Balachandran v R

Summary of the Evidence

1. In the course of the evidence those present on the night of 11 July 2015 were often described by shortened names or nicknames. As I have said, Antony was sometimes referred to as Newton and sometimes as Anthony. He was also sometimes called Baskaran or Baskar.
2. As also noted above, the appellant was sometimes referred to as Karan, sometimes as Haran, and sometimes as Sasi.
3. Sinniah was sometimes referred to as Guna or Kuna.
4. A Mr Thayan Arulthasan was a resident of 22 Veron Street. He was often referred to as "Raji" or described as (or his name was mistranscribed as) "Regie", "Reggie", "Ragi" or "Reji". I will refer to Mr Arulthasan as "Raji" or "Reggie" according to the context of the evidence or the summing-up.
5. Mr Premkumar Seevratnam was a visitor to 22 Veron Street on the night of the stabbing. He is a brother of Bosco and a cousin of Antony. Mr Seevratnam was often referred to as "Prem" or "Kumar" by other witnesses. I will refer to him as "Kumar" or "Premkumar" depending on context.
6. Mr Kapilthev Pathinthan was a resident of 22 Veron Street. He was frequently referred to as "Akash" and I will refer to him by that name.
7. Mr Alfred Kamal was a visitor to 22 Veron Street. He was usually referred to as "Kamal" and I will so refer to him. Sometimes he was referred to in the evidence as "Kabilan".
8. Two other relevant witnesses were Mr Jenishan Gnaansekaran, to whom I will refer as "Jenishan" and Mr Dirushan Edward Francis, to whom I will refer as "Dirushan". They both lived at 22 Veron Street.
9. The police who attended 22 Veron Street on the evening of the incident were Detective Senior Constable Clements and Detective Hall. A third police officer who was not directly involved in the investigation was Senior Constable Patrick Anthonysamy ("Constable Anthonysamy"). He was a friend of Antony's and spoke Tamil. He visited Antony in hospital on 13 July 2015. He knew another friend of Antony's called Theepan who was also at the hospital and who took him to see Bosco in another ward.

Constable Anthonysamy

1. When Constable Anthonysamy was visiting Bosco he was spoken to by Kumar. Constable Anthonysamy gave evidence that Kumar introduced himself to him and then said that he was a witness to the incident and sent him a photo by MMS to his mobile phone. Kumar told Constable Anthonysamy that the person in the photo had stabbed Antony. The photo was a photo of the appellant. Constable Anthonysamy forwarded that photo to the officer in charge of the investigation, Detective Clements.

Antony

1. Antony gave evidence that he arrived at 22 Veron Street between 8.00pm and 9.00pm and was drinking whisky and eating food with Bosco and others. He said that they were interrupted at some point during the night by someone shouting insults in the Tamil language at Kamal. He said that the noise was coming from the backyard near the dividing fence. He later saw the person who was yelling for Kamal entering 22 Veron Street through the fence. That person entered the house by himself and came into the dining area. He described the person as being short, having an Asian complexion but fairer than his own, wearing a hooded jumper and a T-shirt. He said the T-shirt had black checks or black stripes and the man was wearing red pants. The man ran towards Kamal saying he wanted to hit Kamal but was restrained by Bosco. Antony grabbed him and told him to get out, which he did. About 10 or 15 minutes later the same man came through the fence with another person. The first man was called by Antony Person 1, and the second man was called Person 2. Antony said that Person 1 attempted to attack Kamal but was restrained by Antony. Person 2 was restrained by someone else. Both men were pushed out the back door. About 25 or 30 minutes later three persons entered through the front door. One of those was the first man Antony had told to get out; the man he called Person 1. The second person also returned and he was accompanied by a third.
2. Antony said that Bosco got up and "grabbed them" and said "Come, let's go out and talk", and stepped outside and the three intruders went outside. Antony ran outside to see what was going on and he saw the three individuals beating Bosco. Antony said that he ran and grabbed Person 1 and was standing face to face with Person 1 when Person 1 pushed him and then stabbed him under his left armpit area. He said that Person 1 used his right hand to stab him. He said that the upper part of the knife was coloured silver. Antony said that he was pushed backwards to Person 2 who was standing beside him and that Person 2 punched him and then he was stabbed in the left shoulder area by Person 2 with a silver coloured blade. He was then pushed to the side and was grabbed and stabbed by Person 3. He was stabbed by Person 3 on the back to his left shoulder. Antony said that he was then pushed back to Person 1 who stabbed him again in the chest area on the left side.
3. Antony said that he had not seen Person 1 before the night in question. He gave no evidence of having been introduced to Person 1. Antony lost consciousness and was taken to hospital where he was admitted to the Intensive Care Unit. He was in hospital for seven to eight days.
4. On 9 August 2015 Antony was home and he saw Person 1 who had stabbed him, on the opposite side of the street in which he lived. Person 1 was taking some photos from a camera from his phone. He contacted the police and said that he had seen the person who had stabbed him come to the front of his house. On the following day he went to the police station and provided an electronically-recorded statement. The terms of that statement were not before the jury.
5. On 15 September 2015 Antony attended the Merrylands police station and participated in a computer photographic identification procedure. From a selection of 20 photographs he identified the appellant as Person 1.
6. After an overnight adjournment at the trial Antony gave further evidence-in-chief about seeing the man who had stabbed him outside his house on 9 August 2015. The transcript records the following evidence: "Q. He [sic You] gave some angry [sic evidence] yesterday about the man coming to your place and you seeing him outside of your house on 9 August 2015? A. INTERPRETER: Yes. Q. And just to be clear; the man that you saw outside of the house do you say that is man number 1, number 2, number 3? A. INTERPRETER: Number 1. Q. And when you saw that person, you gave some evidence that you called the police; correct? A. INTERPRETER: Yes. Q. Who else was home with you at that time? A. INTERPRETER: A friend of mine [sic] wife. Q. Who was the friend, do you remember? A. INTERPRETER: Yeah. Q. Can you say who that was? A. INTERPRETER: Patrick Anthony, Charmaine."
7. After this answer there was a long pause before the Crown Prosecutor asked further questions.
8. The recording of the evidence given at trial shows that the transcription of the last answer was not accurate. On listening to the recording what was actually said by Antony was as follows: "Q. Who else was home with you at that time? [Question interpreted into Tamil] [Antony gives response in Tamil] A. INTERPRETER: A friend of mine[.] [W]ife. Q. Who was the friend, do you remember? [Question interpreted into Tamil] [A. Antony: Yeah.] A. INTERPRETER: Yeah. Q. Can you say who that was? [A. Antony: Patrick Anthonysamy] A. INTERPRETER: Patrick Anthony [...] [A. Antony: ...samy.] A. INTERPRETER: Charmaine [phonetically: 'shar-min']."
9. Thus, the answer actually given by Antony was that a Patrick Anthonysamy was with him when he placed the 000 call on 9 August 2015. On appeal the appellant submits that the possibility or fact that Constable Anthonysamy was with Antony when he made the telephone call to the police on 9 August 2015 carries with it the possibility that Antony's identification evidence was contaminated. It was submitted that when Antony participated in the photographic identification at Merrylands police station on 15 September 2015 he was merely identifying the person he saw outside his house whom Constable Anthonysamy might have said was the person involved in the stabbing.
10. No such suggestion was put to Antony in Antony's cross-examination. Nor was that suggestion put to Constable Anthonysamy. No questions were asked of Constable Anthonysamy, either by the Crown or by counsel for the appellant as to whether he was present on 13 August 2015 when Antony made his identification of the appellant.
11. Constable Anthonysamy had given unchallenged evidence that apart from sending the email to Detective Clements (attaching the photo) he had no other involvement in the matter. Counsel for the appellant did not seek to recall Constable Anthonysamy.
12. In his initial instructions to the jury, the primary judge observed that counsel appearing for the appellant was wearing headphones to assist his hearing. It may be inferred that neither the defence nor the Crown heard Antony's answer that was misconveyed by the interpreter. It was not until immediately before the trial judge's summing-up that the Crown Prosecutor raised an issue about the transcription of Antony's evidence. After referring to the relevant transcript the Crown Prosecutor said that she did not know whether the transcript reference to "Patrick Anthony, Charmaine" was accurate or not. The Crown Prosecutor properly raised the point that if Antony had referred to Constable Anthonysamy, then it was known that he had been shown a Facebook photo of the accused. The Crown Prosecutor stated that her solicitor had a note where the reference was to "Patrick Anthony Schamille". Counsel for the appellant observed that Antony did not say that the person was a police officer. The trial judge suggested that the parties could make enquiries overnight.
13. No application was made by counsel for the appellant to recall either Antony or Constable Anthonysamy to investigate whether in some way Constable Anthonysamy's presence on 9 August 2015 might have infected Antony's evidence of his identification of the appellant.
14. Antony said that he had not discussed with Prem (Premkumar) or Bosco what had happened.
15. There was nothing in Antony's recorded interview that materially differed from his evidence at trial. Both in his interview and at trial Antony referred to the appellant simply as "Person Number 1" and not by name. The appellant relies upon this as a ground for attacking the evidence of Raji (referred to below), that Antony had named the appellant by the name "Karan" at the scene as the person responsible for attacking him.

