Regina v Saltan

[2002] NSWCCA 423

CITATION:	REGINA v SALTAN [2002] NSWCCA 423
FILE NUMBER(S):	CCA 60453/01
HEARING DATE(S):	30 September 2002
JUDGMENT DATE:	30 September 2002
PARTIES :	Regina Ahmet Saltan
JUDGMENT OF:	Spigelman CJ at 1; Howie J at 35; Smart AJ at 36

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0983
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

COUNSEL :	A Martin - Appellant PJP Power - Crown
SOLICITORS:	Galloways - Appellant SE O'Connor - Crown
CATCHWORDS:	CRIMINAL LAW - Evidence - Unreliable evidence - directions by trial judge - use of word "accomplice" - whether desirable - Evidence Act 1995, s 165 - CRIMINAL LAW - unsafe and unsatisfactory verdict - where sworn evidence of alleged accomplices resiled from earlier statements inculpating accused.
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995
CASES CITED:	R v Stewart (2001) 52 NSWLR 301
DECISION:	Appeal dismissed.

60453/01

SPIGELMAN CJ
HOWIE J
SMART AJ

Monday 30 September 2002

REGINA v Ahmet SALTAN

Judgment

1 SPIGELMAN CJ: On 21 March 2001, the Appellant was convicted of one charge of larceny of a motor vehicle, contrary to s154A(1)(b) and s117 of the Crimes Act 1900 and of a second charge of robbery with corporal violence and wounding, contrary to s96 of the Crimes Act 1900.

2 On 25 November 1997, a robbery occurred at the “Cash in a Flash” pawnbrokers on Parramatta Road, Leichhardt. Three men were present in the shop during the course of the robbery, Christian Somba, Haykel Karaman and Manunu Treiblmayr. During the course of the robbery, there was a struggle between the two owners of the pawn broking business and the robbers. During the course of the struggle, Karaman wounded both owners with a knife. One owner received a large gash to the neck and the left side of his face which required 24 stitches. His brother received a cut to the head which required stitches.

3 During the course of the robbery, the Appellant remained in the stolen car near the shops. After the robbery Somba, Karaman and Treiblmayr returned to the car which drove off at considerable speed and through a red light. Subsequently, the car was abandoned. All four occupants caught a bus and were arrested on the bus.

4 The Crown case against the Appellant was that there had been a joint criminal enterprise amongst the four persons to rob the store at knifepoint and that each person had carried out the particular role assigned to him. The Crown case was that the Appellant was the instigator and organiser of the robbery and in fact suggested the place to be robbed and had given the knife to Karaman, who subsequently used it to wound the two owners. The Crown case was that the Appellant waited in the car while his three associates carried out the robbery, that he was seated in the driver’s seat and that it was he who drove the car away at considerable speed and through a red light. On the Crown case, the Appellant couldn’t enter the store because he was known to the owners.

5 The Appellant gave evidence at the trial. On the basis of his evidence, the defence case was that the Appellant’s presence was entirely innocent. He knew one of the three other persons and accepted a lift into the city. During the course of the trip, Treiblmayr mentioned that he had a watch that he was interested in selling. The Appellant said that he knew of the pawnbroker “Cash in a Flash” and that he had been there a few times to obtain loans for goods. Somba, Karaman and Treiblmayr went into the shop. A few moments later, however, they returned to the car in a state of some agitation, according to the Appellant’s evidence. His evidence was that he thought he saw some blood. He asserted that at all times he was in the back seat of the car and never drove the car. He said that after the car had been driven off he demanded to be let out and got out and walked towards a park. However, he then saw the other three again after he had almost reached a bus stop. At that point all four got on the same bus. He claimed that he was unaware at all times that the car was stolen. He said that he was not involved in the robbery.

6 Both Karaman and Treiblmayr made statements to the police, including records of interview, incriminating the Appellant. When they were called to give evidence, however, they failed to give evidence in accordance with the statements they had made. They both gave evidence exculpating the Appellant. Leave was sought and given to cross-examine them as hostile witnesses, pursuant to s38 of the Evidence Act 1995 and their original statements by way of record of interview were tendered in the proceedings.

7 The Crown relied on a number of surrounding circumstances, including the following:

· The Appellant’s admission that he knew of the store and had been there five or six times.

