160Mr Odgers SC submitted that verdicts of guilty with respect to the Appellant Abbosh were unreasonable or cannot be supported by the evidence. He developed that submission by reference to aspects of the evidence of various witnesses.
161Mr Game SC submitted that the verdicts of guilty with respect to his client on Counts 2 and 5 were unreasonable or cannot be supported by the evidence. He developed submissions by reference to the evidence of prosecution witnesses concerning the involvement of the Appellant Bene in the violence, contending that it was limited and inconsistent. Reference was made to evidence on the topic on whether the Appellant Bene had a knife during the incident and whether he was aware that the Appellant Abbosh had a knife at the time the brothers met at the Markets. He submitted as well that, applying correct principles of joint criminal enterprise and extended joint criminal enterprise, there ought be an acquittal on Count 5.
162The Crown made detailed written submissions contending that the verdicts of guilty with respect to each Appellant were not unreasonable and were supported by the evidence.
Decision
163If either Appellant succeeds on an unreasonable verdict ground, the consequential order would be a verdict of acquittal on the count or counts where the ground had been made good. Accordingly, it is necessary to consider these grounds in some detail. If an unreasonable verdict ground succeeds, the successful Appellant would be entitled to a more favourable outcome than an order for a new trial.
164The task of this Court when considering a ground such as this was summarised in Raumakita v R [2011] NSWCCA 126 at [31]-[34]:
"31 In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22].
32 In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29].
33 In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen, Mason CJ, Deane, Dawson Toohey JJ said at 494-495:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.'
34 The M v The Queen formulation of the task of this Court has been emphasised by the High Court in later cases: The Queen v Nguyen [2010] HCA 38; 85 ALJR 8 at 14 [33]; SKA v The Queen at 575 [13]."
165I have read the evidence adduced at the trial. In addition, I have had regard to relevant directions of law (including those on joint criminal enterprise and extended joint criminal enterprise) which are appropriate in this case.
Are the Verdicts of Guilty for the Appellant Abbosh Unreasonable or Not Supported by the Evidence?
166It is important to observe that the Appellant Abbosh, in his evidence at the trial, accepted that he was the person who stabbed both Ayed Qummou and Isam Qummou. As a result of this evidence, the two central issues in his trial became:
(a) could the Crown negative self-defence, and
(b) if the Crown could negative self-defence, what was the Appellant Abbosh's intent at the time he stabbed Ayed, and then Isam Qummou?
167In order to negative self-defence and establish the Appellant Abbosh's relevant intent, the Crown relied on evidence of all the circumstances leading to his involvement prior to the woundings and his behaviour after the woundings, to rebut his claim that he acted in self-defence.
168The Crown relied as well on the evidence of members of the Qummou family - Ayed, Fayez, Isam and Christine - that it was the Appellant Abbosh who was the armed aggressor in the two stabbings, and that he had not acted in self-defence.
169The Crown case against the Appellant Abbosh may be summarised as follows:
(a) the Appellant Abbosh had a very close relationship with his brother, and felt very protective of him;
(b) the Appellant Bene, having had an altercation with the victims' family, immediately called his brother on his mobile phone and requested that he come immediately to the Markets - this evidence came from various sources, including the Appellant Abbosh himself;
(c) the Appellant Abbosh attended the Markets promptly;
(d) the Appellant Abbosh then spoke to his brother who indicated to him aspects of the initial altercation with the Qummou family;
(e) the Qummous continued to work at their stall at the Markets after the initial altercation - they did not leave the stall to seek out the Appellant Bene, rather they requested security personnel to assist them;
(f) the Appellant Abbosh was very angry when his brother told him about the initial altercation, and he went to confront the victims' family;
(g) the Appellant Abbosh was armed with a knife which he brought with him to the Markets - the jury and this Court are entitled to reject completely his evidence that he happened to find the knife laying on the ground at the time he was being attacked - the evidence that the Appellant Abbosh produced a knife was given not only by members of the Qummou family, but by William Bimler (T309-310), a witness with no connection with the Qummou family;
(h) no member of the Qummou family was armed, although after the stabbing an attempt was made by Ayed Qummou to obtain a weapon from a hardware stall;
(i) the Appellant Abbosh stabbed Ayed Qummou four times, and then stabbed Isam Qummou three times when he came to assist Ayed Qummou;
(j) the areas on the bodies of each of the victims, where the multiple stab wounds were inflicted, were consistent with the Appellant Abbosh having an intention to cause grievous bodily harm;
(k) having stabbed both men, the Appellant Abbosh ran from the scene, abandoning the BMW at the Markets - flight was left to the jury as evidence of consciousness of guilt and no challenge was made on the appeal to that direction - both the jury and this Court are entitled to use the evidence of flight as demonstrating consciousness of guilt;
(l) the Appellant Abbosh then destroyed the knife and hid the remaining parts of it;
(m) the Appellant Abbosh never sought any medical treatment for any alleged injuries as a result of the claimed attack upon him, and never reported the alleged attack upon him to police or any other authority;
(n) upon being interviewed by the police on 5 February 2008, the Appellant Abbosh deliberately lied by claiming that he was working in Canberra at the time of the offences, denying all knowledge of the incident - he later admitted that he had told extensive lies to the police - the Crown relied on these lies as consciousness of guilt, and the jury and this Court are entitled to use these lies in that way;
(o) unlike the Appellant Abbosh, the Qummou family made immediate complaint after the initial altercation to Mr Hens and sought security assistance - the Qummou family also made immediate complaint to police after the woundings;
(p) on the other hand, the Appellant Abbosh, with his brother, sought out the victims' family and the Appellant Abbosh went to confront them;
(q) there was a consistency to the immediate complaints made by the victims and their evidence subsequently given at trial - it would have been abundantly clear to the jury that the victims' family (who had been long-term tenants of the Markets since 1990) were the victims of a reprisal attack by the Appellants Abbosh and Bene, and not the other way around.
