Asadi v R

Catchwords: CRIME – Appeal and review – Appeal from Local Court to District Court – By person convicted against conviction – Conviction by Local Court Magistrate – From finding of fact – Credibility of witnesses – Failure to give appropriate directions of law – Weight to be given to medical opinions tendered by the Crown without objection – Onus of proof – Undesirability of rhetorical questions as to why a witness may give false evidence

Legislation Cited: Crimes Act 1900 (NSW) s 93T(1), s 192E(1)(b)
Crimes (Appeal and Review) Act 2001 (NSW) s 11(1) in Part 3,
Evidence Act 1995 (NSW) s 136, s 165

Cases Cited: Barca v The Queen (1975) 133 CLR 82
Charara v R [2006] NSWCCA 244
Chorora v The Queen [2006] NSWCCA 244
Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265
Fox v Percy [2003] HCA 22
Gelle v DPP (NSW) [2017] NSWCA 245
Gianoutsas v Glykis [20061 NSWCCA 137
Liberato v The Queen (1985) 159 CLR 507
Lunney v Director of Public Prosecutions [2021] NSWCA 186
Shepherd v The Queen (1990) 170 CLR 573
The Queen v Baden-Clay (2016) 258 CLR 308

Category: Principal judgment

Parties: Monireh Asadi (Appellant)
ODPP (Crown)

Representation: Counsel:
G James KC (Appellant)
L Robeau (Solicitior) (Crown)
Solicitors:
Abbas Law (Appellant)
ODPP (Crown)

File Number(s): 2019/103732

Publication restriction: Nil

JUDGMENT

Introduction

1. On 22 March 2024, after 10 days of hearing, including 2 days devoted to the oral delivery of comprehensive reasons, the Appellant was convicted in the Downing Centre Local Court by Magistrate Barko of one count of “participate in criminal group” in contravention of s 93T(1) of the Crimes Act 1900 (NSW) (“Crimes Act”) and four counts of “dishonestly obtaining financial advantage by deception” in breach of s 192E(1)(b) of the Crimes Act.

2. The Appellant appeals both her conviction and her sentence.

3. The Appellant was sentenced to full-time imprisonment in relation to the convictions. The sentences have been stayed pending determination of this appeal.

4. The Appellant was represented on the appeal by Mr G. James KC and the Crown by Ms Robeau.

5. It was agreed by the parties that the Appeal would proceed firstly, by me hearing full argument and delivering judgment on the conviction Appeals and thereafter, if necessary, to deal with the Appeals concerning sentence.

Nature of this Appeal

6. The appeal is brought pursuant to s 11(1) in Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”). The Appellant lodged an appeal against the conviction on 22 March 2024. As such, the Appellant does not require leave pursuant to s 12 of the Appeal and Review Act.

7. Section 18 of the Appeal and Review Act provides that a conviction appeal to the District Court is a rehearing on the transcript (supplemented by the tendered exhibits) and is not a de novo hearing: Gianoutsas v Glykis [20061 NSWCCA 137; Charara v R [2006] NSWCCA 244. The direction in s 18 of the Appeal and Review Act as to the nature of such an appeal does not require the Court, in every case, to undertake a complete review of the whole of the evidence and form its own view as to the applicant's guilt regardless of the issues raised by the appellant: Lunney v Director of Public Prosecutions [2021] NSWCA 186.

8. In such appeals, the appellate Judge is to form their own opinion of the facts, whilst recognising the advantage of the Magistrate who saw and heard the witnesses called, and bearing in mind the natural limitations stemming from proceeding wholly or substantially on the transcript record: Chorora v The Queen [2006] NSWCCA 244 at [17]-[22]; Gelle v DPP (NSW) [2017] NSWCA 245 at [69] and Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 at [23]. The Court is required to give the judgment which in its opinion ought to have been given at first instance: Fox v Percy [2003] HCA 22.

The facts

9. The case arises out of a collision between two motor vehicles that occurred on 18 July 2015. One of those vehicles was owned by the Appellant. It is common ground that the collision occurred. It is common ground that, after the collision, the Appellant was in the drivers’ seat of her car, appeared to be trapped and injured, was rescued from the wreck, taken to hospital, and treated for apparent injuries. Thereafter, she made insurance claims for damage to her motor vehicle and personal injuries.

