Regina v T Ibrahim

[2001] NSWCCA 72

CITATION:	Regina v T Ibrahim [2001] NSWCCA 72
FILE NUMBER(S):	CCA 60096/00
HEARING DATE(S):	14/02/2001
JUDGMENT DATE:	27 March 2001
PARTIES :	Regina Taarruz Ibrahim
JUDGMENT OF:	Priestley JA at 1; Kirby J at 2; Howie J at 44

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/2153
LOWER COURT JUDICIAL OFFICER :	Payne DCJ

COUNSEL :	P Hock (Crown) J S Andrews (Appl)
SOLICITORS:	S E O'Connor (Crown) D J Humphreys (Appl)
CATCHWORDS:	CRIMINAL PRACTICE & PROCEDURE - Joint enterprise involving several counts - Effect of acquittal on some counts - Appropriate direction - Admissibility of evidence relating to counts in respect of which acquitted
LEGISLATION CITED:	Crimes Act, 1900
CASES CITED:	R v Birks (1990) 19 NSWLR 677 Garrett v The Queen (1977) 139 CLR 437 The Queen v Storey (1987) 140 CLR 364 Gilbert v The Queen [2000] HCA 15 R v Brogacki (1973) 1 QB 832
DECISION:	Appeal allowed; Convictions set aside; New trial ordered in respect of Counts 1 and 2.

IN THE COURT OF

CRIMINAL APPEAL

60096/00


PRIESLEY JA
KIRBY J

HOWIE J

Wednesday 27 March 2001

REGINA v Taarruz IBRAHIM

JUDGMENT

1   PRIESTLEY JA: I agree with Kirby J.

CRIMINAL APPEAL

60096/00


PRIESLEY JA
KIRBY J

HOWIE J

Wednesday 27 March 2001

REGINA v Taarruz IBRAHIM

JUDGMENT

2   KIRBY J: Mr Taarruz Ibrahim (the appellant) was charged with a number of offences said to have occurred on 11 March 1998 The indictment (incorporating certain amendments) was in these terms:

Count 1
For that he on 11 March 1998, at Liverpool, in the State of New South Wales, did steal a 1978 Toyota Corona sedan Registration No JTW.373 the property of Manual Leon. (s154A(1)(a) Crimes Act, 1900)
Count 2

Further that he on 11 March 1998, at Fairfield, in the State of New South Wales, did rob Antonietta Lopresto of one purse, a set of keys, a pair of reading glasses, personal papers, and $1.00 in money, the property of Antonietta Lopresto. (s94 Crimes Act, 1900)

Count 3
Further that he on 11 March 1998, at Canley Vale, in the State of New South Wales, did rob Danica Saponja of a handbag, a purse, 2 rings, and a sum of cash the property of Danica Saponja, and immediately after the robbery did use corporal violence on her. (s95 Crimes Act, 1900)
Count 4
Further that he on 11 March 1998, at Liverpool, in the State of New South Wales, did rob Ivette Ankabibian of a handbag containing personal papers and a sum of cash the property of Ivette Ankabibian. (s94 Crimes Act, 1900)

3   The trial proceeded before Payne DCJ and a Jury. Her Honour directed a verdict of “not guilty” in respect of counts 3 and 4. The trial thereafter continued in respect of counts 1 and 2. The Jury ultimately returned a verdict of “guilty” in respect of each of the remaining counts. Mr Ibrahim appeals against each conviction.

4   The grounds of appeal are as follows:

1. There was a miscarriage of justice because trial Counsel failed to seek a discharge of the jury after verdicts by direction were given in relation to two of the four counts in the indictment.
2. The verdicts of the Jury are unreasonable and cannot be supported by the evidence.

Crown Case

5   It was the Crown case that Mr Ibrahim and an unidentified companion carried out a series of robberies within the space of approximately half an hour, using a stolen vehicle as the means of escape. The companion was alleged to have snatched bags from women at various shopping centres, and then entered a motor vehicle driven by Mr Ibrahim.

6   The first robbery (Count 2) was said to have taken place at Fairfield at approximately midday. Ms Lopresto said that she was walking along Barbara Street, Fairfield, when she heard the sound of a car breaking sharply. Shortly thereafter someone tugged at her bag from behind. A struggle took place in which she was pushed to the ground. She did not get a clear view of her assailant, who escaped by car with her bag.