Bosco

1. In his evidence-in-chief Bosco said that initially three men came from next door into the house at 22 Veron Street asking for Kamal. Bosco said Kamal was not there and they left. One of the men was a person Bosco was later told was Karan. He had not seen Karan before. He heard Akash call him by that name. At that time there was no physical altercation. Karan was wearing something like a T-shirt with black stripes. Karan left the premises but came back with another person. They were after Kamal but left when Bosco said that Kamal was not there and that they had better go.
2. The next time someone came to the house was when Guna (Sinniah) came to the house. Bosco knew Guna by name and had seen him once before. Guna said "Bosco, come here" and accompanied him outside and asked Bosco why he did not allow Karan (the appellant) into the house when Karan came. Guna was wearing a black coloured T-shirt with a picture on it. As Bosco was moving towards a car two persons who were standing behind the car bashed him on the back of his head.
3. Both Karan and the other person were standing close to each other but it was Karan who hit Bosco on the back of the head.
4. Guna came towards him with a knife and he was stabbed by Guna. Bosco fell down and the three persons together were beating him up.
5. Bosco said that "Karan right from the beginning was swearing by saying 'Arsehole' and then he hit me". Antony (and only Antony) came outside and asked what was going on. Bosco saw his assailants beat Antony. Bosco was put in an ambulance and taken away to hospital. He recalled making statements to the police. On 15 September 2015 he participated in a computer identification procedure at Merrylands police station. He identified Karan, the appellant, as the person who came from behind and assaulted him.
6. He later identified Guna as the person who stabbed him with the knife.
7. In cross-examination Bosco said that the person he heard Akash call Karan was wearing a white shirt or jacket with black stripes.
8. Bosco was cross-examined on a record of interview he gave to the police on 30 July 2015. It was put to him and he agreed that he told the police that two people came to the door first and they were in black T-shirts. It was put to Bosco that he did not tell the police that the person he knew as Karan had a white shirt on. Bosco said that he did say to the police that Karan had a white shirt and that Guna was wearing a black shirt.
9. It was put to Bosco that at no time in his record of interview did he say that Karan was the one who came to the house. Bosco denied that and said that "I consistently said that it was Karan who came. At the police I also said that it was Karan who came".
10. The record of interview was not tendered. Bosco maintained that "I said to the police that it was Karan. I also said the other person was Guna, and I also said that the other person I didn't know who he was".
11. Bosco was cross-examined on the statement that he made to the police when he was asked whether "[o]ut of the other people that were outside, did you recognise any of them?" and he said "I don't know". Questions and answers from the record of interview were read to him in which he told the police that it was some person other than Guna who hit him and he told the police that a lot of people came and hit him and assaulted him. His answer to the police that "I don't know who hit me and who didn't" was read to the jury.
12. There was an objection to the cross-examination on the basis apparently that it was unclear as to whether the record of interview was referring to a particular time or stage of hitting which had not been clearly identified in counsel's questions to Bosco. Ultimately, the questions and answers in his police interview were read to Bosco. Bosco then gave the following evidence: "Q. So why didn't you tell the police it was Karan was the other person who hit you? You kept using this term 'the other person'. Why didn't you tell them it was Karan? You knew who it was? A. INTERPRETER: I said Karan, and there was another person, dark, of dark complexion. I didn't know that person's name, so I said overall it was Karan, Guna and that other person. Q. I'm talking about your record of interview sir. You understand that? Why didn't you tell the police in your record of interview two days later that Karan was the person who hit you in the back of the head? A. INTERPRETER: At that time I might not have recalled that name, because I had just come from the hospital so it is possible that I could not remember the name. Q. Well, when did you remember it? A. INTERPRETER: Later. Later when the photos were displayed, once I saw the person then I said, 'This is Karan'."
13. Bosco was cross-examined on his evidence that the same three people who had beaten him beat Antony when Antony came out (at [46] above). He was cross-examined about answers he gave in the record of interview (questions 88ff). Questions and answers were read to him in which he was asked whether he saw who attacked Antony and answered: "I don't know about it. About four or five people actually, they were assaulting him and I was shouting ... Newton was being assaulted, and I was shouting but I couldn't move ... ."
14. He was asked in the record of interview whether he saw Antony being stabbed and said "I don't know who was hitting and stabbing. I don't know. A lot of people were there. So I didn't see. Then he fell down next to me." That question and answer were put to Bosco in cross-examination.
15. On appeal, Mr Dalton SC (who did not appear at trial) referred to other parts of Bosco's ERISP transcript that were not adduced in evidence at the trial. The most significant of these was Bosco's answer to question 6. The record of interview was as follows: "Q6 Can you please tell me what happened on Saturday the 11th of July. A (Int:) OK. Now, on that, on Saturday, we were drinking and sitting in sofas, and two people came and knocked on the door, and they were calling, Kamal, Kamal. And then when, when we responded, then they went away. Then they went, and then that person called Guna came. He opened the door and get, came into the house. Then ..... we said that, We have been, we are drinking here and there is no, Kamal is not here. But actually Kamal was there on the other side, but we said he's not here. Then, then I said, Come in, and then I actually, I, I told them that, because we are playing songs and the neighbours were complaining twice before. Then I said that, Because of that, don't make noise here. Please go away. And then I, I, I went with him. Then we had two cars parked, we have two cars at home, and he, near the car he was standing, and suddenly he hit me on the back. Then I was going with him, and he actually, I saw him actually taking that knife from, from his waist. And then, then I went and safeguard myself by wanting to hit him, and he actually immediately stabbed me. ..." (Emphasis added.)
16. In this answer Bosco said that not only did Guna stab him, but that Guna also hit him on the back. However, later in the interview he said (in answer to question 73): "When I went out and with Guna and I didn't see that there was a person actually next to the car and when, when we approached the car, then he hit me on here. Q74 Guna hit you or somebody else hit you in the head? A. (Int): so the other person, other person, I didn't know that he was there and, yeah, he hit me and then I was going to attack him because he hit me and by the time Guna took the knife and I saw Guna taking the knife."
17. This was consistent with the evidence Bosco gave at trial, except at trial, but not in the record of interview, Guna identified the appellant as the person who hit him. The fact that in his record of interview Bosco did not identify the appellant as the person who hit him was the subject of the cross-examination at trial.
18. It was specifically put to Bosco in cross-examination that he was not struck in the back of the head by the appellant. Bosco reiterated that the appellant hit him.

Raji

1. Raji was a resident of 22 Veron Street. He said that nine men lived in that house; and named himself, Akash, Ravi, Vinot, Bosco, Dirushan, Rogan and Jenishan. He and Antony came to the house at about 6.00 or 6.30 pm. Others in the house were watching a movie. Later, Bosco and Prem (Premkumar) came. Raji went to his room to have a sleep. His room had a window facing onto the front of the property where the stabbing later occurred. He was woken up by a loud noise with someone shouting in Tamil "This is the house of Akash. I need to go in." Looking out the window he saw a large group of people at the front of 22 Veron Street pushing each other.
2. He quickly changed and ran outside and saw that Bosco was holding out a bleeding hand that looked as if it had been stabbed. He saw people fighting with Antony. Antony was in the middle and two persons were on his sides. One was a person whom he was later told was Guna. The other was Karan. He knew Karan from having seen him at a church at Toongabbie he attended. He saw Karan and the other man (Guna) using a punching or stabbing motion to Antony. He ran to Antony. Karan attempted to stab him as he attempted to lift Antony. When he pushed Karan away, Karan had a knife in his hand. The knife Karan was holding was the kind of knife used in a kitchen.
3. Raji said that as he was lifting Antony and moving him back towards the house Antony said to him that Guna and Karan had stabbed him.
4. In cross-examination Raji repeated that Antony said that Guna and Karan had stabbed him. When asked who was present when that happened, he identified Dirushan and Ravi as having been present. Ravi was not called.
5. Raji confirmed in cross-examination that the appellant was wearing jeans and a black jacket and there was no white on the jacket at all. He was adamant that Sinniah was wearing similarly coloured attire.
6. Raji also identified the appellant as a man who stabbed Antony in a photo identification parade on 24 October 2015 and a further photo identification parade on 29 February 2016.
7. Raji admitted in cross-examination that the reason that he came to know that Guna had stabbed Bosco was because he had heard that from a friend of Bosco's whom he had seen at the hospital the next day. Raji did not know that person's name. He overheard Bosco's friend's say "Guna stabbed Bosco". This evidence would not affect the credibility of the evidence Raji gave at trial, except for the matter referred to below (at [69]-[71]). Raji did not say that he saw Guna stab Bosco. All he said was that he saw Bosco was bleeding. Raji's admission that he heard someone say Guna had stabbed Antony does not affect the credibility of his evidence that he saw the appellant using a punching or stabbing motion towards Antony, holding a knife and attempting to stab him.
8. Raji's evidence at trial that he pushed the appellant away and the appellant tried to stab him was not mentioned in his ERISP. No reference was made to this at the trial. This does not affect the main thrust of Raji's evidence.
9. In cross-examination it was put to Raji that he had said in his interview to the police that he had heard that at some time Guna had stabbed Bosco. Counsel for the appellant at trial put to Raji a question he had been asked in his police interview, namely "how do you know that Guna had a knife?", and his answer "because I heard that Guna was the one that stabbed Bosco". Raji initially denied saying that and said he did not know whether it was "miswritten". It was only when the video of the interview was played that Raji said "this one I came to know after being told when he was in the hospital."
10. Raji denied telling the Crown in conference that he had seen Guna holding a knife.
11. The Crown's instructing solicitor deposed that through an interpreter Raji said he had seen Guna holding a knife. Raji put this down potentially to a misunderstanding by the interpreter because the interpreter's notes were not read back to him.
12. This is potentially relevant to Raji's credit. But there is no doubt that Guna did have a knife. Raji's denial that he saw Guna with a knife might have had the potential (in Raji's mind) to implicate the appellant in both stabbings. But the objective relevance of this evidence (other than as to Raji's credit) disappears given there was no dispute that Guna stabbed both Bosco and Antony.
13. Raji denied talking to Bosco or Antony about what happened.

Kumar

1. Premkumar Seevaratnam (Kumar) is Bosco's cousin. He was not a resident of 22 Veron Street. His evidence was to the following effect.
2. Kumar arrived at 22 Veron Street with Bosco on Saturday evening between about 8.00 pm and 8.30pm. Later that night he heard a noise where someone was calling for Kamal. The man calling for Kamal opened a glass door. At that time Kumar did not know that person's name. He had seen him before in Pendle Hill when Kumar was with Akash. Akash said to him "Karan, come in. Karan why have you come?".
3. Karan asked Kamal to come out to talk. He was somewhat angry. Karan was wearing a jacket. He did not specify the jacket's colour. Bosco demanded that Karan leave. Karan grabbed Kamal by the hand saying "Come out". Antony grabbed him and took him out of the door. Karan then left and went back through the fence to the other property. He came back about 15 minutes later. He came back a second time and was escorted outside by Bosco and Antony. Bosco threatened to bash him if he came back.
4. After this, Sinniah arrived. Kumar was familiar with Sinniah. He had seen him on two previous occasions. Sinniah was wearing a short-sleeved T-shirt that was black with some white pictures on it. Sinniah did not come into the house, but stood outside on the doorstep and Bosco went out to meet him. Five or six minutes later Antony followed.
5. The next thing Kumar remembered was a young man called "Kaji" (semble Raji) running into the house and yelling that there was a fight outside. When Kumar got outside he observed Bosco clutching his hand. He asked Bosco what had happened but received no reply. Nearby, Antony was standing up holding his left hand to his chest. He asked Antony "what's up?". Antony pointed at Karan and said "He beat me up. Whether it was beat me or stabbed me or stabbed, what I understood was beat." Antony's speech was not easily comprehensible. Antony did not mention a name but just pointed.
6. Kumar lunged at the appellant and grabbed him but then other persons, including Jenishan, intervened and assaulted him.
7. As noted above, during the trial the Crown ascertained and disclosed that when Constable Anthonysamy visited the hospital in the early morning of 13 July 2015, he obtained and forwarded to Detective Clements a photograph of the appellant. Constable Anthonysamy said that Kumar sent him the photograph. He said that Kumar introduced himself to him and said that he was one of the persons who witnessed the incident and Kumar sent a photograph from his phone to Constable Anthonysamy's mobile phone. Kumar said that the person in the photo was one of the persons who stabbed Newton.
8. Constable Anthonysamy was visiting the hospital in his capacity as a civilian. He was a friend of Antony's. He was not in police clothes. But Kumar knew that he was a police officer.
9. Constable Anthonysamy forwarded the photograph to the officer in charge of the investigation (Detective Clements). The photograph became Exhibit S in the trial.
10. Kumar denied showing the police anything on his mobile phone and denied sending an email or a text message to the police officer. (On the voir dire, Constable Anthonysamy said that the photo must have been sent to him either by text or email. In his evidence before the jury he said that the photo was sent as an MMS.) Kumar agreed that he had been shown photographs of the appellant by Akash. He said that he did not tell anyone that he had seen the photograph and did not ask anyone to send that photograph to the police. He said that he never showed the police officer a photograph at the hospital.
11. Kumar said he did tell Constable Anthonysamy that Karan had stabbed Antony but agreed he did not see Karan stabbing anyone.

