SK v The Queen; BK v The Queen; Ms v The Queen; Sakieh v The Queen

[2021] NSWCCA 130

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

SK v R; BK v R; MS v R; Sakieh v R [2021] NSWCCA 130

Hearing dates:

12 and 13 May 2021

Date of orders:

13 May 2021 and 25 June 2021

Decision date:

25 June 2021

Before:

Bell P at [1]
Rothman J at [20]
Beech-Jones J at [53]

Decision:

(1)   In relation to the appeal by Mobin Sakieh against his conviction:

(i)   Grant leave to appeal to raise ground 1 of his notice of appeal;

(ii)   Dismiss the appeal.

(2)   In relation to the appeal by SK, further order:

(i) Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 that the commencement of the date of the sentence for H75460288 (court file no 2019/00392503) be varied from 8 February 2021 to 27 August 2019;

(ii) Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 that the commencement date of the sentence for H80422786 (court file no 2021/00017523) be varied from 8 February 2021 to 8 October 2020.

Catchwords:

CRIMINAL LAW – unreasonable verdict – four appellants convicted of two counts of wounding with intent to cause grievous bodily harm – alleged part of group that invaded victims’ unit – Crown case that all members of group entered unit or balcony – Crown case depended on proof that same group of males who walked up street returned and entered balcony area – whether inference supported by CCTV footage of street – whether victims’ evidence sufficiently strong to make out Crown case – whether Crown excluded reasonable hypothesis that at least one group member did not return down street or did not enter balcony area – appeal allowed for three appellants – intercepted telephone calls involving fourth appellant – majority satisfied intercept demonstrated his presence on the balcony

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Azzopardi v the Queen (2001) 205 CLR 50; [2001] HCA 25

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42

Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1

R v Hillier (2007) 228 CLR 618; [2007] HCA 13

R v Wanhalla [2007] 2 NZLR 573; [2006] NZCA 229

RD (a pseudonym) v R [2021] NSWCCA 94

RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65

Texts Cited:

Australian Law Reform Commission, Evidence (Report No 26, 1985)

Australian Law Reform Commission. Evidence (Report No 38, 1987)

W Blackstone, Commentaries on the Laws of England (4th ed, 1770, Clarendon Press)

W Twining, Theories of Evidence: Bentham and Wigmore (1985, Weidenfeld & Nicolson)

Category:

Principal judgment

Parties:

SK, BK, MS and Mobin Sakieh (Applicants)
Regina (Crown)

Representation:

Counsel:
Ms A Cook (Applicant SK)
Mr J Trevallion (Applicant BK)
Mr M Pickin (Applicant MS)
Ms A Francis (Applicant M Sakieh)
E Bolodis (Crown)

Solicitors:
Rebecca Dunlop Legal (Applicant SK)
Veronica Love (Applicant BK)
AA Criminal Lawyer (Applicant MS)
Bannisters Lawyers (Applicant M Sakieh)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2017/304354; 2017/325783; 2017/338429; 2017/341392

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, publication of the names of, or any matter which could identify, any accused person, witness or other person mentioned in the judgment who was a child at the time of the offence is prohibited

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 December 2019

Before:

Buscombe DCJ

File Number(s):

2017/304354; 2017/325783; 2017/338429; 2017/341392

Judgment

1. BELL P: I have had the benefit of reading the reasons for judgment of Beech-Jones J and gratefully adopt his Honour’s summary of the evidence and identification of the relevant authorities. What follows assumes a familiarity with his Honour’s reasons.

2. Like his Honour, before joining in the decision of the Court to allow the appeal and set aside the convictions of SK, BK and MS on counts 1 and 3 and, in lieu thereof, to direct that acquittals on counts 1–4 be entered, I reviewed closely and on numerous occasions the CCTV footage of the group of youths walking up and returning down Pennicook Lane on the night of the assault.

3. The difficulty presented by this case concerns the fact that the CCTV footage of the group walking up Pennicook Lane showed at least seven persons whilst the footage of the group that returned appeared to show only six persons. As Beech-Jones J notes, the lighting was poor as was the quality of the CCTV footage but that footage was heavily relied upon by the Crown to place the appellants in Pennicook Lane in the first place.

4. What was shown by the CCTV footage of the group returning down the laneway, namely only six youths, left open the possibility that one or more of the group that walked up Pennicook Lane, past what was to become the scene of the offences, continued in the direction of Fitness First Pennant Hills — where a much bigger confrontation had been anticipated at about the same time, as explained in Beech-Jones J’s reasons by reference to the evidence of Mr O’Byrne — and did not return and participate in the violent assault the subject of the charges. Absent specific evidence inculpating him, any one of the appellants could have been the member (or members) of the group who did not return down the laneway and thus did not participate in the joint criminal enterprise charged.

5. I do not consider this possibility to be a matter of mere conjecture; there was a place, namely the square outside Fitness First, where, in all likelihood, the group was planning to go and the CCTV footage, for all its limitations, showed a smaller group returning down the laneway than had gone up it several minutes earlier. This made it impossible to know, absent some other evidence incriminating individual members of the group, which of the initial group that had walked up Pennicook Lane returned and participated in the assaults.

6. The fact that it is unknown which member or members of the group did not return means that a number of the appellants has been acquitted fortuitously. That is regrettable and a source of real unease given the violent and gratuitous nature of the assaults. It is, however, the inexorable consequence of Blackstone’s maxim that “the law holds, that it is better that ten guilty persons escape, than that one innocent suffer”: W Blackstone, Commentaries on the Laws of England (4th ed, 1770, Clarendon Press), Bk 4, c 27 at 352; see also Australian Law Reform Commission, Evidence (Report No 26, 1985) at [59]; Australian Law Reform Commission. Evidence (Report No 38, 1987) at [35]; and R v Wanhalla [2007] 2 NZLR 573; [2006] NZCA 229 at [93], [120] and [151]. As Professor Twining has noted, the maxim is of far more ancient origin than Blackstone’s commentaries: approximately 300 years beforehand, Sir John Fortescue, Chief Justice of the King’s Bench and author of his own treatise on the laws of England, De Laudibus Legum Angliae, had stated: “I would rather wish twentie evill doers to escape death through pitie than one man to be unjustly condemned”: quoted in W Twining, Theories of Evidence: Bentham and Wigmore (1985, Weidenfeld & Nicolson) at 95–96.

7. Even if there were evidence demonstrating beyond reasonable doubt that the same number of people had returned down the laneway as had ventured up it shortly before the assaults occurred, I do not consider that the guilt of every member of the group was the only rational inference that could be drawn in all the circumstances. The assaults occurred on what was the second storey or level of the building. Both the first and second levels were accessible by an external staircase as shown in the photograph below:

8. As Beech-Jones J explains, the Crown’s case was confined to “an accused entering the balcony of the unit occupied by the two complainants, entering the unit they occupied or being on the stairs at a level above the entrance to the balcony of the first unit at the time violence was first inflicted upon Mr Krisenthal and Mr Wordsworth”. [1]

   1. AB 2173–2174; T 1137.

9. The recollections of the two victims, Messrs Krisenthal and Wordsworth, as to the number of people actually on the balcony or the stairs above level 1 or in the victims’ unit varied between as few as 4 and as many as 10.

10. Mr Krisenthal’s evidence-in-chief was that two, or at least two, people bashed and kicked him and, for the most part after he had been bashed, one stood over him on the balcony whilst the other(s) went inside the unit and bashed Mr Wordsworth. [2] He was not sure, however, how many were in the unit and involved in the bashing of Mr Wordsworth and he heard but did not see them leave. The events, on his account, occurred over a three or four minute period.

    2. AB 531–534; T 94–97.

11. Under cross-examination, Mr Krisenthal said that he saw three people on the balcony before he blacked out and that he really did not know how many people were in the balcony area. [3] He said he saw the full group “enter the staircase” but did not see the full number on top of the balcony before he blacked out. [4] By “entering the staircase”, Mr Krisenthal was referring to the external staircase that gave access to a first floor unit and the second floor unit and balcony where the assaults occurred. That the “full group” — however many that was — “entered the staircase” did not mean that all of its members went to the top floor which was the scene of the assaults.

