Alexander ZAPHIR v R

LEGISLATION CITED: Crimes Act 1900 Evidence Act 1995

R v Bolder; R v Zaphir [2008] NSWCCA 222 M v The Queen [1994] HCA 63; 181 CLR 487 CASES CITED : Jones v The Queen [1997] HCA 12; 191 CLR 439 MFA v The Queen [2002] HCA 53; 213 CLR 606 Markuleski v R [2001] NSWCCA 290; 52 NSWLR 82

PARTIES: Alexander ZAPHIR (Appellant) REGINA (Respondent)

COUNSEL: Self represented / Dale Higgins (Appellant) P A Leask (Respondent)

SOLICITORS: Self represented / Dale Higgins (Appellant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2008/0571

McCLELLAN CJ at CL SIMPSON J HOWIE J

Wednesday 29 April 2009 Alexander ZAPHIR v R Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 SIMPSON J: On 14 January 2008 the appellant was arraigned in the District Court on an indictment alleging an offence of assault with intent to rob whilst in company, an offence against s 97(1) of the Crimes Act 1900. As an alternative, the indictment alleged an offence against s 59(2) of the Crimes Act, of assault occasioning actual bodily harm whilst in company. 3 Also arraigned, on the same indictment, was Dean Bolder. Each accused entered a plea of not guilty to each count, and a jury was empanelled. After a trial that ran over 9 days, the jury returned verdicts of guilty against each accused on the primary count. 4 Nicholson DCJ proceeded to sentence each offender on 18 April 2008. He sentenced each to a term of imprisonment made up of a non-parole period of 15 months and a balance of term of 9 months, to be served by way of periodic detention. 5 The Crown successfully appealed against the leniency of the sentences. Each accused was re-sentenced by this Court, to a term of full time imprisonment made up of a non-parole period of 2 ½ years and a balance of term of 2 years (R v Bolder; R v Zaphir [2008] NSWCCA 222, 25 September 2008). 6 The appellant now appeals against his conviction. The sole ground of appeal advanced is that the verdict of guilty is unreasonable and cannot be sustained having regard to the evidence. 7 The appellant was not legally represented in this Court. He had the able assistance of a friend, not a lawyer, who presented comprehensive and helpful written submissions. 8 The evidence discloses that this was a third (or possibly even a fourth) trial. It appears that at least one, possibly two, previous juries had failed to reach a unanimous verdict. (I say it is possibly a fourth trial, because that was stated by one witness; it is, however, more likely that that was a mistake, or a reference to some other proceeding such as the committal hearing. It is of no consequence.)

The Crown case 9 The events giving rise to the charges occurred during the early afternoon of 25 February 2006, a Saturday. On that day Mr Bak Shiu Ng (the alleged victim) visited his sister who lived in a townhouse in a complex at an address in Mount Street, Pyrmont. The appellant and Bolder occupied separate townhouses in the same complex. 10 Mr Ng was then aged 63, and a pensioner. He is of Chinese ethnicity, and his command of the English language is extremely limited. 11 In short (it will be necessary to go to the evidence in more detail), the Crown alleged that the appellant and Bolder saw Mr Ng enter his sister's townhouse, saw him leave there, and set upon him, beating him and kicking him. The motive alleged was robbery. The Crown claims that Mr Ng was in possession of a wallet containing $2,000 in cash, and that this provided the motive for the attack. 12 The appellant and Bolder both acknowledged that they had been involved in a physical altercation with Mr Ng on the day in question. Bolder did this in evidence in the trial. The appellant did it in an interview with police on the afternoon of 25 February 2006 that was electronically recorded and that was before the jury. Their version was, in brief, that the incident was initiated by Mr Ng. I shall, however, return to the details of these accounts. 13 Evidence of the altercation itself was given by two prosecution witnesses, Mr Ng and Ms Debbie Isbell. Two other witnesses, Ms Jeannie Min and Ms Julie Smart lived in the vicinity and arrived on the scene, having heard "screaming and shouting", very shortly after the main event had come to an end. Even Ms Isbell, who was as close as the Crown came to having an independent eye-witness, did not claim to have seen the commencement of the fracas. 14 It is appropriate now to outline the evidence given by each of these witnesses. I propose to do so in some detail.

