liverpool. It was the evidence of Mr Rasic and the other Appellants that Mr Rasic did not tell the others that he was using the credit card of Mr Psaroudis for this purpose. Mr Johnny Vella and Mr Damien Vella both stated that, although they assisted Mr Rasic to carry the motorcycle components and parts out of the shop to a vehicle, they were unaware that Mr Rasic had used an American Express card belonging to someone else to make the purchases.

22 In addition to their own direct evidence denying involvement in the offences (apart from admissions by Mr Rasic of his guilt for the credit card offences), senior counsel for the Appellants at trial relied upon a range of suggested inconsistencies and other parts of evidence of Crown witnesses in support of the defence hypothesis that other men (who had escaped) were the attackers and that the Appellants had intervened to assist Mr Psaroudis.

23 In these various ways, it was submitted at trial for the Appellants that the jury could not be satisfied beyond reasonable doubt that each of the Appellants had robbed Mr Psaroudis nor that the Appellants, Johnny Vella and Damien Vella, were criminally involved in the use of the credit card at the Liverpool motorcycle shop.

The Appeal

24 The Appellants contend that the verdicts of the jury are unreasonable and cannot be supported having regard to the evidence: s.6(1) Criminal Appeal Act 1912. No other ground of appeal was pressed, although Mr Nicholson QC contended that aspects of the conduct of the Crown Prosecutor, which were challenged in Ground 2, served to explain how the jury came to convict the Appellants on the matters that went to trial although, the Appellants contend, it was not open to the jury to do so. This submission does not activate the second ground of appeal. The sole question to be considered and determined by this Court is whether the Appellants have made good the first ground of appeal.

25 Where it is contended that a verdict of a jury is unreasonable or cannot be supported having regard to the evidence, the question which this Court must ask itself is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that each Appellant in this case was guilty: M v The Queen [1994] HCA 63; 181 CLR 487 at 493; MFA v The Queen [2002] HCA 53; 213 CLR 606 at 614-615 [25], 623 [55]-[57]. This Court’s function under s.6(1) is to be “performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials”: MFA v The Queen at 624 [59]. The jury had the benefit of seeing and hearing the witnesses, including each of the Appellants: M v the Queen at 493.

26 In MFA v The Queen, McHugh, Gummow and Kirby JJ said at 623 [56] (footnotes omitted):

“The majority in M pointed out that ‘ [i] n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred [at 494] :

‘If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence’.”

27 In their conclusion, McHugh, Gummow and Kirby JJ observed in MFA v The Queen at 634 [96] (footnotes omitted):

“There are, it is true, some aspects of the evidence that are less than wholly satisfactory. But that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention.”

28 The Crown case against the Appellants here involved a combination of direct evidence of observations of witnesses, and inferences to be drawn from a number of events, including the CCTV footage depicting the Appellants following Mr Psaroudis out the hotel door together with the criminal use, not long after the attack upon Mr Psaroudis, of his credit card where Mr Rasic was directly involved in making the transactions, and the other Appellants were present with him assisting in the removal from the shop of the substantial and expensive items which had been purchased. Although the Crown case could not be described as a circumstantial case, it involved, in a number of respects, reliance upon inferences to be drawn from a combination of circumstances.

29 Where verdicts are challenged upon the basis that they are unreasonable or cannot be supported by the evidence, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48] (Gummow, Hayne and Crennan JJ); The Queen v Keenan [2009] HCA 1; 83 ALJR 243 at 267 [128] (Kiefel J, Hayne, Heydon and Crennan JJ agreeing); applied in Burrell v R [2009] NSWCCA 193 at [59]-[61] (Giles JA, Howie and Buddin JJ agreeing). These authorities concerned circumstantial Crown cases. However, a similar approach is appropriate in this case. This Court is required to consider the totality of evidence before the jury, and not just parts of it. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events.

30 This Court has emphasised the fact that a jury brings to consideration of a circumstantial case the common experience of members of the community who apply their collective knowledge of human affairs and their common sense: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 272-273 [2], 293-294 [86]; Chahine v R [2006] NSWCCA 179 at [88]; BJR v R [2008] NSWCCA 43; 185 A Crim R 360 at 380 [97]. After citing these authorities, Giles JA (Howie and Buddin JJ agreeing) said in Burrell v R at [65]:

“This Court must make its own assessment of the evidence. But the assessment is of the cumulative effect of the evidence, and with due regard to the common experience of human affairs and common sense brought by the jury to their determination of guilt or innocence.”

31 This Court should take a similar approach in assessing the evidence and determining the present appeals.

Evidence Adduced at the Trial

32 The real issue joined at trial was whether the Appellants attacked Mr Psaroudis or whether they were interveners seeking to rescue him from his attackers. The evidence to which consideration will be given is that which bears upon this issue.

