AS v Regina

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 R v Abusafiah (1991) 24 NSWLR 531 CASES CITED : R v Meher [2004] NSWCCA 355 RPS v R [2000] HCA 3; (2000) 199 CLR 620 Tripodina & Morabito v R (1998) 35 A Crim R 183

PARTIES: AS - Appellant Regina - Respondent

COUNSEL: SJ Odgers SC - Appellant P Ingram - Respondent

SOLICITORS: M Katsoolis - Appellant S Kavanagh - Public Prosecutions

• 1 - IN THE COURT OF CRIMINAL APPEAL 2007/11842 McCOLL JA RS HULME J LATHAM J

Friday 24 September 2010 AS v REGINA Judgment 1 The Court: The appellant was convicted after trial by jury in respect of five counts all of which related to a violent incident in St Marys on 6 May 2006. 2 The five counts of which he was convicted were: (a) that on 6 May 2006 at St Mary she and two co-accused maliciously inflicted grievous bodily harm upon Gerard Paine with intent to do grievous bodily harm to him in contravention of section 33(1)(b) of the Crimes Act 1900 (NSW);

(b) that on 6 May 2006 at St Marys he and two co-accused maliciously wounded Daniel Banks with intent to do grievous bodily harm to him in contravention of section 33(1)(a) of the Crimes Act 1900 (NSW);

(c) that on 6 May 2006 at St Marys he and two co-accused, while in company with each other, assaulted Patrick Banks, thereby occasioning actual bodily harm to him in contravention of section 59(2) of the Crimes Act 1900 (NSW); (d) that on 6 May 2006 at St Marys he and two co-accused, while in company with each other, assaulted David Carlile, thereby occasioning actual bodily harm to him in contravention of section 59(2) of the Crimes Act 1900 (NSW); (e) that on 6 May 2006 at St Marys he and two co-accused threatened unlawful violence towards another person, by conduct that would cause a person of reasonable firmness present at the scene to fear for his or her own personal safety in contravention of section 93C(1) of the Crimes Act 1900 (NSW). 3 The trial judge, his Honour Judge Sorby DCJ, directed verdicts of acquittal in respect of one of the co-accused. The other co-accused was acquitted. 4 The appellant sought leave to appeal against his conviction on two grounds:

(a) that the trial judge failed properly to put the defence case to the jury; (b) the verdict of the jury was unreasonable. 5 The application was heard on 16 September 2010. On that day the Court made the following orders:

1. Appeal allowed. 2. Quash the convictions. 3. Direct a verdict of acquittal on each count. 6 The appellant was accordingly discharged from custody. 7 The Court indicated it would deliver its reasons for making those orders subsequently. These are those reasons.

The Crown case 8 The Crown case was that the victims (Gerard Paine, Daniel Banks, Patrick Banks and David Carlile) were attending a party at a community centre in St Marys. At about 10.30 pm some person or persons threw bottles (and possibly eggs) towards the people at the party. Some of the victims followed some people to Adelaide Street, St Marys, but lost sight of them. About that time, three or four men (who it was not suggested were the bottle throwers) came outside a house in Adelaide Street and had a conversation with two of the victims. At that stage none of those men appeared to be holding anything. Some of the victims started to walk away but then noticed a large group of people, some of whom were carrying "poles" running out of the driveway of the Adelaide Street house towards them. 9 One of the victims walked back towards the men who were initially out the front of the Adelaide Street house and "another ten guys". He had a short conversation with one of the males (allegedly one of the co-accused). He was then assaulted "at the gutter" of the road and suffered a number of injuries causing him to bleed profusely. He and the other victims ran to a park where they were attacked and suffered various injuries at the hands of persons they could not identify. 10 There was no dispute that the appellant had attended a party at the Adelaide Street house prior to the incident, or that he was present in the first group of males at the front of the house when the violence began. However, the Crown did not contend that all of the men at the Adelaide Street house, or all the men out the front of the house, joined a criminal enterprise to attack the victims. 11 As against the appellant, the Crown relied on the concept of joint criminal enterprise and evidence to establish the involvement of the appellant in that criminal enterprise. 12 The Crown case against the appellant was based on the evidence of a girl who was present at a party at the Adelaide Street house, Emily Spillane. She gave evidence that she had heard a person she was "pretty sure" was the appellant say that he was going to fight the males who had come to the front of the house, that she and another party-goer had immediately spoken with that person and attempted to dissuade him from that course, that the appellant then picked up a barbell and left through the back gate of the yard of the premises with three other men, who included the two co-accused. 13 The Crown also relied on DNA evidence. After the incident the police noticed two spots of what appeared to be blood on the appellant's shorts. DNA recovered from the appellant's pants was of the same profile as the DNA of one of the victims. The Crown led evidence that the DNA on the shorts likely came from blood. The defence case 14 The defence case was, in summary, that: (a) Ms Spillane was not certain that it was the appellant who was the person who said and did the things she referred to in her evidence; accordingly the jury must have had a reasonable doubt whether it was him; (b) two witnesses testified that the appellant went out to the front of the house as part of the first group without anything in his hands; and (c) the DNA evidence could only tend to prove that the appellant was standing nearby when the victim was struck and did not prove that he was involved in a joint criminal enterprise. 15 Accordingly, the defence case was that the jury should have had a reasonable doubt that the appellant walked to the front of the Adelaide Street house intending to fight or armed with a bar, and so should have had a reasonable doubt as to whether he joined a joint criminal enterprise to attack the victims.