    3. AB 575; T 138.

    4. AB 575; T 138.

12. Mr Wordsworth’s evidence-in-chief was that he saw three or four persons coming up the external stairs but he “couldn’t tell exactly” and was not exactly sure of the location of the other members of the group that he had seen walking up Pennicook Lane. [5] Mr Wordsworth said that the three or four persons that he saw coming up the stairs stopped on the first level and he could hear banging as though they were trying to break into the first floor unit. The highest Mr Wordsworth’s evidence-in-chief rose as to how many persons were on the balcony with him and Mr Krisenthal was “maybe three or four each”. This evidence was given after he initially answered “I’m not sure exactly”. [6] Soon after giving that evidence, when asked “how many people approached you?”, he said “two or three”. [7] He was then asked how many people were with him when he was taken inside into the kitchen and he said “roughly three or four people”. [8] On his evidence, Mr Wordsworth saw at least two or three people leave the unit. [9]

    5. AB 584; T 147.

    6. AB 585; T 148.

    7. AB 586; T 149.

    8. AB 586; T 149.

    9. AB 593; T 156.

13. Under cross-examination, Mr Wordsworth gave the following evidence: [10]

    10. AB 605; T 168.

“Q.   That’s what I’m asking you. Did you see three or four come up the stairs, go the level below and you could hear them there for about a minute or so. Is that right?

A.   Correct, but it potentially could have been more.

Q.   When you say ‘potentially’, you’re speculating?

A.   Yes.

Q.   You could see three or four from where you were having a cigarette, three or four enter the stairway at the bottom and go the second level. Is that fair enough?

A.   Correct.

Q.   Then you hear some noises from that level, some banging and so forth on that level?

A.   Correct.

Q.   Did that go on for about a minute or something on that level?

A.   Roughly, yes.

Q.   Then are you sitting on a chair at this stage now having a cigarette?

A.   I sat back down on a chair, yes.

Q.   Then it’s when you see one or two come to the verandah?

A.   Correct.

Q.   At that stage, you’re really guessing as to where the rest of the group are. Is that fair enough?

A.   I believe they were lined up on the stairs.

Q.   But you couldn’t see. You only saw one or two when they confronted you. Is that right?

A.   From where I was sitting, yes.”

14. As these references and the extracts of the evidence of both victims as set out in Beech-Jones J’s judgment demonstrate, neither victim could state with any real confidence how many people came up on to their balcony or into the unit. Mr Krisenthal’s evidence really rose no higher than three persons although there were likely to have been more. The highest Mr Wordsworth’s evidence rose was between six and eight (“maybe three or four each”) but this evidence did not sit particularly comfortably with other parts of his evidence set out or summarised above which suggested, at least in terms of the numbers that he actually saw, significantly fewer. This is not to be critical of either Mr Krisenthal or Mr Wordsworth — they were victims of brutal assaults which must have been terrifying — but there was a real question as to just how many people came on to the balcony and into the unit.

15. In light of this summary of the evidence of the two victims, even if, notwithstanding the CCTV footage suggesting otherwise, the entirety of the group of youths who went up Pennicook Lane returned down it, there was in my view a real possibility that not all of them participated in the joint criminal enterprise charged and the jury must have entertained a doubt as to the guilt of any particular one of the appellants, absent some particular incriminating evidence relating to one or more of them. That is to say, the facts did not in my opinion support the view that the only possible and non-conjectural inference was that all of the appellants together with Mitchell Connor and KC were present on the balcony or in the unit during the assaults of Messrs Krisenthal and Wordsworth and thus participated in the joint criminal enterprise. To this extent, I differ from Beech-Jones J at [103] below.

16. In light of the evidence of the two victims as to what they actually saw in terms of people ascending the staircase to their balcony — Mr Wordsworth saw only three or four come up the stairs and, while Mr Krisenthal said the whole group “entered the staircase”, he only referred to seeing two or three who were involved in his assault — there is a non-conjectural possibility that some members of the group remained on the lower staircase or outside the first floor unit while the assaults occurred. All of the evidence suggested that this particular assault was unplanned and, if participation in the confrontation outside Fitness First was what the group initially planned, at least some members of the group that returned down Pennicook Lane (most of whom were under the age of 18) had entertained second thoughts about the wisdom of a potentially violent confrontation. Absent some specific evidence inculpating one or more of the accused, the jury could not, in my opinion, have had the requisite satisfaction that each and every one of the appellants together with Mitchell Connor and KC was on the balcony or in the victims’ unit at the time of the assaults and thus a participant in the joint criminal enterprise, as formulated by the Crown.

17. In relation to Mr Sakieh, like Beech-Jones J, I have also listened on numerous occasions to the recordings of the telephone intercepts between BD and Mr Sakieh both before and after judgment on Mr Sakieh’s appeal was reserved. The transcripts of these conversations have been set out in Beech-Jones J’s reasons for judgment. I agree with his Honour’s conclusion, having listened to those recordings, that it was well open to the jury to conclude that these calls contain admissions by him to the effect that, at the very least, he entered on to the victims’ balcony with the other assailants at the time the victims were beaten and stabbed. It was therefore open to the jury to take the view that he participated in the joint criminal enterprise charged.

18. I also agree with what Beech-Jones J has written in relation to SK’s contention that the evidence was not sufficiently strong enough to prove his presence in the carpark with the rest of the appellants.

19. I agree with the orders proposed by Beech-Jones J both in relation to Mr Sakieh’s appeal and to SK.

20. ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Beech-Jones J and Bell P. The facts and evidence are set out in those judgments and it is unnecessary to repeat them. The following reasons assume a familiarity with them. Because, in relation to Mr Sakieh, this judgment is in dissent, I will be especially brief.

21. I agree with the analysis of the facts in the reasons of Beech-Jones J, apart from the comments that follow, and with the orders issued on 13 May 2021. I also agree with the further orders proposed by Beech-Jones J in relation to SK.

22. I also have watched and listened to the electronic evidence on multiple occasions. It cannot be said that there were, beyond reasonable doubt, seven persons that returned from the end of Pennicook Lane.

23. Does it require proof beyond reasonable doubt? There is no doubt that the offences occurred. There is no reasonable doubt that some of the appellants were involved in the offences.

24. The question for the Court is not whether there is evidence upon which a jury could have convicted. It is whether there is a reasonable doubt as to the identity of each of the appellants as one of the assailants.

25. If this Court has a reasonable doubt, then, subject to the doubt arising from an issue overcome by the advantage enjoyed by the jury, so too should the jury have had such a doubt. The question before the Court is not whether it was open to the jury to convict, but, rather, whether the jury should have convicted on the basis that it should have had a reasonable doubt.

The Crown’s Dilemma

26. The proceedings at trial posed a dilemma for the Crown. Because of the evidence relating to the anticipated events at the end of Pennicook Lane and the reasonable possibility that the offenders entered the premises in which the victims’ apartment was located for a very different purpose, the Crown was required to confine the perpetrators of the offence to those who entered the victims’ unit, including the balcony (hereinafter “the top floor”). This necessarily complicated the evidentiary burden and raised issues that would otherwise not have existed.

27. The foregoing is not a criticism of the Crown at trial. It is a consequence of the facts with which the Crown was required to deal. Faced with those facts, the Crown could not have legitimately sought to rely upon a broader joint criminal purpose or extended criminal enterprise – each would have been impossible to have been proved to the requisite standard.

28. There were reasonable possibilities of an agreement that did not include these offences. Further, it would have been next to impossible to prove, to the requisite standard, the contemplation of this conduct for those who did not go to the top floor.

29. As a consequence, the Crown was required to establish the presence of each accused in the victims’ premises on the top floor of the building. Each of Beech-Jones J and Bell P has described the doubt that relates to the number of persons returning down Pennicook Lane and the even greater doubt as to the number that entered the top floor of the building.

30. I agree with their analysis and support the orders made on 13 May 2021. For the reasons given by Beech-Jones J, I also agree with the ancillary orders proposed relating to the consequential amendment of the sentence otherwise imposed on SK.

Inferences to be drawn

31. The appellants’ appeals depend on the inability of the Crown to identify precisely, or beyond reasonable doubt, those of the appellants who participated in the offences in the manner required to be disclosed by the nature of the case forced on the Crown. As Bell P has noted, historically, the law has always preferred the option that a guilty person go free than that an innocent one be punished for a crime not committed.

31. In this case, “innocent” may be a less than appropriate description. In this case, there is no reasonable doubt, as earlier stated that some, at least, of the appellants were involved in the commission of the offence. The only doubt that exists is the identity of those that were present on the top floor of the premises.