33 George Psaroudis described his movements at the Wallacia Hotel following his arrival, with Ms Radakovic, in the middle of the afternoon. After performing certain tasks inside the hotel, he walked outside and was hit on the back of the head. He did not see who struck him and his whole body went down onto the ground face first. He was being kicked in the head and the back. He was not able to see people around at the time he was being kicked. The attack occurred when he was about 10 metres from his vehicle, and up against a blue Holden or Ford. He remembered Ms Radakovic getting him up against the car. Although he did not lose consciousness, he said his head was spinning. Ms Radakovic was crying and carrying on, and an ambulance arrived and then the police.

34 Mr Psaroudis had his brown leather wallet with him in his back pocket on that day. It contained $1,400.00 in cash, credit cards (including an American Express Platinum card) and his driver’s licence. Mr Psaroudis said his wallet was gone after the attack and he did not know what had happened to it. He never saw the wallet again.

35 Ambulance officers treated Mr Psaroudis at the scene and he declined their suggestion that he go to hospital. The police arrived and spoke to him and a police officer took some photographs of him which became exhibits at the trial. He remained at the hotel for about an hour and then went home. He rang up American Express and told them he had been robbed and to cancel the credit card. They told him that it had been used already to make purchases at a motorcycle shop that afternoon.

36 In cross-examination, Mr Psaroudis agreed that Ms Radakovic was “freaking out” at the time she lifted him up and that she was running around making a lot of noise. He had asked Ms Radakovic to attempt to locate the wallet and she did so without success.

37 In examination-in-chief, Silvia Radakovic said she observed “a few guys” a couple of metres away from Mr Psaroudis and herself inside the hotel. There were “about four, three” of them and she thought they were having a beer (T26). Mr Psaroudis left the hotel as she was counting money inside the hotel. Ms Radakovic said that she saw that Mr Psaroudis “was getting bashed outside” and she ran outside to have a look. The Crown asked (T28.1):

“Q. What was the first thing you saw when you went outside?
A. George getting bashed.
Q. Who was he being bashed by?
A. Four guys, couple of guys, three or four guys.
Q. And had you seen those three or four guys earlier that day?
A. Yeah.
Q. Whereabouts had you seen them?
A. I saw them bashing George outside.
Q. But had you seen them earlier that day before they were bashing George?
A. No.”

38 Ms Radakovic said that Mr Psaroudis was near his car “getting kicked”. She was asked (T29.23):

“Q. What position was George in when he was being kicked?
A. Just on the ground with his head on the ground.
Q. You said before there were three or four men?
A. Yeah.
Q. Were they all kicking him?
A. Yeah.”

39 Ms Radakovic said that Mr Psaroudis had his hands over his head “trying to like protect his head” (T29.43). The Crown asked Ms Radakovic (T29.45):

“What did you do when you saw these three or four men kicking George?
A. Well I ran in to get some help, ran back into the pub to get some help.
Q. Who did you run to, or where did you run to try and get help?
A. Well back in the hotel.
Q. Did you speak to anyone in the hotel?
A. I was just yelling, it was all, all happened so fast, I was just yelling and ‘Someone’s getting bashed, come, someone help’ you know.
Q. Did anyone come to help?
A. Not really.
Q. What did you do next then?
A. Panicking, running around freaking out, I don’t know.
Q. What do you remember happening next?
A. Well then they went, I guess they ran off.
Q. Did you see them run off?
A. No I was just, I went to George trying to help George, making sure he’s all right.”

40 Ms Radakovic observed that Mr Psaroudis was hurt. She was asked by the Crown (T30.30):

“Q. You said before that you went into the pub to ask for help, did you yourself try and get any help for George?
A. Yeah I was just trying to get someone to come out and help, stop the - stop what was going on, just trying to get someone’s attention.
Q. Can you remember whether you did manage to get anyone to come out and help?
A. Well yeah eventually like people came back out, you know.”

41 It is noteworthy that the account of Ms Radakovic to this point does not leave itself open to a construction that what she observed was two groups of persons, attackers and rescuers, involved in an incident surrounding Mr Psaroudis. Rather, the events described by Ms Radakovic indicate a group of men, all of whom were attacking and kicking Mr Psaroudis who lay face down on the ground.

42 The Crown was granted leave to cross-examine Ms Radakovic under s.38 Evidence Act 1995 by reference to her statement to police made on 4 July 2006. She was asked by the Crown (T37.46):

“Q. Do you have a memory of now what you actually saw?
A. Yeah, I do.
Q. What is it that you saw?
A. Well what it says in the statement.
Q. Well maybe I’ll take you directly to your statement, did you say this in your statement:
‘That as George left the room I saw the males who were at the table get up immediately and follow George out the door’?
A. Yeah.
Q. Was that in your statement?
A. Well must’ve happened that way. I don’t know. I was - I was, I don’t know exactly how it happened but if I said that well that’s how it - must’ve happened.”

