Baghdadi v R

Judgment 1CAMPBELL JA: The Court delivered a judgment concerning this matter on 26 October 2011: Baghdadi v R [2011] NSWCCA 234 ("the 2011 Judgment"). These reasons for judgment presuppose a familiarity with that decision. However, to make it quite clear what this judgment decides, I repeat that the version of s 98 Evidence Act 1995 to which it relates is s 98 in the form it had before significant amendments came into effect on 1 January 2009. 2Two days after delivery of the 2011 Judgment, the solicitors for the Appellant made a request that the Court reconsider it. That request was made under Rule 50C of the Criminal Appeal Rules, which states: "(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order. (2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered. (3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered. (4) The Court may not extend the time limited by subrule (2) or (3). (5) Nothing in this rule affects any other power of the Court to set aside or vary an order." 3The request for the Court to reconsider its judgment was comfortably within the period within which it is possible to make a request for the setting aside or variation of an order. 4The particular reconsideration that was requested was of Order 5, remitting the matter to the District Court for a new trial. The basis on which the request for reconsideration was made was that the Court had not considered the second ground of appeal. Counsel for the Appellant submitted that the result of success on the second ground of appeal would be the acquittal of the Appellant of the two charges. 5I accept that the Court should have given separate consideration to the second ground of appeal: Jones v The Queen (1989) 166 CLR 409 at 411; AK v Western Australia (2008) 232 CLR 438 at 460. 6At [108] of the 2011 Judgment I set out the questions arising from ss 98 and 101 Evidence Act that the judge should in substance have asked himself. 7On posing those questions, I have come to the view that the events of the carjacking and the Berala robbery are not substantially and relevantly similar. That is because the carjacking involved the theft of a car from its owner in a place readily accessible to the public, while the Berala robbery involved an attempted theft of money from a retail establishment after it had closed for the day. 8There are some substantial similarities between the circumstances in which the carjacking and the Berala robbery occurred. These are the close temporal connection of the events, the involvement of the distinctive BMW, and the use of a gun (though not necessarily the same gun). There are also some dissimilarities in circumstances - the carjacking occurred at daytime, while the Berala robbery occurred after dark, there was evidence of a tall man (the Appellant) being involved in the carjacking while there was no such evidence concerning the Berala robbery, and there is no evidence of similarity between the clothing worn by the participants in the two events (apart from, possibly, cargo pants). 9That there are some substantial similarities between the circumstances of the two events might not be enough to show that "the circumstances" in which they occurred are substantially similar. However, it is not necessary to come to a concluded view about that. That is because s 98(2) requires two or more events to be both substantially and relevantly similar, and also that the circumstances in which they occurred are substantially similar before those events are taken to be "related events". Thus, my conclusion about the events of the carjacking and the Berala robbery not being substantially and relevantly similar is enough to show that they are not "related events" within the meaning of s 98(2). 10Consequently, there is no question about s 98 applying to the evidence of the carjacking, so far as the charge concerning the Berala robbery is concerned. In these circumstances, there is no occasion to consider the questions that would have arisen under s 101, if s 98 were triggered. 11For the same reason as applies concerning the carjacking and the Berala robbery, the event of the carjacking is not substantially and relevantly similar to the event of the robbery at the Fresh Fruit Palace. Thus, I conclude that s 98 does not apply concerning the admissibility of the evidence of the carjacking to the charge relating to the Fresh Fruit Palace robbery. 12The inapplicability of s 98 to the evidence of the carjacking might possibly be a consequence of the deficiencies in drafting of s 98 in the form it had before 1 January 2009. However, that is not necessarily so. The sort of circumstance in which s 98 is designed to control the admission of evidence is when someone is accused of doing action A, and the opposite party wants to submit: "He did actions B, C, D and E, and they are all so similar to action A that it would be a big coincidence if he had not done action A too". This is the sort of argument that is most familiarly found concerning crimes that are unusual, or where a distinctive modus operandi has been used. An argument of that type would not be available in the present case, because the carjacking is not similar to the two thefts. Whatever the explanation for s 98 not applying concerning the evidence of the carjacking, the words of the former s 98 are intractable - it applies only concerning "related events", as defined in s 98(2). 13That s 98 does not apply to the evidence of the carjacking, on either charge, does not mean that the evidence is not admissible on each charge. The evidence fits within the definition of relevance in s 55 because "if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding" for each charge. It is relevant because it provides a link between the BMW, which it was open to the jury to find was used in both robberies, and the Appellant. In other words, it is a piece of circumstantial evidence concerning each charge. It is evidence that could be of preparation (obtaining the getaway car for the robberies) and opportunity (through the possibility of having access to the car after it was stolen). 