10. The Crown contends, and the Magistrate was satisfied as to this, that collision was “staged and that the Appellant was intimately involved in the staging of the incident, in that she was present when the collision happened, but was out of her vehicle, observed another vehicle deliberately drive into the back of her vehicle thus pushing it into a electricity pole, and, before emergency services arrived, she and another woman got back into the vehicle and pretended to be trapped and injured so that they were “rescued" and subsequently taken to hospital and “treated" for alleged injuries. Thereafter, she gave false histories to various doctors and fraudulently made the insurance claims.

11. It is common ground, and indeed obvious, that, if it be proved beyond reasonable doubt that the accident was staged and the Appellant was involved in the staging, then the Appellant is guilty of the charges which must have involved her thereafter knowingly making fraudulent claims on various insurance policies for personal injuries and property damage.

12. The Appellant’s account of what occurred is recorded in, amongst other places, the insurance claim forms themselves and a series of histories she gave to various doctors, both retained on her behalf and retained for the insurance company’s purposes.

13. One place her account can be seen is what she said to a police officer and was in the following terms:

“I was driving on the far-left lane next to the curb going towards the city on the Hume Highway. The car to my right was changing lanes to my lane in front of me. The car signalled. I did slow down, the car moved into my lane. I then felt the immediate impact from behind. I don't know much afterwards but I remember putting the car in park, putting the handbrake up and turning off the car."

14. Three of the medical professionals consulted by the Appellant provided opinions to the effect that the injuries and symptoms reported by the Appellant were consistent with a motor vehicle accident occurring in the way described by the Appellant. Those opinions, in the form of Reports, were all tendered, without objection, by the Crown.

15. There was no forensic or other evidence to suggest that the accident was staged. Rather, the Crown's case, whilst ultimately inferential, was based on the direct evidence of two witnesses, described by the learned Magistrate as “star witnesses" as to the staging of the accident and the involvement of two females, who the witnesses were unable to identify.

16. Ultimately, the Magistrate was satisfied, beyond reasonable doubt, that the offences were proved. In substance, as a matter of fact, that involved two separate and distinct findings. The first being that the accident was staged in the way described by the Crown witnesses and the second being an inferential finding that one of the females involved in that activity was the Appellant.

17. Magistrate Barko gave, over a number of days, what can only be described as a comprehensive judgment, summarising in great detail, and it is accepted before me with accuracy, the evidence before him and explaining in detail why, on that evidence, he was satisfied that the Crown had proved its case beyond reasonable doubt.

18. The judgment commenced in the usual way with what the Magistrate described as the “usual directions of law as to onus and standard of proof and the like.”

19. No issue is taken by Mr James with the directions that were given by the Magistrate. However, Mr James has identified in his submissions a number of important and relevant directions which he contends were not expressly made by the Magistrate and submits that failure to do so is productive of error on the Magistrate's part.

20. Mr James submits that, fundamentally and contrary to the direction as to onus and burden which he did give himself, the Magistrate characterised what was before him as a contest between two competing versions of events and resolved that contest in favour of the Crown in a way that was legally impermissible and has produced error.

21. Mr James invites me, in the event I find any error on the part of the Magistrate or indeed even if I do not, to consider all of the material for myself and form my own view as to the correct result.

22. This will be a difficult exercise for me because each of the “star witnesses" for the Crown were properly identified by the Magistrate as fraudsters. In relation to one of those witnesses, the Magistrate recorded:

“He admitted that he committed fraud. He admitted his dishonesty. He admitted his lying and deception."

23. In relation to the other, he described him as:

“quite frankly presented in a quite grandiose manner, he looked like he was enjoying his time in the limelight. He was obviously an intelligent man which I'll come to and fluent in English, but it is almost as though he entered the arena to some extent, and I will come to that because of his involvement with police. I had to intervene on a number of occasions in respect of the evidence he was giving by reason of him not answering directly, by reason of him becoming argumentative, obnoxious. By reason of him challenging matters when he should simply answer questions. So, I take that into account and his position and so on. It is an overall impression that the jury gets in respect of the witness.”

