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[2011] NSWCCA 234
Court of Criminal Appeal (NSW)
2011-04-13
Campbell JA, Hulme J, Hoeben J
Original judgment source is linked above.
R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 Category: Principal judgment Parties: Abdul BAGHDADI (Appellant) Regina (Respondent) Representation: Counsel I McClintock SC; K Edwards (Appellant) S Dowling; C Alexander (the Crown) Solicitors Elie Rahme & Associates (Appellant) Solicitor for Public Prosecutions (the Crown) File Number(s): 2007/14512; 2007/15272 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-08-21 00:00:00 Before: Armitage DCJ File Number(s): 2007/14512
Judgment 1CAMPBELL JA : The Applicant pleaded not guilty to two charges in an indictment. The first charge was that on 9 April 2006 at Berala in the State of New South Wales when armed with a dangerous weapon, namely a firearm, he assaulted Tammy Manaton with intent to rob her. The second charge was that on 13 April 2006 at Enfield in the State of New South Wales, when armed with a dangerous weapon, namely a firearm, he robbed Joseph Mifsud of certain property, namely a sum of cash, a mobile phone, car keys and a wallet. On 24 November 2008 a jury found him guilty of both charges. 2Well before his trial on these charges began, the Applicant had pleaded guilty, on 29 August 2007, to a different charge. It was of having engaged in carjacking on 9 April 2006. The vehicle that was taken that day was a silver 2004 model BMW coup e with registration plates 4FRODO. The particular carjacking offence with which the Applicant was charged was "aggravated take and drive vehicle whilst armed" . 3The Crown wished to call evidence, at the trial of the two charges to which the Applicant had pleaded not guilty, of the fact that he had been involved in the taking of that car, and the circumstances in which he had done so. It wished to call that evidence as a means of linking the Applicant to other evidence showing that the silver BMW had been involved in each of the incidents concerning which the Applicant was charged. 4The Applicant contested the admissibility of that evidence. The judge conducted a hearing on the voir dire , before the jury was empanelled, to decide its admissibility. He held it was admissible under s 98 Evidence Act 1995 as "coincidence evidence" , and also that it was admissible as circumstantial evidence. 5On 20 November 2008, after the evidence in the case had concluded, counsel for the Applicant made two applications to the trial judge. One was for a verdict by direction, the other was for discharge of the jury. The judge dismissed both those applications. In the judgments given, the judge adhered to the view that, in light of the evidence that had actually been given at trial, it was open to the jury to consider the evidence concerning the carjacking in the case against the Applicant. The judge's directions to the jury included directions concerning the manner in which they would be entitled to use evidence of the carjacking. The judge directed the jury that they were entitled to use the evidence of the carjacking to establish that the Applicant committed the offences because of the improbability of the events occurring coincidentally. 6The Applicant seeks to raise two grounds of appeal, namely:
Extension of Time 7Though the Applicant was convicted on 24 November 2008, sentence was not passed until 21 August 2009. The Appellant filed a notice of intention to appeal against the convictions on 24 August 2009. He did not seek to appeal against the sentence. Section 10(1) Criminal Appeal Act 1912 provides: "The following provisions apply to an appeal, or application for leave to appeal, under this Act against a person's conviction or sentence: (a) the person is required to give the court, in accordance with the rules of court, notice of intention to appeal, or notice of intention to apply for leave to appeal, within 28 days after the conviction or sentence." 8That provision is read distributively, so that a person who wishes to appeal against conviction must give notice of intention to appeal or notice of intention to apply for leave to appeal, within 28 days after their conviction, and a person who wishes to appeal against sentence is required to give notice of intention to appeal or notice of intention to apply for leave to appeal within 28 days after the sentence. Street CJ (Begg and Ash JJ agreeing) construed s 10(1) in this distributive fashion in R v Unger [1977] 2 NSWLR 990 at 991. Thus, even though the notice of intention to appeal was filed within the time that would have been appropriate for a notice of appeal against sentence, it was well outside the time for a notice of intention to appeal against conviction. 9Section 10(1)(c) requires the appeal to be made in accordance with the rules of court. Clause 3A(1) Criminal Appeal Rules provides that a notice of intention to appeal has effect for six months after the day of filing. Thus, even if the notice of intention to appeal had been filed in time when it was filed on 24 August 2009, it would have expired on 24 February 2010. The Registrar made orders extending time under the notice to 28 May 2010, but time has not been further extended. 10Clause 3A(2) Criminal Appeal Rules permits the court to extend the period for which such a notice has effect, either before or after the expiry of the period. 11Clause 3B(1) Criminal Appeal Rules provides that a notice of appeal in respect of a conviction may be given (in the circumstance where a notice of intention to appeal has been given with respect to the conviction) only within the period during which that notice of intention has effect. 12On 31 August 2010 the Appellant's legal representatives filed both a notice of appeal against the two convictions, and a notice of an application for extension of time for a notice of appeal. Unless orders are made, nunc pro tunc , extending the time for filing a notice of intention to appeal to 24 August 2009, and also ordering that the period for which the notice of intention to appeal has effect is extended to and including 31 August 2010, the appeal will be incompetent. 13In R v Sunderland (1927) 28 SR 26 at 27 PW Street CJ (Gordon and Ferguson JJ concurring) said that "an extension of time will not be granted as a matter of course but that the Court will in every case require substantial reasons to be advanced before granting such a concession." That view has repeatedly been restated: eg R v Tyrrell (NSWCCA, 31 May 1974, unreported); R v Waterhouse (NSWCCA, 20 September 1979, unreported); R v Lawrence [1980] 1 NSWLR 122 at [74], 148; McCall v R [2010] NSWCCA 174 at [5]; Etchell v R [2010] NSWCCA 262 at [24]. 