Regina v Attalah

[2004] NSWCCA 318

CITATION:	Regina v Attalah [2004] NSWCCA 318
HEARING DATE(S):	16 August 2004
JUDGMENT DATE:	20 September 2004
JUDGMENT OF:	Handley JA at 1; James J at 24; Howie J at 25
DECISION:	1. Appeal allowed.; 2. Convictions quashed.; 3. The appellant has already served the non-parole portion of his sentence and a new trial should not be ordered. ; 4. Judgments of acquittal should be entered.
CATCHWORDS:	CRIMINAL EVIDENCE - evidence given for the Crown by co-offender - co-offender had pleaded guilty - given bond conditioned on giving evidence for the Crown against accused - jury to be told of risk faced by witness if his evidence unfavourable to Crown
LEGISLATION CITED:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	R v Stewart (2001) 52 NSWLR 301
PARTIES :	Regina (Crown) George Attalah (Appellant)
FILE NUMBER(S):	CCA 2004/1732
COUNSEL:	B Knox SC (Crown) L Flannery (Appellant)
SOLICITORS:	C K Smith (Crown) S O'Connor (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/1084
LOWER COURT JUDICIAL OFFICER :	Stewart ADCJ

CCA 2004/1732

HANDLEY JA
JAMES J
HOWIE J

20 SEPTEMBER 2004

REGINA v GEORGE ATTALAH

CATCHWORDS

CRIMINAL EVIDENCE – evidence given for the Crown by co-offender – co-offender had pleaded guilty – given bond conditioned on giving evidence for the Crown against accused – jury to be told of risk faced by witness if his evidence unfavourable to Crown

FACTS

The appellant was charged with armed robbery in company contrary to s 97(2) of the Crimes Act 1900. The Crown case depended on the evidence of a witness who had participated in the robberies. He pleaded guilty and agreed to give evidence for the Crown to obtain a more lenient sentence. As a result he had been given a bond conditioned upon giving evidence for the Crown. The trial Judge gave the jury directions pursuant to s 165(2) of the Evidence Act 1995 warning them that the evidence of the witness may be unreliable but he did not tell the jury that the witness was at risk of having the bond cancelled and being sent to prison if he did not give evidence for the prosecution. Counsel for the appellant unsuccessfully sought a further direction in accordance with R v Stewart (2001) 52 NSWLR 301. The appellant was convicted and sentenced to imprisonment. He had served the non-parole period. On appeal against conviction HELD: (1) The jury could not be expected to understand the effect of the bond and the Judge should have told them about the risk that the witness faced if he failed to comply with his bond and give evidence for the Crown; (2) The Judge should have given a further direction in accordance with R v Stewart (2001) 52 NSWLR 301; (3) The appeal should be allowed and the conviction quashed. Since the appellant had already served the non-parole part of his sentence a verdict of acquittal would be entered.

ORDERS

1. Appeal allowed.

2. Convictions quashed.

3. The appellant has already served the non-parole portion of his sentence and a new trial should not be ordered.

4. Judgments of acquittal should be entered.

CCA 2004/1732

HANDLEY JA
JAMES J
HOWIE J

20 SEPTEMBER 2004

REGINA v GEORGE ATTALAH

Judgment

1 HANDLEY JA: The appellant was jointly arraigned with Anthony Nasr before Stewart ADCJ and a jury on 28 April 2003 on two charges of aggravated armed robbery in company contrary to s 97(2) of the Crimes Act 1900 (Counts 2 and 3). Mr Nasr was also arraigned on a further charge of armed robbery (Count 1). Both accused pleaded not guilty but were convicted on the joint charges. Mr Nasr was acquitted on the first count. The appellant was sentenced to a term of imprisonment of 15 months with a non-parole period of 3 months. By the time he was sentenced he had already spent 3 months in custody since his conviction and he was released on parole.

2 The Crown’s case was that on the evening of 25 August 2001 five young men, including the appellant, were in a car intending to go fishing. In the course of the journey someone suggested that they should commit some robberies. All agreed and they embarked on their joint criminal enterprise.