24. The learned Magistrate identified a number of inconsistencies within the evidence of these witnesses and, importantly, understood that one of the witnesses who had pleaded guilty to charges arising out of the same incident had expressly received a discount on his sentence as a result of his cooperation with authorities, including providing the statement which became his evidence in these proceedings. The other witness who, on his own evidence was also very much involved in the same activities, has not been prosecuted and the Magistrate accepted that this was because of his “induced statement" for the purpose of assisting in these proceedings.

25. In summary, the Magistrate accepted that one of the witnesses was suffering mental health issues, both were involved in the commission of the crime, the subject of these proceedings, and one admitted being involved in earlier criminal activities.

26. Notwithstanding all of that, the Magistrate accepted the testimony of those two witnesses as to the staging of the accident and the involvement of two females, which was essential to the finding that the event was entirely staged.

27. The provisions of the Evidence Act 1995 (NSW) (“Evidence Act”) in both s 136 and s 165 were undoubtedly engaged.

28. Mr James submits that the Magistrate, as a result of failing to expressly give himself those directions, failed to scrutinise the evidence of these witnesses with sufficient care and that his conclusion that their evidence on the fundamental issue that there was a staged accident was influenced by this failure. Mr James submits that the Magistrate ought to have found the witnesses as unreliable and there evidence insufficient to found such a finding beyond reasonable doubt.

29. Mr James goes further and suggests the Magistrate made an error by asking himself a rhetorical question, in relation to the witness who had pleaded guilty:

“why would you plead guilty to something you are not guilty all unless you are being honest and upfront with the court?"

30. At another stage in the reasons the Magistrate said in relation to both witnesses:

“They both gave, notwithstanding the shortcomings and so on that I have referred to in the transcript, convincing evidence. Why would two men give evidence that they were involved in a staged accident? That is what the jury would ask itself. Why would you go through years of trouble and then ultimately in their view come clean?"

31. This is said to be an impermissible question and line of reasoning which must shift an onus onto the Appellant to try to answer the question, but to which, in any event, there is a ready answer, being the benefit to the witness in giving the evidence in obtaining either a discount or no prosecution at all.

32. This is one of the reasons, according to Mr James, it can be seen from his reasons that the Magistrate failed to approach the account of events put forward by the Appellant, i.e. that it was a legitimate accident and that she was injured as a result in the correct legal way, rather the Magistrate erred, by posing the competing case theories as a competition, rather than remaining focused on the fundamental requirement of the prosecution to prove its case beyond reasonable doubt.

33. More particularly, Mr James contends that the Magistrate failed to direct himself that, in order to convict in the circumstances of the conflicting accounts, he needed to do more than just reject the Appellant’s account, he needed to go further and find that, positively, it was false. Even then, he needed to return to the other evidence and decide on that evidence if the Prosecution had satisfied the onus and burden of proof.

34. Mr James takes the submission further and contends that, what he describes as the uncontested medical evidence, is all consistent with the Appellant’s account of what occurred and that the Magistrate, in making a series of findings to the effect that the doctor's opinion was all dependent entirely on the history given by the Appellant herself and therefore adds nothing to her own account, is wrong because doctors are skilled at identifying whether a patient is experiencing symptoms such as tenderness or restrictive movement and this is not entirely dependent on symptoms reported by the patient and, in circumstances where the doctors were not tested as to their opinions, their evidence was and should have been seen to have been entirely consistent with the Appellant’s account, which makes the Appellant’s account more likely to be true and makes it very difficult to come to a conclusion that it is false. At the very least, he says the medical opinions are a reason sufficient to establish reasonable doubt.

35. I will now try and identify under headings the various submissions and points made by Mr James in his criticism of the Magistrate's approach and resolve them by reference to the Crown's answers. Finally, I will come to the critical question for me which is, having reviewed all the material, do I come to the same conclusion as the Magistrate or not? Even if I cannot identify any error in the Magistrate's reasoning, if I come to a different conclusion than the Magistrate, then the Appeal would have to be allowed, at least insofar as that conclusion differs from the Magistrate.