Akash

1. Akash (Mr Kapilthev Paththinathan) was a Facebook friend with the appellant. He said that he showed a photograph of the appellant as a member of a soccer team to Kumar, but did not show him the particular photograph that was sent to Constable Anthonysamy (Exhibit S).
2. The evidence of Akash and Kumar is impossible to reconcile with the apparent fact that the photograph which became Exhibit S was sent by Kumar to Constable Anthonysamy, unless Constable Anthonysamy was sent the photograph by someone else (contrary to his evidence).
3. Akash did not give evidence implicating the appellant in the infliction of injuries. He gave evidence consistent with the evidence of other witnesses that the appellant came to the house on a number of occasions looking for Kamal and, on the third and final occasion, looking for Bosco. He said that the appellant found Bosco and went outside to speak with him. Antony followed. Akash described the appellant as "pushing Kamal" by which he meant challenging or provoking him. This evidence, although not directly implicating the appellant in the later fight was inconsistent with the appellant's evidence that his role on the evening was that of peacemaker.
4. Akash remembered someone running into the house to say that fighting was taking place outside. When he went outside Antony was lying on the ground holding on to his stomach. Antony did not tell Akash who was responsible for his injuries.

Jenishan

1. Jenishan Gnaansekeran (Jenishan) was a resident of 22 Veron Street. He knew Guna (Sinniah). He also knew the appellant (Karan).
2. Jenishan made a statement to the police that was an exhibit at the trial (Ex 1). The statement was made on 12 July 2015, the day after the stabbings. The statement was taken by Detective Senior Constable Hall (AB 324). An interpreter was present when the statement was made. The statement included the following: "3. In making this statement I have used a[n] interpreter to translate my version to the police. 4. For the past seven months I have lived with 9 other friends at 22 Veron Street, Wentworthville. I have lived in Australia for the past three years. I know a male by the name of KUNA that lives with some of my other friends in a unit in Pendle Hill just next to Woolworths. I have known KUNA for the past year and would describe him to be aged in his early thirties, medium build and height and bald. 5. On Saturday the 11th of July 2015, I was at home with my friends. About 10:30pm that night there was a knock on the door. We answered the door and it was a KUNA asking for one of my friends called Baskar to come out side. I was told earlier that they had been involved in a fight the night before in Pendle Hill. KUNA was with about fifteen other males who live next door to me. 6. They looked drunk and we all walked out to the middle of the street. There a fight between KUNA and Baskar occured. I did not see anyone else touch Baskar during the fight. The fight stopped and I saw Baskar was bleeding from the stomach area. I walked over and helped Baskar over to a nearby chair. There I saw his injuries which looked like a knife injury. I saw the fifteen other males including KUNA walk back into my neighbour's house. One of my friends called the ambulance for Baskar. The police ambulance came shortly after. I got in one of the police cars with the detectives and took to [sic] them to KUNA['s] unit in Pendle Hill. 7. During the night KUNA was wearing a black shirt with a picture on it but I can't remember what type of picture it was and he was wearing jeans."
3. The reference to Kuna was to Sinniah.
4. In his evidence at trial, Jenishan gave a description of what he saw out the front of 22 Veron when he was on the porch: "Q. When you were there having a cigarette did you see Bosco? A. INTERPRETER: Yes I did see. Q. When you saw Bosco was he by himself or was he with someone? A. INTERPRETER: He was talking to the person by the name Kumar. Q. What did you see next? A. INTERPRETER: While talking, Kumar [semble Guna] pushed Bosco to the ground. Q. When you say "while talking", from where you were could you hear what they were talking about? A. INTERPRETER: No, that I didn't take notice of. Q. Do you remember on this night whether there were cars parked in your driveway? A. INTERPRETER: No. Q. What happened after Guna pushed Bosco? A. INTERPRETER: Bosco called Newton [Antony]. Q. And what did you see next? A. INTERPRETER: Thereafter, Newton came and Newton came to make peace, just to separate from fighting. Q. What did you see next? A. INTERPRETER: When Newton and Guna [Sinniah] were talking, Karan [the appellant] came there and another young man came and they were talking and talking and then they started to fight. Q. I'm just going to stop you there, just for a minute. When you say Karan came there, did you know Karan? A. INTERPRETER: Yes, I know. Q. How did you know Karan? A. INTERPRETER: I know Karan through my friend. Q. Had you spoken to Karan before? A. INTERPRETER: I had, yeah. Q. I just want to be clear about this. This other person you saw, did you know who that person was? A. INTERPRETER: No, I had not seen him previously. Q. What was the next thing that you saw? A. INTERPRETER: So from our car way, Karan, Guna and that young person were talking and they were going to the road and there they began to fight. Q. Who did they fight with? A. INTERPRETER: Karan, Guna, Newton and another young man. Q. Where was Bosco? A. INTERPRETER: They were on this side of the road, on the other side Bosco was there."
5. Jenishan said that he saw the three persons together beating Antony. He did not see any weapons. Newton fell to the ground and Jenishan saw that he had been stabbed. Karan was wearing a long-sleeved T-shirt with something like a jacket.
6. Jenishan was cross-examined on his police statement of 12 July 2015. He clarified that it was Bosco who first answered the door. He also said that the statement was mistaken insofar as it recorded his saying that he did not see anyone else touch Antony during the fight. Initially he said this was because he in fact saw Sinniah beating Antony (which suggests some confusion) but later said that he told the police three persons were fighting. He disavowed the proposition that the statement recorded the true version of events and suggested there might have been an error on the part of the interpreter. Jenishan insisted that he told police on that night that the appellant was involved in the fight with Antony.
7. On 14 January 2016 Jenishan participated in a computer photographic identification procedure and selected photograph no. 12, being a photograph of the appellant. He later participated in another computer photographic identification procedure and selected the photograph of Sinniah.

Dirushan

1. Dirushan Edward Francis (Dirushan) was also a resident of 22 Veron Street. He had known the appellant for about a year before the day in question. During the night the appellant came through the back door calling for Kamal. Bosco told Kamal not to go out. Karan (the appellant) had a drink. At some point Karan left. After he left another young man came to the front entrance of the house. He said "Kamal, come out". Antony told him to get out which he did. Then Guna came in through the back entrance.
2. The Crown Prosecutor was given leave to cross-examine Dirushan on his record of police interview of 11 February 2016. Dirushan agreed that Antony told Karan not to come inside and closed the back door. He said that Karan continued to knock at the back door and Bosco went to him and asked him not to shout and to leave. In cross-examination Dirushan agreed that when Karan asked for Kamal he did so in a friendly manner. Dirushan said that the appellant was wearing a full-sleeve white coloured jacket.
3. Dirushan said that "Kajee" (semble Raji) ran into the house and said that there was a fight. He ran out with others. He saw Bosco holding his hand which was bleeding. He saw Karan and Guna beating Newton. Guna was standing behind and Karan was standing in front and beating Antony. He did not see anyone with a weapon. He ran up to Bosco and said "They're beating up Newton". Bosco said that he could not deal with it because of his hand and asked Dirushan to "go and hold". Dirushan ran and pushed Karan away. Karan and Guna then ran away. On 11 February 2016 Dirushan participated in a computer photographic identification procedure and selected photos identifying the appellant and Guna.
4. Dirushan said that he said to Kamal "They came looking for you. Why did they come?", but otherwise did not discuss with his friends who had attacked Antony and Bosco.

Detectives Clements and Hall

1. Detective Senior Constable Clements went to 22 Veron Street at approximately 11.20pm on 11 July 2015. He went with Detective Hall. They did not have the assistance of an interpreter. Detective Clements was asked whether a name was given to him of a person who may be responsible. He said that was the case. The name given to him was "Guna". Jenishan gave him information as to where Guna lived. He and Detective Hall took Jenishan to that given address. In cross-examination Detective Clements accepted that he had difficulty communicating with the people at 22 Veron Street because they did not speak English. They mentioned the name "Guna". So far as Detective Clements recalled, they did not mention any other name. It was not until after 9 August that Detective Clements first found out that the appellant might be a suspect.
2. Detective Hall gave evidence to the same effect. He said that they spoke to the occupants in the house as a group. Jenishan spoke the best English out of all of the group, but the English of everyone present was very poor. Somebody mentioned the name Guna.