3 A lone pedestrian was robbed at Balgowlah and this was the subject of the first count. The second robbery, which also involved a lone pedestrian, occurred in Rangers Road, Neutral Bay about three-quarters of an hour later. The appellant was in the driver’s seat of the car while the other four committed the robbery. After they had returned to the vehicle the appellant drove up to Military Road. The group noticed some people sitting on a bench in a park opposite McDonald’s restaurant on Military Road, Cremorne. The appellant parked the car nearby and waited while the other four committed the third robbery. After they had returned someone else drove the car away. Shortly afterwards it was stopped by police and the five occupants were arrested.

4 The Crown case depended on the evidence of Mr Youssef who was one of the five persons in the car. The appellant was also in the car when it was stopped and this was proved by the arresting police officers. The Crown conceded that the appellant’s presence in the car with the others, without more, could not establish his involvement in this joint criminal enterprise and the trial Judge directed the jury to that effect.

5 The five, including Mr Youssef, were charged with various offences connected with the robberies. Mr Youssef pleaded guilty and was sentenced in the Children’s Court to imprisonment for 12 months. He lodged a severity appeal to the District Court and as a result of discussions between his legal representatives and the police he agreed to become a witness for the Crown against the appellant and Mr Nasr. As a result his appeal was allowed, and he was given a bond conditioned upon him giving evidence in the pending proceedings against the accused.

6 On the start of the trial the Crown prosecutor alerted the trial Judge to the fact that Mr Youssef had told him that he did not wish to give evidence. The Judge held a voir dire hearing before evidence was called and indicated that he was minded to give the Crown leave to cross-examine Mr Youssef under s 38 of the Evidence Act 1995 if he proved unwilling to give the evidence he had given at committal.

7 The trial then began and Mr Youssef was called in the presence of the jury. After a brief examination in chief the Crown prosecutor was granted leave under s 38 to cross-examine. In the end Mr Youssef gave the bulk of the evidence he had given at committal and said it was the truth. He also agreed that he had told lies to the police after he was arrested.

8 The appellant declined to participate in an electronically recorded interview and neither he nor Mr Nasr gave evidence at the trial.

9 The defence case involved an attack on the evidence of Mr Youssef. He was cross-examined about the lies he told the police when he was first interviewed and his agreement to give evidence against the accused to keep himself out of prison.

10 In his final address to the jury the Crown prosecutor said (T 232) with reference to Mr Youssef:

“He was given a more lenient treatment because he did an extraordinary thing and that is agree to give evidence against his, the Crown says, his co-offenders. If he didn’t do that, if he didn’t co-operate at all and said nothing in the witness box you can be sure that on behalf of the community the Crown would say ‘well you haven’t lived up to your undertaking, you knew what your undertaking involved therefore you must be content to go back to Court and run the risk of being sent to prison as you were in the first place’. It is very important … you must understand that he wasn’t just here because he felt like being a good fellow necessarily but he was also here looking after himself to some extent. He had to comply with his obligations but that does not mean that what he said was untrue.”

11 Counsel for the appellant asked the Judge for directions in accordance with s 165(2) of the Evidence Act. This provides so far as relevant:

“(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
…
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,
…
(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable,
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.”

12 The Judge told the jury that the Crown case largely relied on the evidence of Mr Youssef and that the Crown prosecutor had asked what he had to gain by fudging the truth or telling lies (s/up 3). He reminded them that Mr Youssef had been dealt with leniently on appeal and been placed on a bond to be of good behaviour on the condition that he gave evidence at the trial of the accused (s/up 4).

13 They had to consider the honesty and reliability of Mr Youssef, and in this context they could ask themselves whether in giving his evidence he was trying to protect himself (s/up 13). The Judge said that the law provided that a Judge must warn a jury that some evidence may be unreliable. One of the categories where this should be done was evidence given in criminal proceedings by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. He said that Mr Youssef fitted into that category almost precisely (s/up 21).

14 The Judge warned the jury that Mr Youssef’s evidence may be unreliable and he warned them of the need for caution in determining whether to accept his evidence and the weight that should be given to it. He told them that such evidence may be unreliable because such witnesses may try to exculpate themselves or minimise their role by fabricating or exaggerating the role of others. They may also act out of motives of revenge or hostility to the accused. He invited the jury to consider whether Mr Youssef tried to minimise his part (s/up 21).