36. The fundamental submissions critical of the Magistrate’s reasons which are said to be errors are:

37. Failure to give appropriate directions;

38. Failure to apply such directions, even if implicitly given;

39. Accepting the evidence of the Crown witness;

40. Impermissible reversal of onus of proof in treating the case as a contest between competing versions; and

41. Failing to deal adequately or at all with the Appellant’s account, as supported by the medical evidence.

42. As will be seen when I seek to analyse each of the suggested errors, there is a large degree of overlap between the various points.

43. I will try not to repeat myself by breaking the matter down into these categories.

44. Ultimately, regardless of any of the criticisms and identified errors, I bear steadily in mind the need for me to review the record including the Magistrate’s reasons and decide for myself if I am satisfied beyond reasonable doubt of the elements necessary to convict.

45. Turning then to the asserted errors.

Failure to give appropriate directions

41. As I have said already, the Crown's case depended, if not entirely but certainly in large part, on the testimony of two witnesses which the Magistrate himself described as “star witnesses." Without acceptance of that evidence, the only result was a verdict of not guilty.

42. On their own evidence, each of those witnesses were involved in the criminality the subject of the case, and one of them had been involved in other crimes.

43. Moreover, one of them had pleaded guilty and been sentenced for crimes arising out of the events the subject of this case and had received a discount on that sentence for cooperation, including giving evidence against the Appellant. The other witness had given an “induced statement" and undoubtedly had not been charged because of his cooperation.

44. One of the witnesses also suffered from mental health issues.

45. There is no dispute that the circumstances required directions in terms of ss 165 and 136 of the Evidence Act.

46. Yet, the Magistrate did not expressly give himself such directions.

47. Ms Robeau, on behalf of the Crown, concedes that no such express direction was given by the Magistrate but, nonetheless, submits that, implicitly, his Honour was well aware of the issues as they were the subject of extensive cross-examination, submissions, and discussion in the Magistrate’s judgments. The submission is his Honour ought to be taken to have scrutinised the evidence of the two star witnesses carefully, as required by the Evidence Act and that, implicitly, his Honour gave himself the direction and applied it.

48. It is obvious to me that the Magistrate was very conscious of the fact that both witnesses had received, or were under the promise to receive, inducements to give evidence adverse to the Appellant. He also was well acquainted with their own involvement in the criminal undertaking, the subject of their evidence, and their relevant histories.

49. If not for one matter, I would conclude that a fair reading of the Magistrate’s reasons discloses that he understood and applied the relevant direction. On that basis, the failure to expressly give himself the direction would be an error, but not a material error.

50. The exception, however, is this.

51. At, at least, two points in his reasoning, the Magistrate posed what I think was an impermissible rhetorical question, which I consider to be an error in and of itself, but I also consider, not only as inconsistent with the legal requirement for the scrutiny that evidence given by witnesses of the type relied upon by the Crown must be given, has the real possibility of reversing the onus of proof.

52. In relation to one of the witnesses, the Magistrate said at Appeal Book p2975:

“the prosecution case, of course, is that why would you plead guilty to something you are not guilty of unless you are being honest and upfront with the Court. And the defence position is effectively that … was a liar, cheat, and a fraud and that he pleaded guilty for his own personal purposes to obtain a discount to obtain a benefit … the Court is aware of the fact that … was sentenced to a term of imprisonment which was to be served by way of an imprisonment in the community intensive corrections order. But he pleaded guilty to what was said to be his involvement in the staged collision"

53. In relation to both witnesses, the Magistrate said at p2990:

“why would two men give evidence that they were involved in the staged accident? That is what the jury would ask itself. Why would you go through years of trouble and then ultimately in their view, come clean?”

54. As a matter of law and as a matter of logic, to pose such a question in the context of considering whether the Crown has proved beyond reasonable doubt a criminal prosecution is erroneous and is likely to lead to an erroneous conclusion.

55. This is because to ask such a question immediately throws an apparent onus on the accused to proffer a satisfactory explanation. This may often be in circumstances where the accused has no answer to the question because they have no means of knowing the answer.

