Ayoub v R

3At the hearing Counsel for the applicant sought leave to add a second ground of appeal, namely that: "The absence of fresh evidence, namely: (a) the contents of the audio recording served after trial; and (b) the complainant [CA]'s account of it and the history leading up to it's creation; has given rise to a miscarriage of justice." 4The Crown objected to this additional ground on the basis that Ground 2(b) relied upon an affidavit of CA that the Crown had only intended to read if the audio recording was found to be fresh evidence and a question of whether there had been a miscarriage of justice arose. Counsel for the applicant sought to read the affidavit for the purpose of arguing Ground 2(b). The Court permitted this to occur. The issues raised by proposed Ground 2 are considered in this judgment for the purpose of determining if leave should be granted. 5The applicant's application for leave to appeal against sentence was abandoned at the hearing. 6The applicant has provided a summary of the allegations giving rise to each of the counts that I am satisfied is accurate. 7On Sunday 1 June 2008 the two complainants, CA and DP, were in a room in a motel at Ashfield where DP was staying. At about 5 pm that afternoon they telephoned the applicant, whom they knew as Mohammed, and invited him to the motel room. The complainants knew the applicant through their friend, TJS, the ex-girlfriend of the applicant. 8At about 7:45 pm the applicant arrived at the motel room in the company of a friend, Kian Sijanevanian. 9Whilst in the hotel room cannabis was consumed by some or all of the parties present. Some time afterwards, it was alleged that the applicant pulled CA, then 14 years of age, into the bathroom of the motel room and shut the door. 10CA alleged that once inside the bathroom the applicant pulled his pants and underwear down to his knees. The applicant's penis was erect and his hand was pulling on it. The applicant then told CA to "come down" and started pulling her by the hair towards his penis. CA pulled away and said "No, leave me alone". 11According to CA, the applicant got angry and said words to the effect of, "Stop playing childish games". When CA continued to resist, the applicant allegedly slapped her twice on the cheek. She yelled out, telling him to leave her alone, not to touch her and to get away. 12It was alleged the applicant continued to try to pull CA towards his penis. CA continued to struggle, pulled away and kept saying no, whereupon the applicant tried to pull down CA's top. When CA tried to push the applicant away, he grabbed her left hand and bit it. CA screamed. The applicant said words to the effect,"I wouldn't hurt you if you just did what I said". The applicant again tried to pull CA down by the hair and she again tried to push him away. The applicant then allegedly punched CA in the abdomen. The applicant was wearing a Dolce and Gabbana ring at the time of the punch and it was the Crown case that the ring left an imprint on CA's body. 13The applicant was alleged to have then pushed CA back into the sink, causing her head to come into contact with the shower recess. CA managed to get to the door, but the applicant blocked it with his foot. CA then said something like, "Leave me alone. What, do you like hitting girls or something? Does it make you feel tough? Just leave me alone". It was then that the applicant allegedly punched CA with a closed fist to the side of the face, once, or possibly twice. 14These events gave rise to count 1 on the Indictment. 15DP alleged that she came to the bathroom door after hearing a sound "like someone punching the wall or grab[bing] something and [throwing] it at the wall". As the door was opened she observed the applicant with his belt undone and his fly open. DP said that she observed that CA was visibly upset and had tears in her eyes. DP subsequently observed a bruise on CA's face and on her stomach. CA left the bathroom and went to lay on a bed in the motel room. 16A short time later the applicant told DP that he wanted to speak to her in the bathroom. It was alleged that both DP and the applicant then went in to the bathroom. DP sat on the toilet and the applicant, after closing the door, sat on or leant up against the sink. DP then alleged the applicant said to her, "You're a good girl. I like good girls because you don't play games. Give me head". 17DP could see the applicant's erect penis outside of his clothing. DP said, whilst looking the applicant in the eyes, "I don't give head". The applicant then approached DP and she gave evidence that she "felt like he was standing over the top of [her]". 18DP alleged that she felt fearful and said "Okay I'll do it". She then spat on her hand, took his erect penis and pulled it. DP then placed the applicant's penis in her mouth for about two minutes but stopped because, "it smelt weird, like he hadn't had a shower for two days". The applicant then said, "Open your mouth and hold out your tongue". When DC held out her tongue the applicant put his penis on it and pulled it, "like he was wanking himself". The applicant also put his hand down the front of DP's shirt, inside her bra, and grabbed her right breast. The applicant ejaculated over DP's face and chest, leaving semen on her nose, chin and chest. The applicant used tissues to wipe his penis and pushed some down the front of DP's shirt. The applicant left the bathroom and DP used the tissues to wipe the semen from her face. DP then also returned to the bedroom. 19These events gave rise to count 2 on the Indictment. 20DP did not allege that she, by words or otherwise, communicated an express lack of consent to the actions described above. It was the Crown case before the jury (and the applicant was sentenced on this basis), that DP only participated in the sexual intercourse out of fear following what she had earlier observed and heard in respect of the applicant and CA, and that any belief that the applicant may have had as to consent was unreasonable. 