43 Ms Radakovic agreed that her statement to police had said “I got up and walked to the door and went outside. When I got outside I saw George lying on the ground and the men were kicking him whilst he was on the ground” (T38). She agreed that her statement said “I walked back towards the door and I saw that the men were still kicking George on the ground. I grabbed a metal bar stool and walked backed outside”. She said she picked up the metal bar stool “to make some noise so someone could hear me because no one was really listening to me just so they can help like, I can get some attention” (T39.32).

44 The CCTV footage of events inside the hotel was played to Ms Radakovic during her evidence-in-chief (T40ff). The DVD was stopped from time to time, and the Crown asked Ms Radakovic questions concerning images depicted on it, including the following (T42.6):

“Q. You’ve disappeared on the closed-circuit footage there outside the door. Do you remember the first thing you saw as you got outside the door?
A. Just George on the floor.
Q. On the floor, what do you mean?
A. Like just on the floor and just four guys like kicking into him.
Q. What was the surface he was on, what was it made out of?
A. The, just the asphalt, the tar.
Q. Asphalt, okay.
DVD PLAYED TO COURT
Q. Do you see yourself run back inside the hotel?
A. Mm.
Q. What were you doing at that stage when you run back inside the hotel?
A. Trying to get someone to, get someone’s attention to come and help George, just stop what was going on.
DVD PLAYED TO COURT
Q. Can you see yourself there picking up a bar stool?
A. Yeah.”

45 In cross-examination by senior counsel for the Appellants, Ms Radakovic said that, when she was first at the door, she wasn’t sure how many people were outside with Mr Psaroudis. It could have been three or four, but she could not say exactly, conceding that there may have been five people (T48-49). Ms Radakovic thought that she did see a number of men walk away from the blue car from that group, and walk towards the rear of the hotel towards the general car park (T51). She was asked in cross-examination (T52.5):

“Q. When you were looking outside the hotel from inside the hotel, did you see a number of attackers of George Psaroudis walk away from the blue car in the direction of the car park at the rear of the hotel?
A. I think - yeah, I think one - one - one or two.
Q. Is it possible you saw one walk in that direction.
A. Yeah.
Q. And then another two walk in that direction.
A. It’s possible, yes.”

46 Senior counsel for the Appellants did not put to Ms Radakovic in cross-examination that what she observed outside were a group of attackers and a group of rescuers involved in the incident with Mr Psaroudis. Further, the Appellants testified that they had departed the hotel and not waited for the police because, when the Appellants re-entered the hotel, Ms Radakovic had said she was going to call the police and accuse them of wrongdoing in the altercation with Mr Psaroudis. On the defence scenario, Ms Radakovic had mistakenly taken the Appellants for attackers and not rescuers.

47 Mr Nicholson QC disagreed with a question from the Bench during the hearing of the appeals that, having regard to the evidence of Ms Radakovic and the nature of the defence cases, a direct challenge was required during cross-examination, going beyond the question of whether there were two, three, four or five persons involved and, in particular, whether there were two groups of persons comprising attackers and rescuers (T11, 22 July 2009). As mentioned earlier, this was the critical issue upon which issue was joined between the Crown and the Appellants at trial.

48 With respect, it is difficult to understand why this proposition was not put to Ms Radakovic during cross-examination: Browne v Dunn (1893) 6 R 67, R v Birks (1990) 19 NSWLR 677 at 689-691. Whatever reason there may have been for senior counsel not to put such a proposition directly to Ms Radakovic, the end result is that the failure to cross-examine in such a way does not assist the Appellants on appeal to this Court, upon a ground that the verdicts were unreasonable and not supported by the evidence where reliance is sought to be placed upon selected aspects only of the evidence of Ms Radakovic. This is especially so given that Mr Nicholson QC contends that the evidence of Ms Radakovic was critical to the Crown case, and that an analysis of her evidence assists the Appellants’ contention that their convictions ought be quashed and verdicts of acquittal entered.

49 George Elliot was the owner of the Wallacia Hotel in June 2006. He described events at the hotel during the afternoon of 28 June 2006. He said that one of a group of men got up and walked out the door, and he was asked by the Crown (T66.14):

“Q. What happened when he got up?
A. He was gone for only a very brief time then one of the others [sic] guys got up, then the other guy got up and they all walked out. I thought it was a bit weird actually.”

50 He said that Ms Radakovic, “the girl with the pool table guy”, was “in a bit of a frenzy calling out” (T66.44). Mr Elliot said that the “fourth guy” (who was present with the Appellants) was “standing in the way of the door” (T66.53). The appropriate inference is that the “fourth guy” was Matthew Waldron, an associate of the Appellants.

51 Mr Elliot observed a group of people near a car. He “only briefly caught a very quick glimpse” and thought he saw “maybe five or six people around this car” (T67.28).

52 The Crown was granted leave under s.38 to cross-examine Mr Elliot, by reference to his police statement made on 5 July 2006. He agreed that he had told the police in his statement (T77-79):

“I got to the door and opened the right-hand folding door and looked outside. I saw a group of males in a scrum up against a blue Falcon. The males I saw in the fight were the males I was seated with a short time earlier at the tall table near the sports room. The three males had backed off George, and the female was yelling at the males. The males left in the direction of the back car park.”