Mr Ng gave his evidence through an interpreter. I will say more about this circumstance below. 16 Mr Ng said that on 25 February 2006 he left his home at Kingsgrove to go shopping with his wife in Chinatown. They arrived at about 1.00pm, and he left his wife there and travelled by bus to Pyrmont to visit his sister. He was carrying two bags of vegetables that he delivered to her. He said that he had in his pocket a wallet containing $2,000. He said that as he walked up the stairs to his sister's apartment, he saw: " … two nice gentlemen who's polite enough to retreat further up the stairs so I can pass through."

One of the men was bald, one had hair. (As became clear as the evidence unfolded, the bald man was Bolder, the hirsute man was the appellant.) 17 Mr Ng said on at least three occasions that the men "retreated" to the top of the stairs to let him pass. 18 He visited his sister, stayed with her about 20 minutes, left with her the bags of vegetables, and left the unit empty handed. His wallet containing the money was in the rear pocket of his trousers. 19 He saw, on the opposite side of the road, a car "parking" [sic - ? parked], and a man leaning on it. The man made a motion with his hand. (Mr Ng interpreted this as a signal to somebody else.) 20 Mr Ng walked down part of the flight of stairs and: " … then suddenly a figure just flash out." 21 The man who "flashed out" from the side was a [sic - ? the] bald man. This man hit him (Mr Ng) "real hard". The punch was followed by "a shower of punches" all over his face, causing fractures to his nose. 22 After many punches he began to respond and used one of his hands to try to ward off the blows. As he did so, the man with the hair joined the fight. He was "even more vicious" (than the bald man). 23 Mr Ng said that "the other man": " … used his both hands to embrace or grab me from the back so that both my hands cannot be used to ward off the attack from the bald guy and after that both of them - both of them hold me upside down and then just chuck me down the flight of stairs and I landed on my head and my head was heavily bleeding as a result of that."

(It is not clear to me which of the two accused was intended to be referred to as "the other man".) 24 He said that as he lay on the landing the men began to search his body, the man with the hair saying "money, money, money". They dragged him along the floor, kicking him. The bald man kicked him in the head, then swung him around; the man with hair put his hands inside Mr Ng's pocket, and while doing so said the words "money, money, money". (It is not clear whether Mr Ng intended, by this, to assert that the appellant used those three words in succession once only, or repeated them.) The bald man continued beating him and kicking him. He said that his head was on the ground, he kept yelling, and the kicking continued. 25 The bald man took hold of his legs and dragged him along the landing to the pedestrian way, all the while continuing to kick him. The man with hair searched his side pocket and extracted his keys. 26 At this stage other people appeared; some of them attempted to stop the attack. Others were spectators. 27 The man with hair seized Mr Ng's hat and then threw it to him. 28 The two attackers then ran off. Some of the spectators suggested that Mr Ng might report the matter to police. He said that he did not do so because his English was too poor, and instead returned to his sister's apartment, where he washed himself. He was bleeding from his nose, mouth, skull, chin and torso. Before leaving his sister's he armed himself with a wooden stick. He took a bus to Chinatown where he met his wife. He did not immediately return to his home at Kingsgrove, but tried to buy some pins with which to repair his pants, that had been torn. 29 Mr Ng and his wife then returned home. On arrival there, they found that police had telephoned. Others had reported the incident to police. Mr Ng arranged to attend the police station (presumably, although it is not quite clear, the city police station to which the event had been reported by others). 30 Due to the unavailability of an official interpreter, Mr Ng did not then make a statement. Police declined to allow his son to act as interpreter. His injuries were photographed and the photographs were in evidence as exhibit D. 31 Mr Ng was medically examined the following day and found to have: " … multiple soft tissue injuries, abrasions and bruises to his scalp, forehead, nose, both arms, elbows and both knees." 32 When asked why he had not reported the assault to police, Mr Ng said: "First of all I couldn't speak any English. Secondly I try to avoid further trouble. After this incident was over I didn't realise until later on that two of the spectators did contact the police on my behalf. … I didn't realise that there was actually a police station very close to the Chinatown. I didn't know that but I was more concerned about my heavily torn trousers and instead I just tried to find somewhere to get some means to clean up my torn trousers … First of all my mentality at that time was that I just tried to put it all behind me, didn't want to get any further involvement with authority, I just want to put it behind."