14At any trial of these charges a judge may well have had to consider whether, despite its relevance, the evidence should be excluded under ss 135 or 137. In light of the conclusion to which I have otherwise come, I will not consider those matters. 15The test by reference to which an appeal court decides whether a verdict was open on the evidence has been stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487. Their Honours said, at 493: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (citations omitted) 16At 494 their Honours referred to previous cases that had discussed whether the appropriate test for setting aside a verdict on the ground that it is unsafe or unsatisfactory is whether there is reasonable doubt in the mind of the court, or whether it is for the court to decide whether there is a doubt that a reasonable jury ought to entertain. Their Honours said: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (citations omitted) 17That test has been reiterated and held to be applicable in applying the relevant NSW statutory standard laid down by s 6(1) Criminal Appeal Act 1912: MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [25] per Gleeson CJ, Hayne and Callinan JJ, and at [59] per McHugh, Gummow and Kirby JJ; SKA v R [2011] HCA 13; (2011) 243 CLR 400 [11]-[14] per French CJ Gummow and Kiefel JJ, [80] per Crennan J. 18In the present case a jury would have no advantage over this court in forming a view about the persuasive force of the evidence concerning the carjacking for the purpose of deciding whether it is shown beyond reasonable doubt that the Appellant is guilty of either of the charges. 19I set out, at [119] and [120] of the 2011 Judgment, the items of evidence that tended in favour of the Appellant being guilty of the two robberies, and other evidence that raised doubts about his guilt. For convenience I set out most of those paragraphs again here: "... the Appellant had committed the carjacking, and there was evidence from which a jury could comfortably conclude that the same BMW had been involved in the carjacking and each robbery (notwithstanding the evidence about the yellow car, and Ms Vranic's evidence about the car she saw seeming darkish). Further, the Appellant's possession of the BMW key after both robberies had occurred is significant evidence against him. However, as the Appellant was the passenger in the car at the time of the carjacking, rather than the driver, the very act of stealing the car would not itself put the key into his possession. It is not shown when, between the carjacking and his being picked up by the police, he obtained possession of the key. Further, Ms Wilmen's evidence of seeing someone, apparently not the Appellant, with the silver BMW on 11 April 2006 has some tendency to weaken any inference that might otherwise be available that the Appellant had had a continuous connection with the car from the time it was stolen until the time the key was recovered from him. Against that, evidence other than the carjacking connecting the Appellant with the robberies was far from strong. There was no evidence of identification of the Appellant by an eyewitness, from CCTV footage, or by forensic testing. The evidence about the height of the men who actually entered premises to carry out the robberies does not appear consistent with the striking and unusual height of the Appellant. The description and images of the clothing worn by the robbers at Berala does not match that worn by the Appellant at the time of the carjacking (apart perhaps from cargo pants, which are far from a distinctive item of clothing). When it was not the Crown case that the same gun had been used in the carjacking as in either of the robberies, evidence about the similarity of appearance of the various guns (itself not particularly precise) becomes considerably less powerful. ..." 20The evidence of lack of identification of the Appellant to which I referred included the failure of all of the moderately large number of eyewitnesses to the robberies to identify the Appellant in the photographs, the lack of fingerprint evidence and DNA evidence that connected the Appellant with the clothing, and the lack of DNA and fingerprint evidence that connected the Appellant with the silver BMW. As well, there is another omission or failure of proof in the evidence that would need to be taken into account. It concerns Ms Wilmen's evidence that the man she saw with the silver BMW on the first occasion on which she saw it was of a height considerably less than that of the Appellant, and was someone who she recalled "being around the units quite a lot", and that there was no evidence that linked the Appellant with that block of units. When the evidence against an accused is not strong, instances in which the Crown has tried and failed to demonstrate a link between the accused and the crime can themselves be relevant, though often of considerably less persuasive force than a positively demonstrated link. 21On all this evidence, in my view it would not have been open to a jury to be satisfied beyond reasonable doubt that the Appellant had committed either robbery. 22Thus, in my view, Order 5 in the 2011 Judgment should be revoked, and replaced with an order that, in lieu of the conviction in the court below, a verdict of acquittal be entered on each charge. 23In the 2011 judgment, the Court also made an Order 6, namely: "Direct the Solicitor for Public Prosecutions to notify the Registrar of this Court, and my Associate, in writing, promptly after the new trial has concluded." 24That order was made because the 2011 Judgment was not published on Caselaw while the new trial was pending. The order aimed to put the Court in possession of information that would enable the 2011 Judgment to be published on Caselaw as soon as the new trial had concluded. Now that there is not to be a new trial, the purpose of Order 6 has disappeared. Accordingly, it should be revoked.