14When this matter came on for hearing in this Court no affidavit or other evidence was available that explained the delay. The Court directed that evidence be filed concerning the delay. 15In accordance with that direction, an affidavit of the Applicant's solicitor was filed. The solicitor had been assigned the matter by the Legal Aid Commission. The solicitor says that the delay in sentencing the Applicant (between 24 November 2008 and 24 August 2009) was due to the unavailability of trial counsel for the Crown and the Applicant. However, he makes no attempt to explain the delay in filing the notice of intention to appeal against conviction during that period. He explains several months of delay after 24 August 2009 as arising from difficulty in obtaining complete copies of the exhibits and transcript. In late January 2010 he briefed Senior Counsel to advise on the merits of the conviction appeal. When Senior Counsel warned the solicitor that the advice could take some time because of its complexity, the solicitor told him that, because of sentences in unrelated matters, the Applicant would be in custody for at least another five years, and thus was not waiting on the outcome of the appeal to determine whether he remained in custody. At least 13 days of preparation were involved in the preparing of the advice on prospects, which needed to be fitted in with counsel's other commitments. A completed advice on prospects, together with written submissions, was provided by counsel on 13 August 2010. The Legal Aid Commission gave approval to proceed with the conviction appeal on 30 August 2010. 16The absence of explanation for the delay between 24 November 2008 and 24 August 2009 is a factor tending against the grant of the extension of time, but not the only relevant matter. 17It is a reasonable inference (on the civil standard applicable to a matter such as extension of time) that Legal Aid was necessary for the bringing of the appeal. The Notice of Appeal was lodged promptly once a grant of Legal Aid was received. So far as the delay after 24 August 2009 is concerned, none of the delay can be laid at the door of the Applicant personally. While preparation of the advice on prospects took about seven months, the matter was fairly complicated, counsel was specifically instructed that the matter was not urgent, and the history the Applicant's solicitor gives shows that there was no lengthy period in which the matter was not being advanced in some way. 18The prospects of success and significance of the consequences if an extension is denied are relevant matters to take into account. As will appear, I have decided that the appeal should be upheld. The sentence he received for the two counts has a non-parole period that expires in March 2017, so the consequences of not granting an extension of time would be quite severe, even bearing in mind that he is serving sentences for other offences. 19In all these circumstances, the extensions of time should be granted. I will henceforth refer to the Applicant as the Appellant.
The Statutory Standards 20At the time of the trial, the Evidence Act contained the following provisions: 98(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar. (3) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. ... 101(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant. 21The Dictionary to the Evidence Act provided: " Coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection." 22The name is inapt, because s 98 deals with evidence of lack of coincidence, but the statute requires that it be used. 23With effect from 1 January 2009, s 98 has been amended quite significantly. However, it is the form of s 98 as at the time of the trial that is relevant for the present appeal. 24No question arises concerning the giving or adequacy of the type of notice referred to in s 98(1)(a). Thus, s 98(3) does not arise either.
The Evidentiary Basis of the Decision About Admissibility 25When a decision about admissibility of evidence is made, the judge must necessarily make it by drawing factual conclusions and making evaluative judgments on the basis of such material as is before him or her at the time. As the function of this Court on appeal concerning questions of admissibility of evidence is to decide whether the decision of the judge in the court below was erroneous, in principle this Court should decide that question of admissibility on the basis of the same evidence as was before the judge at the time of making the decision appealed against. Thus, in the present case, we were provided with the exhibits that had been tendered on the voir dire. 26As commonly happens when a judge makes a decision about admissibility of evidence on the voir dire, the evidence that the judge considered in the present case when deciding the admissibility of evidence about the carjacking offence included proofs of the evidence that the Crown expected witnesses would give. The procedure of making decisions on the voir dire by reference to proofs of evidence expected to be given involves a risk that the witnesses will not come up to their proofs in some significant fashion. It also involves a risk that evidence that it was expected would be adduced turns out not to be available. If either of those events happens, it well may be that the decision of the judge concerning admissibility of the evidence was correct, on the basis of the evidence that was tendered on the voir dire, but that the departure of a witness from the proof of evidence or unavailability of evidence it was expected would be given has the effect that, if the question of admissibility were approached again in light of the evidence as it was ultimately placed before the jury, a different result would be arrived at. In that situation, any appeal would need to be based, not on the incorrectness of the decision to admit the evidence, but on a miscarriage of justice having arisen from the jury having had before them evidence that, as the facts ultimately unfolded, they should not have had. 27In the present case, it has not been submitted that any of the witnesses made a significant departure from their proof of evidence. Nor has it been submitted that evidence that it was expected, at the time of the voir dire, would be called was not actually called. As the argument on the appeal was presented, the second ground of appeal extended to the judge leaving to the jury the evidence concerning the carjacking. Thus, in the circumstances of the present appeal, it is appropriate to consider the matter by reference to the evidence that was actually given before the jury.