The appellant

1. The appellant gave evidence that at the time of the incident he lived with Sinniah and some others in Pendle Hill. He said that he was attending a birthday party on the night of the incident in a house neighbouring 22 Veron Street. He gave evidence that at some point during the night, Akash came from 22 Veron Street and demanded to know who was calling for Kamal. According to the appellant, nobody was calling for Kamal and in fact the name being called was "Tamil", a person attending the birthday party at 20 Veron Street.
2. The appellant said that he knew Akash, and that the two were friends. He said that he acceded to Akash's request that he come with him to 22 Veron Street and explained to its occupants that nobody was calling for Kamal. The appellant said that he followed Akash through the gap in the dividing fence, and that Akash let him into the house, where he saw a few people drinking. He recognised some of these people - Bosco, Raviraj, Kumar and Kamal. He also said that Antony was there but at the time he had not known Antony's name.
3. The appellant said that he was good friends with Kamal. He said he went up to him and told him that nobody had been calling for him, and that they were in fact calling for someone called Tamil. The appellant said that Kamal offered him a drink and talked with him for a while. He said that he took his shoes off and entered the house. The topic of conversation between them moved to a falling out Kamal had had with someone called Mayuran, who was attending the birthday party next door at 20 Veron Street. According to the appellant, Kamal then inquired whether the appellant might call Mayuran so that Kamal could apologise to him. The appellant said that he told Kamal that he thought it was best that they discuss the matter the following day.
4. The appellant said that Kamal went to 20 Veron Street in spite of his advice. The appellant said that he went with him. He found Mayuran and told him that Kamal had come to apologise to him. The trio met together in the presence of some other people, but the apology did not go to plan - Kamal did not like what Mayuran had to say in response to the apology, and he went back through the dividing fence onto 22 Veron Street. Mayuran was not called.
5. The appellant said that at this point he realised that he had left his shoes on 22 Veron Street, and so he want back through the dividing fence to retrieve them. He found his shoes, but as he was putting them on, Mayuran and someone called Ranajan came through the fence onto 22 Veron Street. The appellant said that Mayuran wanted to speak to Kamal again in order to apologise for what he had said to him moments earlier. The appellant said that he knocked on the back door, and was greeted by an agitated Bosco. He said Bosco grabbed onto and held his collar and pushed him, after which the appellant left back through the dividing fence.
6. The appellant said that he went back into the neighbouring house and served himself some food. Everyone on 22 Veron Street was now standing out the front of house, smoking cigarettes and talking. Sinniah was with them. According to the appellant, it was around this time that an argument broke out between the people standing outside on the street: "Q. Who did you see arguing? A. INTERPRETER: Bosco and Guna were arguing, and the same way Jesse and Ranajan were arguing with people in the other house. Q. Do you know which people in the other house they were arguing with? A. INTERPRETER: I saw Prem [Kumar]. I saw Prem, it was dark so you couldn't actually see everyone, but Prem's voice could be heard loudest than anyone else. Q. Did you hear anything that was said? A. INTERPRETER: No I didn't actually notice it that deeply. Q. What happened then? A. INTERPRETER: Then what I did was I kept my plate down and I went to the footpath of Thervan's house, at that time when Bosco and Guna were arguing Bosco saw me and then he called me and said, Karan can you please come here and then Bosco said, 'Karan I have no anger towards you, but who is it who was actually fighting and arguing with Kamal'. Q. Did you go to where Bosco was or not? A. INTERPRETER: Yes I did. Q. Did he do anything to you at that point in time? A. INTERPRETER: At that - at that time he didn't do anything to me. Q. But he said something to you did he? A. INTERPRETER: Yes. He said, 'I have no problem with you but who is it who is fighting with Kamal', and then Guna said, 'Why is it Bosco you were all together why you all fighting', and then Bosco pushed Guna, and Guna pushed Bosco. Q. Just stop you there, slow down a bit okay. Where were you when Bosco pushed Guna? A. INTERPRETER: I was standing close by, they were just casually talking and then all of a sudden Bosco pushed Guna. Q. Did Guna fall down or not? A. INTERPRETER: No he didn't. Q. Then you said Guna pushed Bosco, did Bosco fall down? A. INTERPRETER: At that time Bosco didn't fall down, he was - he just stood away, and then I actually went and separated them and said, 'Please don't fight', and then he also put his - Bosco at that moment put his hand on my shoulder and said, 'I have no problem with you'. Q. What happened next? A. INTERPRETER: At that time only those around were actually arguing with each other, at that time I saw Guna and Prem - sorry I - Antony Newton, Prem, Guna and Jesse were arguing with each other. Q. Let me just stop you there, you didn't know Antony Newton before this night, is that right? A. INTERPRETER: No I didn't know. Q. So how did you know he was arguing? A. INTERPRETER: When I went into the house before on that night, Kamal actually introduced me to everyone in that house and Antony Newton was there. Q. All right so you said you saw after the pushing what happened then? A. I went and grabbed Guna and I said, 'Let's not fight, let's just go home', at the time Anthony Newton put me in a headlock-- Q. What do you mean by headlock? A. INTERPRETER: Yeah he did that with - he did that to my neck. Q. Indicating with your - stop you there please. Indicating with your right hand your forearm round your throat, is that right. A. INTERPRETER: Yes. Q. Was he in front of you when he did that or behind you? A. INTERPRETER: He was - I went to hold Guna, he was behind me and he did that from behind me and when I went to hold Guna is when he said, 'Who are you', and he grabbed me like that. While he was doing that I was actually unable to breathe, I was finding it hard to breathe so I was pulling onto his hand but he couldn't - he didn't leave me. At that time Prem came and he kicked me on my right thing and Anthony Newton and I fell to the ground, and he let go of me, and then Prem came and grabbed my collar and I hit Prem's hand, and then he tried to hit me again and he pushed me, and then at that time I decided I didn't want to hold anyone, so I went and stood aside on my own."
7. The appellant said that he did not see a knife at any stage, nor did he have one with him. He said the only person he hit was Kumar, whom he hit on the hand. He denied stabbing anybody. The appellant said that after he was put in a headlock Guna shouted "Leave him." Guna grabbed him by the collar and said "You shouldn't be standing here, you need to come with me" and dragged the appellant away. Guna said that he was drunk and needed the appellant to take him home. The appellant walked with Guna until they reached a shop where they bought some food. They obtained a lift from the shop to their home in Pendle Hill. The appellant removed his clothes because they were wet from the rain. He went to sleep.
8. The appellant maintained his version of events in cross-examination. He said he did not have any blood on him and he only heard that someone had been stabbed when he arrived home. He denied running away. He left with Guna because Guna was drunk and wanted the appellant to take him home.
9. In cross-examination it was put to the appellant that he did not know Antony. The appellant said "I actually shook his hand because Kamal introduced me. First time."