32. For that purpose, in response to the earlier question I posed, it is not necessary to prove, beyond reasonable doubt, the fact that seven persons returned down Pennicook Lane. It is, however, necessary to prove to that standard that each of the appellants was involved and the CCTV footage is evidence relevant to that fact.

33. Further, notwithstanding that only six persons are seen in the relevant CCTV footage, [11] it is possible that all of the appellants were involved in the offences. It is clear the seven persons travel from Ramsay Road in a south-westerly direction in Pennicook Lane. It is also clear that only six persons can be seen “returning”, i.e. travelling in a north-easterly direction in Pennicook Lane from the direction of Hillcrest Road towards the location of the victims’ premises.

    11. Exhibit 71.

34. That the seven persons include each of the appellants is proved by following the various CCTV footages in evidence. The inference that it was each of the appellants seen in the seven person footage, if it be an inference, is irrefragable. At approximately 25 minutes into Exhibit 71, one can make out six persons walking along Pennicook Lane, “returning” in the direction of Ramsay Road.

35. I agree with Bell P that, even if there were seven persons discerned in the CCTV, it could not be proved that each of the seven was present on the top floor of the premises. As a consequence, in the manner in which the Crown was required to put its case, there is a doubt as to the identity of the assailants.

36. The result is troubling. The proceedings raise a doubt based on the opposite to a cut-throat defence, where two or more people blame each other and it is impossible to prove to the requisite standard which of them is guilty. In this case, each appellant has remained silent.

37. As the High Court has made clear, in a criminal prosecution, inferences ought not ordinarily be drawn, without taking into account that an accused person is not bound to give evidence and it is for the prosecution to prove each element beyond reasonable doubt. [12] However, there may be circumstances where an inference, otherwise available from the evidence, can be more readily drawn, if the silence of the accused bears upon the probative value of the evidence. [13]

    12. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3.

    13. Ibid at [35] and [36]; Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65.

38. Such circumstances have been described as “both rare and exceptional”. [14] On current authority, such circumstances will depend on additional evidence being available that is only within the knowledge of the accused. A mere denial by the accused is not such additional evidence.

    14. Azzopardi v the Queen (2001) 205 CLR 50; [2001] HCA 25 at [68]; confirmed in Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [12] and [13].

39. Moreover, it is not for a jury or the Court to speculate as to the evidence that might have been called. Since no individual appellant can be placed, beyond reasonable doubt, at the scene of the offences, it cannot be said of any one of them that he could provide “additional” evidence beyond a mere denial of his presence. [15]

    15. Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17.

40. In effect, the Crown seeks to have the Court draw an inference that each appellant was present at the crime scene from material that proves, beyond reasonable doubt, some of them were present. No support for such an inference can be obtained from the failure of any of the accused to give evidence.

41. The inferences the Crown sought to be drawn leaves open in each case the reasonable possibility that the appellant was not present. It would require a significant extension of the circumstances in which an accused’s silence can be used to draw an inference for the Court to be satisfied of the guilt of any of the appellants based on the material available.

Mobin Sakieh

43. Thus far, I have not dealt with the position of Mobin Sakieh and the orders proposed or the reasons of my colleagues in relation thereto. As stated, I do not agree in this aspect with the orders proposed by Beech-Jones J.

44. The additional evidence relating to Mr Sakieh is set out in the reasons for judgment of Beech-Jones J and is confined to two intercepts. It is unnecessary to repeat the extracts.

45. In the first such intercept, Mr Sakieh made statements, in an unguarded conversation, which can only be described as exculpatory, albeit not completely. In the first relevant intercept, Mr Sakieh makes clear that he did not do anything and that he wasn’t “in there”. These statements are consistent only with Mr Sakieh not participating in the assault and may be consistent, possibly, with Mr Sakieh being at the premises, but not on the top floor, which was a requirement of guilt in the way that the Crown had put its case.

46. The second intercept is also primarily exculpatory. Mr Sakieh maintains he “didn’t do jackshit”. However, Mr Sakieh does affirm that he “was involved in a stabbing incident” and accepted that “maybe” he was present.

47. The question to be answered, as earlier noted, is not whether it was “open to the jury” to convict, but whether there should have been a doubt. In my view, the intercepts place Mr Sakieh in or at the building. They do not take the evidence of his presence on the fop floor any further.

48. The intercepts are in evidence and, as Beech-Jones J describes, are best considered by listening to them. I have, like my colleagues, listened to them on a number of occasions.

49. The appellant, Mr Sakieh, was aware, as we know from the first interview, that the Police were interested in him for these offences. Even if Mr Sakieh, in agreeing with his involvement, was doing more than acknowledging his awareness of the subject matter, his “involvement” was not necessarily, or beyond reasonable doubt, attendance on the top floor. In my view, the conversation leaves open the extent of such “involvement” and whether he was an assailant or part of the enterprise to assault.

50. I have a reasonable doubt that Mr Sakieh was on the top floor, which is a requirement for guilt, as the Crown has framed its case. I cannot, therefore, do other than allow his appeal, thereby, with some reluctance and with due deference, disagreeing with my colleagues.

51. These are the reasons I was party to and joined in the orders issued by the Court on 13 May 2021. As already stated, I also join in the consequential orders proposed by Beech-Jones J in relation to SK.

52. In relation to the appeal by Mobin Sakieh, I would propose the following orders:

1. Leave to appeal be granted;

2. Allow the appeal;

3. Quash the conviction.

53. BEECH-JONES J: On 20 August 2019 each of the four applicants, SK, BK, MS and Mobin Sakieh (the “appellants”) and three other persons, Mitchell Connor, KC and EV, were arraigned before a jury panel in the District Court on an indictment that contained six counts. Counts 1 and 3 charged the four appellants, Mitchell Connor, and KC with two counts of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). Counts 2 and 4 were alternative counts of wounding in company while being reckless as to causing actual bodily harm contrary to s 35(3) of the Crimes Act. Counts 5 and 6 only concerned EV and charged her with committing two offences contrary to s 35(3).

54. The victim the subject of counts 1, 2 and 5 was Simon Krisenthal. The victim the subject of counts 3, 4 and 6 was Mark Wordsworth. The Crown alleged they were stabbed and assaulted when a unit they occupied in Pennicook Lane, Pennant Hills was invaded by the appellants, Mitchell Connor, and KC on the evening of 30 December 2016. As at that date, each of SK, BK, MS, KC and EV were under the age of 18 years. It follows that their names cannot be published or broadcast (Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)).

55. All of the appellants and their co-accused pleaded not guilty. The trial proceeded. The trial judge directed an acquittal of EV on counts 5 and 6 but allowed statutory alternative charges under s 33(4) of the Crimes Act to go to the jury. [16]

    16. AB 2188-2912.

56. On 30 September 2019, the jury returned with verdicts of guilty on counts 1 and 3 against the four appellants, Mitchell Connor, and KC, as well as verdicts of guilty on the two counts against EV. [17] As a result of the verdicts on counts 1 and 3, no verdicts were taken on counts 2 and 4. Subsequently, each of the appellants and their co-offenders were sentenced to substantial terms of imprisonment. [18]

    17. AB 1992.

    18. AB 59-61; AB 91-93.

57. Each of the four appellants appealed their convictions to this Court. They each raised one and the same ground of appeal, namely that the jury’s verdicts were unreasonable and cannot be supported having regard to the evidence (Criminal Appeal Act 1912 (NSW), s 6(1)). Each of them contended that the evidence adduced at their trial was of insufficient strength to prove that they were part of the group of assailants who invaded the victims’ unit and attacked them.

58. Shortly after the completion of oral submissions, the Court announced that it reserved its decision in respect of the appeal by Mr Sakieh, but made the following orders in relation to the appeals by SK, BK & MS:

“1.   Grant leave to appeal.

2.   Appeal allowed.

3.   Set aside the convictions on Counts 1 and 3 and, in lieu thereof, direct that acquittals on Counts 1 – 4 be entered.

4.   Direct that any application for further or consequential orders be notified to the Crown and to the Associate to Justice Beech-Jones on or before 5.00pm on Thursday 20 May 2021.”