Circumstances of the Carjacking 28Ms Alison Saleh gave evidence that she took her husband's 2004 model M3 BMW coup e with licence plates "4FRODO" to the Original Car Wash on the intersection of Hume Highway and Cosgrove Road, South Strathfield at about 4:10 pm on Sunday 9 April 2006. When the washing and waxing processes were complete, at a time she estimates (she does not wear a watch) as being about a quarter to five, the car was brought to the part of the carwash premises where she was waiting. When the carwash attendant had driven the vehicle to her, and she was standing by its open door with the attendant still in the driver's seat, a man approached, brought out a gun, and told her in terms of unmistakable clarity to go away. A taller man who "had a hoodie, a jacket with a hood over his head" was standing on the other side of the car, and got into the passenger seat. In due course the man with the gun got into driver's seat and drove the car away. Ms Saleh described the gun as being: "... a black pistol, I don't know the exact make or model because I'm not familiar with guns, but it had a lot of divots, a lot of little holes on the handle, I noticed it was quite a thick weapon as well, and I just remember thinking that looks a lot like a police weapon." 29She described the man holding the gun as: "He had a hood, he had a hooded top on, he had a clean shaven face, it was quite slender, he had a darker complexion, a Mediterranean appearance, I would say Middle Eastern appearance ... He was medium build, he certainly was not overweight, he was quite slender, but he wasn't skinny, he was just a normal build. He wasn't especially tall, I just think an average height maybe 175." 30Some CCTV footage, taken at the carwash at the time, was played to the jury, and some still images taken from that CCTV footage were tendered. The times recorded on those images were all between 18:15 and 18:16. Ms Saleh identified the man who had got into the passenger side door in those still images. Notwithstanding her oral evidence, the man she identified was not wearing a hoodie. Rather, he was wearing a light coloured baseball cap, sunglasses, long trousers and what appears to be either a white garment whose sleeves reached to his wrist with a blue T-shirt worn over it, or a long sleeved garment that was dark blue in its body and in its sleeves to just above the elbow, and white for the rest of its sleeves. The Crown prosecutor suggested to the jury in address, without any objection from counsel for the defence, that they might well think that the trousers shown in the pictures as being worn by the man who got into the passenger's side door were "cargo style pants" that were green (tp 523). The man who had the gun did not appear in that footage as the CCTV camera was located behind and several meters away from the passenger's side of the car, and the edge of the CCTV image did not include the whole of the driver's side of the car. It would have been well open to the jury to decide that the man depicted as getting into the passenger side was the man they could see in the dock. Indeed the trial seems to have been conducted on the basis that there was no issue about that. 31Mr Mohammed Jafari gave evidence that he worked at the Original Car Wash in South Strathfield on 9 April 2006. He drove the silver BMW to the customer when it was ready to be taken, and was confronted by a man who pulled out a gun and threatened him. Mr Jafari ran away and hid. He did not describe the man, or the gun. He said nothing specific about a second man being involved. Though his evidence at first was that the theft occurred about 3 pm, he later accepted that he had told police on the day of the incident that it happened at 5:15 pm, and that what he told police then was more likely to be right.
The Robbery at Berala 32Though the men involved in this incident did not succeed in stealing any property, it is convenient to refer to it as the Berala robbery. 33Ms Tammy Manaton was working as duty manager at the Food For Less store on Woodburn Road at Berala on 9 April 2006. At around 8:00 pm she made an announcement from the office area in the rear of the store that the store was closing soon. Such an announcement was normally made five minutes before the door was to be closed. She then walked around to the front area where the checkouts were located and as she did so, she could hear some male voices asking for Tammy. She walked around to the service desk and said that she was Tammy. One man then grabbed her, showed her a gun, and told her to take him to the office area. She could see another two men. All three men had balaclavas on their heads. She said that the gun that she saw "looked like a gun that a police officer would carry on them." The man with the gun "told me to go to the office and to do it quickly" . She saw one of the men with another employee at the store, Susan Bardouh, walking down a different aisle. She heard one of the men tell the man with the gun that "they had to get out of there" . The man with the gun fired it "right next to me" and then disappeared from her eyesight. She ran to the office, locked the door, and dialled 000. The office contained "our main safe where we keep all the money for the registers" . 34She could not remember anything about the man with the gun except "he sounded Middle Eastern" , and a language he used "sounded like Arabic" (though Ms Manaton is not an Arabic speaker). As well, she said that "the two guys that took Susan in the beginning were speaking in Arabic to her" . In cross-examination she qualified that to being "some sort of Mediterranean language" , said that her friends spoke Mediterranean languages even though she did not, and rejected the possibility that it could have been an Asian dialect. 