53 Mr Elliot agreed that there was nothing in his police statement about seeing the other five or six males outside the hotel (T78-79).

54 The CCTV footage was then shown to Mr Elliot and he was asked questions, from time to time, as the DVD was played. At the point where the CCTV showed the second man heading towards the door, Mr Elliot was asked by the Crown (T82.8):

“Q. The second man now is heading towards the door. Do you remember seeing that on that particular day?
A. I do remember that because I remember - that’s when I first thought it’s a bit unusual, they’re all getting up and leaving. Just leaving.
Q. Had anything been said?
A. Not a word. Nothing at all.
TAPE PLAYED
Q. The third man who was standing, or sort of sitting, standing beside you, is now heading towards the door. Do you remember that occurring on that particular --
A. Yes. As I say, that’s when I just thought it was weird you know, just getting up and walking away.
Q. Did he say anything to you?
A. Not a word. Nobody said anything.”

55 During a short cross-examination, Mr Elliott agreed that he presumed there had been some sort of fight or scuffle at the time he was interviewed by police and had made his statement, and that he did not actually see a fight, he “just saw a lot of commotion and a lot of yelling” (T90.42).

56 Susan Kay Bock was the owner of a take-away shop at Park Road, Wallacia, directly beside the Wallacia Hotel. At about 3.30 pm on 28 June 2006, she heard her mother, who was out the back putting rubbish in the bin, call out that someone was getting bashed. Ms Bock ran straight out the back of the property looking towards the Wallacia Hotel, and saw “three men hitting into another gentleman” on the floor. They were yelling and the men were punching the man and one was kicking him (T92). Ms Bock was under 20 metres away when this was happening.

57 Whilst the attack on the man was underway, Ms Bock observed a lady come out of the door of the hotel with a bar stool in her hand. She was screaming at the men to stop and to get away and she was pushed back into the hotel (T93). It was one of the three men who was attacking the man on the ground who pushed the lady back into the hotel, and the men continued to hit the man on the ground (T93).

58 Ms Bock said that she was “pretty confident” that the three men were all wearing flannelette shirts with jeans and were heavy set, with two of them having longish hair and one wearing a baseball cap (T93). She observed the men walk towards the back of the car park with two of them going around to the rear of the hotel and the one with the baseball cap entering a four-wheel drive vehicle and driving off (T93).

59 Ms Bock was cross-examined on a number of topics, with some emphasis being given to her description of the three men observed by her and their movements after the attack. However, it was not put to her that there were two groups of men involved in an altercation around Mr Psaroudis, being several attackers and three rescuers (in the form of the Appellants).

60 The evidence of Ms Bock assisted the Crown case in that, on her account, there were only three men in the vicinity of Mr Psaroudis, this being consistent with the Crown case that these were the three Appellants and that there were no other men who had attacked Mr Psaroudis. The evidence of Ms Bock did not assist the Crown case in certain respects, in particular her description of the clothing of the men and her description of their movements after the attack. I will return to these issues later in the judgment.

61 Daniela Galgoczy was working at a real estate agency in Park Road, Wallacia on 28 June 2006. She was in a bathroom at the back of the office, which had a small window which looked towards the side of the hotel. She heard a lot of “skurfuffle” and moaning and a lady saying “leave him alone, leave him alone” (T105.36). She went outside and saw someone was injured. The lady she had heard earlier was speaking on a phone. She saw three persons walking away from the incident towards the back of the hotel (T105-106). A few minutes later, perhaps five or 10 minutes later, she recognised one of the three men walking past and get into a Toyota Landcruiser which he drove away. She subsequently told police the registration number of the vehicle (T107-108).

62 In cross-examination, Ms Galgoczy said she had not seen anyone punch or kick the person on the ground (T111). She said that the Landcruiser was parked in the bottle shop driveway area. She and Ms Bock were outside on a grassed area adjacent to the real estate office, when she saw the person walk toward the Toyota Landcruiser and drive off. He walked from the beer garden area adjacent to the car park of the hotel (T114-115).

63 Although a number of other witnesses were called in the Crown case, their evidence does not bear directly upon the arguments advanced in support of the present appeals, and it is not necessary to refer further to that evidence.

64 Each of the Appellants gave evidence. Simon Rasic said that he had observed two suspicious-looking men outside the hotel door, as Mr Psaroudis walked through it, and that he decided to walk out because of that (T181). When he got outside, he saw the two men kicking in to Mr Psaroudis. He said he grabbed the man closest to him and pulled him off and pushed him away from Mr Psaroudis. There was a blue car parked nearby. Mr Rasic said that he saw Johnny Vella and Damien Vella near Mr Psaroudis after the altercation, with Johnny Vella wrestling with the other man. Mr Rasic said Damien Vella was not physically involved in the incident and the two men with whom he and Johnny Vella had grappled walked off towards the rear of the car park (T184).