59. The following constitutes my reasons for joining in the orders concerning SK, BK and MS. In relation to Mr Sakieh, the Court reserved its decision on his appeal in order to further consider certain evidence that was only admissible in the case against him. For the reasons that follow, I propose that his appeal be dismissed. Order 4 of the orders in relation to SK, BK and MS was made to facilitate any alteration to other sentences imposed on those appellants that followed from their acquittals. In the end result, an application was made on behalf of SK which is addressed below.

The Crown Case

60. As noted, the counts on the indictment arise out of the invasion and stabbing of the victims in their unit just after 9.00pm on 30 December 2016 by a group of assailants that the Crown contended included the appellants, Mitchell Connor and KC. During the attack, Mr Krisenthal suffered lacerations to his lower neck and front shoulder. They were repaired operatively. [19] Mr Wordsworth suffered a stab wound to the left side of his back, a collapsed left lung and lacerations to his forearms and fingers. [20]

    19. AB 411.

    20. AB 412-413.

61. To explain the Crown case, it is necessary to describe the layout of the area near the victims’ unit including the location of particular Closed Circuit Television (“CCTV”) surveillance cameras. To that end, the following map has been prepared by the Court based on the exhibits tendered at the trial. [21]

21. Especially Exhibit 12 and Exhibit 15.

62. The victims’ unit was on the second (and top) floor of a building situated on a strip of land that straddled Pennicook Lane and Yarrara Road. Access to the unit from Pennicook Lane is via a set of stairs. The first flight of stairs leads up to a small balcony for a unit on the first floor. A further flight leads to the top floor which consists of a large balcony and the interior of the victims’ unit. [22]

    22. Exhibit 1.

63. In her opening address, the Crown Prosecutor told the jury that the four appellants and others gathered in the car park of the Pennant Hills library at around 8.00pm on 30 December 2016, disguised themselves and from there walked across Ramsay Street and entered Pennicook Lane. As explained below, there is CCTV footage of the group assembling in the library car park and walking across Ramsay Street. There is also footage taken from the loading dock in Pennicook Lane, indicated in the above diagram. At the hearing of the appeal, it was conceded on behalf of Mr Sakieh, BK and MS, but not SK, that the jury was entitled to find that they were present in the car park and amongst the group that walked across Ramsay Street and up Pennicook Lane. [23]

    23. Submissions on behalf of MS at [15].

64. In her opening, the Crown Prosecutor correctly noted that the footage of the group in Pennicook Lane was of “poor quality and blurred” and does not show “the open-air stairs leading up to the unit where the offences occurred”. [24] The Crown prosecutor told the jury that the group walked past the victims’ unit on Pennicook Lane and then turned around, came back down the laneway, walked up the staircase, that they “initially went to the downstairs unit” and “then they made their way up to the unit or balcony” and set upon the two victims who become separated such that Mr Krisenthal remained on the balcony with one or two intruders and Mr Wordsworth was terrorised inside the unit. [25] The Crown Prosecutor told the jury that EV drove the getaway car containing at least some of the assailants. [26]

    24. AB 517.45; T 80.

    25. AB 518.15; T 81.

    26. AB 517.41; T 80.

65. What follows is a summary of all the evidence that was said by the Crown to demonstrate that each of BK, SK and MS participated in the invasion of the victims’ unit. The supposed paucity of the evidence was the basis of their appeal. SK raised a further point which concerned the paucity of the evidence said to demonstrate that he was in the group that assembled in the car park behind the library. That is addressed separately below. In relation to Mr Sakieh, the Crown relied on this evidence and also sought to rely on various intercepted telephone conversations to demonstrate his participation in the attack.

Mr Krisenthal’s Evidence

66. Both Mr Krisenthal and Mr Wordsworth gave evidence consistent with the Crown Prosecutor’s opening. Neither was able to recognise their attackers as their faces were covered. [27] Mr Krisenthal said that he and Mr Wordsworth were standing on their balcony and saw the group walk along Pennicook Lane pass the stairway to their unit towards the other end of the lane. [28] He was asked how many were in the group. He said “about eight”, [29] including when they came back down the lane. [30] He said they walked “all the way up towards up behind Java Lava which is a café at the end of Pennicook Lane” but they walked “out our kind of eyesight”. [31] He said he saw them “walking back about a minute or two later”. [32]

    27. AB 528.19; T 91 (Krisenthal).

    28. AB 529.11; T 92.

    29. AB 529.8; T 92.

    30. AB 556.9; T 119.

    31. AB 529.22; T 92.

    32. AB 529.22; T 92.

67. Mr Krisenthal said that, as they returned, he said he “saw a couple of them stroll up onto the balcony” and one of them punched him. He said that “[b]efore I … blacked out a bit from getting punched, I remember seeing three of them up on the balcony”. [33] He described two of them kicking him in the head and said the “rest of them – had started hitting Mark”, although if more than two were kicking him, “I wouldn’t really have known”. [34] He said that two people initially attacked him, then one stayed outside with him and the rest went into the unit. [35] He said there “must have been about seven” attackers who went inside the unit. [36] He was referred to a “000” call he made that night [37] in which he was asked to describe the offenders. [38] In that call he replied that there “[t]here was 10 of ‘em”. [39]

    33. AB 530.37; T 93.

    34. AB 531.26, 531.50; 556; T 94, T 119.

    35. AB 556.45; T 119.

    36. AB 557.2; T 120.

    37. AB 173.

    38. AB 184.7.

    39. AB 184.

68. He was cross‑examined on his recollection of the number of persons he saw as follows: [40]

    40. AB 574; T 137.

“Q.   At 9 o’clock at night, back then, there’s not much lighting in Pennicook Lane, is that the position?

A.   That’s right.

Q.   What about on your verandah, is there any lighting that was on that night, on the verandah area itself?

A.   I can’t recall exactly.

Q.   So, you saw about eight, and we’ve just heard the triple-0 call. Could it have been as many as ten?

A.   Could have.

Q.   Or you’re not sure?

A.   I’m not sure, no, it was my – they were – I didn’t stand there and count them, that was just my estimate I suppose.”

69. Later he said that before he blacked out, he saw three assailants on the balcony of his unit. [41] He was then asked: [42]

“Q.   Is it the position that you don’t really know how many were up on the balcony area, you’re just guessing, if you like?

A.   Correct.

Q.   Because from when you black out, you’ve seen three coming towards you, you get hit and then you’ve told us what happens where you’re there with your head down and so forth, is that right?

A.   That’s right, yeah.

Q.   So, the number today, you’ve just been asked by Madam Crown, where you’ve been taken to the triple-0 call, and you’re asked ‘Ten of them at what point’, and you answered, ‘Throughout the whole thing I thought. Ten of them that came up into our apartment’. That’s really just a guess that you’re giving that the group you see downstairs, ten in the triple-0 call, ten come up, is that fair enough?

A.   I saw the full group enter the staircase, I didn’t see the full number on top of the balcony before I blacked out.”

41. AB 575; T 138.

42. AB 575; T 138.

70. In re-examination, Mr Krisenthal confirmed he saw three assailants before he blacked out and after he came to, he saw “[a]t least three but I can’t put much more a number on it than that”. [43]

    43. AB 576; T 139.

Mr Wordsworth’s Evidence

71. In his evidence, Mr Wordsworth stated that he observed “roughly eight” [44] males in a group with covered faces walk up Pennicook Lane past his unit “maybe three quarters up the road”. [45] He noticed the group glance up at him as they walked past. [46] He said he lost sight of them for a “couple of minutes” [47] and later “noticed them coming up our stairs”. [48]

    44. AB 581.26; T 144.

    45. AB 583.19; T 144.

    46. AB 583.10; T 146.

    47. AB 583.25; T 146.

    48. AB 583.28; T 146.

72. His evidence was unclear on the topic of how many attackers came up to his unit. He was asked, “[h]ow many people were coming your stairs”? He replied “[i]t appeared to be may be three or four but I couldn’t tell exactly”. [49] Shortly later he was asked, “[w]hen you noticed them coming up the stairs, how many people were coming up the stairs”? He replied, “roughly about eight”. [50] In cross‑examination he was asked about this: [51]

“Q.   Then you said today that you saw – I thought you said that three or four came up the stairs?

A.   To the top of the stairs onto the balcony.

Q.   I thought you said three or four came up the stairs and then you said maybe three or four went to the unit below. That’s on the second floor. Was it three or four that you saw at the bottom of the stairs who go to the unit on the second level?