170To my mind, the summary of the Crown case in the preceding paragraph, supported as it is by evidence, constitutes a very strong case against the Appellant Abbosh with respect to Counts 2 and 5.
171I accept the Crown submission that, once the jury had resolved, beyond reasonable doubt, that the Appellant Abbosh had brought a knife to the Markets, and rejected his implausible version of finding a knife on the ground, then his claim of self-defence would run hollow.
172Submissions were made on behalf of the Appellant Abbosh pointing to inconsistencies between the accounts of various witnesses in the trial. I have had regard to the arguments made in this respect. The jury and this Court are entitled to weigh up the inconsistencies in what was a quick and violent attack, where persons were witnessing an unexpected event from different angles. It is the experience of courts that inconsistencies in the accounts of witnesses are likely to occur in such circumstances.
173Likewise, the jury and this Court are entitled to take into account the shock that Ayed, Isam and Fayez Qummou experienced as a result of the unexpected aggressive confrontation and the violent attack involving the use of a knife by the Appellant Abbosh. I am not persuaded that any inconsistencies relied upon by the Appellant Abbosh stand in the way of the acceptance of the core evidence of these witnesses as being truthful and reliable. The evidence of Christine Qummou supported the evidence of Fayez, Ayed and Isam Qummou in significant respects.
174The Appellant Abbosh pointed to aspects of the evidence of Rodney Crossley, Nathan Laing and JT (an 11-year old boy) in support of this ground of appeal. I accept the submissions of the Crown that the evidence of Mr Crossley and Mr Laing relied upon in this respect, was indicative of each witness making observations at a point in time after the Appellant Abbosh had already commenced his attack on Ayed Qummou.
175I accept the Crown submission that JT did not see the commencement of the fight, but observed a part of the struggle which had been described by Mr Crossley and Mr Laing, and the involvement of the Appellant Bene in that altercation.
176In any event, none of these three witnesses could be seen as supporting the claim by the Appellant Abbosh that his actions in stabbing the victims were carried out in self-defence. Further, the versions of these three witnesses were not so significantly different from the accounts given by Ayed, Isam and Fayez Qummou that would lead the jury or this Court not to accept their accounts on criminal matters.
177Although there were some features of the evidence of Fayez Qummou which required care in assessment of its reliability, it was and remains necessary to consider his evidence in the context of all the evidence adduced at the trial. It is clear that Fayez Qummou made immediate complaint to Mr Hens of the threat made by the Appellant Bene, with an associated request for security to be present. He made immediate complaint thereafter to police.
178Submissions were made on behalf of the Appellant Abbosh that the Appellant Bene could not speak English, so that the assertion by members of the Qummou family that he had spoken in English during the initial altercation ought be rejected.
179The jury and this Court are entitled to accept that the Appellant Bene, who had lived in Australia at that time for more than six years, was capable of speaking some English words, particularly swear words when he was angry such as "I'm gunna fuck youse all up". The fact that a Crown witness, Rafael Pelli, said that he heard words being spoken in a different language, which sounded "like Arabic", is not inconsistent with the evidence of the Qummou family that the Appellant was speaking at times in both Arabic and in English. Further, the evidence of other witnesses, including Nairy Bedrossian, indicated that the Appellant Bene was speaking in English and was also being aggressive during the initial altercation.