· The fact that he waited in the vehicle during the robbery, rather than introducing Treiblmayr to persons he knew.

· Evidence of an independent witness that he was sitting in the driver’s seat of the car when it was parked, contrary to his own evidence that he was at all times in the rear passenger seat.

· The presence of his fingerprint on the front passenger window, which was inconsistent with his evidence about his position in the car.

· The manner in which the car was driven after the robbery, both at speed and through a red light.

· The coincidence of his leaving the car, on his version because of some basis of suspicion as to what had transpired at the shop, and going in the same direction and boarding the same bus as the other three persons, who unquestionably participated in the robbery.

· The fact that Treiblmayr purchased all four of the bus tickets, including one for the Appellant.

· The fact that at the time of the arrest he was in the bus, sitting, making no attempt to distance himself from the other persons, despite the suspicions that had been aroused in him.

8 In the records of interview and other statements of Karaman and Treiblmayr, the Appellant was plainly incriminated as the driver of the car, either from the commencement of the journey at Strathfield, or at least from a petrol station at which the car stopped on the way to the shop. They had said that the robbery was the Appellant’s idea and that he supplied the knife used by Karaman. According to Karaman, at the time that he gave him the knife, the Appellant said: “Here, if anything happens just chop them”. The Appellant didn’t enter the premises, they said, because he knew the store owners. They also said that the Appellant was the getaway driver and it was he who abandoned the car and suggested the group get on the bus.

9 There are two grounds of appeal as follows:

“1. The trial judge erred in her direction on the evidence of persons who might be reasonably be supposed to be criminally involved in the offence under s165 of the Evidence Act .
2. The verdict of the jury should be set aside on the ground that it cannot be supported having regard to the evidence and that in all the circumstances there was a miscarriage of justice arising from the giving of the directions complained of or because the effect of the directions complained of was confusing.”

10 Two other grounds of appeal were abandoned.

11 Pursuant to the first ground of appeal, a number of specific aspects of the summing up were criticised. Particular weight was given to the frequency with which her Honour referred to Karaman and Treiblmayr as “accomplices”. Further, it was submitted, that the jury was in effect asked to choose between the statements provided by them and their sworn evidence.

12 The Appellant submitted that the only issue of substance in the trial was whether or not the Appellant was in fact an accomplice of the witnesses, who were admittedly involved in the crime, but who had said in their evidence, contradicting their earlier statements to the police, that the Appellant was not involved. It was submitted that whilst the terminology of “accomplice” directions was frequently used in the past, prior to such matters being subsumed within the general treatment of “unreliable evidence” in s165, it was no longer appropriate and, in fact, in the circumstance of this case, it was misleading to give directions using the terminology of “accomplice”.

13 The Appellant also directed attention to the fact that, although her Honour gave detailed directions with respect to the possible unreliability of the evidence of Karaman and Treiblmayr, she did not in fact refer to the evidence they gave as witnesses in the trial prior to being declared to be hostile and their prior statements being tendered. It was submitted that what was required in this case was a clear direction that what the witnesses said to police was at least as unreliable as what they had said in their sworn testimony.

14 Her Honour’s summing up must, of course, be assessed in the overall context of the trial. The issue that had emerged during the course of the trial was clearly before the jury. This Court does not have a transcript of the addresses, but there can be no doubt that the proposition that it was open to the jury to prefer the evidence given at the trial, must have been a central issue of the address given by the defence. Whether or not this proposition required any form of reinforcement in her Honour’s summing up, or whether in any pertinent respect the summing up was unfair or unbalanced, depends on an assessment of the whole of the summing up in the context of the trial.

15 I should say at the outset, I entirely agree that it is inappropriate to continue the use of the old terminology of the word “accomplice” when giving directions concerning unreliable evidence pursuant to s165 of the Evidence Act 1995. As Howie J said in R v Stewart (2001) 52 NSWLR 301:

“[125] The term “accomplice” is not used in s165(1). Section 165(1)(d) refers to a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”. Whether the witness falls into that category is initially a matter of fact to be determined by the trial judge, although a finding that there is no evidence that the witness falls into that category is a question of law …
[126] It may be preferable that a trial judge avoids using the word “accomplice” during his or her warnings to the jury. The use of that word may convey, inadvertently, that the trial judge believes that the witness is an accomplice of the accused and, therefore, that the trial judge has formed the view that the accused is guilty of the charge before the jury.”