15 The Judge told the jury that Mr Youssef did seek an advantage by telling the police through his lawyers that he would give evidence for the Crown and he was placed on a bond and did not go to gaol. He concluded by again warning the jury of the need for caution in accepting his evidence and the weight to be given to it.

16 After the jury had withdrawn to consider their verdict counsel for the appellant sought a further direction under s 165 on the ground that his Honour’s directions did not go far enough. He relied in particular on the decision in R v Stewart which is now reported: (2001) 52 NSWLR 301, and a copy of the unreported judgment was handed to his Honour. Counsel submitted that the evidence had not revealed what Mr Youssef understood about the potential situation he faced if he did not give evidence but he was likely to be at risk of losing the benefit he had gained by promising to assist the Crown (T 26). He submitted that his Honour’s warning was “the bare bones” and he had not told the jury that the Courts have special knowledge that juries do not have about the unreliability of such witnesses (T 28). His submissions were adopted by counsel for the co-accused (T 30). However the Crown prosecutor submitted that the Judge had fully complied with s 165(2) and the Judge accepted this submission (T 32).

17 Unfortunately his Honour had not given the jury a direction of the type that the majority in R v Stewart (above) had considered was necessary in a case such as the present.

18 Spigelman CJ held that the matters that may cause the evidence of a person in the position of Mr Youssef to be unreliable within s 165(2)(b) included the fact that the benefit in sentence which such a person had obtained “was at risk” (p 306). He continued (306):

“His Honour did inform the jury that Mr Braddick's undertaking to give evidence in the trial of the appellant was taken into account on sentence. There was no reference, however, to the fact that Mr Braddick could lose the benefit of that reduction in sentence if he failed to give evidence of the character that he did eventually give. This is not a matter which would necessarily be known to the jury. In my opinion it constituted a failure to satisfy the requirements of s 165(2)(b).”

19 Hulme J said (309-10) that the trial Judge’s summing up was sufficient to inform the jury that Braddick was likely to have derived some benefit in, or discount from, his sentence in consequence of the prospect of his giving evidence. He continued (310):

“However, his Honour made no reference to the risk that the benefit or discount was liable to be lost. And this was important. It is one thing for a jury to think that a witness may have derived a benefit for promising to give evidence. It is quite another, and more important, for the jury to know also that if the evidence given is not to particular effect, a sentence on the witness is liable to be increased.”

20 This jury were told that Mr Youssef had been given a bond containing a condition that he give evidence for the Crown against the accused but they were not told what could happen if he failed to comply with this condition and they could not be expected to have that knowledge. The Crown prosecutor had told the jury this in his closing address but this did not absolve the Judge from his duty to comply with s 165(2)(b). Moreover the Judge had actually undermined the remarks of the Crown prosecutor by reminding the jury that the Crown prosecutor had also asked them to consider what Mr Youssef had to gain by fudging the truth or telling lies (s/up 3).

21 The Judge failed therefore to perform his duty under s 165(2)(b) to tell the jury about an important matter that might cause Mr Youssef’s evidence to be unreliable. He was specifically asked to give a re-direction in accordance with the majority view in R v Stewart and declined to do so. The Crown case against this accused depended on the jury accepting the evidence of Mr Youssef and they did not receive a direction required by law which would have alerted them to a matter they were bound to consider.

22 The jury did not accept the evidence of Mr Youssef as sufficient to convict Mr Nasr on the first count and the absence of a proper direction under s 165(2)(b) may have made a difference on the other counts. In these circumstances this Court is not entitled to apply the proviso to s 6(1) of the Criminal Appeal Act 1912. There was a miscarriage of justice because the errors in the summing up caused the appellant to lose a chance of acquittal which was fairly open to him.

23 In my judgment therefore the appeal succeeds and the convictions must be quashed. The appellant has already served the non-parole portion of his sentence and a new trial should not be ordered. Judgments of acquittal should be entered.

24 JAMES J: I agree with Handley JA.

25 HOWIE J: I agree with Handley JA.

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Last Modified: 09/24/2004