A.   I don’t recall.

49. AB 584.5; T 147.

50. AB 585.13; T 148.

51. AB 604; T 167.

73. In cross‑examination Mr Wordsworth was asked whether it could have been more than eight. He said “potentially”. He later agreed that the figure of eight was an “estimate”. [52]

    52. AB 609.49; T 172.

74. When asked how many attackers were upon him and how many were upon Mr Krisenthal, he said “maybe three or four each”. [53] At other times in his evidence, he described “two or three” attackers. [54] In cross‑examination, he agreed that he was not counting the attackers and “it was just an impression [he] got from the everything that was going on”. [55]

    53. AB 585.47; 587.41; T 148, T 150.

    54. AB 593.22; 593.32; T 156.

    55. AB 611.10; T 174.

Eamon O’Byrne’s evidence

75. The Crown called Mr Eamon O’Byrne who said that on the night of 30 December 2016 he saw Mr Sakieh wearing a blue mask covering his chin in company with two other persons on Yarrara Road at the location marked above. [56]

    56. AB 632; T 195; Exhibit 15.

76. In cross‑examination, he said that around 9.00pm that night he received a message on “Facebook” from a friend who advised him that a fight had been organised at the car park of Fitness First in Geeves Lane. [57] He said they arrived at the car park at around 9.20pm and he saw about 20 males with hoods on wearing black and left. [58] A map of his journey indicates that he saw Mr Sakieh after he went to the carpark at Fitness First. [59]

    57. AB 634-635; T 197-198.

    58. AB 635.24; T 198.

    59. Exhibit 15.

Senior Constable Dam’s Evidence

77. Senior Constable Evert Dam gave evidence that after the attack he attended an address at Bellamy Street, Pennant Hills at around 9.30pm on 30 December 2016. Bellamy Street is a short distance from Yarrara Road. Senior Constable Dam saw EV’s vehicle and recorded the names of those present including EV and Mr Sakieh. [60] At that time, he inquired about a stabbing at Pennant Hills. [61]

    60. AB 1003.20; T 556.

    61. AB 1010.48; T 573.

CCTV Footage

78. There are three portions of CCTV footage taken from the area that are relevant to this aspect of the appeal. [62] The first part is taken from a CCTV camera located at the rear of the library at around 8.00 to 8.30pm which shows the group of males gathering in that area. At the trial, it was accepted that Mr Sakieh was one of the males. The Crown also alleged that two of them were BK and MS. This was in contest at the trial but on appeal it was accepted that the jury could have been satisfied beyond reasonable doubt that they formed part of the group. Further, at the trial the Crown contended that one of the males wearing a “blue beanie” was SK. This was disputed at trial and was part of the basis of SK’s appeal. [63]

    62. Exhibit 71.

    63. See SK written subs.

79. CCTV footage from other cameras shows the group walking around the back of the community centre. At least some members of the group appear to be taking steps to disguise themselves. They then walk across Ramsay Road to its intersection with Pennicook Lane. This takes place around the time the group interacts with a Crown witness, Mr Tadrosse, who was crossing the road. His evidence is summarised below. [64] CCTV footage taken from the front of the library depicts a jacaranda tree on the south western corner of the intersection between Ramsay Road and Pennicook Lane. Around this time, one member of the group appears to lean over and leave something on the ground just near the tree at a point where the police later found a cola bottle with SK’s fingerprints. [65] After this, a vehicle said to be driven by EV pulls into Pennicook Lane and parks just past the tree. [66]

    64. Exhibit 71 at 15:05.

    65. Exhibit 71 at 15:09; Exhibit 67.

    66. Exhibit 71 at 23:16.

80. CCTV footage from the loading dock shows that at about 9.04pm a group of males walked past the loading dock towards Hillcrest Lane. [67] The orientation of the camera is generally south, and it is located past the victims’ unit. There appears to be at least seven males in this group (and to my observation possibly eight males). The same camera records a group returning along Pennicook Lane at 9:07pm. [68] The footage of this group passing this camera lasts for approximately 17 seconds. As noted by the Crown Prosecutor, the footage is blurry. The group is separated such that there are two separate subgroups followed by another person lagging behind. At one point that person diverts around a car parked across the lane. The second sub-group appears to consist of two people. The first subgroup initially appears to consist of two persons but just as they nearly move out of sight there appears to be three. I have viewed the footage numerous times. I can detect six figures but not seven figures, although I cannot exclude the possibility that seven are present.

    67. Exhibit 71 at 22:00.

    68. Exhibit 71 at 24:59.

81. CCTV footage from the front of the library shows that at about 9:11pm the vehicle said to be driven by EV backs into Ramsay Street and departs with a number of passengers. [69] This is consistent with at least some of the assailants having left the scene in her vehicle after the attack.

    69. Exhibit 71 at 28:57.

Closing Addresses

82. After the Crown closed its case, there was argument about how the Crown could put its case to the jury in respect of the participation of the six male accused, including the four appellants, in the joint criminal enterprise or extended joint criminal enterprise the subject of counts 1 and 3. His Honour ruled that the “insofar as participation is concerned … [the Crown] is restricted to an accused entering the balcony of the unit occupied by the two complainants, entering the unit they occupied or being on the stairs at a level above the entrance to the balcony of the first unit at the time violence was first inflicted upon Mr Krisenthal and Mr Wordsworth”. [70]

    70. AB 2173.9-2174.1.

83. After this ruling, each of the accused advised that they did not propose to give evidence or call further witnesses. [71] The Crown Prosecutor commenced her closing address. [72] In outlining the meaning of participating in an agreement, the Crown Prosecutor told the jury that “an accused participates in an agreement if they physically participate in it or, secondly, if they’re nearby and prepared to assist if called upon to do so as the agreement [is being] carried out”. The Crown Prosecutor added the trial judge will “give directions about what is sufficiently proximate or nearby in terms of distances in this case”. [73] However, in the balance of the address, the Crown Prosecutor contended that all the assailants were either present on the balcony or inside the unit during the attack. Hence, she stated that none of the assailants were “left on their lonesome in the unit below” and “[n]o-one was left behind downstairs wondering what on earth is going on”. [74] Later, she said “[t]he Crown says it’s all six male accused plus the seventh unknown male” were on the balcony or inside the unit. [75]

    71. AB 1586; T 1149.

    72. AB 1587; T 1150.

    73. AB 1589.31; T 1159.

    74. AB 1591.21; T 1154.

    75. AB1595.27, 1597.5; T 1158, T 1160.

84. In relation to the number of assailants, the Crown referred to that part of Mr Wordsworth’s evidence in which he referred to eight persons coming up the stairs and Mr Krisenthal’s statement to the triple-0 operator that there were ten assailants in the unit. [76] The Crown Prosecutor played the CCTV footage to the jury. It was submitted that it showed a group “three or four people followed by two, followed by one – seven people all right. Could be as many as seven”. [77] Counsel for Mr Sakieh, submitted to the jury that there were only six people shown in the footage. [78]

    76. AB 1593.31; T 1156.

    77. AB 1606.40; T 1169.

    78. AB 1714.50; t 1277.

The Summing Up

85. The trial judge provided the jury with a typed document entitled “Elements Document”. [79] In relation to Counts 1 and 3, the document explained that the Crown put a case of joint criminal enterprise or extended joint criminal enterprise. The document advised the jury that an accused participates in such an enterprise if he either “physically participates in the carrying out of the agreement; or … if he is nearby and prepared to assist if called upon to do so as the agreement is being carried out.” [80] The trial judge repeated this direction orally. [81] His Honour then explained the Crown case on participation as follows: [82]

“In relation to counts 1 and 3, the Crown case is that each of the male accused was a party to the joint criminal enterprise which is set out in the elements document we have just been through where counts 1 and 3 are discussed and was one of the persons who went up the stairs onto the balcony and entered the unit where Mr Krisenthal and Mr Wordsworth were wounded and injured.”