16 I agreed with those observations at para [21].

17 In the course of her summing up, her Honour made the usual observations about the particular role of the jury as finders of facts. She said:

“You must not think that simply because I refer to bits of the evidence and not other bits that you should confine to attention to only the parts that I refer to. You must have regard to all of the evidence that you have before you in determining what facts are proved in the case.
…
I have no view about what facts are proved by the evidence. I will not be telling you any view I have. If you think I am hinting that I hold a view about what facts have been proved by the evidence you must put that out of your mind because it is not my role.”

18 After directing the jury as to the legal requirement of proving a joint criminal enterprise and briefly sketching the Crown case and the defence case in this regard, her Honour put a rhetorical question of how the Crown had to prove the existence of the agreement to rob the shop, in particular the terms of that agreement, relevantly extending to the use of a knife. Her Honour then said;

“The first way in which the Crown sets out to prove that is through the evidence of Mr Treiblmayr and Mr Karaman. You have heard the evidence that Mr Karaman had been interviewed by the police and had made statements to them and had given evidence in a sentencing hearing involving himself. The documents and the video tape of his interview are before you as exhibits. You have heard the evidence that he has given in this Court about his previous statements. In short he said that he had lied in those statements, that he was inaccurate that he cannot remember events and that he was threatened by the police and compelled to say the things which he said in his interview and his statements. He said that he was afraid and continued to be afraid up to the date on which he gave evidence in his sentence hearing. He also said that he was drug affected at the time that he was interviewed.
You have heard equally that Mr Treiblmayr has made previous statements to the police and participated in an interview with police and those documents and the audio tape of his interview are also before you as exhibits. Mr Treiblmayr said in this Court that he had lied to police in his statements about the involvement of the accused and had been told what to say in his record of interview. He said that he had been offered bail if he was to make a statement and he said that he was told that the accused had given him up and made up the involvement of the accused in the robbery.
What you make of their evidence is a matter for you and you would exercise the tools that I talked to you about in assessing their evidence in the same way as you assess any of the other witness's evidence. Nonetheless the Crown has put their statements and the recorded interviews before you as part of the material on which the Crown relies to prove its case against the accused on the first charge. That being the case there is a direction which I must give you concerning witnesses such as Mr Treiblmayr and Mr Karaman. It is a direction which is given in every case in which the Crown relies on what is said by an accomplice in order to establish the guilt of the accused. It is not given in this case because of any view I may have formed about their evidence. This direction is given in every case in which an accomplice is relied on by the Crown in proving the case against the accused. An accomplice is, of course, a person who has participated in the very crime which is alleged against the accused. The need to give this direction arises because the Courts have over the years accumulated experience concerning the reliability of accomplices and that experience would not readily be available to members of the general public such as yourselves.

The experience has shown that evidence given by accomplices is often unreliable. I do not intend to suggest that accomplice's evidence is always unreliable. My purpose in giving you these directions is only to warn you that witnesses such as accomplices and the evidence that they give may be unreliable and for that reason alone you must approach their evidence with considerable caution and scrutinise it with great care before you rely on it.

There is no doubt many reasons why the evidence of an accomplice may be unreliable. It is only natural, you might think, for an accomplice to want to shift blame from himself on to some others and to justify his own conduct. In the process the accomplice may construct untruthful stories which tend to play down his part in the crime and play up the parts of others in the crime, even to blame quite innocent people. This may be especially so in a case where a person's role in a crime has a bearing on sentence. Experience has shown that once having given a version to the police the accomplice may feel that he is locked into that version and is bound to give that same version subsequently. You will remember that Mr Karaman agreed that he had received a two year reduction on his sentence for his role in this crime on the basis of his agreeing to give evidence against the accused in this trial. You should take the fact that he got a reduction in his sentence into account together with the other matters that I have told you about in determining whether you can rely on what he has said to the police.