Ground 1: The Summing-Up

1. The trial judge provided a detailed summing-up of the evidence in relation to identification. That part of the summing-up occupies approximately 50 pages of transcript. The first ground of appeal is that the trial judge's summing-up failed adequately to balance the defence case and the Crown case, and this resulted in a miscarriage of justice.
2. The Crown accepts that there were occasions during the summing up when the trial judge made comments that raised possible arguments or views of the evidence that were not referred to either by the Crown Prosecutor or the appellant's counsel in their closing addresses. There were two such instances. The first concerned Raji's evidence that Antony identified the appellant by name (Karan) as his attacker where Antony had not previously known the appellant. The trial judge reminded the jury that there was evidence from the appellant that he had been introduced to Antony, although this had not been raised in the Crown's address.
3. The second instance is referred to at [161] below.
4. At the beginning of the summing-up the trial judge directed the jury that: "It is really important during my summing-up to realise immediately that I am not here to give you hints. We are not 13 judges deciding this case, there are 12 judges, the 12 of you deciding this case. I am not deciding it. I am not going to try and give you hints or tips about what I think the verdict should be, and to be perfectly honest, even if you thought I was giving you a hint or a tip, you should absolutely ignore it because it is not my role and judges who try and influence juries to make a verdict one way or the other are doing completely the wrong thing. That is not to say at times I will not make comments about the evidence or things that I do not feel are in dispute in the matter, or may comment on submissions in the matter, but if I do stray into areas like that, I will generally remind you that unless I am giving you a legal direction, you are obliged to ignore my opinion about things unless it happens to coincide with your opinion, and remind you that ultimately these decisions are a matter for you."
5. The trial judge prefaced the standard direction on identification by saying that his directions should not be thought of as giving any indication of what he thought about the reliability of any of the evidence of the identification witnesses (whom he identified), but rather to make sure that the jury considered what was relevant to the assessment of the reliability of the identification witnesses. He emphasised that the jury's assessment as to whether those witnesses were truthful and reliable was their function and not his. He then gave a standard direction in relation to identification, including that the evidence of the witnesses who had identified the accused must be approached with special caution before it could be accepted as reliable and that even if the jury thought that any of the particular witnesses were impressive, persuasive or were convinced that they were correct and were considered to be honest, still, the reliability of their evidence had to be approached with special caution. The trial judge concluded this part of the summing-up by saying: "Now, in this case, as you know, there has been more than one witness who has effectively identified the accused as being involved in both the affray, but also this stabbing incident. In a case where more than one witness has identified the accused, and here depending on your view of it, it could actually be up to six witnesses, this is a matter that you may take into account in determining how strong the evidence is. However, the fact that six people have potentially identified the accused as being involved particularly in count 1 and 2 does not mean that there is necessarily less chance that a mistake has been made. Two, three, four, five, or six or more honest witnesses can be just as mistaken as one. But ultimately that is a matter for you to determine."
6. The standard direction which the trial judge appropriately followed includes direction that two or more honest witnesses can be just as mistaken as one.
7. This was a favourable direction for the appellant. The chances of five (or six) people mistakenly identifying the appellant as a person who stabbed Antony would only be no less than the chance of one person having so mistaken him if the possibility of mistake were common to all and each was equally or wholly (depending on circumstances) susceptible to that mistake. If the chance of mistake were random, the chance of all five being mistaken would be small (depending upon the probability of the chance of mistake). If the chance of mistake for each witness were 40 per cent and the chance of mistake were random, then the chance of two being mistaken would be 16 per cent, and so on.
8. The trial judge then dealt with the evidence of Antony whom he described as the most important witness. The trial judge said: "So one of the first ones that you have to ask is was the person who Newton Antony identified a stranger to him? Because it is obviously harder to identify strangers than someone you know really well. Well, we know that Newton Antony was a stranger to the accused on the night of this incident. They effectively met on this night just prior to the stabbing from the point of view that there is earlier to and fro, whether he came two or three times to the house. That is a matter for you to decide, but there was clearly a meeting between them prior to the stabbing, but whatever meeting that was, it was only minutes. I do not think there was a precise time on it, but some amount of minutes prior to the stabbing itself. But they had no prior contact prior to that night. So one of the things that you have to take into account is that Newton Antony was a stranger to the accused."
9. The trial judge then addressed what opportunity, or lack of opportunity, Antony had to make observations of the person he referred to as "Person Number 1" whom he ultimately identified from the identification board. The directions in relation to Antony's opportunity for observation were balanced and not subject to attack, except in one respect. On the opportunity for observation, the trial judge referred to the lighting. The trial judge directed the jury: "No-one suggested the lights were off in the house, so you take into account that he saw him in the light, in circumstances where he would have had an opportunity to see him better. You also, however, take into account at the time of the stabbing that it was outside and clearly was at night and clearly it was dark, and that it happened very quickly."
10. The trial judge said: "As I said, you take into account the lighting at the time of the crucial identification, and clearly the stabbing is the crucial part of the identification and it is made in the dark. However, at no stage did Newton Antony or any other witness suggest that he could not see anything that occurred. But you would take into account on that on the question of mistake. It does not mean there was a mistake, it is just something you take into account. You ask yourself is anything significant about the appearance of person number 1 that stuck in Newton Antony's mind? For example, was a tattoo or some radical hairdo or something like that; it does not seem like that was this type of case but, again, that is a matter for you."
11. The appellant challenged the trial judge's statement that "... at no stage did Newton Antony or any other witness suggest that he could not see anything that occurred." He submitted that neither the Crown nor the defence asked any questions along these lines. Nor did the Crown make any submission to the jury to this effect.
12. But this observation was uncontroversial. It is not suggested that any of the witnesses suggested that they could not see what had occurred. They all reported their observations. No further direction was sought. Had it been sought then the jury would have been reminded of evidence given by Antony that although it was dark, the person could be identified and there was a streetlight against which the person was clearly visible, to Bosco's evidence that he could see the colour of the knife with which he was stabbed in the light, and to Kamal's evidence that when he saw him Antony was coming from the middle of the road where he had been stabbed to the side of the road, and there was some light from the streetlight in the middle of the road.
13. The next criticism of the summing-up was the trial judge's summary of evidence given by Bosco in relation to the stabbing of Antony. The trial judge said: "Of course, his identification does not stand alone, because the next one is Bosco. So let us look at some of the particular features of Bosco's identification, reminding you that Bosco's evidence is not just important in relation to his own offence - in that he says that he was bashed specifically by the accused along with other people, but the same three people who had bashed him, immediately moved on and were bashing Newton Antony. Irrespective of whether Bosco does not specifically see the accused stabbing Newton Antony, or does not specifically see the accused with a knife, if the accused is observed by someone bashing or involved in a violent assault on Newton Antony, irrespective of whether they see the knife or the stabbing, you might think that provides very strong support for Newton Antony's claim that he was being attacked and stabbed by the accused. And you might also think that it provides very strong evidence for the Crown to rebut any suggestion that either the accused played no role at all or abut any suggestion that he was playing a peace maker role in this particular matter. So Bosco's evidence is important both in relation to his own count, but also because he says the same three people who bashed him immediately then went and bashed Newton - including one of them being the accused."
14. The appellant submitted that this was an expression of a strong opinion by the trial judge that was bereft of any claim that it was the opinion of the Crown Prosecutor. The appellant submitted that in this passage the trial judge expressed his own opinion that the appellant stabbed Antony.
15. But it is clear from the context of the summing-up that the trial judge was here referring to the strength of Bosco's evidence in the Crown case against Antony if Bosco's evidence were accepted. The trial judge immediately went on to address the reasons the jury might not accept Bosco's evidence. These included whether the appellant was a stranger to Bosco, what opportunity Bosco had to make observations about the appellant, whether Bosco had a reason to focus his attention on the appellant, what the lighting was like, whether there was any special reason for Bosco to remember the appellant, whether Bosco was under stress or pressure, having himself been stabbed, and the fact that when initially asked in hospital about the event, he did not say anything to the police specifically about Karan.
16. The appellant submitted that the trial judge failed adequately to put to the jury the defence criticism of Bosco's evidence, that he had participated in a record of interview two days after the incident where he made no mention of the appellant's having struck him on the head or of seeing the appellant attacking Antony.
17. But the trial judge directed the jury that: "... Bosco did not identify people, in particular Karan, in his police interview despite the fact that he did that here in evidence and does that concern you about his reliability and even truthfulness as a witness?"
18. I do not accept that the trial judge dealt with what the appellant called the "fundamental criticism of the reliability and credibility of Bosco's evidence" in an offhand way.
19. The appellant submitted that the trial judge introduced Raji's evidence in almost identical terms to that of Bosco. (In the transcription of the summing up Raji is called Reggie and I will so refer to him in this part of my reasons.) The trial judge directed the jury: "Now, Reggie is important for lots of different reasons in this trial. You know that he is the witness who says that he came out of the bedroom, quickly put on his clothes. He saw Newton Antony in the middle of the road being attacked, and most significantly he said he saw Karan with a knife. So his evidence is particularly important in that for counts one and two, it would be strongly supportive of what Newton Antony said about being attacked by the accused and other people - but also specifically, that Karan had a knife on this evening, which is again completely supportive of Newton Antony's evidence about this."
20. It is clear, and would have been clear to the jury, that the trial judge was referring here to the importance of Reggie's evidence, if that evidence were accepted. The trial judge went on to address matters relevant to whether Reggie's evidence should be accepted, including his opportunity to make observations, his familiarity with the appellant, whether he had any special reason to remember the appellant, and whether he was under any stress or pressure at the time.
21. The appellant took no issue with the trial judge's directions as to Reggie's opportunity to accurately identify the appellant. The Crown referred to those directions as demonstrating that considered as a whole the trial judge's directions were not slanted in favour of the Crown. The trial judge reminded the jury that Reggie had less opportunity than others to make observations of the appellant because Reggie had been in his room and asleep before the incidents in question. The trial judge said "So he basically came out into the dark and started observing things for the first time on that particular evening, so you must take that into account whether that impacts upon his reliability." The trial judge then addressed Reggie's opportunity to make observations of the appellant once he got outside. The trial judge directed the jury: "Well he clearly got very close up to the accused if he is correct in his identification on this evening, because he ran straight to that area when Newton Antony was and he got close up enough to see the knife and he tried to give some assistance in this particular matter. And he had an opportunity from very close range, albeit that it was dark and in a stressful situation."
22. That is an unexceptional statement of the facts if Reggie's evidence is correct. The trial judge then directed the jury: "Was there any special reason for him to remember the accused on this night? Well, Newton Antony had been stabbed. He saw someone who he says is the accused holding a knife. You might think that that is a significant factor that would lead him to remember who it was and what he saw, particularly someone that he had previously seen at church. Was he under any stress or pressure at the time? Well, he was not being attacked at that stage in the same way, clearly, as Newton Antony and Bosco. But nevertheless, to come out from sleeping in your room and run outside and see a melee going on, whatever that melee may be - whether it is just fists or whether it is weapons - must immediately put you under some stress and anxiety, and so you must take that into account on whether he has made a correct identification."
23. The trial judge then referred to Reggie's having identified the appellant in the photo identification procedure on 27 October 2015 and said: "Again, you would ask yourself the question of, 'Is he identifying someone that he had seen before in his life, that he had seen at a church who was there that night, and he is simply identifying someone that he saw, or is he making the second important link that not just that he saw the person, that he saw that person - and in this case, that person holding a knife and that person effectively involved in the attack on Newton Antony?' He of course says, 'Absolutely that is what I saw and that is correct in relation to my identification of him.'"
24. As the Crown submits, the trial judge was there highlighting how a witness might be mistaken when identifying a person in one context having seen that same person in another context.