79. AB 416.

80. AB 420.

81. AB 1871.10.

82. AB 1879.

86. At the hearing of the appeal there was some debate about whether the Crown had confined its case against each of the appellants to proving that, at the very least, each of them entered the balcony area during the attack. There was also a debate about the adequacy of the trial judge’s directions concerning so much of the requirement to show each appellant participated in the relevant criminal enterprise by being “nearby and prepared to assist if called upon to do so as the agreement is being carried out”. The Crown submitted that its case was not confined to proving that each accused entered the balcony area to the victims’ unit or the unit itself but instead the jury was left to make its own assessment of what constituted being “nearby”. [83]

    83. Appeal Tr 13/5/2021 p 16.10.

87. I do not accept the Crown’s submission. To the contrary, at least by the end of the trial, the Crown pitched its case as being that each member of the criminal enterprise including the appellants (but not EV) at least entered the balcony area of the victims’ unit. It did so for good reason, namely that there was no evidence that any member of the group was an “outlier” that is held back from entering the balcony and taking part in the attack. By putting its case in that way, there was no reason to differentiate between any one accused and another in relation to their role in the attack. On the evidence that was presented, if it was established that any particular accused at least entered the balcony area, then on any view they were “nearby and prepared to assist if called upon to do so as the agreement is being carried” out. As the Crown (sensibly) confined its case in that way, it meant that it was unnecessary for the trial judge to elaborate upon what was meant by being “nearby and prepared to assist”, something that would or at least may have been required had the Crown case sought to inculpate an alleged offender who remained on the stairs.

88. Otherwise, I note that in the summing up the trial judge correctly described the case against each accused including the appellants as circumstantial in that “there is no witness who sees them go up the stairs and onto the balcony”. [84] His Honour gave the jury a circumstantial evidence direction (ie, a “strands in the cable” direction), [85] save that, in relation to SK, BK and MS, his Honour instructed the jury that they had to be satisfied beyond reasonable doubt that each of them was in the group “who gathered on the corner of Pennicook Lane and Ramsay Road near the jacaranda tree” before walking along Pennicook Lane (ie, a “Shepherd direction”: Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56). [86]

    84. AB 1883.2.

    85. AB 1885.

    86. AB 1896.10.

Unreasonable Verdict – BK, SK and MS

89. As noted, each of the appellants contended that the jury’s verdicts were unreasonable and cannot be supported having regard to the evidence (Criminal Appeal Act, s 6(1)). [87]

    87. AB 2,4,6 and 8.

90. In RD (a pseudonym) v R [2021] NSWCCA 94 at [7], Macfarlan JA referred to the different formulations of this ground as follows:

“The unreasonable verdict ground relied upon by the applicant invokes s 6(1) of the Criminal Appeal Act. As I said in Prasad v R [2020] NSWCCA 349 at [119] with the concurrence of Wilson and N Adams JJ, the question to be addressed by the appellate court in this context is “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that “the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt” (emphasis in original). In Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.”

91. Two further principles concerning the determination of this ground of appeal are of present relevance.

92. First, one limitation on this Court’s role in determining this ground of appeal is that the “the assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury” (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1 at [38]; “Pell”). Thus, in a case where the principal evidence against an accused is a complainant, this Court’s determination of this ground of appeal “proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable” and this court “examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt” (Pell at [39]).

93. In this case, the jury had the benefit of hearing and assessing the evidence given by the witnesses including Mr Krisenthal and Mr Wordsworth. My assessment of the grounds of appeal proceeds upon the assumption that the jury considered their evidence was credible and reliable. In fact, their credibility was not challenged, and neither was their reliability. That said, to resolve this ground of appeal it is important to identify the uncertainties associated with aspects of the evidence and the circumstances in which they made their observations, namely, when they were being subjected to an unprovoked brutal attack and the lighting in Pennicook Lane was poor.

94. Second, as noted, the Crown’s case against the appellants was circumstantial. This meant that the jury could not return a verdict of guilty unless the proven circumstances were inconsistent with any reasonable hypothesis other than the guilt of the accused, that is, if guilt was the only rational inference that could be drawn in the circumstances (Barca v The Queen (1975) 133 CLR 82 at 104; [1975] HCA 42). As for what is a reasonable hypothesis or rational inference consistent with innocence, in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“Baden-Clay”) at [47] French CJ, Kiefel, Bell, Keane and Gordon JJ stated:

“For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" … (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" … (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal …”.

Submissions on Number of Assailants

95. The primary submission made on behalf of SK was that the evidence was not sufficiently strong enough to prove his presence in the carpark with the rest of the appellants and the co‑offenders when the agreement to commit some crime was apparently formed. This contention is addressed below and rejected. However, in her written and oral submissions, counsel for SK, Ms Cook, advanced an alternative submission which was the principal submission adopted by each of counsel for BK, MS and Mr Sakieh. This submission concerned the evidence as to the number of males who returned down Pennicook Lane and then went up the stairs onto the balcony of the victims’ unit. It involves a correct characterisation of the Crown case as having been premised on the necessity of establishing that each appellant at least entered the balcony area of the victims’ unit.

96. In her written submissions, Ms Cook referred to Mr Krisenthal’s evidence that there must have been seven assailants who entered the unit as a “guess based on his original estimate of there being eight males in the laneway who stayed with him”. [88] I agree that that seems to be the effect of his evidence. Ms Cook further submitted that, on the basis of his evidence, the jury could not be satisfied that more than three males entered the unit,[89] which presumably would mean that four or at most five assailants came up the stairs and entered the balcony area. In relation to Mr Wordsworth’s evidence, it was noted that he estimated that three or four people were attacking him and submitted that he was otherwise only guessing that there were other attackers present and where they were. Ms Cook sought to tie this together to contend that their evidence only showed one attacker left with Mr Krisenthal and three attacking Mr Wordsworth so that only four males were present. Ultimately, Ms Cook submitted that:[90]

“The evidence gives rise to the possibility that only six males returned to the victims’ unit and only four males climbed the stairs between the victims’ unit and the unit below and assaulted the victims, and does not exclude the possibility that the remaining males did not participate in the offences.” (emphasis added)

88. SK subs at [59].

89. SK subs at [59].

90. SK subs at [64].

97. The emphasised part of this submission was taken up in the submissions of the other appellants. Hence, on behalf of MS it was submitted that the Crown case rested on seven persons returning along Pennicook Lane towards the victims’ unit, that the CCTV footage does not support that contention and that the evidence of Mr Krisenthal and Mr Wordsworth was relevantly uncertain as to the number of persons present on the balcony or in the unit. [91] The submissions made on behalf of Mr Sakieh and BK were to the same effect. [92] BK also submitted that, because in the CCTV footage of the group assembling in the car park and crossing Ramsay Street he was seen wearing a distinctive top with horizontal stripes, that further reinforced a doubt about whether the jury could have been satisfied that beyond reasonable doubt that he invaded the unit given that the victims described their assailants as wearing dark clothing. [93] In light of the reasoning that follows, it is not necessary to address that particular submission other than to note that there were many possible places for the assailants to change their clothing.

    91. MS subs at [26] and [29].

    92. BK subs at [54].

    93. BK subs at [56] to [57].

98. In oral submissions, counsel for the appellants referred to the evidence of Mr O’Byrne, noted above, which it was said provided a plausible explanation for why at least one of the group of males who walked south on Pennicook Lane might have continued walking in the same direction, namely to attend the organised “fight” in the Fitness First car park depicted in the above map.

99. One part of the Crown’s submission has already been addressed and rejected, namely, the proposition that the Crown case against each of the appellants, Mitchell Connor and KC was not tied to establishing their entry onto the balcony area of the victims’ unit. Otherwise, the Crown emphasised the necessity in circumstantial cases to consider all the evidence (citing R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]). [94] The Crown submitted that the CCTV footage described above “revealed the seven males walking up Pennicook Lane and it is open to conclude that the seven returned shortly before committing the offences”. [95] The Crown submissions raised the possibility that, on the return journey, one of the group passed behind the vehicles on the other side of the lane to the CCTV camera and was out of sight. This possibility was not raised at the trial. If it had been, its feasibility might have been explored in the evidence. The Crown submissions addressed Mr Krisenthal and Mr Wordsworth’s evidence and submitted that:[96]

“At its highest, the evidence of Mr Wordsworth was that he saw three or four males around each of him and Mr Krisenthal. He was not directly challenged about that evidence in cross examination. It is open to accept that evidence and conclude that all of [the] males who entered Pennicook Lane went to the complainant’s unit. Similarly, Mr Krisenthal gave evidence of the same group entering the staircase.” (emphasis added)

94. Crown subs at [52].

95. Crown subs at [35].

96. Crown subs at [46].

100. The Crown referred to the “cohesive group” of males who assembled in the car park prior to the commission of the offence as suggesting they all agreed upon the same course, namely, to invade the victims’ unit.