65 Mr Rasic said that he re-entered the hotel, picked up his belongings on the table and then left the hotel. He walked past those present to the car park. He looked down in front of him and saw a brown wallet, which he picked up. It was not his wallet and he put it in his pocket. He was on his own when this occurred (T186).

66 Mr Rasic said that, when he re-entered the hotel after assisting Mr Psaroudis, Ms Radakovic was screaming and yelling at Damien Vella that she was calling the police and she was swearing (T187). Mr Rasic returned to the white Toyota vehicle in which Johnny and Damien Vella and Mr Rasic had travelled to the hotel that day. Johnny and Damien Vella were already in the vehicle. Mr Rasic jumped in the rear passenger seat and they drove straight to Narellan, where they stopped and had a pizza at a pizza shop on Camden Valley Way. At that time, Mr Rasic asked Johnny Vella whether he could drive him to Liverpool to the MCA motorcycle shop as he wished to make some purchases (T187-188).

67 Mr Rasic purchased items on three occasions at the MCA shop using the American Express card. He said that he did not know whose card it was, but he knew the name on the card was not his, and he signed the invoices attempting to use the name on the card. Mr Rasic stated that at no stage did he give the card to Johnny or Damien Vella, nor did he show the card to either of them (T188). The items purchased were placed in the white Toyota in which they had travelled, and Johnny and Damien Vella and Mr Rasic then drove to Mr Rasic’s house where they unloaded all of the parts in his shed (T190).

68 Mr Rasic denied striking or kicking Mr Psaroudis. He said he threw the wallet in the bin at the pizza shop at Camden Valley Way, having taken the American Express card and the cash from it. He said he placed the American Express card in the rubbish bin at his home. He said that he did not see Johnny Vella or Damien Vella physically come into contact with Mr Psaroudis at the Wallacia Hotel (T190-191).

69 Under cross-examination, Mr Rasic agreed that he was having a drink with the other Appellants and a friend, Matthew Waldron, at the Wallacia Hotel that day and that Mr Waldron had been a friend of his for about 15 years (T193). Mr Waldron was not called as a witness at the trial by the Crown or defence.

70 Mr Rasic said it was a complete coincidence that he got up to leave the hotel at the same time as Mr Psaroudis, and that he did not have concerns that these men were going to do anything to Mr Psaroudis, merely that they were acting suspiciously (T196). Mr Rasic said that he called Johnny Vella to come with him, but did not say anything to Damien Vella (T197-198). He said the two men outside commenced to hit and then kick Mr Psaroudis, and Mr Rasic then became involved to help Mr Psaroudis (T198-199). Mr Rasic said he went back into the hotel to get his belongings, and Ms Radakovic was telling Damien Vella that she was going to call the police (T199-200). Mr Rasic was asked in cross-examination (T201.13):

“Q. Did you have any thoughts of staying to give a description of the two men who attacked George Psaroudis?
A. Yeah, we thought about that but the lady that was standing said she would call the police and I thought she was blaming us for what had happened so I thought we had better leave, you know.
Q. But you had done nothing wrong though?
A. I know, but I thought it was best to leave.
Q. You actually helped this man from being bashed or worse?
A. Yes.
Q. And Johnny Vella too had saved him from being bashed?
A. Yes.
Q. You had no concerns about what you had done on that afternoon to tell the authorities about what had happened?
A. That’s right.
Q. You but [sic] left anyway?
A. That’s correct.”

71 The cross-examination then turned to the wallet (T201.37):

“Q. Whereabouts was the wallet when you saw it?
A. Just outside the double doors.
Q. How close was George Psaroudis to where the wallet was that you picked up?
A. From the double doors to where he was sitting it was probably about three metres away.
Q. You just picked it up?
A. Yes.
Q. Did you look inside it?
A. No. Not until I got in the car.
Q. Was there any reason you didn’t look inside it at that time?
A. No, I thought it was the blokes that jumped George, I thought it was their wallet so I just picked it up and put it straight into my pocket.
Q. You thought it was those two men, one of their wallets?
A. Yes.
Q. You didn’t think it could have been George Psaroudis’ wallet?
A. No.
Q. Did you care?
A. Sorry?
Q. Did you care whose wallet it was?
A. No, not really.
Q. You got into the car, is that right?
A. Yes, that’s correct.
Q. Did you open up the wallet then?
A. When we were driving, yeah.
Q. What did you see inside?
A. I just opened it up and took a sum of money out of it, a credit card and folded it back up and put it in my pocket.”

72 Mr Rasic said that he did not see Mr Waldron do anything wrong at the hotel (T210). Mr Rasic said that he had not planned to go to the MCA motorcycle shop until he discovered the wallet containing the cash and credit card (T210). He asked Johnny Vella and Damien Vella to pick out some parts for him in the motorcycle shop (T211). Although it had been a spur of the moment decision to go to the motorcycle shop, Mr Rasic said that Johnny Vella and Damien Vella did not express any surprise to him when he was making substantial and expensive purchases (T213).