21Some months later, on various occasions in September 2008, it was alleged that the applicant threatened each complainant in an attempt to persuade them to tell police that they had lied about the events of 1 June 2008 and to withdraw the allegations against him. 22On or around 9 September 2008, the applicant spoke to DP on the loudspeaker of a mobile phone belonging to SB, an acquaintance of the applicant. The applicant told DP to go to the Police and drop the charges against him. DP alleged that the applicant said that "if [she] didn't drop the charges [she] would get hurt". This prompted DP to attend the police station and report the conversation with the applicant, as she was concerned about her safety. 23These events gave rise to count 3 on the indictment. 24On 15 September 2008, the applicant made threats of personal harm to CA and also threats of harm to her family. 25These events gave rise to count 4 on the indictment. 26The applicant was arrested on 7 October 2008. At the time of his arrest the applicant told the police that there was "a recording" on his mobile phone that proved that he had done nothing wrong. He did not indicate to police that there was more than one recording. The applicant wanted to play the recording on his mobile phone to the police at the time of his arrest, however his mobile phone was out of battery and a charger could not be found. The mobile phone remained in the possession of the police following the applicant's arrest. 27The applicant did not give evidence at his trial. The essence of his case was that there was no impropriety in respect of CA and that the sexual act with DP was consensual. In relation to the other offences, it was the defence case that both of the complainants had lied to the police in so far as they alleged any relevant criminality. 28Two video recordings from the applicant's mobile phone were admitted into evidence at trial. The video recordings showed CA retracting the allegations that she had made to police. These videos were relied upon by the defence as evidence of the fact that CA had fabricated her account of the relevant events. If CA's statements in the video were accepted, it was submitted that there was no evidence that the applicant's belief that the complainant DP had consented was based on unreasonable grounds. 29CA gave evidence at the trial that the recordings were staged and that she participated in them because she was fearful that the applicant would harm her and her family if she did not. 30Following his conviction on all four counts, the applicant informed his solicitor, Frances McGowan (who had not been the applicant's solicitor during his trial), that he had received a brief of evidence following the trial and that the brief contained a device report pertaining to his mobile phone. He told Ms McGowan that he had discovered an entry on the device report that suggested that a third recording was present on the mobile phone. Ms McGowan requested that the Director of Public Prosecutions make the recording available to the applicant. On 31 March 2011 Ms McGowan received an email from Detective Kendrew containing a file subsequently found on the applicant's mobile phone. 31The file contained an audio recording of a conversation between SB and CA that occurred on 4 September 2008 ("the audio recording"). In the recording CA denies any impropriety on the part of the applicant. The applicant submitted on appeal that the audio recording is fresh evidence and should be admitted by this Court. 32It was further submitted that once the evidence was admitted, it would be apparent that a miscarriage of justice had occurred. The applicant submitted that this recording is not readily susceptible to any suggestion of fabrication on the part of its participants. It was submitted to this Court that CA's allegations against the applicant and her account at the trial that the video recordings were made as a consequence of a threat is undermined by the audio recording. It was further submitted that the audio recording also undermined DP's account that she took part in sexual intercourse because of the applicant's earlier violence toward CA. The applicant submitted that he was therefore entitled to a new trial. 33The Crown submitted that the evidence of the audio recording was neither fresh evidence nor material that should have been provided by the prosecution to the applicant before the trial. Furthermore, it was submitted that even if the audio recording had been admitted at the trial the evidence would have made no difference to the outcome and, accordingly, a miscarriage of justice had not occurred. 34The principles relating to the admission of fresh evidence and its consequences are well settled: see Ratten v The Queen [1974] HCA 35; (1974) 131 CLR510. They were set out by Kirby J in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] in the following terms: "The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61-64; see also R v Sleiman [2003] NSWCCA 231 paras 101-105. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacobs JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aickin J agreeing). The principles may be summarised as follows: First, a distinction is made between "new evidence" and "fresh evidence". Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512). Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301). Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399). Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:

• Is the evidence fresh?
• If it is, is it "credible" or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or "plausible" (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)?