Ground 1: that the trial judge failed properly to put the defence case to the jury 16 The appellant submitted that the trial judge did not put the defence case to the jury at all, let alone fairly. 17 The Crown submitted that the trial judge included a summary of some aspects of Ms Spillane's evidence in the summing up - including the apparently qualified terms of some of her evidence. However it accepted that his Honour did not give the jury any direction concerning the central role of her evidence to the success of the Crown case against the appellant on each of the five counts. It accepted that, in particular, there was no direction that illustrated for the jury the manner in which Ms Spillane's evidence was relied on by the Crown to establish that the appellant was a participant in a joint criminal enterprise that caused the attacks on the victims of each of counts 1 to 4 and the affray in count 5. 18 It should also be noted that before the jury was sent out to commence its deliberations, the trial judge refused an application made by counsel for the co-accused for his Honour to underscore that during her evidence Ms Spillane had said on 38 occasions words to the effect "I don't remember". On the assumption that giving this direction would have benefited the appellant, the Crown drew to the Court's attention the fact that counsel for the appellant at trial (who was not counsel on the appeal) did not make any further application relevant to this ground of appeal.

Consideration 19 A perusal of the summing-up indicates that, as the appellant submits, the trial judge did not put the critical elements of the appellant's case to the jury. In the course of the summing up his Honour informed the jury that he was "turn[ing] to the case for each accused". However he then dealt only with two matters. First, the fact that neither the appellant nor the remaining co-accused gave evidence - as to which he gave the jury the usual direction. Secondly, his Honour drew the jury's attention to the fact that each accused had raised his good character - as to which his Honour again gave the jury a direction of law. The summing-up then concluded. The trial judge invited counsel to make submissions as to anything arising from his summing-up. Counsel for the appellant made no application. No explanation of why this was so was placed before this Court. 20 Although the Crown pointed out in its written submissions that the appellant's counsel did not seek any redirection from the trial judge, it did not contend that the Court should not entertain ground 1: cf r 4, Criminal Appeal Rules (NSW). This was an appropriate position to take as it is apparent for the reasons which follow that an irregularity occurred at the trial which is such a departure from the essential requirements of the law that it goes to the root of the proceedings and would inevitably have led to the Court granting the leave r 4 otherwise would have required: see Tripodina & Morabito v R (1998) 35 A Crim R 183 (at 195) per Yeldham J (with whom Carruthers and McInerney JJ agreed); R v Abusafiah (1991) 24 NSWLR 531 (at 536) per Hunt J (with whom Gleeson CJ agreed and with whose reasons Mahoney JA generally agreed). 21 A trial judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary: s 161(1), Criminal Procedure Act 1986 (NSW). However requirements of fairness mean that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 (at 561). 22 As Wood CJ at CL explained in R v Meher [2004] NSWCCA 355 (at [76]) the task of a trial judge: "… requires the judge to explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt … So far as the accused is concerned, it is the case which the defence makes that the jury must be given to understand, including any matter that is properly open upon which they might find for the accused: Pemble v The Queen (1971) 124 CLR 107." 23 Further, in some cases the fundamental task of the trial judge to ensure a fair trial of the accused will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence: RPS v R [2000] HCA 3; (2000) 199 CLR 620 (at [41]) per Gaudron ACJ, Gummow, Kirby and Hayne JJ. 24 In this case it was, in the Court's view incumbent on the trial judge to put to the jury the critical elements of the appellant's case outlined in [14] above and give the jury the directions the Crown effectively conceded (see [17] above) ought to have been given. 25 The trial judge's failure to put the appellant's case to the jury and direct it appropriately means that the trial miscarried.