25. The appellant's principal complaint concerned the directions which immediately followed. The trial judge said: "Criticisms of whether he is an accurate and truthful witness. Well, one of the principal ones that Mr Buckman [counsel for the appellant] asked you to take into account, and you will take into account, is that he claims that Newton Antony said verbally that Guna and Karan had stabbed him on that night. But that there is a dispute that they did not actually know their names that night, although as I said to you, the accused actually gave evidence in this trial when he specifically said he introduced himself to Newton Antony. So I do not know where that leaves the evidence, that is a matter for you. Maybe he did actually know Karan's name on that night if the accused is being truthful about that evidence."
26. The appellant accepts that he gave evidence that he was introduced to Antony (and others) earlier in the evening. He says that there was no evidence in the trial that he was introduced as Karan and there was no evidence that Antony knew the appellant by the name of Karan.
27. The trial judge went on to direct the jury as follows: "But one thing that is certain, if there is some uncertainty about whether Newton Antony knew their names, is that that evidence therefore of Newton Antony specifically saying it was Guna and Karan is different to any other witness who we will get to, who specifically says he just pointed at Karan, as opposed to said the words, so if he is mistaken about Newton Anthony uttering the words 'Guna and Karan', does that make him more unreliable or mistaken? It is a matter for you to consider."
28. The appellant submits that as with the trial judge's direction concerning Bosco's evidence, the trial judge expressed his own strong opinion to the jury that Reggie's evidence was strongly supportive of Antony's evidence of being attacked by the appellant. The appellant says that the opinions expressed were not introduced in the usual way as being "the Crown submits ..." but were the statement by the trial judge of his own opinion of the strength of the Crown case.
29. As with the attack made on the summing-up in relation to Bosco's evidence, it is clear that the trial judge was saying that Reggie's evidence, if accepted, would be strongly supportive of Antony's evidence. The trial judge said "So his evidence is particularly important in that for counts one and two, it would be strongly supporting of what Newton Antony said ...".
30. The appellant submitted that there was no evidence that Antony, before he was stabbed, knew the appellant by the name Karan. When the Crown elicited evidence from Antony it referred to the appellant as "person no. 1". Although the appellant gave evidence that he was introduced to Antony, the appellant submitted that there was no evidence that he was introduced as Karan. Nor did Antony give evidence that at the time he was stabbed he knew the appellant by the name of Karan.
31. I do not accept that there was no evidence that Antony had learned that the appellant was called Karan. Although Antony did not give evidence about that matter, there was overwhelming evidence that that was the name by which the appellant was generally known amongst his friends and acquaintances and the appellant said that he had been introduced to Antony that night. If the appellant's evidence is correct, it can be inferred that he was probably introduced to Antony as Karan.
32. It is true that this was not a point raised by the Crown in the Crown's address. In her address the Crown Prosecutor said: "But ultimately the Crown says this, you would accept that Guna did have a knife on that night and that ultimately whether you accept what the witness said about that issue does not make any meaningful difference to his evidence. There are some other issues or discrepancies with his evidence. For example, he said that when he came out, Newton had said that it was Guna and Karan, but Newton did not know those names at that time, and again you might question did the witness reconstruct that discussion, did he insert the names afterwards and put them there? It's a matter for you. You may prefer the evidence of Prem Kamal [sic] who said that Newton Anthony simply pointed at Mr Balachandran. The Crown says that you would not consider that particular issue as to the insertion of names, it seems people were inserting names all throughout the evidence of what they have later discovered, it would not be such as to cause you a considerable concern about the effect of his evidence as to what he saw. Now, the witness said that he assisted Newton and he called for an ambulance and at one point he went inside because of the noise and he did not see what happened."
33. This is not an issue to which the observations of Payne JA in Mulholland v R [2018] NSWCCA 299 (at [52]) apply. His Honour (with whom Schmidt J agreed) said (at [52]): "Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case. First, it is inconsistent with judicial impartiality. Secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at [87]-[93]."
34. There is no reason that a trial judge cannot remind the jury of evidence given at the trial, albeit that that evidence might not have been referred to in the submissions of either the Crown or the accused. To do so is not inconsistent with judicial impartiality. The Crown or the defence, or both, could have advanced an argument to the jury about the evidence to which the trial judge referred. They both had the opportunity to do so. This is not the kind of argument advanced by the trial judge in Mulholland v R and in R v RTB [2002] NSWCCA 104 which involved speculation about possibilities where the parties did not have the opportunity to either disavow or to meet the argument advanced by the trial judge.
35. No issue is taken with the trial judge's statement that the accused gave evidence that he introduced himself to Antony, whereas the evidence was that he was introduced to Antony by Kamal. Nor was any issue about this taken at the trial.
36. In the direction which immediately followed the impugned statement as to the evidence given by the accused concerning his introduction to Antony, the trial judge pointed out that this evidence was different from that of any other witness. The trial judge reminded the jury that Kumar had said that Antony pointed at Karan. The judge fairly posed to the jury the question "If he [Raji] is mistaken about [Antony] uttering the words 'Guna and Karan', does that make him more unreliable or mistaken? It is a matter for you to consider."
37. The trial judge returned to the evidence of Antony's complaint to Raji that Karan had stabbed him later in his summing-up. After directing the jury as to the potential relevance of immediate complaint the trial judge said: "Of course, if he was mistaken all along about who did this, then was he mistaken in making an immediate complaint about Karan? Or is the immediate complaint consistent with him not being mistaken, and him correctly doing the identification instantly? Mr Buckman would say to you, 'Well, it all happened quickly. He was confused about Karan playing the peacemaker role, and so - assuming this happened - if he pointed out or named [Karan] straightaway, that's just consistent with his mistake and confusion about Karan playing this peacemaker role.' The Crown, on the other hand, says, 'No, he pointed him out and identified him straightaway because that is who did it.'"
38. This was a balanced direction that pointed out to the jury that even if Antony had identified the appellant by name to Raji as his attacker, Antony may have been mistaken in thinking that the appellant had attacked him rather than playing the role of peacemaker.
39. Raji's evidence was that he did not see Guna (Sinniah) with a knife. In cross-examination he was asked whether he agreed that he had told the Crown Prosecutor and a solicitor from the Director of Public Prosecutions "last Monday" that he saw a knife in Guna's hand. He denied telling them that. The DPP's solicitor provided an affidavit of a conference she attended with Raji and the Crown Prosecutor and a Tamil interpreter on Monday, 27 February 2017. She deposed that during the conference the Crown Prosecutor asked Raji "Where were you when you saw Newton", and that Raji responded with a narrative of events which were interpreted by the interpreter and at the end of the narrative response, the interpreter said "I saw a knife in Guna's hand." She made a note of that statement.
40. In his interview with the police Raji had said that he had only seen the knife that Karan had and he did not see what Guna had. Raji's evidence at trial was consistent with his evidence in the police interview. The notes of conference were not read back to him.
41. The trial judge addressed this issue as follows: "He also is criticised about his conference with the Director of Public Prosecutions where he allegedly said that Guna had a knife and that is recorded in the notes of the instructing solicitor of the crown prosecutor but he says, 'I never said that'. Mr Buckman says, and you must consider, 'Does that affect his reliability and truthfulness as a witness? Is he someone who is reconstructing events and does not have an accurate recollection of what occurred?' Madam Crown on the other hand says, 'Look, he did not get to review the notes. It is not like a statement that he made. He never endorsed the solicitor's notes to say that that's actually what he said' so was there some misinterpretation? I do not know. It is a matter for you. During the trial despite the absolutely brilliant work, in my opinion, by both interpreters, there were still occasionally clearly misinterpreted issues. One example was when Mr Buckman asked about clothes being worn by someone and the interpreter asked the witness what clothes they were wearing. That was just one example where it happened. Even the best interpreters, and we have been lucky in this trial to have two excellent interpreters, can still have interpretation issues but that is just ultimately a matter for you."
42. The appellant submitted that this substantially diminished the defence's submission and enhanced the submission of the Crown. I agree with the Crown's submission that the trial judge's statement was simply a matter of common sense.
43. Of more significance in assessing Raji's credit is that he did not tell the police at the scene that Karan had stabbed Antony. That was addressed by the trial judge in a way which is not challenged but which shows the balance of the summing-up with the trial judge concluding "... you are entitled to wonder: is it important to his reliability and truthfulness that he did not tell police at the scene that it was Karan?"
44. In summing up the evidence of Kumar the trial judge said: "So Premkumar, you would also realise, is an important witness in this matter, he observed many of the earlier incidents taking place in the house, prior to this particular incident. But he came out at the crucial time, particularly in relation to the stabbing incident, after the stabbing. Nevertheless, he saw an important aspect of this particular matter where he came up to Newton Antony. And he saw Newton Antony point to what, he says, was the accused and said, and you will remember this evidence, he said that Newton Antony, effectively, it was a question of beat or stab. That is at p 221 of the transcript when you get it, it was never clear on the transcript about, specifically, what beat or stab meant. But nevertheless, he had seen Newton Antony was stabbed, Newton Antony pointed to what, he says, was the person involved in that and then as a result of that Premkumar chases and grabs, he says, Karan. So you might think there is a real flow on of that, the person who [is] stabbed points to the person who he says is the accused, he then chases that person, he says, that that is Karan. So you have got that flow on that you might to yourself, well, is that consistent with Karan being one of the stabbers and Premkumar correctly identifying who was pointed at by Newton Antony and then seeking to, effectively, do some kind of arrest on Karan at that particular stage."
45. The appellant submitted that in her address to the jury the Crown Prosecutor made no submission along the lines of the "flow on" effect.
46. It is true that the Crown Prosecutor did not use those words, but the Crown Prosecutor did summarise Premkumar's evidence that Antony told Premkumar something like "He beat me up", and was not sure whether Antony said "beat" or "stab" and though Antony did not mention a name, he pointed. In her address the Crown Prosecutor said: "He said he didn't mention the name, he just pointed and that identification is very important, because when he pointed at him he was only about 2 metres away and he has lunged at him, and he tried to restrain him and keep him there, and the moment he has done that he is then assaulted by numerous people and they fall to the ground. He says Jenishan came and helped him up and he chased Karan again. It was suggested to him he could also be mistaken about who he was pointing to and he disagreed with that, there could be no mistake."
47. In the context of the trial judge's summing-up, his Honour was not suggesting that the jury should necessarily accept Premkumar's evidence. Rather, he was saying what would flow if Premkumar's evidence were accepted. This is clear from passages which follow in which the trial judge addressed Premkumar's opportunity to identify the appellant and whether there was any reason for him to focus his attention on the appellant, and whether the jury was satisfied as to the reliability of his identification of the appellant.
48. After identifying other issues, including Premkumar's denial of having forwarded a photograph of the appellant to Constable Anthonysamy (a direction about which no complaint is made) the trial judge said in a passage which is challenged: "Much was made in Mr Buckman's address of Premkumar not seeing the accused with a knife when he caught him. And Mr Buckman says also a lot about Premkumar believed he would be attacked with a knife if, indeed, the accused had it. That sort of second part is pretty speculative. Why would Premkumar have any idea about what the accused would intend to do to him? The first part is more interesting for you to consider, the fact that if Premkumar did tackle Karan, why didn't he have a knife? Let us remember, of course though, that the accused['s] evidence is that none of that even happened. So he says 'I wasn't even tackled by Premkumar, I wasn't in a situation where I could have done anything to him, none of that happened. All untrue.' So think about that aspect. But also, just because Premkumar didn't see him with a knife at the time he tackled him, does that actually mean as a matter of evidence or truth in the matter that the accused didn't have a knife? Did he just not produce it at that stage? Had he had it on his body but didn't produce it to show Premkumar? Had he thrown it away at that stage, and in the way that the police investigated this matter, and as Madam Crown says to you, perhaps not the most thorough police investigation ever, they just didn't locate it? These are things you have to think about in all the considerations that you have, but you must consider the absence of a knife. Was it a different situation at the time that Premkumar came out and tackled the accused - if you assume he did tackle the accused - compared to [t]he earlier incident? For example, when Bosco is out the front, he is outnumbered. That is, Bosco is outnumbered by the accused and his group, if you believe Bosco's evidence. When Newton Antony comes out, there is still just he and Bosco also outnumbered and not having weapons. When Premkumar comes out, it seems that most of the house came out of the house that Newton Antony had been in. Is there a difference when suddenly you are outnumbered? Are you more likely to run? Are you likely to use the knife on everyone who ran out of the house, even those people who weren't involved in the initial disagreements? ... But on the identification of Premkumar, you also have to think about, 'Did he actually tackle Karan?' Because as I said, Karan says, 'I was not tackled by Premkumar.' So was he accurate and reliable about that aspect of his evidence? Just things for you to think about. I am not expressing any point of view."