56. Whilst it is not expressly said by the Magistrate, implicitly, he answered his own rhetorical questions by concluding that there was no rational reason why the witnesses would plead guilty and/or give the evidence and factored in that conclusion into his ultimate acceptance of their evidence.

57. I think that, at least in the respect of asking the impermissible rhetorical questions and then answering them in a way that was unfavourable to the Appellant, the Magistrate did make a legal error.

58. In the context of that particular error, I think the failure to expressly give the appropriate directions about scrutinising, with care, the evidence of the relevant witnesses becomes more significant. In my view, the evidence of the witnesses themselves provided a satisfactory answer to the rhetorical question posed.

Accepting the evidence of the Crown witnesses

59. I have already set out the Magistrate's comments as to the presentation, in the sense of demeanour, of the two “star witnesses."

60. In respect of one of them, he is extremely critical, and his comments are the antithesis of a witness who is to be accepted based on their demeanour alone.

61. I have already identified that, in the process of reasoning towards acceptance of the evidence, his Honour posed an erroneous legal question, which may well have infected the outcome.

62. For my own part, having read the evidence, and in particular, the cross-examination of both witnesses and whilst I accept the Magistrate had a significant advantage over me in being able to assess the way the witnesses gave their evidence, I must say that my own conclusion, even taking into account that advantage, is that I have real doubts about the veracity of their evidence insofar as it imputes guilt to the Appellant.

Impermissible reversal of onus of proof in treating the case as a contest between competing versions

63. The Magistrate did not give himself "Liberato" direction (Liberato v The Queen (1985) 159 CLR 507), nor did he direct himself that, if the case was properly characterised as a circumstantial case, that the prosecution needed to exclude beyond reasonable doubt any reasonable hypothesis consistent with innocence: The Queen v Baden-Clay (2016) 258 CLR 308 at [46], [50]; Barca v The Queen (1975) 133 CLR 82 at 104. Another way of stating this point is that the Magistrate failed to give himself and/or failed to apply part of what is known as a “Shepherd” direction (Shepherd v The Queen (1990) 170 CLR 573).

64. Mr James submits that a fair reading of the reasons demonstrates that the Magistrate erred in that, ultimately, he framed the resolution of the factual issue as a contest between the two competing versions. He resolved that contest by accepting the Crown's version. However, at no point does he rule out the possibility of the competing version put forward by the Appellant being true.

65. Ms Robeau, on behalf of the Crown, submits that Mr James is being unfair to the Magistrate and that a full reading of the whole of the reasons leads to the conclusion that the Magistrate understood the task at hand and ought to have been taken to have excluded, in the sense of found, positively, that it could not be true, the Appellant’s version.

66. I found this aspect of the Appeal difficult to resolve because, as both Mr James and Ms Robeau conceded, the Magistrate does not, at any point, come to grips with this aspect of the reasoning process, and so I am left to try and infer from reading the whole of the reasons to seek to construe those reasons to identify if this alleged error is apparent or not. The reasons are extensive and perhaps a little discursive and it is necessary to read them as a whole. I do not say this critically. The Magistrate was trying to deliver ex tempore reasons after a lengthy and complex matter, in a busy list, with many interruptions to deal with other urgent matters.

67. In relation to this aspect of the matter, I am not sure, based on the Magistrate’s reasons, whether he framed the case in the way Mr James suggests he did or not. However, I am also not able to identify how the Magistrate framed the issue before him. In those circumstances, especially absent appropriate legal directions, I consider it is appropriate that I give the Appellant the benefit of the doubt and am satisfied that the Magistrate may have made an error at this important point of the reasoning process.

Failing to deal adequately with the Appellant’s account as supported by the medical evidence

68. The point here is short.

69. An essential plank in the Crown's case was that the Appellant, when she attended upon a series of doctors, gave them, firstly, a history of the car accident, and secondly, falsely told them that she was suffering symptoms consistent with a whiplash-type injury to her neck.

70. The Crown tendered reports of three medical practitioners. This was no doubt for the purpose of proving what the Appellant told the doctors and was to prove that the doctors themselves were misled.