35Ms Manaton was unable to describe the clothing of the men. However some CCTV footage of the incident showed the rear of the three offenders. One of them had a hooded top with the word "NIKE" in large letters on the back; the other had a hooded top with "GS" in large letters on the back, while the third had a hooded top with no such distinctive lettering. Ms Manaton identified herself in some of the CCTV images that also showed a rear view of the assailants. The man in the Nike jumper appears to be considerably taller than Ms Manaton. Deciding the significance of that would need to take into account that Ms Manaton is unusually short, having a height of 4' 7", that the image was taken somewhat from above, and the man in the Nike jumper was closer to the camera than she was. 36Ms Manaton was unable to estimate how long she had been in the office, but "maybe a minute or two" after she came out from the office she went to the front of the shop, and saw an old yellow sedan, of square shape, that might have been a Nissan. It had some men in it who looked like they were "Middle Eastern-type appearance" . In chief she said that the Nissan was sitting out in front of the shop, in line with the front door, and that at the same time the police were outside and "up the road" . She said in chief that she did not see the Nissan arrive. The yellow car "sped off" when Ms Manaton saw it, towards the roundabout of Elizabeth Street. 37In further cross-examination she accepted that it was when she and others were standing outside the store after the robbery that the yellow sedan pulled up on Woodburn Road just outside the front of the store. 38It eventuated that the would-be robbers had left the store through the emergency fire exit door at its rear. The Berala railway station is on the other side of the street that runs at the rear of the Food For Less store. CCTV footage from the railway station showed three men crossing the tracks from the direction of the Food For Less store, crossing the railway platform, then crossing the tracks on the other side of the platform and heading in the direction of an adjacent street. 39Mr Tu Phuong Du gave evidence that on the evening of 9 April 2006 he and his wife drove to the Food For Less supermarket in Woodburn Street Berala with their children, and parked their car in front of the supermarket at around 7:45 pm. About 10 minutes later, when he returned to his car, he saw that a silver BMW, with a driver in it, and its left blinker on, was double-parked, parallel to the car behind his car. When he turned to talk to his wife in the passenger seat he saw "about three" people "wearing kind of jumpers with hoods on" rushing into the supermarket. When he saw "one person holding onto the security female person and the other two just going into the supermarket" he drove away, and his wife talked to the operator on 000. While the vehicle was double-parked behind him, he saw its number plate, which began with "4F" . He had seen the rest of the number plate, but could not remember it. He "saw just a driver, someone driving or someone in the driver's seat." He had no recollection of what that person looked like, because "it was pretty dark" . He noticed that the BMW was fairly new. 40Though Mr Du accepted that it was night time, and that the BMW had its headlights on, he denied that he could not see clearly the "4F" of the numberplate. He said he saw the numberplate in his side mirror, as he was preparing to leave his parking spot. The BMW had its left side blinker on as he was getting out of the car spot, as would happen if a driver was indicating an intention to park in the place that Mr Du had previously occupied. He could not remember anything about seeing a yellow Nissan. 41In earlier legal proceedings (in fact a trial of other men accused of conducting the robbery, though the jury was not informed that that was the nature of the proceedings) Mr Du had said he had seen the numberplate "when you were driving away and looking in your side mirror" . When that evidence was put to him, he adhered to the evidence he had given at the trial of the Appellant. (In any event, the question that was put to him in the previous trial was not inconsistent with his evidence in the Appellant's trial, because "when you were driving away" could as a matter of ordinary language encompass events immediately preparatory to actually moving in the vehicle.) 42Susan Bardouh gave evidence that she was working at the Food For Less supermarket at Berala on 9 April 2006 as a checkout operator. At a time she estimates as being about 8:05 pm, when the doors were closing and they were serving the last customer, three men pushed the door open and pushed the security guard against the wall. She said: "Then they came into the store and they went to Jamie and they asked if she was Tammy and they yelled 'Take me to the cash office, where's the money'." 43One of the men pointed a gun at Jamie, whereupon Ms Bardouh said "That's not Tammy" . She said they were speaking in Arabic. In cross-examination she clarified that, saying she heard two of the men speaking in Arabic, but did not hear the third speaking in Arabic. She is of Lebanese background and is fluent in Arabic. She was not able to discern anything about the accent of the men in the shop apart from their use of Arabic words. 44Ms Bardouh said that the three men were wearing balaclavas. She described the men as being "a head taller than me, maybe more" and of medium build. She was 160 cm tall. A man with a white hooded jumper was wearing khaki cargo pants. Two of them stayed with her while one was "at the front area" . One of the men who stayed with her told her to take them to the cash office. She heard a gunshot. Part of the contents of a tin of instant coffee spilled on the floor, and were identified by Ms Bardouh by the DVD footage. 45Then the men went out through the fire exit door. She opened the door, and saw that they either jumped the fence or walked through the fence on the other side of the road, crossed the railway line, and jumped onto the railway platform. It was at that stage that she called out to Tammy. 