180In accordance with the principles set out above at [164], I have made an independent assessment of the evidence, both as to its sufficiency and quality. I am satisfied that it was open to the jury to conclude beyond reasonable doubt that the Appellant Abbosh was guilty of each of the offences contained in Counts 2 and 5. I have kept in mind that the jury had the advantage of seeing the witnesses give evidence, including the Appellant Abbosh.
181The verdicts of guilty with respect to the Appellant Abbosh on Counts 2 and 5 are not unreasonable and the verdicts are supported by the evidence. I reject Conviction Ground 3 relied upon by the Appellant Abbosh.
Are the Verdicts of Guilty for the Appellant Bene Unreasonable or Not Supported by the Evidence?
182It is appropriate to first consider the guilty verdict for the Appellant Bene on Count 2. The Crown acknowledges that the Crown case against the Appellant Bene on Count 2 was significantly more cogent than it was for Count 5.
183The Crown pointed (accurately) to the following features of its case against the Appellant Bene on Count 2:
(a) the Qummou family had run the kebab shop and associated stalls at the Markets for many years (since 1990) - the day of these events (3 February 2007) was simply another day for them conducting their business until the behaviour of the Appellant Bene changed everything;
(b) the Appellant Bene, and his friend, Mr Sulaqa, reacted angrily to a simple request that they not eat food from another stall at the reserved tables - it was a perfectly reasonable request from Fayez Qummou, which drew an unjustifiably angry response from the Appellant Bene;
(c) the Appellant Bene took offence to the request that he move and his act in throwing a $20.00 note at Fayez Qummou indicated a measure of disdain;
(d) an altercation then occurred in which the Appellant Bene clearly became angry, with his voice being raised and heard by other persons at the Markets;
(e) the Appellant Bene then threatened Fayez and Ayed Qummou by claiming that "I'm gunna fuck youse all up" - if the Appellant Bene had not telephoned his brother immediately, or had his brother not then come immediately to the Markets and come to the kebab stall with his brother to confront the family, then the verbal threat may have been seen as something of an empty gesture - however, the actions of the Appellant Bene in calling his brother, who returned with him to confront the Qummou family, meant that the threat was a sinister and significant one;
(f) the evidence that the Appellant Bene (a citizen of Australia for more than six years) was incapable of using crude English words such as "I'm gunna fuck youse all up" was unconvincing - it was entirely plausible and should be accepted that the Appellant Bene spoke English words such as these in anger;
(g) Fayez Qummou made immediate complaint of those words to the organisers of the Markets and requested security help to be posted at his stalls - this evidence supported the version of events given by Fayez and Ayed Qummou, and pointed to the inherent implausibility of the version relied upon by the Appellant Bene at trial (through cross-examination of witnesses) that it was he who was threatened and put at risk;
(h) the Appellant Bene made a telephone call immediately to his brother to come to the Markets - if the Appellant Bene had been threatened, it would have been expected that he would have left the Markets or sought help from security or police, but he did neither, rather he called for reinforcements;
(i) after the Appellant Abbosh arrived at the Markets, his conversation with his brother caused him to become very angry - the jury and this Court are entitled to infer that the Appellant Bene communicated with his brother in a way which stirred up emotion in his brother;
(j) the Appellant Bene then went with his brother (whom the Appellant Bene would have known was angry and upset in light of what he had told him) to the kebab stall, where a confrontation ensued, initiated by the Appellant Abbosh;
(k) the jury and this Court are entitled to accept the evidence of Ayed Qummou that the Appellant Abbosh held a knife above his head and yelled out that he was going to kill Ayed Qummou;
(l) the jury and this Court are entitled to conclude that the Appellant Abbosh had the knife in his possession at the time that he went to the kebab stall - the evidence of the Appellant Abbosh that he simply found a knife lying on the ground, at the time he was being assaulted, was not plausible and was entirely contrary to the evidence of the Qummou family and an independent witness, Mr Bimler, who said that the Appellant Abbosh produced the knife;
(m) a conclusion that the Appellant Abbosh brought the knife with him to the Markets is very significant - having been summoned by his brother to the Markets in response to the altercation, the Appellant Abbosh became very angry and confronted Ayed Qummou, not because of any dispute he had with him, but directly because of what his brother had told him over the telephone and in person - both the jury and this Court should draw the inference that the Appellant Abbosh was acting jointly with the Appellant Bene to achieve what the Appellant Bene had threatened to Ayed and Fayez Qummou - that he would "fuck them up";
(n) although, on the Crown case, the Appellant Abbosh was the initial and main aggressor, the Appellant Bene was not simply a passive observer - there was evidence available to the jury and this Court that the Appellant Bene became involved in the physical fight by striking Fayez Qummou;
(o) the trial Judge directed the jury that they were entitled to take the Appellant Bene's flight from the scene as consciousness of guilt, and there has been no challenge to that direction on appeal - flight is an important aspect of this case as the Appellant Bene's case at trial (through cross-examination of witnesses) was to seek to shift the blame to Ayed Qummou and his family - the fact that it was the Appellant Bene who ran from the scene, and not the victims who contacted security prior to the attack and the police immediately after it, fortified the Crown case and emphasised the significance of the Appellant Bene's flight;
(p) when the Appellant Bene fled the scene, he entered a black vehicle in which his blood was located later on two areas of the front console - this evidence pointed to the Appellant Bene bleeding after the incident, this feature being consistent with evidence of his physical involvement in the fight - it pointed to his involvement in a joint criminal enterprise, and not merely as a passive observer.