• If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302. Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517)." 35In the present case it was submitted by the applicant that those principles overlap with the principle governing the obligation of the Crown to make disclosure in a criminal case in the sense that "the ultimate question is whether there has been a miscarriage of justice in all the circumstances of the case by the failure to uncover the material": see Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301 (Toohey and Gaudron JJ); Grey v R [2001] HCA 65; (2001) 75 ALJR 1708. While this may be the ultimate question, preliminary questions must first be addressed before the issue of whether a miscarriage of justice occurred arises for consideration. 36In relation to a ground of appeal based upon non-disclosure, the question of whether the police or the prosecution failed to disclose the evidence must first be considered. 37The evidence at trial and before this Court makes plain that the police were not aware of the existence of the audio recording on the applicant's mobile phone until after the trial had been completed. At the time the mobile phone was seized police were only aware that there was "a recording" on the mobile phone that the applicant believed to be exculpatory. The mobile phone was locked with a password and the police encountered problems accessing the information on it for that reason. At trial, evidence was given by Detective Pollock that he could not retrieve any files from the mobile phone because he did not have the PUK code. The material on the mobile phone was only accessed after the code was broken by the State Electronic Evidence Branch of the New South Wales Police Force. 38Both Detective Pollock and Detective Kendrew gave evidence at the trial that prior to the trial commencing they had each believed that there was only one recording involving CA on the applicant's mobile phone. The second video recording was only located by police during the first week of the trial after the applicant instructed counsel to direct Detective Kendrew to its location on the applicant's mobile phone. 39The audio recording was saved on the applicant's mobile phone in the following way: "Name:Voice -001.nmr Type:Amir size:270.74KB Path:sounds Created:2008.09:15 02.28.34" 40Plainly, there is nothing in the way the file was labelled to indicate to the police that this file was relevant to the applicant's case. For these reasons any claim by the applicant that the police failed to disclose the existence of the recording is without foundation. 41When a ground of appeal is based upon the principles of fresh evidence, it must first be determined if the evidence is "fresh" within the legal meaning of that term. The test for determining if the evidence is fresh is directed to whether the applicant could have reasonably discovered the evidence. In these proceedings the applicant gave evidence by affidavit in which he claimed he instructed his solicitor at the trial, Mr Stewart, about the audio recording. The affidavit stated that: "I told [Mr Stewart] from the very beginning, and repeatedly, that I had three recordings in my phone and I asked him over and over to obtain those from the police." (emphasis added) 42This proposition was denied in an affidavit sworn by Mr Stewart. In oral submissions before this Court, counsel for the applicant submitted that the applicant accepted Mr Stewart's evidence. The applicant then gave oral evidence in which he stated that he had been "mistaken" when he said in his affidavit that he had told his solicitor that there were three recordings. The applicant said: "The only reason I said there's three in my affidavit [is] because after receiving the device report I saw there were three and you know I was basically thinking I must have said there were three. It's just that because my memory was vagued (sic)..." 43The applicant accepted that the audio recording had been transferred to his mobile phone from SB's mobile phone via Bluetooth on 15 September 2008. The applicant gave evidence that he "never knew about an audio recording" and that he had not listened to the audio recording prior to it being obtained by his solicitor in March 2011. 44To my mind, the assertion that the applicant was not aware that there was a potentially exculpatory audio recording on his own mobile phone, in circumstances where SB had transferred the recording to him, lacks plausibility. I found the applicant to be an unconvincing witness and do not accept the evidence given before this court that he was not aware of the presence of the audio recording, or that he was merely mistaken when he swore an affidavit stating that he gave instructions on multiple occasions to obtain three files for him. 45If counsel for the applicant had been appropriately instructed he could have easily asked the police about the audio recording. The second video recording was only located after police were alerted to its existence by the applicant's counsel at trial. Similarly, the audio recording only came to light when the lawyer now acting for the applicant informed the police of where it could be found. Had the applicant informed police of the existence of the file, it could have been made available for his trial. 46I am conscious of the principle that the court should allow great latitude to the applicant when considering whether or not the relevant evidence is fresh. However, I am satisfied that in the present case no amount of latitude would lead to the conclusion that the evidence was not available to the applicant had he attempted to locate it with reasonable diligence. Accordingly the evidence is not relevantly fresh and the application to adduce fresh evidence should be refused. 