46About 10 to 15 minutes after she first saw Tammy, she saw an old yellow car, that she described as "a four door hatchback with faded yellow paint" travelling in Woodburn Road. At the time the yellow car went by, "everybody was outside and the police cars were there and the police were outside. " She saw four people in the car, who "were staring" . On seeing the men in the yellow car, she said to Tammy 'I think that's them" . She said "I only recognised the white hooded jumper" . Her evidence continued: "Q. Now when you saw recognised the white hooded jumper, what are you referring to? A. The white hooded jumper that was in the store. Q. Did you see during the robbery a man with a white hooded jumper? A. Yes. Q. Did you see any markings, particular markings on the white hooded jumper? A. I saw black markings but I couldn't make out what they were. Q. The person that you saw in this car, did you see a white hooded jumper with the driver or somebody else in the car? A. It was the passenger, back seat passenger. Q. Were you able to make out any markings on that person's jumper? A. No. Q. How are you able to say it's the same jumper? A. I can't say it's the same jumper." She did not notice anything else about the people in the car. 47Her description of the gun that she saw was: "A. It looked like a police gun, one that flings back so you can shoot it. Q. It slings back? A. Like the top part pushes back." 48Ms Katie Randall was working as a supervisor at the Food For Less supermarket. She gave evidence that one of the men involved in the robbery wore a dark coloured balaclava and a khaki coloured jumper. She described the gun from which the bullet was fired as "a black gun that looked as if it was made of plastic, it was matt black." She said that the gun was in the hand of one of the men, was pointed at Tammy's back, and the man then put down his arm to the right to shoot the gun. She described hearing a "Middle Eastern or Lebanese accent" . Ms Randall said that she was about 164 cm tall, and the three men were "around about 185 cm tall, taller than me, and they were quite slim" , and "they were all very similar" . 49Part of the police statement that Ms Randall gave on the same day as the robbery was cross-examined into evidence. In it, she described the man with the gun as 185 cm tall and slim built, that he was wearing a khaki jumper and black balaclava, one of the other men as being 185 cm tall, slim built, wearing a black balaclava and white long sleeved jumper, and the other man as being 185 cm tall, slim built, wearing a black balaclava, denim jeans and long-sleeved top. 50Zeljka Varinic was working at the Berala store as a liquor assistant on the evening. She noticed a car pulling up, and three people run out of the car. The vehicle appeared to be double-parked. She was unable to determine the make of the car. When asked about its colour, she said "it was dark so it just seemed darkish to me". (tp 150) When asked whether she was able to describe the men she said, "No, they were just wearing hooded jumpers with balaclavas" (tp 151). She was unable to say anything about their height or build. The Crown conceded that in previous proceedings her evidence was "I could see a car and it was on the road, it wasn't parked, and then I saw three guys running towards the shop and the car drove off" . At the trial of the Appellant she could not remember whether she had given that evidence. 51Ms Minaxiben Patel was employed as a security and loss prevention officer at the Berala store. She said that after she had closed the store that evening two men came to the main door of the store and told her to open it. Then the man opened the door, and pushed her to the wall and grabbed her. She gave evidence of seeing a gun, and that it was "like a police, like a black colour police, they have" (tp 163). While the men were in the shop, "I saw the police car and I said 'Oh there's a police car' so I run through and open the door and I saw - I tell the police there was three men inside and police said to me, 'Come out, come out'." 52The police officer she spoke to was not in a car. Beyond recalling one of the men as "skinny" , and wearing a "white shirt" she could not describe the men. In cross-examination she accepted that, in a statement she had made to the police on the same day as the attempted robbery she had described them as all being of similar height and skinny. In that statement, she had said that she saw the face of one of the men briefly, before he pulled a woollen mask down over his face, and that he looked Asian, but not Chinese or Philippino, and that he had long brown hair down to his collar. In re-examination, her evidence was that that person looked "like Lebanese" . 53Ms Nhu Nguyen was a service supervisor at the shop. Her description of the entrance of the men into the shop was that she saw Ms Patel "wrestling with the door because some people were trying to pull it open" (tp 176). She described the gun that she saw as: "It was black, the butt was a bit square, it was similar to police pistol that the police lady showed me at - when I was giving my statement." 54Ms Nguyen pressed a portable hold-up alarm that she had which was silent. Very soon after, on her account, one of the men went to the front door and yelled out that the police were there. It was after that that she heard a gunshot towards the back of the store. She saw the police at the door "yelling at us to get out of there so we ran out" . Tammy was the last of the staff members to come out, "it might have felt like 10 minutes" after Ms Nguyen came out. Ms Nguyen described the men as: "... about 180 centimetres tall, they were slim, they were all wearing black balaclavas, they had a grey - one person had a grey shirt on with black sleeves underneath and the person standing next to Mina had darkish pants on." 55Constable Kim Burgess gave evidence that on 9 April 2006 she was on duty with a Constable Beavin, driving a police car in Woodburn Road, Berala about 7:55 pm. She saw someone standing on the footpath pointing what looked like a gun. The police parked, and stopped their car outside the front of the Food For Less store. They heard a gunshot. 56Later that evening, about 10:45 pm she saw a Detective Senior Constable Laing arrive, after which she saw Detective Senior Constable Laing placing a grey and maroon hooded jumper into an exhibit bag, as well as two black balaclavas. Those items had been located at the rear of the store. 57Detective Senior Constable Amanda Laing conducts forensic examination of crime scenes. She gave evidence of finding a coffee tin with two holes in it consistent with being made by a projectile. She was unable to identify the type of gun that had been used, from the projectile evidence. 58At the rear of the Food For Less premises was a solid fence, with several strands of barbed wire strung between poles projecting from the top of it. The barbed wire between two of those poles was broken. Senior Constable Laing went through a door at the rear of the shop. In the immediate vicinity of that break in the barbed wire she found a grey coloured Nike brand front zip hooded jacket hanging from the barbed wire, and two woollen balaclavas nearby. 59All of the eyewitnesses to the first attempted robbery were shown photographs including one of the Appellant, but none of them identified him as one of the assailants.