Counsel for the defence has pointed out a number of inconsistencies in the statements and the interviews of both Karaman and Treiblmayr. Those inconsistencies were the subject of extensive submissions that he put to you and I do not propose to repeat them. He has put to you that these inconsistencies would persuade you that you could not accept anything either of them said and that is a matter for you in your assessment of them as judges of the facts. You may think that when a witness has been offered an inducement such as a reduction in sentence in return for giving evidence against an accused person that person may, not necessarily will, I withdraw that, that inducement, the reduction in sentence may not necessarily will, constitute a reason to give false evidence or make a false statement. You will recall that Karaman said that part of the agreement which he reached with the authorities was to the effect that should he not give evidence in line with his statements then he could be re-sentenced.

You might think that the offer of a reduction in sentence may not necessarily would have caused him to make statements which draw on other people to gain a benefit for himself. That is a matter which you need to consider in the course of scrutinising his evidence.

As for Treiblmayr, you will recall his evidence that he made no deal to give - he said here he made no deal to give evidence and he was at pains to point this out to you. There is no suggestion that he received a reduction in his sentence in return for giving evidence against the accused. Nonetheless his statements contain an agreement that he would give evidence in line with his statements should he be required to do so. Even so although Treiblmayr did not have a reduced sentence he is still an accomplice, said to be an accomplice of the accused and you should approach his evidence in the same way and exercising the same caution that you will with the evidence of Karaman.

You should look at the whole of the evidence to see whether the versions that Karaman and Treiblmayr gave to the police in their various statements and interviews are supported by other evidence separate from them.” [Emphasis added]

19 I emphasise two particular passages. First, the passage in which her Honour says:

“An accomplice is of course a person who has participated in the very crime which is alleged against the accused.”

And also a passage in which her Honour corrects herself and says:

“Even so although Treiblmayr did not have a reduced sentence he is still an accomplice, said to be an accomplice of the accused and you should approach his evidence in the same way and exercise the same caution …”

20 Subsequently, the trial judge returned to the contents of the statements and reiterated that the jury had to be satisfied that the statements made to police were true. Her Honour then summarised the Crown case based on the surrounding circumstances, if the jury came to the view that it could not rely on the statements made by either Karaman or Treiblmayr to the police. She gave directions to the jury on the basis of the circumstantial case propounded by the Crown, in the alternative to reliance on the statements. In the course of these directions, her Honour said:

“I do not propose to go through every matter that is in dispute in the case, you will be well aware of them. They have been extensively covered in the careful submissions by both the Crown and the defence. You must first resolve any dispute about the evidence….
Once you have resolved the disputes on the evidence and arrived at a decision about the facts which you find proved by the evidence, you then consider whether or not you will draw the conclusion that the Crown urges you to draw. …
You decide what facts you accept and then looking at those facts as a whole you see what conclusions logically and rationally flow from those facts. I repeat, before you can convict the accused you must be satisfied beyond reasonable doubt not only that the conclusion that the accused was part of an agreement to rob the shop can be reasonably drawn from the facts but that it is the only reasonable conclusion that can be drawn. As I said to you it follows that if there is another possible conclusion to be drawn from the facts you find established which is consistent with the accused’s innocence then it is your duty to find him not guilty.

Counsel for the accused has addressed you on the evidence called by the Crown in detail and makes the submission to you that you could not draw from the evidence in this case a reasonable conclusion that the accused was part of any agreement to rob the shop.”

21 Her Honour went on to outline the specific matters relied upon by the Crown in its circumstantial case. No complaint was made of this part of the summing up. An alternative circumstantial case was left to the jury, even on the basis of setting aside the evidence of Karaman and Treiblmayr.

22 Her Honour went on to refer to the second charge relating to the stealing of the car. In this context, her Honour said:

“You will remember what I said to you about Treiblmayr and his evidence and the evidence of accomplices. You must scrutinise his evidence in relation to this charge W ith the same care that I have urged you to scrutinise his evidence in relation to the other charge. And scrutinise his evidence bearing in mind the warnings that I gave you about the evidence of accomplices before you decide whether or not you can rely on what he said in the statement whether you can rely on that. If you come to the view that what he said in his statement about the accused being told that the car was stolen was truthful then you may rely on that evidence in coming to a conclusion whether the Crown has proved that the accused drove the car knowing it was stolen. If you find you cannot rely on him and that he had not given a truthful version then you would put that out of your minds.