Not Proven That More Than Six Males Returned Along Pennicook Lane

101. As noted, the Crown case was circumstantial and thus the Crown had to exclude any reasonable hypothesis consistent with innocence, although such a hypothesis has to be more than a bare possibility or mere conjecture. The appellant’s submissions contended that the evidence raised a reasonable hypothesis, namely, that not every member of the group who travelled up Pennicook Lane returned and that no more than five assailants entered the balcony area of the victims’ unit.

102. In quashing the convictions of MS, BK and SK, I was satisfied that the evidence raised a reasonable hypothesis that at least one member of the group who walked up Pennicook Lane did not return. This hypothesis was not just “mere conjecture” or a “bare possibility” but was supported by evidence. Three matters should be noted. First, a viewing of the CCTV footage suggests that there were more in the group that walked up Pennicook Lane than returned. As noted, the CCTV footage suggests that on the return leg there was no more than six in the group. Second, Mr O’Bryne’s evidence raised a realistic reason why at least one member of the group would not have returned along Pennicook Lane, namely, they wanted to attend the fight at the car park of “Fitness First”. Third, some support for the hypothesis that at least one member of the group continued on and did not return follows from the lack of any apparent connection between the group of males and the victims. The assembly of the group behind the library and the disguising of their faces strongly suggested they had agreed upon something illegal and violent. However, the notification of the organised fight at the carpark of Fitness First raised a realistic possibility that the invasion of the victims’ unit was an ad hoc decision made by some of them who may have baulked at attending an organised and potentially evenly matched display of aggression at the car park. The location at which EV parked her car was capable of supporting the Crown case of a premediated intention to invade the victims’ unit but it could also have been an escape point for what was planned at the Fitness First car park.

103. Further, I did not consider that the evidence was sufficiently strong to exclude this hypothesis. As noted, the CCTV footage appears to support it. Both Mr Krisenthal and Mr Wordsworth lost sight of the group when they first walked to the end of Pennicook Lane which provided the opportunity for at least one group member to continue walking. While both of the victims suggested that “about eight” assailants entered the stairwell, there are obvious difficulties in relying on their evidence to demonstrate beyond reasonable doubt that there were definitely more than six attackers, especially more than six attackers who at least came onto the balcony. The circumstances of the attack were clearly traumatic. As noted, the lighting in Pennicook Lane was poor. Their evidence was suggestive of their having estimated the number of attackers and not counted them. Taking Mr Wordsworth’s estimate, if (at most) there were “three or four” assailants attacking each of himself and Mr Krisenthal that means that his evidence does not support a finding beyond reasonable doubt that there were more than six assailants overall. While I regard the possibility that one or more of the group of males who returned down Pennicook Lane entered the stairwell but did not enter the victims’ balcony to be mere conjecture, I consider the possibility that no more than six returned down Pennicook Lane to be an inference consistent with innocence reasonably open on the evidence that was not excluded by the other evidence at the trial.

104. The fact that an inference to the effect that one of the group did not invade the victims’ unit because they might have pursued an opportunity to join in an organised fight elsewhere was left reasonably open on the evidence is not exactly morally compelling. However, that is irrelevant as it is nevertheless an inference consistent with innocence on counts 1 and 3 on the indictment. Further, because neither the CCTV footage, the victims’ evidence or any other evidence adduced at the trial provided any means of differentiating between the whereabouts and conduct of each BK, SK and MS at this point, it follows that each of them is entitled to the benefit of a conclusion that this inference consistent with innocence is applicable to them. Accordingly, in joining in orders concerning their appeals, I was satisfied that the jury must, as distinct from might, have entertained a doubt about their guilt in the sense discussed above (Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30 at [117]) on counts 1 and 3.

105. The same reasoning warrants the same conclusion in relation to counts 2 and 4. With those counts, the jury were instructed that to be “in company” an accused had to be “present when a crime is committed and share a common purpose”. [97] It follows that, unless a particular appellant was shown to have returned down Pennicook Lane, it could not be established that they had relevantly participated in a wounding in company that was the basis for counts 2 and 4.

     97. AB 423.7.

SK’s Identification

106. For the sake of completeness, I will address SK’s contention that the evidence was not capable of establishing beyond reasonable doubt that he was present amongst the group that assembled in the car park behind the library and walked across Ramsay Street into Pennicook Lane. There is no doubt that proof of that fact was essential to his guilt. As noted, the trial judge directed the jury that they had to be satisfied beyond reasonable doubt that SK was amongst the group of males who gathered on the corner of Pennicook Lane and Ramsay Road near the jacaranda tree and who can be seen in the CCTV footage walking up Pennicook Lane. [98]

     98. AB 1897.10.

107. The primary evidence of SK’s presence at the scene is the presence of two of his right thumb impressions on the neck area of the cola bottle found near the jacaranda tree noted above. The bottle was seen in that location by a witness just after 9.00pm [99] and later photographed by the police who attended the scene. [100] No other fingerprints were found on the bottle and DNA testing of the bottle was unsuccessful. [101] The bottle was a “Black and Gold” brand. The Crown contended that the bottle was purchased from a nearby store at around 8.30pm that evening by a person who congregated with the group but did not cross Ramsay Road with them. In his closing address to the jury, SK’s counsel appeared to accept that this was so. [102] However, on appeal, Ms Cook, submitted that there was no evidence to support the suggestion that the bottle that was found by police was purchased then. I disagree. The purchase of various items by those persons at the IGA is captured on CCTV. [103] From watching the footage, it is apparent that soft drink bottles were purchased, although it is not clear whether it was a “Black and Gold” cola bottle. [104] The fact that a (full) soft drink bottle was purchased soon before the incident by a person who congregated with a group and one of that group deposited a reasonably full bottle near the jacaranda tree, that was later seized, is capable of supporting the Crown’s contention as to the bottle’s origin.

     99. AB 626.12-.24; T 189.

     100. Exhibit 22.

     101. Exhibit 38 at R10.

     102. AB 1791-1794; T 1354-1357.

     103. Exhibit 71 at 01:30.

     104. Exhibit 71 at 01:43.

108. SK had a twin brother, TK. As noted, the Crown called Mr Tadrosse who was in the area that night and knew members of the group who assembled. He said that he was walking down Ramsay Street near the intersection with Pennicook Lane and recognised a number of people in the group who had just crossed Ramsay Street. He said amongst the people he recognised were “Mitchell Connor, [BK], [TK] or [SK] – I can’t remember which one it was, and I can’t remember who else I seen down there.” [105] He said he could not remember which one it was “cause they’re twins”. [106] He said he knew [TK] through school [107] and he had met [SK] twice before that night. [108] The Crown was granted leave to cross‑examine him on this topic. When asked if it could have been [SK] and not [TK], he said “[i]t could be, and it, it couldn’t be”. [109]

     105. AB 1059.5; T 622.

     106. AB 1061.25; T 624.

     107. AB 1061; T 624.

     108. AB 1062.1; T 625.

     109. AB 1101.46; T 664.

109. As noted, the Crown case was that SK was depicted in the CCTV footage of the area behind the library wearing a “blue beanie”. The CCTV footage shows that the person wearing this beanie had hair emerging from under it at the back. The Crown sought to rebut the suggestion that it was TK wearing the beanie by producing a photograph of TK taken in October 2016 [110] and comparing it to SK’s arrest photograph. [111] The Crown contended that the photographs showed SK had a “mullet” hairstyle consistent with that of the wearer of the blue beanie whereas TK did not. Along with an assessment of its relative beauty, a determination of what constitutes a “mullet” is very subjective. All that is known about the wearer of the blue beanie is that they had long hair that fell below the level of the bottom edge of the beanie as did SK at the time of his arrest.

     110. Exhibit 64.

     111. Exhibit 61.

110. Ms Cook’s ultimate submission on this issue was as follows:[112]

“It is not contended that the Crown’s explanation for the evidence is not open. However, having regard to the evidence in this circumstantial case the Crown has not excluded beyond reasonable doubt a reasonable alternative hypothesis consistent with innocence: male C was TK, as first asserted by Mr Tadrosse in his statement of 19 January 2017, that he brought a cola bottle to Pennant Hills that night, previously handled by his brother (the applicant), and that was deposited at the scene, and that it is male A who is as yet unidentified. The alternative explanation is reasonable and was not excluded at trial beyond reasonable doubt. In these circumstances it was unreasonable for the jury to find the applicant guilty of any offence.”