The Robbery at the Fresh Fruit Palace 60Mr Joseph Mifsud was one of the owners of a business that traded as the Fresh Fruit Palace at XX Mitchell Street, Enfield. A driveway leaves Mitchell Road, goes past a shop called Flower Power, and then to the Fresh Fruit Palace at the rear of the same complex in which Flower Power is located. A CCTV recording obtained from the Flower Power computer showed, at times recorded on the images as 17:54:17 and 17:55:55 on 13 April 2006, a motor vehicle bearing number plates AUK 75Z in the vicinity of the Fresh Fruit Palace. 61A statement of Mr Charlie Radd was read. He gave evidence that he owned a car with registration number AUK 75Z. At about 9:25 am on Monday, 10 April 2006 he drove his car to his workplace, and parked in a carpark. The front and back registration plates of his car disappeared between that time and about 1:35 pm on the same day, when he returned to his vehicle. He reported the disappearance to the police. 62The premises of the Fresh Fruit Palace contained some stairs leading to an upper floor on which there was an office that contained a safe. On 13 April 2006 around closing time, 6:00 pm, Mr Mifsud said he had collected money from the cash registers of the shop, and taken it upstairs to count. Around 6:10 pm he was in the office with girls called Simone and Lily, and perhaps another girl. A few minutes after 6:10 pm he saw "two blokes grab one of my staff members and brought him upstairs" . That staff member was called Luciano. Very soon before he saw Luciano being grabbed, he heard a gunshot. After he saw Luciano being grabbed: "I heard Luciano screaming 'Open the door Joe', at that time I heard another shot which was at the office door, as I was walking to it to open it, which I got hit, then the two men came inside, I gave them the bag of money." 63After Mr Mifsud had given them the money, the men told him to open the safe, and he did so. The men said, "give us your wallet, mobile phone" , and he complied. He was able to see the gun one of the had because it was laying on a table. He described it as "one of those pistol-type guns that police use" . He heard another shot. Mr Mifsud said that the amount of money the men took was about $40,000. After the men went out of the office he rang 000 and the police came soon afterwards. 64He described the men as wearing hooded jackets, and gave the following evidence about their height and build: "A. One was quite, a bit taller than the other and thin build. Q. How tall are you sir? A. About five foot nine. Q. Are you able to say by reference to your height, how tall the two people were? A. I'd say one was a bit taller, I'd say two inches taller. Q. Than you? A. Than me, and one was maybe a little bit shorter. Q. A little bit shorter than you? A. I'd say so. Q. Do you remember anything about the build of the second gentleman, you said one was a thinner build? A. The taller guy was a thinner build, and the other guy was a little bit stocky, but not fat." 65He described their complexion as being "a little bit dark skinned" and concluded that they were of Middle Eastern ethnic background. The men were not wearing balaclavas, and he noticed that they "had like a few days growth on their face, unshaven" . He heard them speaking and said that their use of English was good, and he did not detect any accents, that it seemed to be an Australian accent. 66Mr Mifsud later noticed that he was bleeding on his thigh and recalled that he had felt a sting when he had heard one of the gunshots. His wound was only superficial. 67In cross-examination Mr Mifsud confirmed that one of the men was three inches at the most taller than he was, and the other seemed a little shorter than he was. 68Ms Sonya Garofano was working as a cashier at the Fresh Fruit Palace on 13 April 2006. At maybe 6:05 pm she heard more than one shot; she thought it was about three shots. Another employee told her to look up, and through the window of Mr Mifsud's office: "I saw Joe standing and a guy tall and skinny standing next to him and wielding a gun, a small gun in his hand and he had like a tracksuit but it was a darker colour and he had the hood on his head." 69About five minutes or less later she saw a man in a white tracksuit with no hood, who was tall and slim, emerge from upstairs. This was a different man to the one that she had seen with Mr Mifsud. This man fired a gun in the air. 70Mr Joao Goncalvs was working at the Fresh Fruit Palace on 13 April 2006. He could see two men standing on the stairs, and Luciano sitting on the stairs. One of the men was about 170 cm tall, and skinny. One of the men had a gun. 71Mr Massimiliano Tusino was working at the shop that day. His attention was drawn by "a braking noise, like a car stopping" coming from outside the store. 72Another employee, Simone, then went to the office. It was at that stage that two men came into the shop. He said he had also seen a third man "he was there standing near the door, so he was always there" . Of the two men who went to the back of the shop "one was a bit taller than the other one" . He saw all three men leave the shop, but did not see where they went. He described the man standing at the door as probably about the same height as himself, which was about 174 cm, and that all three were "sort of slim build, not very big" . In Imperial measurement 174 cm is 5' 81/2". 73Mr Luciano Santoro gave evidence that when he saw two men coming into the shop about 6:10 pm and approached them, one of them grabbed him and said "lets go upstairs" . The man held a gun to Mr Santoro's head and "asked me to call Joe to open the door" . The man fired about three shots at the door, and Mr Mifsud then opened it. He thought the gun looked like a Berretta. He described one of the men as being "little bit taller than me" . Mr Santoro was 5'7". The first man looked Lebanese and had "a bit rough accent, good English but a bit, bit hard accent" . 74On 11 April 2006 a police officer showed a collection of 12 photographs of men to Mr Mifsud, a Ms Galea who had been in the store that night, and Mr Santoro. That collection included a photograph of the Appellant. Neither Mr Mifsud nor Ms Galea were able to identify any of the people photographed as being present at the store on the night of the robbery. Mr Santoro identified someone other than the Appellant. 75The office door had on it a security number pad key lock, that Detective Senior Constable Nicholas Sedgwick observed, when he visited the premises later that evening, to have been extensively damaged. 76A police ballistics expert identified five cartridge cases that had been recovered from the Fresh Fruit Palace as having been fired from a Glock. She said that, while there was a variety of different types of Glock, they were similar in appearance. New South Wales police had been using Glock pistols for 9 or 10 years.
Police Pick Up the Appellant 77There was evidence from police officers, that was not cross-examined on, that on 14 April 2006 two police officers pulled over a white BMW in which the Appellant was a passenger. The Appellant was searched, and was found to have on him $1,040 in cash, a key with a BMW logo on it, and a pair of sunglasses. 78Mr Graham Thornton, a service advisor with a BMW dealership, gave evidence that, on being presented with a BMW key by a police officer, he was able to use a key reader to identify the vehicle from which the key came by its identification number, and that it was a silver BMW M3 coup e , 2004 model. 79He was shown photographs taken from the Flower Power CCTV recording and dated 13 April 2006 at 17:54 and 17:55 (in each case, plus some seconds) that depicted the motor vehicle with licence plates AUK 75 Z. On those photographs he identified a front bumper bar and headlight arrangement that was distinctive of the M3 BMW, some rear wheel arches that were distinctive of the M3 model, and an arrangement of LED tail lights that was indicative of a BMW produced between 2003 and 2006.