71. That element of the Crown's case, according to the Crown, is proved by the very opinions given by each of the doctors, which was that they were satisfied that the Appellant had been injured and that the injuries were consistent with the history she had given. The Crown submits that opinion proves the doctors were fraudulently misled. There is a real danger of a logical flaw here because the submission is that the result proves the fact, which does seem to assume as a starting point the falsity of what the Appellant told the doctors. In other words, the logical fallacy is that the outcome proves the premise. That is backwards, if not circular, reasoning.

72. Mr James' point is this. He submits that the medical evidence, having been tendered, was in for all purposes. That includes the very opinion expressed by the doctors that the Appellant’s injuries were consistent with her being in a car accident as described by her. Mr James contends that it can be seen from the reports themselves, that these opinions are based not just on the history given by the Appellant and the symptoms reported by her but also as a consequence of clinical examination by the doctors.

73. One of the doctors, Dr Lee, was, as is apparent from his report, sceptical as to what the Appellant was telling him, but nonetheless, concluded that she had suffered a whiplash-type injury which was consistent with the history given, but that she was exaggerating her symptoms.

74. Dr Mastroianni’s report does carefully and clearly separate the history given to the doctor by the Appellant from the clinical examination conducted by the doctor leading to his conclusion.

75. The Magistrate put the doctors’ opinions to one side. He reasoned, based, in part, upon his knowledge and experience with his own shoulder injury, that the doctors’ opinions were only as good as the history and symptoms reported by the Appellant and therefore added nothing to the case. The Magistrate was firmly of the view that the symptoms being discussed, such as tenderness and restriction of movement, are capable of being feigned, and therefore, the doctors’ opinions were worthless as evidence consistent with the Appellant's version of events.

76. Ms Robeau, on appeal, has effectively repeated, albeit in a much more succinct way, the reasoning of the Magistrate. She submits that a fair and reasonable reading of the reports is consistent with findings based on nothing more than what the Appellant told the doctors.

77. Mr James's response is that I ought resolve the contest as to whether the opinions were in part based on clinical examination and findings in favour of his client, which he submits is entirely destructive of the Crown's case, but even if I cannot do that and if I remain not sure, then that is sufficient to raise reasonable doubt.

78. I consider that the better reading of the Reports, in particular Dr Mastroianni’s, is that his (and their) opinion(s) was based on more than what he was told by the Appellant. There were clinical examinations carried out by him. The result of those examinations were part of the reason why he (they) reached his (their) ultimate conclusion(s).

79. The opinions of the three doctors were, in my judgement, evidence supportive of the Appellant's version of events and certainly contrary to the Crown's case theory.

80. I consider the Magistrate made an error in not giving any weight to that evidence.

The ultimate question

81. I have identified a number of errors of a legal nature which I consider were material to and infected the Magistrate’s reasoning.

82. However, the identification of those errors does not drive the outcome of the Appeal. Ultimately, I must form my own opinion as to whether the Crown proved its case beyond reasonable doubt. If I am satisfied that it did, then the Appeal must be dismissed. If I am satisfied that it did not, the Appeal must be allowed. This is regardless of the reasoning process adopted by the Magistrate.

83. In the course of considering the ultimate question, I need to consider carefully how much weight I should give the reasons of the Magistrate, at least insofar as they were based on the demeanour of the various witnesses.

84. The fact that I have identified errors in the Magistrate’s reasoning process, including as to the acceptance of the “star witnesses,” I think justifies me in giving the Magistrates demeanour-type observations less weight than I otherwise would. I also consider the Magistrate’s own description of how the witnesses presented is consistent with a rejection of their evidence on demeanour grounds, rather than acceptance of it.

85. I must say that, on all the material, I am very suspicious that the Appellant may well have been involved in the criminal activity alleged.

86. However, approaching the matter by reference to the criminal standard, in light of the obvious shortcomings of the two “star witnesses” of the Crown and the effect of the medical evidence, I have doubt, which I consider reasonable, as to the guilt of the Appellant.

Conclusion

87. For that reason, the Appeal must be allowed.

Orders

88. I order the following:

89. Appeal allowed.

90. Set aside the orders as to conviction and sentence made by the Magistrate on 22 March 2024.

91. In lieu thereof, enter verdicts of not guilty in relation to all of the charges.

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