112. SK subs at [48].

111. Thus, it was conceded that the inference for which the Crown contended, namely that SK was present in the group and, while he was with them, placed his hand on the cola bottle found at the scene was open. In fact, it was the only inference raised by the evidence. The difficulty with the balance of this submission is that it seeks to raise a hypothesis for which there was no evidence. Even if Mr Tadrosse recognised TK and not SK that does not mean that SK was not amongst the group of males. There was no evidence that TK had any contact with SK in the period immediately prior to the evening of 30 December 2016 much less that, prior to assembling that evening, TK had obtained the cola bottle and provided it to SK for the latter to place his thumbs on it. The inference now sought to be raised on appeal is “mere conjecture” and only a “bare possibility” (Baden-Clay supra) and nothing more. This is especially so where, as in this case, “an accused person with knowledge of the facts is silent”, namely SK (Baden-Clay at [50] citing Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 at 227-228 per Mason CJ, Deane and Dawson JJ).

112. Nevertheless, for other reasons, I joined in the quashing of SK’s convictions.

Unreasonable Verdict - Mobin Sakieh

113. There remains to be considered Mr Sakieh’s appeal. Absent any evidence directly implicating him in the offences and specifically pointing to his presence on the victims’ balcony in their unit, then he would be in the same position as SK, BK and MS. However, there was such evidence tendered at the trial, namely, intercepted telephone calls involving him. A number of the calls contain statements that arguably bear upon whether the Crown proved beyond reasonable doubt he was present during the attack at the victims’ unit.

114. The first of the relevant intercepts was of a telephone call on 9 April 2017 between Brooke Downes and Mr Sakieh. [113] She told him that detectives had “just came over to my house to ask me questions about the stabbing that happened in Penno [ie, Pennant Hills]”. As noted, Mr Sakieh was told by a police officer about the stabbing on the night it occurred. During the call the following exchange occurred:

BD:      You didn’t do anything did you?

Sakieh:   No, I did not do anything.

BD:      Did you leave?

Sakieh:   Yeah… like… I didn’t… trust me… I wasn’t even in there or anything.

BD:      Cos they have a photo of like you’re with all the boys…

Sakieh:   Yeah… that’s when we were in Pennant Hills… we were just chilling in Pennant Hills and they just got all our photos from that… so they can’t prove anything from those photos cos we were just chilling in Penno as we always do, they can’t say anything about that and they got no photos or nothing, nothing from inside the house or around the house or anything… the only thing they got is those photos.”

113. AB 231.

115. I do not accept that any statement made by Mr Sakieh in this extract is capable of amounting to an admission by him that he was present at the victims’ unit that evening. However, the position is different with another intercepted call between himself and Ms Downes which took place on 19 July 2017. [114] The relevant part of the call was as follows:

     114. Intercept 16560; AB 239.

“[BD]:   Was there a stabbing incident a while ago that you might have been involved?

[Sakieh]:   Oi what, say it again, say it again.

[BD]:   Was there a stabbing incident a while ago that you might have been involved in…

[Sakieh]:   Yeah, yeah…

[BD]:      …in any kind of way?

[Sakieh]:   What about it?

[BD]:      They’re bring it back up.

[Sakieh]:   They’re bring it back up?

[BD]:      Yeah…

[Sakieh]:   Do they have…

[BD]:      …they’re bring up everything about everyone…

[Sakieh]:   …do they have…

[BD]:      …I’m about to call Brody and warn him now.

[Sakieh]:   Do they have evidence?

[BD]:   (Sound of wind) from what Mum says not a lot. But did you do anything?

[Sakieh]:   I didn’t do jackshit.

[BD]:      Were you there?

[Sakieh]:   (Snorts) maybe.

[BD]:   You need to come clean, if you like, you know if you did something then you need to cover it as like much as you can. Make it as insignificant as possible.

[Sakieh]:   Yeah, yeah.” (emphasis added)

116. In another intercepted telephone call on 11 October 2017, Ms Downes told Mr Sakieh that he was in the police “sights …about the stabbing in Pennant Hills”. [115] She tells him to be “careful” and he replied, “yeah I am I am, I’m not even doing [indistinct] anymore.”

     115. Intercept 46214; AB 249.7.

117. In her closing address, the Crown Prosecutor relied on these latter two intercepted calls as admissions by Mr Sakieh as to his presence and involvement in the stabbings. [116] In particular, the Crown submitted that the answer “maybe” was an admission as to his presence during the stabbing and that the reference to “not even doing anything like that anymore” was to his involvement in stabbing the victims. [117]

     116. AB 1619-1620; T 1182-1183.

     117. AB 1620.35; T 1183.

118. I have listened to the recordings of these telephone calls a number of times. I consider that it was well open to the jury to conclude that these calls contain admissions by Mr Sakieh to the effect that, at the very least, he entered onto the victims’ balcony with the assailants at the time the victims were stabbed. The telephone call on 19 July 2017 is especially incriminating. The reference to him “not doing jackshit” but answering “maybe” as to his presence conveys that he was present during the stabbing but did not carry it out himself.

119. Given the intercepted telephone calls, I consider that, upon a consideration of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Mr Sakieh was guilty.

120. As Mr Sakieh’s ground of appeal does not concern a question of law alone, he requires a grant of leave to appeal (Criminal Appeal Act, ss 5(1)(a) and (b)). Accordingly, I would grant Mr Sakieh leave to appeal his conviction on this ground but dismiss the appeal.

Proposed Orders

121. It follows from the above, that I propose that Mr Sakieh be granted leave to appeal to raise ground 1 of his appeal against his conviction but the appeal be dismissed.

122. Following the publication of the orders allowing his appeal, SK applied for consequential orders under s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to vary the commencement date of sentences he is serving for other offences whose commencement dates were fixed by other courts having regard to the sentence he is serving for the offences the subject of this appeal.

123. On 8 February 2017, SK committed various offences of violence. He was taken into custody on those offences on 2 June 2017. He ultimately received a custodial sentence for those offences the longest of which was 22 months, commencing 2 June 2017 and expiring on 1 April 2019 with a non‑parole period of 11 months expiring on 1 May 2018. For the offences the subject of this appeal, SK was sentenced to an aggregate sentence of 7 years and 6 months with a non‑parole period of 5 years. These sentences were fixed to commence on 2 January 2018 and thus ran concurrently with the sentences for the offences committed in February 2017.

124. While in custody on 27 August 2019, SK assaulted a correctional officer. He committed another assault on 8 October 2020. He was sentenced for these offences in the Local Court on 8 February 2021. For the first of these offences, he received a sentence of 16 months imprisonment with a non‑parole period of 12 months. For the second offence, he received a sentence of 12 months imprisonment with a non‑parole period of 9 months. Both sentences were fixed to commence on 8 February 2021, being the date the sentences were imposed. They ran concurrently with the sentences for the offences the subject of this appeal.

125. SK now applies to have those sentences commence on the day the relevant offence was committed. The effect of doing so will be that the sentence for the offence committed on 27 August 2019 will have expired and the non‑parole period for the offence committed on 8 October 2020 will expire on 7 July 2021. The submissions in support of this application point out that, even if these orders are made, it will still mean that since June 2017, SK will have spent over 500 days in custody that are not attributable to any offence in respect of which he has been convicted. The Crown did not oppose the orders sought. I propose that those orders be made.

126. Accordingly, the further orders that I propose are:

1. In relation to the appeal by Mobin Sakieh against his conviction:

1. Grant leave to appeal to raise ground 1 of his notice of appeal;

2. Dismiss the appeal.

1. In relation to the appeal by SK, further order:

1. Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 that the commencement of the date of the sentence for H75460288 (court file no 2019/00392503) be varied from 8 February 2021 to 27 August 2019;

2. Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 that the commencement date of the sentence for H80422786 (court file no 2021/00017523) be varied from 8 February 2021 to 8 October 2020.

**********

Endnotes

Amendments

25 June 2021 - Photograph at [7] re-imported

28 June 2021 - [85] - "handwritten" document was corrected to read "typed" document.

Decision last updated: 28 June 2021