The Silver BMW After the Robbery 80Ms Jody Wilmen gave evidence that she lived in a block of units at a particular address in Liverpool Road at Enfield. The Byer Street carpark is located next door to that block of units. Access to an underground carpark of the block of units requires one to drive through the Byer Street carpark. On a date that she put as being 11 April 2006 she went to the Byer Street carpark and saw a silver BMW that was parked in the loading zone. 81She described the Byer Street carpark as "the council carpark" . Her evidence was: "A. ...We had to drive around the car park to get into the underground car park itself and we drove past the BMW and that's when I saw it. Q. Was anybody at the vehicle when you saw it? A. Yes there was. Q. How many people? A. Right next to the BMW itself I saw one person but there was also another vehicle behind it that had another person standing there as well. Q. And the other vehicle do you know what sort of vehicle that was? A. It was a black BMW. Q. Do you recognise any of these people that you saw? A. The person with the silver BMW yes I - I don't know his name but I do recall him being around the units quite a lot but never with that car. Q. At the time that you saw the vehicle was it open, closed, how would you describe it? A. As we came around the car park the car was actually facing forwards so we came around the rear end of it. The gentleman that was with the car he had the car door open and was actually leaning into the car to get something out of it, but he had been talking to people in the units just above where the car was. Q. Now apart from seeing this car, the BMW-- A. Mm hmm. Q. --did you see them on any other occasion in that week? A. Yes, we came home from the show one night and we went and parked our car downstairs, about the third level down, and as we were walking towards the lift a BMW was right next to the lift and I looked at the registration number and it just was the same one as we saw upstairs with the guy. Q. Which one, the black one or the silver? A. The silver one I'm sorry. Q. On this second occasion did you see anybody near it? A. No." 82She said that the second occasion on which she saw the silver BMW would have been about four days after the first time she saw it. She had heard that a silver BMW had been used in a robbery, so she rang the police. When a police officer arrived, she pointed out the vehicle to him. 83The tender of some sketch plans that Ms Wilmen had drawn made clear that on the second occasion that she saw the BMW it was parked in the carpark that was underneath the flats. She said that the man she saw with the car, on the first occasion that she saw it, was about 5'10" tall. She also said that the carpark of the units "... is a security car park where you should have a remote to get in, however people often let the door up so at times anybody could drive down there." 84Constable David Imrie gave evidence that soon after 10:35 am on 15 April 2006 he was shown a silver BMW coup e with number plates AUK 75Z in the basement carpark at the address in Liverpool Road, Enfield where Ms Wilmen lived. He found it was locked, and arranged for the vehicle to be taken to the Gladesville towing holding yard. 85In the afternoon of 20 April 2006 Constable Sedgwick went to "the Gladesville towing yard" , where he saw a silver two door BMW with number plates AUK 75Z. The registration label of the vehicle showed that its registration number was 4FRODO. There was no evidence of damage to the ignition of the car, or on the internal side of the driver's door, and no evidence of damage to the door or door locks on the passenger side door. 86Police found that the key that had been in the Appellant's possession when he was picked up could remotely unlock that motor vehicle, could open its boot, and could start the vehicle.
Other Evidence 87A police officer agreed that the money stolen from the Fresh Fruit Palace would possibly have on it fingerprints and DNA from the employees at Fresh Fruit who had handled it. He also agreed that no attempt was made to check the money that the police found on the Appellant for DNA or fingerprints to see whether it matched the DNA or fingerprints of the employees at the Fresh Fruit Palace. 88A certificate from the Roads and Traffic Authority was tendered, showing the results of a search for vehicles that were a BMW, and had 4F at the start of their registration number. There were only three such vehicles. The two apart from 4FRODO were different in both year and colour to 4FRODO. The certificate was a certification as at 2 April 2008, not as at the date of either of the offences. 89An RTA listing of BMW's with 4F at the end of their registration number showed that there were approximately 460 such vehicles. 90Ms Virginia Friedman conducted DNA analysis. One of the balaclavas recovered from the scene of the Berala store was found to have on it DNA consistent with that of a man she named, who was not the Appellant. That DNA had a profile expected to occur in few than one in ten billion individuals in the general population. The other balaclava had traces of DNA from another individual. The DNA recovered from the jacket and the other balaclava was found to originate from at least three individuals, who could not be identified. 91DNA testing of a polo shirt obtained from Mr Santoro showed DNA of at least three individuals, one of whom was Mr Santoro himself, but the other two could not be identified. 92DNA samples taken from the interior of the silver BMW motor vehicle were taken from at least two individuals. The major contributor of that DNA was consistent with a Mr Zaylah (with a profile occurring in approximately one in 19 million individuals in the general population.) The identity of the other person could not be determined. A water bottle recovered from that car had DNA on it, and according to Ms Friedman the Appellant could be excluded as the source of that DNA. He could not be excluded as being possibly the source of other unidentified DNA that she tested. 93Before the trial, police had sent the Appellant a cheque for $1,040. Counsel for the Appellant suggests that that action is inconsistent with the police regarding the money they took from the Appellant when he was picked up, as being itself stolen property. 94No fingerprints were found to link the Appellant with any of the crimes. Fingerprints of three different people (but not of the Appellant) were on the exterior of the silver BMW. 95A police officer agreed that he had measured the Appellant as having a height of 196 cm, at a time when the Appellant was wearing flat-soled shoes. In Imperial measurement, that is a little over 6'5". 