7   Two men came to her aid. They each took the number of the vehicle (JTW.373). They were able to provide a description of the person who took the bag. They each had an imperfect view of the driver, although he appeared somewhat chubby. It was common ground that Mr Ibrahim, at the time, was thin rather than chubby.

8   The next incident (the subject of Count 3), was described by a witness, Ms Danica Saponja. She said that, at about midday, she was in Derby Street, Canley Vale. She was carrying a bag over her left shoulder. She noticed a car approaching. She saw two people in the car. One of the occupants came up to her and snatched her bag. As she struggled to keep hold of the bag she was struck on the nose. She then released her bag and saw the man enter the vehicle through the open passenger door. The vehicle drove off. She was able to describe her assailant. Her description coincided with the descriptions provided by the witnesses at Fairfield.

9   Ms Ivette Ankabibian gave evidence in relation to Count 4. She said that, shortly after midday on 11 March 1998, she was walking down Scott Street, Liverpool. She also was approached by a man who tugged at her handbag. The strap of the handbag gave way. The man thereafter ran to a vehicle which was nearby. He entered through the front passenger’s door. She heard the driver say, “Come on”, and her assailant say, “Go”. The vehicle sped off.

10   A short time later two police officers, patrolling George Street, Liverpool, noticed a Toyota Corona vehicle, registered number JTW.373. It was the same vehicle that had been seen earlier at Fairfield. The vehicle was being driven erratically. It passed through a red light on the incorrect side of the road. The police therefore gave chase. They activated their siren, but the vehicle failed to stop. Indeed, it accelerated and was driven in the same erratic manner. It was seen to pass onto the incorrect side of the road a further four or five times. Ultimately its path was blocked by other stationery vehicles. Two men were seen to leave the vehicle. A person, whose description conformed to that of the assailant involved in the various incidents, was seen to leave the vehicle on the passenger’s side. He ran off, pursued by Const Stevens.

11   Senior Const Rowe saw Mr Ibrahim in the driver’s seat. He saw him slide across to the passenger’s side, and then exit the vehicle. According to his testimony, Mr Ibrahim ran a short distance before being stopped and arrested. Once stopped, he was cautioned by Snr Const Rowe, whereupon the following conversation took place: (T41)

ROWE: “Who owns the vehicle?”
ACCUSED: “I don’t know. I was just getting a lift.”
ROWE: “But you were driving the car.”
ACCUSED: “I was a passenger.”

12   Mr Ibrahim acknowledged the accuracy of this evidence. He also acknowledged that he had lied, and that he was the driver. When he gave evidence, which I will come to shortly, he said that, being aware of the way in which the vehicle had been driven, he was frightened.

13   The vehicle was searched. Within the vehicle was the handbag of Ms Saponja (Count 3), and that of Ms Ankabibian (Count 4), the latter being the bag with the broken strap.

14   It was common ground that the journey between Barbara Street, Fairfield (Count 2), and the point of arrest (just beyond the location of Count 4), would take 25 to 35 minutes. Mr Ibrahim was arrested at approximately 12.20 pm.

The Case for the Accused

15   As mentioned, Mr Ibrahim gave evidence. He said that he left his home in Kingsgrove at about 10.30 am on 11 March 1998. He intended to visit a friend at Mt Pritchard. He caught the train to Cabramatta, intending to walk several kilometres to his friend’s home. However, some distance from the station, as he walked up Hill Street, Cabramatta, he noticed a parked vehicle. He said this: (T.77)

“When I was crossing the road three quarters of the way up Hill Street I noticed a dark man in a Toyota, you know I was staring at him and I recognised him, so I approached him, I asked him if is name was Ben. He said ‘That’s right’. I told him he didn’t look too healthy, I asked him if he wants me to call him a taxi, I advised him not to drive …”

16   He had not seen his friend Ben for about eight years. He knew him from a hotel where they each used to drink. He said that his friend appeared to be affected by drugs. They spoke, and he ascertained that his friend was going to Liverpool. Mr Ibrahim therefore offered to drive. There was nothing in the vehicle to alert him to the fact that it had been stolen. There was a key in the ignition.

17   As they were driving towards Liverpool, his friend directed him to pull over at a Hot Bread Shop. He did so. Soon thereafter he heard a woman screaming. His friend jumped back into the car holding a woman’s handbag. Mr Ibrahim asked his friend why he did not return the bag. His friend then punched him on the chin. He was directed to start the engine. He said he did so because he was scared. He thereafter drove, although his friend took hold of the steering wheel, and placed his leg on the driver’s side so that his foot rested on top of Mr Ibrahim’s right foot, which was then on the accelerator. They drove in this fashion for some time.