73 Mr Rasic could provide no explanation as to why he did not hand the wallet to Mr Elliot, whom he knew to be the manager of the hotel, nor why he did not wait to give it to police (T227). Nor could he provide any reason as to why he did not check that the wallet belonged to Mr Psaroudis (T227).

74 The Appellant, Johnny Lee Vella, gave evidence. He said that he was called by Mr Rasic so he stood up and walked towards the door, and he saw two men outside hitting a man on the ground (T232). He walked over and there was pushing and shoving between himself and one of the men. He denied kicking or punching Mr Psaroudis at any stage. His cousin, Damien Vella, was behind him (T234-235).

75 Under cross-examination, Johnny Vella said that he thought it best that they leave the hotel after the incident, because he knew that Ms Radakovic was “a bit hysterical” (T250.21). He was asked (T251.38):

“Q. You didn’t want to wait around and tell the police about what you had observed?
A. No.
Q. You didn’t want to help the police catch these two men?
A. I thought it’s best we just go, that’s all.
Q. You didn’t want to take the glory for doing something so heroic?
A. I didn’t think it was glory, no.
Q. Did you think it was heroic what you did?
A. No, I was just helping a bloke out; that’s all.
Q. Wouldn’t it have also been helpful to hang around and tell the police the details of what these men looked like?
A. I wasn’t sure if the police were coming at all.”

76 Johnny Vella said that the three Appellants went to a pizza shop, and discussion turned to a visit to a motorcycle shop so that Mr Rasic could search for some parts. Johnny Vella thought Mr Rasic owned a tattoo parlour for a job (T255). Johnny Vella agreed he was wearing a baseball cap on this day (T256.7). He said that he was a little bit surprised that Mr Rasic, having gone to the motorcycle shop to buy some spare parts, was buying an engine and that Mr Rasic explained he had got “a new credit card” (T262).

77 Damien Charles Vella gave evidence. He agreed that the CCTV images depicted Mr Rasic leaving the hotel soon after Mr Psaroudis, with Johnny Vella following soon after again (T269). Damien Vella said that as soon as Johnny Vella got up and walked out the doors, he saw there was a “bit of a scuffle just outside the doors” (T269.28). He said that Mr Rasic and Johnny Vella were trying to break two men away from Mr Psaroudis, and then Ms Radakovic came out and was “pretty hysterical and swearing and carrying on and saying … she was going to call the cops” (T270.35). He said he had no knowledge that Mr Rasic possessed an American Express card which had not been issued to him. He helped carry the various items from the motorcycle shop to the vehicle and to unload the material in Mr Rasic’s shed, but he denied having knowledge of Mr Rasic carrying out fraudulent transactions to obtain these items (T274).

78 In cross-examination, Damien Vella said he had seen two suspicious people about 10 minutes before the Appellants walked outside (T279). He thought they were suspicious because they were not coming inside the hotel and they “just kept looking inside and walking side to side” (T280.48). Damien Vella said he did not raise any concerns with his friends about these suspicious persons (T280-281). He did not observe Matthew Waldron do anything wrong or illegal that afternoon (T286). Damien Vella said that Ms Radakovic was swearing and saying she was going to call the police. He was asked (T289.1):

“Q. Did that concern you?
A. Well, yes.
Q. You had done nothing wrong?
A. That’s right.
Q. Simon hadn’t done anything wrong?
A. That’s right.
Q. Johnny hadn’t done anything wrong?
A. Well, yes.
Q. The two of them had done something particularly helpful, correct?
A. That’s right.
Q. Good Samaritans?
A. Yes.
Q. What was your concern then?
A. Concern?
Q. What was your concern?
A. Well, it seemed like we were getting blamed for something we didn’t do.
Q. Did you think that it would be a good idea to hang around and clear up the mess?
A. Not the way she going on, no.
Q. What, the best thing to do was just to get out of there as quickly as possible, is that right?
A. The way she was going on, yes.
Q. Did you say anything back to her at that time?
A. I don’t recall, I think I was swearing back at her too, yes.
Q. And you didn’t say, ‘Look, we helped you, we didn’t do anything wrong’?
A. Yeah, along those lines, I probably did.
Q. At the same time while you were swearing at her?
A. Yes.
Q. You knew her co-worker had just been bashed and was on the ground injured, is that right?
A. Yes, that’s right.
Q. And you though [sic] claim she was blaming you and you were angry about that, is that right?
A. Yes.
Q. And you swore at her?
A. As I recall, yes.”

79 Damien Vella said he was a bit surprised when Mr Rasic purchased the first engine at the motorcycle shop (T295.36). He was a “little bit” surprised when Mr Rasic purchased a second engine (T296.33).