49. The appellant had denied that Premkumar came out and ran at him and wrestled him to the ground and said nothing like that happened at all.
50. The appellant submitted that the trial judge here undermined the defence submission in two ways. First, by pointing out to the jury that the appellant's evidence was that Premkumar never tackled him, and secondly by providing a number of reasons why the appellant would not have pulled a knife on Premkumar.
51. But the trial judge did not undermine the defence case by referring to the appellant's evidence that he had not been tackled by Premkumar. Even if that did undermine the defence case, the trial judge was entitled to remind the jury of the evidence the appellant had given. The trial judge raised for the jury's consideration that Premkumar's evidence that he had tackled the appellant could be rejected. This could have affected the jury's assessment of Premkumar's credibility generally.
52. As to the possible scenarios ventured by the trial judge as to why the appellant might not use a knife on Premkumar if he had a knife in his possession and had used it on Antony, the Crown does not dispute that such possibilities were not raised in the Crown's submissions to the jury. In this instance the trial judge was raising matters of speculative possibility rather than addressing the evidence. In this the trial judge erred. It does not follow that when the directions are considered as a whole there was a miscarriage of justice.
53. No complaint is made of the trial judge's directions concerning the evidence of Akash.
54. In relation to Jenishan, the trial judge said: "... you might remember that the absolute number one criticism made his evidence - and certainly, something you must take into account when considering his reliability and truthfulness is exhibit 1 in these proceedings. You have the statement he made to the police very, very shortly after this incident. In that statement, you will know - because I have read it out to you and you can read in the jury room - he does not mention Karan at all, he mentions Guna. He says that 'Well, I did tell the police that, and clearly during this telephone process of taking the statement, something has got lost in translation.' The police say 'Well no, we did this properly over the phone and that statement seems to be reflective of what he told us - that is, he told us about Guna but he didn't tell us about Karan.' So ultimately, you will have to ask yourself, does this affect his credibility and reliability in that he did not mention Karan immediately in that statement of 12 July, even though ultimately later, clearly he did mention Karan's involvement."
55. As noted above, in his evidence Jenishan said that he saw the appellant attacking Antony. His statement, made to the police the day after the stabbing, was taken with the assistance of an interpreter on the telephone. As the trial judge reminded the jury he made no mention of the appellant at all and said that there was a fight between "Guna (Sinniah) and Baskar (Antony)" and "I did not see anyone else touch Baskar during the fight."
56. The appellant criticises the direction on the basis that it was the trial judge himself who postulated that "something has got lost in the translation". The appellant submitted that that inference was not available.
57. That is not a fair criticism. The trial judge was summarising for the jury the evidence of Jenishan and saying that Jenishan's evidence was that something had got lost in the translation. That was Jenishan's evidence. In cross-examination Jenishan said that the sentence in his statement that he did not see anyone else touch Baskar during the fight was not correct. He was asked why he did not tell the police officer that it was wrong. Jenishan said "... this one was taken in the night. I do not know whether there is a mistake or mistakes by the interpreter." He was adamant that he did tell the police when his statement was taken that there were three persons fighting and that Karan was involved in the fight.
58. The appellant also attacks the trial judge's direction that "the police say 'Well no, we did this properly over the phone and that statement seems to be reflective of what he told us - that is, he told us about Guna but he didn't tell us about Karan.'" The appellant submits that the primary judge erred in saying that the police's position was that Jenishan's statement seemed to be reflective of what he told the police, rather than it was reflective of what he told them.
59. But Jenishan was speaking in Tamil through an interpreter. The interpreter was not called. The police could only say, as they did, that the statement was taken using a qualified interpreter over the telephone using appropriate procedures. The trial judge's direction was not disadvantageous to the appellant. It fairly put to the jury the appellant's case that Jenishan's ultimate identification of the appellant was recent invention.
60. The trial judge introduced Dirushan's evidence as follows: "So Durshan Francis is another - maybe not as important as some of the other witnesses, but another important witness in the trial. He obviously saw and heard the earlier incidents that took place in the house prior to the stabbing and the fight involving Bosco. But then he also saw some of the events that happened outside, and you might think that the observations that he made in his evidence, again, are highly supportive of the evidence of Newton Antony in particular - although he did not specifically see a knife or a stabbing, he saw behaviour that was completely consistent, you might think, in what Newton Antony claims occurred between him, and particularly between he and Karan. So what do we know about the identification of Durshan Francis? He says that the accused was not a complete stranger to him, that he basically knew of him for a year, that he had seen Facebook images of the accused prior to this evening - not exhibit S, but prior to this evening. He had, like all the witnesses, a limited time under pressure in the dark outside to make the identification - albeit that he had had the earlier opportunities that I had mentioned during that particular evening."
61. Again, the appellant submits that the trial judge was putting to the jury that Dirushan's evidence was highly supportive of the evidence of Antony because that evidence should be accepted. I do not agree. It is clear that the trial judge was saying that Dirushan's evidence, if accepted, would be highly supportive of Antony's evidence. Dirushan's evidence is summarised at [95]-[98] above. If accepted, it was highly supportive of Antony's evidence.
62. The trial judge went on to address issues relevant to Dirushan's identification of the appellant, including that Dirushan had "a limited time under pressure in the dark outside to make the identification - albeit that he had had the earlier opportunities ... during that particular evening", that Dirushan "... came out quickly to an incident that was rapidly happening, and undoubtedly that would have involved some stress and anxiety in relation to the identification procedure", and that "... you will take into account that [the identification procedure on 11 February 2016] is nearly now seven months after the incident, and does that delay of seven months impact on the reliability of the identification that he did?"
63. The trial judge directed the jury: "Again, you will ask yourself the question of is he just identifying someone who was clearly there on the evening, and he recognises him as being there, or is he correct in relation to what he says is the involvement of Karan in this particular incident?"
64. The appellant submitted that the trial judge's summing-up favoured the Crown case over that of the defence. I accept that it would have appeared to the jury from the judge's summing-up that the Crown had a strong case. But that was not the result of unbalanced directions of the trial judge, but, at least so far as the more serious charge concerning the stabbing of Antony was concerned, the result of the strength of the Crown case. The Crown case that the appellant stabbed Antony was supported by many witnesses. The appellant's claim that he acted as peacemaker was supported by none. The trial judge pointed this out in his directions to the jury.
65. After referring to the evidence of each of the witnesses individually, the trial judge said: "One thing that I did not say about identification evidence - and I am going to finish with this part of the legal part of the directions - is to remind you of what I said about a case where more than one witness has identified the accused: you may take into account determining how strong the evidence is by looking at the evidence cumulative. Really in this case what you must think about is: given the number of people who have identified the accused as either doing the stabbing, holding a knife or involved in a bashing of Newton Antony in particular but also Bosco, are they honest or are they mistaken? Have the Crown satisfied beyond a reasonable doubt? You can look at it also cumulatively. Are they all mistaken? Are they all dishonest? Have they all made an error, all of them? You can look at it individually, as you must, but you can also look at it collectively. So is the situation in the matter that all of them are mistaken, or they are all dishonest, or a combination of both ..."
66. The appellant submitted that the trial judge ought to have given a further direction similar to that referred at para [114] above, reminding the jury that all five or six identification witnesses could be just as mistaken as one.
67. I do not agree. Unless there was an evidentiary basis for the possibility that all of the witnesses were wholly susceptible to the same mistake in identification, then no such further direction was required. Such a direction would not have been accurate.
68. The appellant submitted that the directions were unbalanced because they did not adequately reflect the defence case that the appellant was not initially identified as one of the perpetrators and there was a sound basis for thinking that the witnesses' evidence was contaminated by some of their number telling others that the appellant had attacked Bosco and stabbed Antony.
69. When addressing Bosco's evidence, the trial judge said: "Mr Buckman submits that inevitably these witnesses must have talked to each other about these circumstance[s] and whether they reconstructed aspects of their memory and whether Bosco's reconstructed it. Well as you know, any suggestion to witnesses that they had discussed this or they had got their heads together or that they had effectively done this was rejected by the witnesses, so technically speaking there is no evidence of that at all, but that is a matter ultimately for you. But remember, in criminal trials it is the answer that the witness gives that is the evidence, not the question that is asked unless the witness agrees with the question that is asked. But nevertheless, you can always ask yourself in relation to Bosco - is he reconstructing an accurate memory of the evening? Is he simply identifying the accused and picking his face in the picture because he recognises him from that night, but is mistaken as to what he actually did on that night? So that is the crucial question, there is no doubt that the accused was there but is he correct in outlining what he said the accused was doing. As I said, Mr Buckman said that Bosco did not identify people in particular Karan in his police interview despite the fact that he did that here in evidence and does that concern you about his reliability and even truthfulness as a witness?"
70. The trial judge later directed the jury as follows: "Mr Buckman made submissions to you about the concept of all of them speaking to each other and whether that has impacted on any aspect of their identification in relation to this matter. As you know, apart from the one witness that I mentioned, being Reggie, no-one accepted that they had discussed this in any detail between them. Whether you accept that is a matter for you, but ultimately, there was - outside of Reggie's evidence - no specific evidence of that in the trial and of course, you know that they all did various different identifications at different times. Nevertheless, that is one of the things that you would take into account about whether any discussions, if you believe that they happened, have tainted any aspect of their recollection of the events in this particular manner."
71. The trial judge's reference to Reggie having accepted he had discussed with others an aspect of identification was a reference to Reggie's evidence that he had come to know from being told by people at the hospital about his belief that Guna had stabbed Bosco.
72. The trial judge's direction was accurate insofar as it related to admissions made or evidence given orally by the identification witnesses. But the appellant stresses that the fact that Constable Anthonysamy received on his phone the photograph of the appellant that became Exhibit S (which he forwarded to Detective Clements) means that it was not only an available, but a powerful, inference that, contrary to their evidence, Akash and Kumar in discussions with each other, and possibly with others, had identified the appellant.
73. At the conclusion of the summing-up counsel for the appellant applied for the discharge of the jury on the ground that the judge's summing up was, in general terms, biased towards the Crown. Counsel submitted that when the trial judge put the appellant's arguments to the jury he took the next step of explaining why the arguments would be incorrect or might be wrong, and why the jury might not accept counsel's propositions. Counsel submitted that the judge focused on the "positivity of the Crown's arguments" and the corroboration aspects of the Crown case. He referred to the judge's statement that evidence was highly supportive of Antony. No specific direction was identified. After discussion with the Crown, the trial judge accepted that he needed to give a further direction in relation to Mr Buckman's argument in relation to the involvement of Guna and the way that could have led to a mistake in the identification of the appellant. He gave a further direction about that, about which no complaint is made. He rejected the application for discharge of the jury.
74. I accept that the trial judge erred in raising speculative possibilities referred to at [161] above.
75. When considering the summing-up as a whole, this did not lead to a miscarriage of justice.
76. I also accept that the trial judge should have invited the jury to consider whether the fact that the photograph of the appellant (Exhibit S) was undoubtedly on Constable Anthonysamy's phone pointed to Constable Anthonysamy's evidence that he had been sent the photo by Kumar as being correct; and if so, whether this reflected adversely on the credibility of Kumar and of Akash, if it were accepted that Kumar was sent the photo by Akash. But the point was made in the submissions of the appellant's counsel to the jury.
77. No further directions were sought.
78. Considered as a whole, the trial judge's directions to the jury were not biased in favour of the Crown. The trial judge did not sum up in terms apt to add to the force of the case for the prosecution so as to sway the jury. He did not convey his opinion as to the proper determination of any issue of disputed fact (McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5). He was at pains to tell the jury that he was not seeking to convey any opinion of his own about the facts, and if they thought that he had conveyed his own opinion, they should disregard it. I would dismiss this ground of appeal.