18   Mr Ibrahim said that he protested because it was dangerous. He was told to shut up or he would be head butted. Soon thereafter the police began following the vehicle, and he was ultimately arrested. Mr Ibrahim said that he had first entered the vehicle about twenty minutes before his arrest.

The Course of the Trial

19   At the end of the Crown case, an application was made by Counsel for Mr Ibrahim for a verdict in respect of Count 4. The application was successful. Her Honour directed the Jury to return a verdict of “Not Guilty” on Count 4. The trial then continued, and the accused gave evidence. At the conclusion of his evidence, there was a discussion concerning the remaining counts. The transcript contains the following summary of that discussion: (p1, 25.10.99)

IN THE ABSENCE OF THE JURY
(Her Honour enquired of Mr O’Mullane and Crown - Where is the evidence that shows part of joint enterprise on behalf of accused and driver to use whatever means necessary including a punching to obtain the bag. Discussion ensued.)
HER HONOUR: “In my view there should be a verdict by direction of acquittal on that count.”

20   The transcript is obviously incomplete. The discussion relates to Count 3. There is no reference to the Crown having made an application to amend the indictment to remove the reference to their having been corporal violence. Her Honour directed a verdict on Count 3. Counts 1 and 2 remained. Counsel for Mr Ibrahim then sought a discharge of the Jury. That issue was debated, and part way through the debate Counsel withdrew his application. The Crown, in these circumstances, made its own application for a discharge. The transcript is an abbreviated record of what took place, and is in these terms:

(Mr Crown made an application having regard to her Honour’s orders in relation to verdicts by direction for counts 3 and 4 to have jury discharged, as they have heard so much material that is not relevant on basis of fairness to the accused.)
SHORT ADJOURNMENT
(Mr O’Mullane indicates that he wished to proceed with trial. He submits that if there were a retrial the Crown would be able to rely on all the evidence that has been presented in this trial, part of surrounding circumstances. The accused wishes to continue with the jury. Further discussion ensued.)

21   Her Honour then made the following statement: (p2 25.10.99)

“What I think I will do Mr Crown is, the jury will come back and they will be given the direction about count three and then I think I will say to them something to the effect that accordingly they should put any of the evidence in connection with counts 3 and 4 including the property found in the car completely out of their minds.”

22   The Crown opposed that course. It was the Crown case that a series of robberies had occurred, commencing at Fairfield and culminating at Liverpool. The Crown relied upon each. Counsel for Mr Ibrahim was invited to comment. He said this:

“I have to confess your Honour I believe the Crown can rely on that evidence because it’s part of the surrounding circumstances, and in all fairness I don’t think I could argue against it.”

23   A further discussion then took place. The transcript records the following:

“ HER HONOUR: ‘Can I just have this noted for the record, you’re still not asking for a discharge of the jury.’
O’MULLANE: ‘Yes we’re content to proceed your Honour.’
(Crown renews application for discharge of Jury.)”

Ground 1: The failure to seek a discharge.

24   The first ground of appeal concerns the failure of Counsel to seek a discharge of the Jury after the directed verdicts in respect of Counts 3 and 4.

25   The argument of the appellant was that the evidence in respect of Counts 3 and 4 was highly prejudicial to Mr Ibrahim. Such evidence would be inadmissible at a new trial. Therefore, it would obviously be to the advantage of Mr Ibrahim were the issues arising under Counts 1 and 2 heard by a Jury which had not been contaminated by such prejudicial material. Hence, Counsel ought to have persisted in his application for a discharge of the Jury. A miscarriage of justice has occurred, on the appellant’s argument, through Counsel’s failure to do so (R v Birks (1990) 19 NSWLR 677 at 685).

26   There are a number of difficulties with that argument. First, I do not believe that the course taken by the accused was the consequence of inexpert legal advice. Rather, it appears to have been the consequence of a forensic choice. Counsel had been successful in persuading her Honour that she should direct a verdict of not guilty in respect of Counts 3 and 4. Whilst I do not entirely understand the basis upon which such rulings were made, nonetheless, the tide appeared to be running in Mr Ibrahim’s favour. It is only with hindsight, the Jury having delivered its verdict, that one can postulate so confidently that the course taken was to Mr Ibrahim’s disadvantage.