Submissions

80 Mr Nicholson QC submitted that the verdicts against each Appellant were unreasonable. As he did before the jury, he emphasised variations between the accounts of the witnesses on matters of observation and detail, in particular Ms Radakovic, Mr Elliot, Ms Bock and Ms Galgoczy. He submitted that significant doubts surrounded the guilt of the Appellants on the robbery count, flowing from the conflicting accounts from witnesses concerning the number of people involved in the attack upon Mr Psaroudis, their appearance (including clothing and footwear) and the direction of departure of the attackers after cessation of the attack upon Mr Psaroudis. He submitted that the evidence pointed to Mr Waldron as being one of the assailants upon Mr Psaroudis, but not any of the Appellants.

81 Mr Nicholson QC submitted that the evidence of Ms Bock and Ms Galgoczy pointed to the attackers departing from the hotel. He submitted that it was not consistent with the CCTV footage which demonstrated that two of the Appellants had returned inside the hotel after the attack upon Mr Psaroudis. Reliance was placed upon parts of the evidence of Ms Radakovic and Mr Elliot which suggested that more than three persons were involved in the incident with Mr Psaroudis.

82 All of this, Mr Nicholson QC submitted, was such that substantial doubt existed that any of the Appellants had attacked Mr Psaroudis, and thus the verdicts on the robbery counts were unreasonable and ought be quashed. As the Crown case had been conducted upon the basis that the credit card offences against Johnny Vella and Damien Vella had as a necessary foundation their guilt of the robbery charge, Mr Nicholson QC submitted that substantial doubt existed concerning their guilt on these charges as well, so that the convictions ought be quashed and verdicts of acquittal entered.

83 The Crown submitted that the CCTV footage was important evidence implicating each of the three Appellants and that the evidence of Ms Radakovic, Mr Elliot, Ms Bock and Ms Galgoczy, when taken with the CCTV footage, was most damaging to each of the Appellants.

84 Further, the Crown submitted that the defence case with respect to each Appellant was inherently implausible. The jury had available to it all relevant evidence, including the evidence of the Appellants, and after giving due consideration to the arguments advanced, the jury was satisfied beyond reasonable doubt of the guilt of each Appellant. The Crown submitted that the first ground of appeal ought be rejected.

Decision

85 For the purpose of determining this ground of appeal, an assessment has been made of the totality of evidence led at the trial. The hotel CCTV footage was played in Court during the hearing of the appeal and has been viewed again since then. The CCTV footage (Exhibit B) depicted Mr Psaroudis leaving the hotel and Mr Rasic following about two seconds later, followed about three seconds after by Johnny Vella and then Damien Vella some five seconds after his cousin.

86 The evidence before the jury came from several principal sources:

(a) the CCTV footage depicting the movements of the Appellants out the hotel door immediately after Mr Psaroudis had left the premises;

(b) the evidence of Mr Psaroudis himself that he was set upon soon after walking out the door and attacked by persons who punched and then kicked him when he was on the ground - his wallet was in his rear pocket before the attack, but was not there when the attack had ceased;

(c) the evidence of Ms Radakovic which, although containing some variations, stated that the three men who had been drinking in the hotel, and who had walked out after Mr Psaroudis, had attacked him - she called for help - her evidence did not give the impression that there were two groups of men, attackers and rescuers, involved in the incident with Mr Psaroudis and this proposition was not put to her in cross-examination - she formed the view that the Appellants were the attackers, and proposed that the police be called and so informed;

(d) the evidence of Ms Bock, who observed three men punching and kicking Mr Psaroudis outside the hotel - although her description of the clothing of the men and the direction of their movement after the attack may not have fitted perfectly with the Crown case, such variations may be expected when a lay witness observes a sudden violent incident such as this - significantly, she did not say that more than three men were involved, and she did not describe a scene where there were two groups of men, attackers and rescuers, and no such scenario was put to her in cross-examination;

(e) the evidence of Ms Galgoczy, who observed three men after the incident with Mr Psaroudis - importantly again, there was no suggestion from her that there were two groups of men, attackers and rescuers, involved in the incident with Mr Psaroudis - once again, although her description of the clothing of the men, and their movements after the incident, may not have fitted entirely with the Crown case, such variations are not unexpected when a lay witness observes part of an incident such as this;

(f) the evidence of Mr Elliot, despite some fluctuations as to the number of men observed, included the statement that three males were involved in a fight with Mr Psaroudis, being males who had been in the hotel shortly before - any possible variation as to numbers again may be explained by his observation of a sudden and unexpected event;

(g) the explanation of each Appellant for not remaining at the scene, whilst police were called, was plainly damaging to each of them - it was open to the jury to regard the sudden departure of the three Appellants, in the face of the police being called and Ms Radakovic asserting that the Appellants were the attackers, as being inconsistent with the actions of innocent men.