96There was no evidence about the nationality of the Appellant, what languages the Appellant could speak, whether the Appellant spoke with an accent and if so what type, or with what degree of facility he spoke English. There was no evidence that linked him with the address in Liverpool Road, Enfield at which the silver BMW was found. The Judge's Decision on the Voir Dire 97The judge noted that the Crown contended that the evidence of the carjacking was admissible both under s 98, and also as circumstantial evidence. He set out the principles concerning admissibility of coincidence evidence that Simpson J had stated in R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at [139]. It was common ground on the appeal that Simpson J had correctly stated the relevant principles. 98The judge then set out what he described as the Crown's argument concerning circumstantial evidence. In that context he listed certain similarities between the first and second robberies, including: The involvement of the silver BMW in both of them, The robbery was undertaken at the close of business of the premises involved. 99The judge further noted that the stealing of the silver BMW just three hours before the first robbery provided grounds for an inference that it was stolen as part of the planning preparatory to the commission of the first robbery. 100The judge then listed more fully various similarities between the first and second robberies: "1. A silver BMW motor vehicle was used bearing the plates '4FRODO' in the first robbery but bearing stolen number plates in the second; 2. Shots were fired from a gun in both robberies; 3. There were multiple offenders involved in both robberies, apparently three, although in the second robbery only one witness sees a third person; 4. Only one offender in either robbery had a gun, other weapons not being used; 5. In the first and second robberies underlying counts 1 and 2, the offenders arrive at the close of the business they intended to rob; 6. In each robbery the offenders appear to know where the office of the premises is located." He also listed another factor, that he later discounted. The judge noted that it was not the Crown's case that the self same gun was used in the carjacking and the first and second robberies. 101The judge stated the Crown's argument as being: "... there are at least six relevant similarities which are coincidental between the first and second robberies and that, in turn, the stealing of the silver BMW motor vehicle in the carjacking which the accused was admittedly involved is relatively coincidental with the appearance of that same motor vehicle bearing the same numberplate as the one which was stolen in the first robbery, and of the silver BMW motor vehicle otherwise resembling that vehicle, although with stolen numberplates, seen at the second robbery underlying count 2, so that the Crown ought be permitted to introduce evidence of the carjacking as evidence of the accused's involvement in the first and second robberies of an admittedly coincidental kind within s 98, and separately as evidence in support [of] its circumstantial evidence case." 102He then lists some similarities between the carjacking and the first robbery: "1. That the carjacking was a form of robbery; 2. That a weapon was used; 3. It occurred on the same day, within three hours of the first robbery; and 4. The car stolen in the carjacking was outside the victim's premises in the first robbery." 103He stated that the Crown's submission about the consequence of those similarities was that: ... s 98 permits the evidence of the carjacking in which the accused was admittedly involved to be admitted as coincidence evidence in proof of his involvement in the first robbery, and by the coincidental links between the first and second robberies which I have traced above from the Crown's argument, of his involvement in the second robbery." 104At tp 13 the judge gave some general consideration to the balancing of probative value and prejudicial effect: "The accused frankly submits that the introduction of the carjacking evidence will amount to character assassination, because the jury's emotions will be inflamed and a fair trial will be subverted, because the jury will in an illegitimate fashion use the evidence of the accused's involvement in the carjacking as propensity evidence, in a way that will mean that its probative value is outweighed by its prejudicial effect, so as to preclude its admission, not only under sections 135 and 137 but also under s 101. I pointed out at the time that it is not of course uncommon for coincidence evidence to be introduced under s 98 which has the effect of attacking the character of an accused, even though that is not intended. The arguments presented in this case are not without difficulty, and I have taken very seriously the argument of the accused that a fair trial may be subverted, and that some degree of character assassination may be effected, even if it is not intended, by admission of the carjacking evidence, if I can so comprehensively so call it. However, when one carefully examines the terms of s 98, quite apart from the Crown's coincidence evidence argument, the argument in favour of its admission is powerful." Following that, he proceeded to give seriatim consideration to the subsections of s 98. 105Later in his judgment (tp 14) the judge reiterated the approach he was taking to the question of admissibility. He summarised again the similarities between the carjacking and the first robbery, and summarised similarities between the first and second robberies. He continued: "The question I ask myself within s 98 is whether those similarities in the events I have described are substantially and relevantly similar within s 98(2), and whether taken by themselves or having regard to other evidence adduced or to be adduced by the Crown within s 98(1)(a), they have significant probative value. I think they have, and I think indeed there are powerful inferences permissibly available to the jury, although they of course are matters for it, that the accused, being admittedly involved in the carjacking, was involved in the first and second robberies." 106Apart from the passing mention of s 101 at tp 13, that I have set out at [104] above, the only explicit consideration of s 101 was: "When one passes to s 101, one must ask oneself within subs (2) whether the carjacking evidence has probative value which substantially outweighs any prejudicial effect it may have on the accused. I think it does, and its probative value outweighs the prejudicial effect on the accused because of what I see as the powerful similarities between the circumstances of the carjacking and the circumstances of the first robbery, committed a matter of only three hours after the carjacking as set out above, so that I think the s 101 barrier is passed." Decision 107The matters that the Crown seeks to prove through the avenue of s 98 are that:
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BAGHDADI
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