(ii) Ms Debbie Isbell 33 Ms Isbell lived in the vicinity of the Mount Street townhouses. She had visited those apartments on occasions. On 25 February she was visiting a friend who lived in the complex, Ms Julie Smart. Ms Isbell heard "noises, screaming", and walked out of Ms Smart's unit to investigate. She said: " … I saw a man getting attacked on the ground."

He looked Asian. 34 The Asian man on the ground: " … appeared to be in a foetal position with his hands covering his head and his knees tucked right up to his chest … and screaming, looking like he's just protecting himself." (T 350) 35 Two males, one bald, one with dark thick hair, were present, one on either side of the Asian man. Ms Isbell recognised the bald man as a local, called Dean, and the other man as someone she had seen at a local community centre, whose name she did not then know. She later learned that he was known as "Fonzie", real name "Alex". 36 The bald man was punching and kicking the Asian man, more than once. The Asian man was: " … screaming and trying to protect himself from the ground, covered up like a ball." 37 The man with hair was bent over and grappling and punching him (the Asian man), kicking also. 38 Ms Isbell called out: "Stop, what are you doing?" 39 The two men got up off the Asian man, who also rose and ran and hid behind Ms Isbell. He said: "They're trying to rob me. Trying to rob me." (T 354) 40 Ms Isbell had difficulty understanding him because his English was poor, and he was upset. The bald man ran towards her, and threw a hat at her. It was a red baseball style cap. 41 The two men then left, going down some stairs on a cliff, the bald man going first, followed by the man with hair.

(iii) Ms Julie Smart 42 Ms Smart arrived on the scene later than Ms Isbell, and saw less of the incident. By the time she arrived, Ms Isbell was standing, with the Asian man. He had blood coming from the back of his head, and from his arms. She heard Ms Isbell call down the stairs: "I know who you fucking are and I know where you live." (T 277) 43 She saw Ms Isbell walk back to the letterbox area and speak to somebody on one of the upstairs balconies, saying: "You tell him that we know who he is and he's not going to get away with it."

The person Ms Isbell spoke to was somebody called Dean. 44 Ms Smart then asked the Asian man what had happened. In response, he patted his head and his back pocket. He went upstairs to one of the units. He emerged later, carrying a piece of wood. 45 Ms Smart then rang the emergency number and shortly after police arrived. 46 She found and picked up a set of keys from the ground where the incident had taken place.

(iv) Ms Jeannie Min 47 Ms Min was also a neighbour, living in the same block as the appellant, Bolder, and Mr Ng's sister. She is of Korean origin, but speaks some English. 48 On the afternoon of 25 February she was at home when she heard "screaming and shouting" coming from Mount Street. She walked outside and saw two young men walking past. She recognised them as "Alex" and "Dean" who both lived in the complex. 49 She saw an Asian man, bleeding from his forehead and the back of his head. She saw Ms Smart pick up a bunch of keys from the ground.

(i) The appellant's account 50 The appellant did not give evidence in the trial. He was interviewed in the late afternoon and early evening of the day of the incident and gave his account of what had occurred. The record of the interview was admitted into evidence. The appellant maintained his account in the trial. He did this via cross-examination of the prosecution witnesses, particularly Mr Ng. 51 He said that he left the apartment building where he lived to buy coffee and groceries. In the street outside the building he saw a fight going on and one of the people in the fight was a neighbour who he knew quite well, who lived opposite him, and with whom he had watched television the previous evening. (That was Bolder.) He said he turned the corner, saw the fight, and screamed out: "What's going on, guys? Hey, hold on." 52 He said it was moving very quickly and he went up to them and said: "That's enough, guys, it's enough." 53 He said he tried to separate the two men physically, gently but physically. At that moment some women neighbours came out and very aggressively began abusing him, and the other man, saying that they knew his (the appellant's) face and that they were going to report him to the police. In the meantime one of the men in the fight (an Asian man) ran away screaming in distress. He had never seen the Asian man before. He said that he was trying to separate the two men because they were rolling on the ground, the women were screaming at him. He said he and Bolder then left and went to Star City Casino where they sat on the grass and drank coffee. He said: " … I absolutely didn't assault anybody."