27   Secondly, the cornerstone of the appellant’s argument is that the evidence in respect of Counts 3 and 4 (in respect of which her Honour had directed verdicts) would obviously be inadmissible in a new trial. Whether that evidence, or aspects of that evidence, was inadmissible, admits no easy answer (cf Garrett v The Queen (1977) 139 CLR 437, esp Barwick CJ at 444-445; The Queen v Storey (1978) 140 CLR 364). The issue of admissibility was complicated by the introduction by the accused of an explanation which involved the Liverpool robberies (Count 4), which had occurred a short time before his arrest. That explanation was given shortly after her Honour had directed a verdict in respect of that count. The Crown asserted, before her Honour (when the issue of a discharge was debated), that evidence in respect of the Canley Vale and Liverpool robberies (Counts 3 and 4) would be admissible in a new trial. Counsel then appearing for Mr Ibrahim shared that view. Counsel for the Crown on this appeal urged the same view. The appellant submitted that the evidence was inadmissible. Whilst I am prepared to assume that the evidence in respect of Count 3 would probably be rejected at a new trial (whether because it is inadmissible, or as a matter of discretion), it cannot be said that the forensic choice made by Mr Ibrahim’s counsel, and his view of admissibility, were so obviously wrong as to bring about a miscarriage of justice. In my view, the circumstances were not such as to meet the criteria identified by Gleeson CJ in R v Birks (supra) at 685.

The Direction in Respect of Counts 3 and 4

28   Having directed the jury to return verdicts of not guilty in respect of Counts 3 and 4, her Honour made the following statement to the jury: (T.3, 25.10.99)

“Now ladies and gentlemen of the jury as we proceed it’s very important that you bear in mind that the trial is proceeding only in relations to count one and count two in the indictment and that you put any of the evidence in relation to counts three and four in the indictment out of your minds. The accused has been acquitted of those two robberies and I don’t think it was ever in dispute that the robberies took place. The dispute was whether this accused was the driver of the vehicle in any event. He has been acquitted of those and you should put the evidence in connection with them completely out of your minds and focus only on counts one and two.”

29   Subsequently, in the course of her summing up, her Honour repeated that direction. She said this: (S/U.2, 25.10.99)

“He has been acquitted by direction in relation to counts 3 and 4 and accordingly you must put the evidence of Miss Danica Saponja and Miss Ankabibian completely out of your minds.”

30   That direction in respect of Count 3 may be unexceptional. However, I do not believe, with respect, that her Honour’s direction to ignore the evidence of Mrs Ankabibian (the complainant in respect of Count 4) was adequate to meet the complex situation that then arose. The accused’s case presupposed the robbery at Liverpool. Mrs Ankabibian furnished corroboration of aspects of his account. The robbery had been perpetrated by someone other than the accused. It had taken place at the location described by Mr Ibrahim. The handbag later found in the vehicle was that of Mrs Ankabibian.

31   On the other hand, aspects of Mrs Ankabibian’s evidence were starkly at odds with that given by Mr Ibrahim. Whereas Mrs Ankabibian said that the vehicle was close by, door open, engine running, Mr Ibrahim said the engine was switched off. It was only switched on after an altercation between Mr Ibrahim and the passenger. Mr Ibrahim demanded that the robber return the bag, whereupon the passenger hit him and threatened him.

32   Mrs Ankabibian also gave evidence that the driver said, “Come on”, because the lights were about to change. Once the passenger was safely inside the vehicle he said, according to the complainant, “Go”, whereupon the vehicle sped off. In cross examination, it was put to Mrs Ankabibian that she was mistaken, and that these words were not said. She was insistent, however, that they were said. She was one hundred percent sure.

33   Notwithstanding the theory that juries follow a Judge’s directions (McHugh J in Gilbert v The Queen [2000] HCA 15 at para 31), I believe it was inevitable that the jury would have had regard to the account given by Mrs Ankabibian when evaluating Mr Ibrahim’s evidence. Indeed, as mentioned, in some respects, from his viewpoint, it was important that they do so. Moreover, having been acquitted of the robbery at Liverpool, the accused was entitled to “the full benefit of that finding” (Jacobs J in The Queen v Storey (supra) at 408). He was to be taken as “entirely innocent of the offence” (Gibbs J in The Queen v Storey (supra) at 387). It was, therefore, necessary to state with some care the implications of the acquittal in respect of the issues which remained for the jury to address. I believe, therefore, that there was error, such that (subject to Ground 2) there must be a new trial.