I have not repeated the warnings and directions I gave you about accomplices in relation to this second piece of evidence but you will understand that Treiblmayr is an alleged accomplice of the accused and all of the warnings, the matters that I put to you about his evidence and the evidence of Mr Karaman apply to this part of his evidence on which the Crown relies to prove this third charge.”

23 This passage reiterated the warning she had given about the unreliability of the evidence, including the use of the word accomplices. However, I will emphasise in this passage the following part:

“… you will understand that Treiblmayr is an alleged accomplice of the accused.”

24 Her Honour then set out the evidence of the circumstantial character upon which the Crown relied in the alternative. Again, no complaint is made about her Honour’s directions in this regard. Her Honour also outlined the submissions of counsel for the defence and summarised the evidence of the accused.

25 The submissions in this Court, as I have indicated, focus on the frequency of the use of the word “accomplice” and on the proposition that the jury was in effect asked to choose between the statement provided by the accused and their sworn evidence.

26 No application was made to the trial judge to correct any pertinent part of her Honour’s summing up, or to elaborate in any way. Rule 4 applies. I would refuse leave. Even if leave had been granted the appeal should be dismissed. Her Honour did use the word “accomplice” a number of times and as I have indicated above it is undesirable for that terminology to continue to be used in the context of giving directions under s165. However, that did not constitute, in these circumstances, any kind of miscarriage of justice.

27 Her Honour in fact provided a definition of “accomplice” to the jury and it was in these terms:

“A person who was participated in the very crime which is alleged against the accused.”

28 On two other occasions she made reference to the terminology, indicating clearly that she was not expressing a conclusion that either Karaman or Treiblmayr were accomplices of the Appellant. On one occasion she referred to Treiblmayr and corrected herself. After saying “he is still not an accomplice” she then said “said to be an accomplice of the accused”. On another occasion she expressly said that Treiblmayr was an “alleged accomplice”. I do not think that the jury would have been misled by her Honour’s references to the word “accomplice”.

29 These three references make it clear, as I believe the jury would plainly have understood that the critical issue was whether the Appellant was involved or not. Considered overall, the many other references to the word “accomplice” do not suggest, in my opinion, in the whole of the circumstances, that her Honour was making no assumption in this regard. I do not believe there is any prospect the jury was misled or confused. Nor, in the light of the detailed summing up that her Honour made was the proposition left on the basis that the jury had to choose between two pieces of evidence, namely, the statements that were tendered and the evidence given in chief in the proceedings. In looking at the summing up as a whole, it was quite clear that the jury was directed to come to a conclusion as to what it believed was the true situation, bearing in mind the whole of the evidence in the case.

30 The first ground of appeal relied on should be dismissed.

31 The second ground of appeal was the unsafe and unsatisfactory ground, although that terminology wasn’t used.

32 The process by which Karaman and Treiblmayr gave their evidence, were declared hostile witnesses, were cross-examined and the directions of the trial judge with respect to their evidence was a typical example of this kind of incident, where persons who participated in a crime seek to resile from statements they originally made. I can see no error that occurred at any stage of this process. The actual errors that have been suggested to this Court are in a very narrow compass. There was, of course, a proper basis for attacking, by way of submission, the Crown’s reliance on the original statements and that was done at trial. Resolving such issues is quintessentially a matter for the jury. I reject the Appellant’s submission that the statements were entitled to “minimal weight” in the light of the subsequent denials. If, as was clearly the case, the denials were rejected by the jury, the statements were entitled to substantial weight.

33 In any event, the circumstantial evidence relied on by the Crown reinforces the case and may have been of itself enough to convict. There was independent evidence open to be accepted that the Appellant was sitting in the driver’s seat of the car during the robbery. The car drove off at high speed and through a red light, confirming the participation of the Appellant in the robbery. The Appellant was apprehended on a bus seated next to two of the participants, one of whom had bought all the tickets. It was open to the jury to infer that the Appellant had fled with the others, contrary to his evidence that he had sensed something wrong had occurred and was trying to distance himself from the others.

34 I can see no miscarriage of justice. The case against the Appellant was a strong one and there is nothing unsafe or unsatisfactory about the verdict. In my opinion, the appeal should be dismissed.

35 HOWIE J: I agree.

36 SMART AJ: I also agree.

37 SPIGELMAN CJ: The order of the Court is that the appeal is dismissed.

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