(ii) Dean Bolder 54 Bolder gave evidence in the trial. His evidence was that, prior to 25 February 2006, he had seen Mr Ng on a few occasions. He had last seen him on a Sunday two weeks earlier. On that day, he said, he (Bolder) had gone shopping, had returned to his unit, and, while unlocking the door to his unit, had placed his bag containing a wallet, which in turn contained the sum of $300 and a notebook, on the floor outside the door. He then entered his unit, absentmindedly leaving the bag with the wallet outside. Shortly after, from his balcony, he saw Mr Ng walk past his front door. A little while later he received a telephone call, as a result of which he realised that he had left his bag and wallet on the floor outside his unit. It was no longer there. He immediately drew the inference that Mr Ng had taken them. He did recover the bag and the wallet, but the money had been removed. 55 He next saw Mr Ng on 25 February. Bolder was at the front of his apartment, near the letterbox. Mr Ng was on the footpath, about ten metres away, and walking in Bolder's direction. 56 Bolder accosted him, aggressively, on his own account. He still believed that Mr Ng had stolen his money, and was "deeply angry". Mr Ng said "sorry, sorry" and ran towards Bolder, his arm outstretched and his thumb opposed to his fingers in what Bolder described as a "choke hold". Mr Ng took a firm hold of Bolder, by the neck. Bolder punched Mr Ng "reasonably hard", causing Mr Ng to fall against the letterbox. His head hit the wall. He stumbled, regained his foothold, and moved towards Bolder again. Bolder stood his ground and threw a punch. He struck Mr Ng in the nose, causing him again to fall back a little. The two men then began punching one another in a full-scale fight. They scuffled. Mr Ng was throwing kicks and punches at Bolder. On one kick, he lost his footing and fell. He was lying face up on the ground, but continued to kick at Bolder. Bolder took hold of his legs to stop the kicking. Mr Ng took hold of Bolder's shirt. 57 At that point the appellant came on the scene. He said "stop stop" or "that's enough that's enough". He came between the two men and separated them, using his hands. He did not hit or kick anybody. Bolder retreated. At that time he heard voices. Mr Ng rose and ran off towards Mount Street. Bolder and the appellant also left the scene, and went to a coffee shop in Pyrmont and then to the fish markets. 58 Bolder said that, prior to 25 February, he had never met or had a conversation with Mr Ng. He did not know, and had no reason to believe, that Mr Ng was carrying $2,000 in his wallet. 59 Bolder denied some of the detail given by Mr Ng in his evidence. For example, he denied having picked up a hat belonging to Mr Ng, and denied dragging him down the stairs.

The appeal 60 Essentially, what is put on behalf of the appellant is that the evidence of what occurred was so riddled with inconsistencies that a conviction based upon it is unreliable and unsustainable. A great deal was made of inconsistencies in the accounts given by various witnesses on the various different occasions on which they had given evidence. 61 Bolder was cross-examined by the Crown prosecutor at length. The import of the cross-examination was to suggest that his account of having lost his bag and money was a fabrication. Accordingly, Mr Stephen Leung was called in Bolder's case. He was an acquaintance of Bolder. He said that, on a date he could not place, but in 2006, he was telephoned by another acquaintance who wanted to get in touch with Bolder. The caller wanted to get in touch with Bolder because he had found a bag and a wallet that, clearly, he was able to identify as belonging to Bolder. This afforded some confirmation of Bolder's account of the events of the previous fortnight. 62 The appellant called evidence to establish that, in a particular respect , he was of good character (Evidence Act 1995, s 110(1)). He had worked voluntarily at the local community centre, in a child-care section. He was reliable and his conduct was appropriate and positive. He also adduced evidence that he had no convictions for offences of violence.