Ground 2: the verdict of the jury was unreasonable 26 The question arose, accordingly, as to whether there should be a retrial. This question was clearly related to the appellant's second ground of appeal that the verdict of the jury was unreasonable. 27 At this stage it is appropriate to refer in some greater detail to Ms Spillane's evidence, which was clearly critical to the jury's decision to convict the appellant, rather than the DNA evidence. This is because the blood of the victim which was found on the appellant's clothes was also found on the clothes of the co-accused who was found not guilty. This tends to suggest the jury convicted the appellant on the basis of Ms Spillane's evidence. In any event, the presence of the blood did no more than place the appellant close to the victim. 28 We have already referred to Ms Spillane's evidence that "she had heard a person she was 'pretty sure' was the appellant say that he was going to fight the males who had come to the front of the house" (see above at [12]). Other examples of her apparent equivocation in this respect were her evidence in cross-examination that she had said she was "pretty sure" because she was not certain it was the appellant (T 289.33). At another stage she said: "I am quite sure that it was him, but not 100 per cent." 29 She also agreed in cross-examination that it was difficult to remember "what was said", "who said what" and the "exact sequence of events". (T 288). 30 The Crown conceded that the uncertainty of some of Ms Spillane's evidence in chief was underscored in cross-examination. Further, when re-examined, Ms. Spillane could not remember the exact words or the particular pronoun used by the appellant when he said that "they'd flogged them". 31 As we have said, the trial judge refused an application by counsel for the co-accused that his Honour draw the jury's attention to the frailty of Ms Spillane's recollection. The Crown conceded that, in substance, the uncertainty of Ms Spillane's evidence might have been sufficient to raise a reasonable doubt in the mind of a properly instructed jury acting reasonably. 32 The appellant went further. He submitted that Ms Spillane's uncertainty about his role in the critical events was consistent with her having a doubt as to whether the person who expressed an intention to fight and picked up a dumbbell bar was him and, accordingly, her evidence was incapable of sustaining a finding by a reasonable jury beyond reasonable doubt that the appellant was, in fact, that person. He also submitted the other evidence in the trial did not cure that fundamental flaw in the Crown's case. 33 In its written submissions the Crown contended that notwithstanding any view this Court might form that the verdicts of guilty were unreasonable having regard to all the evidence (including that given by Ms Spillane) at trial, the Court would order a new trial rather than an acquittal on each count having regard to the contents of the statement Ms Spillane originally gave to the Police and an incident of ill-health she suffered during the trial - the latter the Crown submitted the Court might infer affected adversely her ability to recall the events relevant to the counts on the indictment and give a more reliable account of the events touching upon the Crown case against the appellant. However the Crown abandoned the submission that there should be a new trial at the hearing of the appeal. It conceded that it did not have available any evidence which might realistically suggest that Ms Spillane's evidence would implicate the appellant to the requisite standard of proof. 34 The Court was satisfied that the appellant's submission that Ms Spillane's evidence was incapable of sustaining a finding by a reasonable jury beyond reasonable doubt that the appellant was, in fact, one of those who assaulted the victims was correct and that the other evidence led at trial was incapable of sustaining a finding of his guilt beyond reasonable doubt. 35 It is for these reasons that the Court made the orders referred to in paragraph 5. ********** - 7 -

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