The Verdict was Unreasonable.

34   It is convenient to restate Ground 2, which was in these terms:

“2. The verdicts of the Jury are unreasonable and cannot be supported by the evidence.”

35 In respect of the first count, the larceny of the motor vehicle, the Crown proved that the vehicle was owned by Mr Manual Leon. On 11 March 1998, Mr Leon parked the vehicle at the Fairfield Railway Station at 4.30 a.m. He gave no-one permission to take the vehicle. The arrest of Mr Ibrahim occurred shortly after midday the same day. The vehicle, therefore, at the time it was in Mr Ibrahim’s possession, had been recently stolen. By s154A of the Crimes Act, 1900, (“the Act”) a person who “takes and drives” a vehicle without consent is deemed guilty of larceny. The police officer saw Mr Ibrahim in the driver’s seat of the vehicle. Although Mr Ibrahim at first denied having driven the vehicle, he later acknowledged that he had done so, and that his denial was a lie. For the purposes of s154A of the Act, the least movement of the vehicle constitutes driving (R v Brogacki (1973) 1 QB 832). There is evidence, in my view, from which it can be inferred that Mr Ibrahim was driving without the consent of the owner, knowing that he did not have that consent. The Crown could call in aid the doctrine of recent possession. It was open to the jury to regard Mr Ibrahim’s explanation as fanciful. It could therefore infer that Mr Ibrahim either stole the vehicle, or drove it knowing that he did not have the consent of the owner.

36   It will be remembered that the police pursued the vehicle using their siren. However, the vehicle did not stop. Being impeded by other vehicles, the vehicle was then abandoned, and Mr Ibrahim and the other occupant endeavoured to escape on foot. When arrested, as stated already, Mr Ibrahim at first lied to the police. The attempt made to outrun the police was capable of being viewed as flight. His flight, and that lie, were capable, in my opinion, of being regarded as referable to the whole enterprise, that is, the use of a stolen vehicle for the purposes of committing robbery.

37   Turning to the second count, concerned with the robbery at Fairfield, Mr Ibrahim was not identified by those at the scene. The car was, however, identified by registration number. The only evidence to connect Mr Ibrahim with the crime was his arrest, twenty or thirty minutes later, at Liverpool, driving the same vehicle.

38   The directed acquittals in respect of the robberies at Canley Vale (Count 3) and Liverpool (Count 4) significantly weakened the Crown case against Mr Ibrahim. As originally presented, the Crown could account for the movements of the vehicle between Fairfield and the point of arrest near Liverpool. The inference of joint enterprise, and Mr Ibrahim’s complicity in that enterprise, was also stronger. The robberies at each location employed recognisably the same modus operandi.

39   Confining one’s attention to the evidence in respect of the robbery at Fairfield, was there evidence capable of implicating Mr Ibrahim in a joint enterprise with the person who snatched the bag? I believe that there was. First, one can infer, in my view, that Mr Ibrahim was the driver at Fairfield from the fact that he was the driver at Liverpool when arrested. The time between the incident and the arrest was relatively short, and the geography made it quite feasible.

40   Secondly, the inference could the more readily be drawn because Mr Ibrahim, as part of his explanation, acknowledged that he had been driving the vehicle for about twenty minutes. The Crown case was that a car journey between Fairfield and the point of arrest would take between 25 and 35 minutes, according to a police officer. The discrepancy between the police estimate and that of Mr Ibrahim was not large in the context of a car journey through traffic.

41   Thirdly, there was evidence of the complicity of the driver in the joint enterprise, and therefore of Mr Ibrahim. The vehicle was seen to slow down as it entered Barbara Street, Fairfield. It braked suddenly. The person who snatched the bag was then seen to alight. The vehicle remained close by with the driver “slouched down”. The bag having been stolen, the driver opened the passenger door. The robber then entered, and the vehicle sped off.

42   I believe that, in respect of both Counts 1 and 2, there was evidence capable of supporting the convictions. I would therefore reject the second ground of appeal.

43   I would therefore propose the following orders:

1. The appeal be allowed.

2. The convictions be set aside.

3. There be a new trial in respect of Counts 1 and 2.

IN THE COURT OF

CRIMINAL APPEAL

60096/00


PRIESLEY JA
KIRBY J

HOWIE J

Wednesday 27 March 2001

REGINA v Taarruz IBRAHIM

JUDGMENT

44   HOWIE J: I agree with Kirby J.

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