The submissions on behalf of the appellant 63 The submissions put on behalf of the appellant, at one point, took a somewhat sardonic tone. The Crown case was characterised in the following way: "It is the prosecution's case that the appellant and the co-accused planned and carried out a violent robbery 'in their own backyard' … ie at their own block of units, surrounded by people who not only knew them but could identify where they lived. To prepare for this, allegedly, they did not don even boots let alone runners. They did not obtain a weapon, or even a stick (which Mr Ng was quite able to do); … but rather allegedly waited unarmed, in thongs and slip-on sports casuals for their victim … . The prosecution alleges that although they were clearly aware of the prize - a bulky wallet with $2,000 in it, spotted in their target's back pocket - and although they had the advantage of age, size, strength and numbers, these two strong young men were unable to relieve the 63 year old of his cash. It is alleged that although he didn't kick, punch or otherwise assault them, he was able to fend them off with one hand, while keeping his hand over his back pocket at all times. Having failed in their attempt at robbery, rather than run off, they strolled off for coffee nearby, followed by fish and chips at the fish market, also nearby. This is the prosecution case." 64 There were, however, rather more detailed submissions. It was submitted:- · that Mr Ng's evidence was inconsistent and unreliable (the author of the submissions adopted a remark made by the Crown prosecutor, and repeated by his Honour in the summing up, to the effect that it was as well that the Crown did not have to prove the truth of every single fact or every single word said by every single witness, because if it did have to do so it would have to "hold up the white flag of surrender"); · that Ms Isbell's evidence was internally inconsistent (some of what was put in support of this drew on evidence Ms Isbell had given in previous trials); · that Ms Isbell was motivated by prejudice towards the appellant (Ms Isbell acknowledged that, after the incident, she had informed a team leader of the community centre where the appellant worked that he had been charged. It was also put to her that she had harboured some kind of grudge against the appellant because of an altercation of some kind between him and one of her children, but this did not emerge with any clarity); · that both Bolder's evidence, and the account given by the appellant in his interview, are "perfectly consistent" with the injuries Bolder was shown to have sustained, in contrast with the evidence of Mr Ng, which was not consistent with that evidence; · that there exists a reasonably possible alternative explanation for the altercation (at least on Bolder's part), that did not involve any intent to rob (that was an assault by Bolder out of anger and a desire for revenge because of his belief that Mr Ng had stolen his money). 65 I note here two further matters put in the submissions. One was that there is "repeated confusion" in the transcript about the spelling of Stephen Leung's name; the second that, on occasions in the transcript, the name of Mr Ng is recorded where (according to the submission) the reference ought to have been to Mr Leung. The author of the submissions concluded: "The stenographer clearly missed the place and importance of Mr Leung and his evidence. Perhaps the jury did also!" 66 These last submissions, of course, are misconceived. The mere fact that the court reporting staff make errors in the spelling of names or occasional errors of recording, has no bearing on whether the Crown has proven the guilt of an accused person. 67 The author of the submissions then turned his attention to the separate elements of the offence. Some of the submissions put in this context were repetitive of those earlier put, and I will not repeat them.

First element: participation in the assault 68 The author pointed out that there was no evidence of injury to the appellant, or of blood on him, or any physical evidence of his having been involved in an assault, even though Mr Ng was bleeding sufficiently for blood to be found on Bolder. The effect of the submission was that, if the appellant had been involved as Mr Ng said, then, inevitably, he would have shown some signs of that involvement.

Second element: intent to rob 69 Implicitly, the author of the submission recognised that the words attributed by Mr Ng to the appellant ("money, money, money") were evidence sufficient to found a conclusion that the intention of the appellant was robbery. He therefore took a different tack, and submitted that Mr Ng's lack of facility in the English language would make it difficult for him to distinguish between "I want you to give me your money" (which would be evidence of an intent to rob), and "why did you steal my money?" (which would not be evidence of intent to rob). There was no evidence to support the alternative form of words; and the reference to money was attributed, not to Bolder but to the appellant 70 He also contrasted this part of the account of Mr Ng with the evidence of Ms Isbell. But that overlooks the fact that Ms Isbell was present only for a very short time and not for the whole of the incident.