184I accept the Crown submission that the circumstances recited in the preceding paragraph, when combined together, allowed the jury and this Court to be satisfied that the Appellant Bene meant what he said to the Qummou family - that he would "fuck them all up" - and that he put a plan into action by recruiting his brother to come to the Markets to assist him in a violent attack upon Ayed Qummou, in which they subsequently acted in a joint criminal enterprise to maliciously wound that victim with intent to cause him grievous bodily harm. The evidence established that the Appellant Bene was not only present and willing to assist, but actually did assist during the attack, although the acts which constituted the offence in Count 2 were committed by the Appellant Abbosh.
185To the extent that submissions made on behalf of the Appellant Bene sought to place importance on whether the Crown could actually establish whether he had a knife in his possession, I accept the Crown submission that it was not necessary for the Crown to prove that the Appellant Bene was also armed with a knife.
186It was an essential matter for the Crown to prove that there had been an agreement entered into between the Appellant Bene and the Appellant Abbosh, and this agreement was established on the totality of the evidence.
187Having undertaken an independent assessment of the evidence as to its sufficiency and quality, I am satisfied that it was open to the jury to conclude beyond reasonable doubt that the Appellant Bene was guilty of the offence charged in Count 2.
188Having applied the principles referred to at [164] above, I am satisfied that the verdict of guilty for the Appellant Bene on Count 2 is not unreasonable and is supported by the evidence.
189The Crown case against the Appellant Bene on Count 5 is in a different category.
190It was not part of the Crown case that the Appellant Bene desired to harm Isam Qummou because of the initial altercation. The evidence of the Appellant Bene obtaining his brother's assistance to confront Ayed Qummou, related solely to Count 2.
191For the Appellant Bene to be convicted on Count 5, it was necessary for the jury to be satisfied that, in reaching an agreement with the Appellant Abbosh to maliciously wound Ayed Qummou with intent to do grievous bodily harm, the Appellant Bene contemplated the possibility that other family members would come to Ayed Qummou's assistance and, if they did, that the Appellant Abbosh would then maliciously wound them also, with intent to do grievous bodily harm.
192I accept the Crown submission that the first part of this proposition may not have been that difficult to establish - that being the contemplation by the Appellant Bene that other Qummou family members may come to the assistance of Ayed Qummou. The Appellant Bene had been involved in the initial altercation which involved at least two members of the Qummou family (Fayez and Ayed) so that, when he and the Appellant Abbosh went back to the kebab stall to confront Ayed Qummou, he (Ayed Qummou) would not be by himself. There was a high likelihood that the Appellants would have to confront other persons as well.
193However, a major difficulty for the Crown was to establish that the Appellant Bene contemplated that the Appellant Abbosh would form the intent required (the intent to cause grievous bodily harm) against someone (such as Isam Qummou) who came to assist Ayed Qummou. It is at this point that there are significant problems for the Crown case on Count 5 against the Appellant Bene.
194I accept the submission for the Appellant Bene that, with respect to Count 5, the foundational offence had to be identified with some precision. Further, the jury should have been directed, and this Court should approach the issue upon the basis that, to find the Appellant Bene guilty on Count 5, it was necessary to establish beyond reasonable doubt that he had in contemplation a substantial or real risk of the Appellant Abbosh using his knife to stab a person who was minded to intervene during the commission of the foundational crime, and in so doing, that the Appellant Abbosh would act with the mental state relevant to the particular count on the indictment (intent to cause grievous bodily harm): R v Dang [2001] NSWCCA 321 at [45]-[46].
195To convict the Appellant Bene on Count 5, it was necessary for the Crown to prove matters which the evidence simply did not support in this case.
196Having undertaken the required independent assessment, I have reached the conclusion that the evidence is not such that it was open to the jury to conclude beyond reasonable doubt that the Appellant Bene was guilty of the offence charged in Count 5. It has been demonstrated that the verdict of guilty on Count 5 is unreasonable and cannot be supported by the evidence.
197A consequence of this finding is that the Appellant Bene is entitled to an acquittal on Count 5.