87 Further:

(a) it was open to the jury to regard Mr Rasic’s account of coincidentally finding the wallet on the ground and taking it away as being implausible - this conclusion was all the more compelling given the criminal use, shortly thereafter, of the American Express card to purchase a very substantial amount of motorcycle equipment and parts - it was open to the jury to conclude that the three Appellants had attacked Mr Psaroudis for the purpose of robbing him;

(b) it was open to the jury to conclude that the three men observed as attackers by Ms Bock and Ms Galgoczy were the three Appellants, a conclusion which was consistent with the accounts of Ms Radakovic and Mr Elliot;

(c) it was open to the jury to have regard to what was done with the contents of Mr Psaroudis’ wallet, soon after the attack upon him, for the purpose of forming a view as to the role, knowledge and intent of the three Appellants in the attack upon Mr Psaroudis - Mr Rasic, Johnny Vella and Damien Vella all travelled to the MCA motorcycle shop at Liverpool, where Mr Rasic used the card to purchase substantial quantities of motorcycle equipment which were removed from the shop and taken to Mr Rasic’s home with the assistance of the other Appellants - the jury were entitled to have regard to these acts of the three Appellants to shed light upon the role and state of mind of the Appellants at the time of the attack upon Mr Psaroudis, and the role and state of mind of Johnny Vella and Damien Vella at the time of the credit card offences committed soon after at Liverpool.

88 It was clearly open to the jury to regard the accounts given in evidence by each Appellant concerning events at the Wallacia Hotel, as implausible. Plainly, the jury rejected the account of each Appellant that each sought to rescue Mr Psaroudis, rather than attack him. In light of the events recorded on CCTV camera, taken with the acts described by Mr Psaroudis, Ms Radakovic, Ms Bock and Ms Galgoczy, it was open to the jury to conclude that the three Appellants acted as robbers, and not rescuers.

89 To the extent that Mr Nicholson QC submitted that the evidence depicted Mr Waldron as an assailant, it should be observed that Mr Rasic and Damien Vella said that Mr Waldron did nothing wrong at the hotel (see [72] and [78] above). Despite this evidence, the jury may well have thought, from the CCTV footage, that Mr Waldron appeared to stand guard at the door inside the hotel after the three Appellants had followed Mr Psaroudis outside. The images depicted on the CCTV footage did not assist defence arguments concerning the alleged role of Mr Waldron.

90 Senior counsel for the Appellants stressed the evidence of Ms Bock and Ms Galgoczy that, some time after the attack, one of the assailants drove away in a Toyota Landcruiser. He submitted that this was Mr Waldron. The CCTV footage depicted Mr Waldron remaining in the hotel apparently standing guard, at a time when Mr Psaroudis was under attack. This posed a further difficulty for the defence argument that Mr Waldron was an assailant. The appropriate conclusion is that the jury may have accepted that Mr Waldron drove away in the Toyota Landcruiser, but that Ms Bock and Ms Galgoczy were mistaken in the view that this person was one of the assailants.

91 This Court must make its own assessment of the evidence. The assessment is of the cumulative effect of the evidence, and with due regard to the common experience of human affairs and common sense brought by the jury to their determination of guilt of innocence of each Appellant (see [30] above).

92 I am well satisfied that it was open to the jury to convict each of the Appellants on each of the counts under challenge in the present appeal. It is true that some aspects of the evidence involved conflicts and imperfections. But that is not uncommon in trials (see [27] above) and, in particular, where witnesses observe a sudden and violent incident involving a number of persons. Variations in the particulars of the accounts given by witnesses with respect to clothing, the number of persons involved and other secondary aspects, including the later movement of persons, are to be expected in such a case.

93 The jury had the advantage of seeing and hearing each of the Crown witnesses give evidence together with each of the Appellants. As explained above (at [86]), there were features of the Crown case against each Appellant which were, in my view, compelling. The accumulation of evidence rendered the Crown case a strong one. The evidence of each Appellant was implausible on critical issues. The jury were entitled to have regard to their common experience of human affairs and common sense in reaching verdicts with respect to each Appellant (see [30] above).

94 Having undertaken the assessment required by law, it has not been demonstrated that there is a significant possibility that an innocent person has been convicted in this case. To the contrary, in my view, there was a strong Crown case implicating each of the Appellants in the joint criminal enterprise of robbing Mr Psaroudis. There was a strong Crown case implicating Johnny Vella and Damien Vella in the criminal use of the American Express card by Mr Rasic, for the purpose of obtaining substantial and valuable motorcycle parts.

95 Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of each Appellant of the offences for which they were convicted after trial. It has not been demonstrated that any of the verdicts of the jury was unreasonable or cannot be supported by the evidence. The first ground of appeal ought be rejected with respect to each Appellant.

96 In these circumstances, the secondary assistance which each Appellant seeks to obtain from Ground 2 does not arise. The verdicts of the jury were reasonable and were supported by the evidence. The conduct of the Crown Prosecutor at trial, about which I express no criticism, did not lead to verdicts which were otherwise not open to the jury. Rather, the verdicts were a consequence of the jury accepting a strong Crown case with respect to each of the Appellants.

97 I propose the following orders:

(a) grant each Appellant leave to appeal against his convictions;

(b) dismiss the appeal of Simon Rasic;

(c) dismiss the appeal of Johnny Lee Vella;

(d) dismiss the appeal of Damien Charles Vella.

**********