Third element: in company 71 The submissions put in respect of this element were more difficult to follow. It seems to me that the author confused the import of an allegation that two persons accused acted pursuant to a joint criminal enterprise, and a charge of which an element is that the offence was committed in company. The submission was made that: "The element of 'in company' allows for further doubt and requires a further, higher level of proof." 72 The submission is misconceived. S 97(1) is one subsection of many contained in Pt 4 of the Crimes Act. Div 1, Sub Div 2 is headed "robbery" and contains a number of provisions based upon robbery or assault with intent to rob. In general, the provisions are graduated according to the perceived level of seriousness of the offences. S 94 is the foundational section, providing a penalty of imprisonment for 14 years for an offence of robbery or assault with intent to rob or stealing from the person. S 95 builds upon s 94 by providing an increased penalty (of 20 years) for an aggravated form of the offence, the circumstances of aggravation being spelled out in s 95(2). S 96 builds further upon that providing for a further increased penalty (25 years) where an offence against s 95 is proved, and wounding or grievous bodily harm are inflicted. S 97(1) provides for an offence of the same kind where the person accused is alleged to have been armed with an offensive weapon or to have been in company with another person. Subs (2) provides for an aggravated offence, of being armed with a dangerous weapon, but this is not presently relevant. 73 The effect of the manner in which the provisions are set out is to make proof that the accused person was "in company with another person" an element of the s 97(1) offence. It does not require a different "level of proof"; it requires proof of an additional element, on the usual criminal standard. 74 I note here that, if the jury were to accept the account of the offence as given by Mr Ng, it was inevitable that they would find that the offence was committed in company.

Unreasonable verdict? 75 As indicated above, the sole ground of the appeal is that the verdict was unreasonable and cannot be supported having regard to the evidence. The test in determining such a ground remains that stated in M v The Queen [1994] HCA 63; 181 CLR 487; see also Jones v The Queen [1997] HCA 12; 191 CLR 439; MFA v The Queen [2002] HCA 53; 213 CLR 606; Markuleski v R [2001] NSWCCA 290; 52 NSWLR 82. That test is simply stated as whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In reaching that determination the appellate court must bear in mind the advantage held by the jury in its assessment of the evidence, having been able to observe the witnesses, and the manner in which they gave evidence. It must also make its own assessment of the evidence. 76 Obviously, the principal witness was Mr Ng. That he gave his evidence through an interpreter no doubt made it more difficult for the jury to assess his truthfulness. In addition, there were some difficulties with the interpreter. On one occasion (AB 327) the interpreter asked for a question to be repeated, apologising, and saying: " … I am not myself today." 77 On other occasions he was unable to understand what Mr Ng was saying. On one occasion he said that Mr Ng was using a Chinese dialect with which he was not familiar. 78 It is also not to be overlooked that Mr Ng did not himself report the incident to police. This is a circumstance operating in favour of the appellant. 79 However, it is apparent that, notwithstanding any difficulties with respect to interpretation, the jury ultimately accepted Mr Ng as essentially truthful. He was substantially supported by Ms Isbell. 80 Certainly, once the evidence was accepted, there was ample on which the jury was entitled to convict. Mr Ng described the appellant's participation as "even more vicious than Bolder's"; it was the appellant to whom Mr Ng attributed the words "money, money, money"; and it was the appellant that Mr Ng said had searched his side pocket and extracted his keys. 81 Moreover, the jury had the benefit of extremely comprehensive addresses. Counsel for the appellant meticulously identified "points of inconsistency" in the prosecution case, and these were the subject of further detailed direction in the summing up by the trial judge. 82 This was, in my opinion, classically a case in which the jury had available to it all relevant evidence and arguments and, after due consideration, accepted the prosecution case as it emerged substantially through the evidence of Mr Ng. In my opinion it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. 83 In reaching this conclusion I have borne in mind the following. The evidence given by Bolder was unlikely to have assisted either himself or the appellant. He clearly spelled out a motive for an attack on, and an attempt to rob Mr Ng. In making my own assessment of the evidence, it has been necessary to focus upon whether there is a reasonable possibility that, no matter what Bolder did or why he did it, the appellant was an unfortunate entrant onto the scene who became involved in an attempt to defuse a violent situation. Having regard to the evidence of Mr Ng and Ms Isbell, I do not think any such reasonable possibility exists. 84 I would dismiss the appeal against conviction. 85 HOWIE J: I agree with Simpson J. **********

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