47This conclusion is sufficient to lead to the rejection of the appeal. However, even if I was minded to conclude that the evidence was fresh and should be admitted on the appeal I am not satisfied that a miscarriage of justice has occurred. CA gave evidence before this Court, in a manner consistent with the evidence she gave at the trial about the original video recordings, in which she confirmed that what she said in the audio recording was not true and was only said by her because of her fear that the applicant would carry out the threats he had made against her and her family. 48The audio recording is of a similar character to the two video recordings that were admitted at trial. Those recordings were challenged by the evidence of CA and DP and the jury's verdict must be understood as accepting their evidence in this respect and in respect of the primary allegations. 49The applicant submitted that the account given by CA at the trial was contradicted by the evidence given in an affidavit sworn by CA in response to the applicant's appeal. The applicant further submitted that the alleged lie undermined CA's credibility as a witness and reduced the likelihood that a jury would accept her explanation of how all three of recordings came to be made. 50At the trial the jury was played an electronically recorded police interview with CA. In the interview CA was asked questions about the night that the recordings tendered at trial were made. The following exchange took place between CA and the interviewing officer during the course of the interview: "Q99:Yeah, from the day you were at Red Rooster [the night the videos were made], when had you seen [the applicant] before? A:Um, the last time I saw that person was the night of the incident." 51In affidavit evidence tendered at the appeal, CA then gave evidence that: "I remember a recording was made at [SB]'s house at ...Merrylands. The voice recording was made several months before the video recording." 52The affidavit then goes on to describe an occasion on which CA made a video recording in the presence of the applicant at the home of SB. Paragraph 6 of CA's affidavit then states that: "After listening to the voice file 'Voice-0001' from the background noise it appears it may have been made in a car park and is a different recording made to the one I made at [SB]'s place. I do not remember making the recording however, I only said what I was told to say because I was scared [the applicant] would carry out the threats he made against me and my family." 53The applicant submitted that this evidence is significant because the evidence contained in the affidavit demonstrates that the applicant lied about the occasions on which she had seen the applicant after the night of the attempted sexual assault in the original interview with police. I reject the submission. CA was 14 years old at the time that she was assaulted by the applicant and was 15 years old at the time that she was interviewed by police. There was a time delay of a number of months between the occasion on which the videos had been made and CA's interview with police. On multiple occasions during the interview CA stressed that her recollection of events had been affected by the time delay. 54When cross-examined before this court about the alleged inconsistency CA confirmed that she had seen the applicant prior to the night that the videos were made. She said that the evidence contained in the affidavit was the truth and that she did not have a clear recollection of what she had told police at the time that she was interviewed. She stressed that she did not have a clear recollection of the dates of her interactions with the applicant but indicated that she had been threatened on a number of occasions. She said that if she had not told police about the occasion referred to in her affidavit it was most likely due to her fear of the applicant. 55In my opinion, any inconsistencies in CA's evidence are the result of mistaken recollection rather than an intentional attempt to mislead the police. I found her to be a credible witness and I believe that a jury would be likely to accept her account of how each of the three recordings came to be made. I therefore do not believe that the audio recording or the complainant's account of the history leading up to its creation would have been of any assistance to the applicant in relation to any of the counts upon which he was convicted. 56For these reasons I am not persuaded that the evidence tendered to this Court as fresh evidence would have possibly caused the jury to reach a different conclusion. Accordingly I would refuse leave to amend the notice of appeal. 57In my opinion although leave should be granted the appeal against conviction should be dismissed.

Orders Leave to appeal against conviction granted but the appeal dismissed. 58JOHNSON J: I agree with McClellan CJ at CL. 59PRICE J: For the reasons given by McClellan CJ at CL, I agree that the appeal be dismissed. I would add that if the audio recording had been made available at the applicant's trial, it would not have produced a different result. CA was cross-examined during the trial on the two video recordings and the jury plainly accepted CA's explanation about them. 60A major obstacle to a denial of any impropriety on the part of the applicant was CA's testimony of the injuries that she had suffered, which included being struck by him with his right hand on which was a 'Dolce and Gabbana' ring to the area of her left hip. It was the Crown case that the ring left an imprint on CA's body. Dr Brennan gave evidence that the injury to CA's left hip was consistent with being caused by a ring. When the police executed a search warrant at the applicant's home, a 'Dolce and Gabbana' ring was found in the bedside drawer in the applicant's bedroom. There was evidence from which the jury could conclude that the rectangular red mark in the area of CA's left hip was similar to the rectangular shape of the 'Dolce and Gabbana' ring. 61The audio recording would neither detract from CA's credibility before a reasonable and properly instructed jury, nor influence the jury away from a verdict of guilty. There has been no miscarriage of justice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2012