Ground 3

1. The third ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW) which provides: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
2. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 the majority (Mason CJ, Deane, Dawson and Toohey JJ) addressed the tension between the duty of an intermediate appellate court to assess for itself whether on the evidence at trial the jury's verdict was unreasonable or could not be supported and the importance of the jury in our system of justice, (later called the "constitutional tribunal" to decide guilt or innocence) and the advantage that the jury has over an appellate court in most cases in seeing and hearing the witnesses.
3. In Ratten v The Queen (1974) 131 CLR 510 Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ agreed) said that s 568(1) of the Crimes Act 1958 (Vic), which was in materially the same terms as the current s 6(1) of the Criminal Appeal Act, gave to a court of criminal appeal "a function of independent judgment on the facts of the case which a court of appeal hearing an appeal from the verdict of a jury ordinarily does not have" (at 515).
4. Barwick CJ also said (at 516): "Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration."
5. This statement of principle was qualified by M v The Queen (at 492-495). The qualification may be relevant to what orders a court of criminal appeal should make if new or fresh evidence is received on appeal which raises a doubt in the mind of the court of appeal, but would not necessarily raise a doubt in the mind of a reasonable jury (see paras [258]-[260] below). In M v The Queen Mason CJ, Deane, Dawson and Toohey JJ said (at 492) that s 6(1) allows a verdict to be set aside if the verdict is unsafe or unsatisfactory, even though there is evidence sufficient to sustain a verdict. Where a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the court must ask itself 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 (at 493). The majority said: "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 [Chamberlain v The Queen [No. 2] (1984) 153 CLR at 621]. It was with those considerations in mind that some members of this Court [See Whitehorn v The Queen (1983) 152 CLR at 660, 687; Chamberlain v The Queen [No. 2] (1984) 153 CLR at 532-534] have thought it necessary to qualify the statement by Barwick CJ in Ratten v The Queen [(1974) 131 CLR at 516] that: 'It is the reasonable doubt in the mind of the court which is the operative factor'."
6. The majority added (at 494-495): "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 [Chamberlain v The Queen [No. 2] (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444]. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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 [Chidiac v The Queen (1991) 171 CLR at 443, 451, 458, 461-462]. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."
7. In Libke v The Queen (2007) 230 CLR 559 Hayne J (with whose reasons Gleeson CJ and Heydon J agreed) said (at [113]): "It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (60)."
8. Hayne J was not departing from the authoritative guidance given in M v The Queen, the effect of which is that it is for the appellate court to consider whether the evidence at trial raises a doubt as to the accused's guilt and if it does, effect should be given to that doubt unless the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt. The ultimate question is whether the court 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" (M v The Queen at 495). Hayne J's observation in Libke that the question for the appellate court is whether the jury must have entertained a doubt about the appellant's guilt is to be understood as a statement that the question for the appellate court is whether, having regard to its doubt, a reasonable jury should have also entertained that doubt, or whether that doubt might have been resolved by the jury by its advantage in seeing and hearing the witnesses.
9. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 French CJ, Gummow and Kiefel JJ said: "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R by Mason CJ, Deane, Dawson and Toohey JJ: 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. 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v R McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as 'cannot be supported, having regard to the evidence".' 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 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. ... 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."
10. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court did not depart from the "authoritative guidance" given to courts of criminal appeal in M v The Queen in the passage quoted above, but did emphasise that the jury is "the constitutional tribunal for deciding issues of fact", the "abiding importance of the role of the jury as representative of the community in that respect", that the setting aside of a jury's verdict "... is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial", and that "... a court of criminal appeal is not to substitute trial by an appeal court for trial by a jury" (at [65], [66]). Citing M v The Queen at 494-5, the High Court repeated that: "... the ultimate question for the appeal court 'must always be whether the [appeal] court 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.'" (at [66])
11. In support of the ground that the jury's verdict was unreasonable, could not be supported having regard to the evidence and was unsafe and unsatisfactory, Mr Dalton focused upon the late identification of the appellant as an assailant and the possibility of the witnesses' evidence having been contaminated by unrevealed discussions between them. He set out chronologically what information was conveyed to the investigating police officers to emphasise the opportunity for witnesses to make an early identification of the appellant as an assailant, which they did not. He pointed to statements provided to the police that were inconsistent with the appellant's having been an assailant. He raised the possibility that the identification witnesses' evidence had been contaminated by discussions, or by some witnesses having been shown the photograph of the appellant that was sent to Constable Anthonysamy and became an exhibit in the trial.
12. As noted above at [99]-[100] only Guna's name was mentioned to Detective Clements and Detective Hall.
13. As noted above at [89], Jenishan made a statement to the police through a telephone interpreter at approximately 2.00am on 12 July in which, according to the statement, Jenishan said that he saw a fight between Kuna and Baskar (Antony) and he did not see anyone else touch Baskar during the fight.
14. Bosco was interviewed at the hospital shortly after midnight (without an interpreter). Bosco said that Guna tried to stab three people. There was no mention of a second or third assailant.
15. On appeal, the appellant relied upon a further statement taken from Bosco with an interpreter at the hospital at about 11.40am. It was contained in Detective Clements' notebook. It is consistent with Bosco's earlier statement in that the appellant was not named as an assailant in respect to either the assault on Bosco or the attack on Antony.
16. The note from Detective Clements' notebook also includes a note dated 13 July 2015 at 4.45pm of an interview with Bosco through an interpreter in which Bosco referred to a person 1 who struck him and "then 2-3 people hammered me" and then Antony came out, but Bosco couldn't do anything because he had been wounded.
17. That record of Bosco's statements was not in evidence at the trial. It is understandable that counsel for the appellant would not have sought to introduce it. Introducing the statement taken at 11.40am as an inconsistent statement, would have resulted in the tender of the statement taken at 4.45pm that does not contain any material evidence different from that adduced at the trial.
18. The appellant then relies upon the conversation between Kumar and Constable Anthonysamy at the hospital and Kumar's sending a photograph of the appellant to Constable Anthonysamy.
19. Mr Dalton then focused on the evidence of Kumar, and in particular, his interaction with Constable Anthonysamy at the hospital on 13 July. Mr Dalton attacked the credibility of Kumar's evidence partly on the basis of his denial of seeing and sending a photo of the appellant to Constable Anthonysamy, but also for what were said to be inconsistencies between his evidence of what he told Constable Anthonysamy and the evidence he gave at trial. Kumar said that he told Constable Anthonysamy that Karan and Kuna (Guna) were the ones who stabbed. He agreed that he did not see the stabbing and did not see the appellant with a knife. Kumar said that he told Constable Anthonysamy that Kuna had stabbed Antony because he was one of two persons who took Antony following which Antony had stab wounds.
20. Mr Dalton submitted that Kumar's evidence that he told Constable Anthonysamy that the appellant and Kuna were the ones who did the stabbing was false (as it turned out). I do not accept that. Constable Anthonysamy gave evidence that Kumar showed him the photo and told him that the person in the photo was the person who had stabbed Antony. The latter statement is not inconsistent with Kumar's evidence at trial. Although Kumar did not give evidence of seeing the appellant stabbing Antony, he did say that he grabbed the appellant who was fighting Antony and Antony had stab wounds.
21. Mr Dalton referred to the evidence given by Kumar that when he went out to Antony and asked Antony "what's up?", Antony pointed at the appellant and said "he beat me up. Whether it was beat me or stabbed, what I understood was beat." He submitted that that evidence should have been objected to and rejected. This was because Antony gave evidence that he did not remember doing or saying any such thing. Antony gave evidence in cross-examination: "Q. At any stage after you got stabbed and prior to falling down when you felt faint did you point out to any of your friends any of the people who you say stabbed you? A. INTERPRETER: I said that I have been stabbed by a knife and that I do not know whom I said that to. Q. Right-- A. INTERPRETER: Maybe I might have pointed saying these are the ones. I did point out-- Q. Sorry, what? A. INTERPRETER: I did point out a about the stabbing but I do not remember. Q. You don't remember whether or not you pointed out who it was that stabbed you, is that what you're saying? A. INTERPRETER: Yes I don't remember. Q. I take it the next thing you remember was waking up in a hospital? A. INTERPRETER: Yes."
22. I do not accept that Kumar's evidence of Antony's having pointed out the appellant as his attacker should have been objected to or, if objected to, should have been disallowed.
23. Mr Dalton submitted that its probative value was outweighed by the danger of unfair prejudice to the accused (Evidence Act 1995 (NSW), s 137). Given that Antony had been stabbed and the next thing he remembered was waking up in hospital, there was no unfair prejudice to the accused in admitting the evidence, notwithstanding that Antony had no recollection of making the identification of which Kumar gave evidence.
24. It was not until 9 August 2015 that Antony identified the appellant as described earlier in these reasons.
25. Mr Dalton noted that in Antony's ERISP of 11 August 2015 Antony referred to the appellant only as person "No. 1". That was how Antony referred to the appellant at trial. As noted earlier in these reasons, this was relied upon to challenge the evidence of Raji that Antony named the appellant by the name of "Karan" as the person who was responsible for attacking him. This does not to my mind raise a doubt as to Raji's evidence (nor as to Antony's identification of the appellant). But if I did have such a doubt, the jury's advantage of seeing the witnesses would be capable of resolving any such doubt.
26. Mr Dalton emphasised the statement taken from Bosco on 13 July 2015 on parts of which he was cross-examined. Mr Dalton referred to some parts of the interview which were not adduced in evidence. In answer to question 6 of the interview, Bosco said that the man who asked him to come outside was the man who hit him on the back and then stabbed him. At that point he identified Guna as that man.
27. However, the fact that Bosco did not initially identify the appellant as his attacker, but rather identified Guna, was clearly put to the jury. It was not until 15 September 2015 that Bosco identified the appellant in a computer identification procedure. At that time Bosco identified the appellant as the person who "came from behind and assaulted me."
28. Doubts about Bosco's identification of the appellant as the man who struck him were clearly left to the jury.
29. None of the discrepancies or contradictions in the oral evidence of the identification witnesses raises a doubt as to the appellant's guilt that was not capable of being resolved by the jury that had the advantage of seeing witnesses. This includes inconsistencies in witnesses' evidence as to what clothes the appellant was wearing. (On appeal the appellant did not rely on inconsistencies in the evidence as to what clothes he was wearing.)
30. The appellant was identified as the person responsible for stabbing (or beating) Antony by Antony, Bosco, Kumar, Raji, Jenishan and Dirushan. That was a powerful body of evidence. The discrepancies, such as they were, between the witnesses' recollection of events were immaterial and such as would be expected in a fight involving multiple players. The fact that Bosco and Jenishan did not immediately identify the appellant as an attacker of either Bosco or Antony affected their credit but a doubt that an intermediate appellate court would have on that score was capable of being resolved by the jury who had the advantage of seeing the witnesses. The same is true of the attacks that can be and were made on the credit of Kumar and Akash in relation to their denials of having provided the photograph that became Exhibit S. The possibility that that photograph or another photograph of the appellant was circulated between the Crown witnesses was purely speculative and was denied by those to whom the proposition was put. Antony's statement that Anthonysamy (possibly, but not certainly Constable Anthonysamy) was with him when he identified the appellant outside his house on 9 August does not lead to the conclusion that Constable Anthonysamy prompted the recognition. Constable Anthonysamy said that he had no involvement in the case after forwarding the photograph he received to Detective Clements.
31. Nor does the new evidence elicited on appeal (leaving aside for the time being the evidence of Sinniah) take the matter further. The additional statements of witnesses that were adduced on appeal were consistent with the evidence otherwise elicited at trial and it is understandable that counsel for the appellant at trial confined himself to cross-examination on the inconsistent statements that he did.
32. Accordingly, Sinniah's evidence is critical to ground 3 of the appeal.
33. As noted above at [10], on 28 February 2017 Sinniah pleaded guilty to wounding Antony with intent to cause grievous bodily harm and recklessly wounding Bosco.
34. The plea was the result of negotiations between the DPP and Sinniah's legal representatives. On 28 February 2017 Sinniah signed written instructions to plead guilty and to accept an Agreed Statement of Facts for Sentence. As noted below, the Agreed Statement of Facts for Sentence signed by Sinniah implicated the appellant.
35. There is no evidence that the appellant's then legal representatives were provided with or informed of Sinniah's having signed the Agreed Statement of Facts for Sentence that stated that the appellant had assaulted Bosco and stabbed Antony.
36. The appellant's current solicitor, Mr Vertigan, was contacted by the Indictable Appeals Section of Legal Aid and informed that a Mr Pearson who had been in the matter was having to take sick leave. He was asked to take over the appellant's appeal. He received a formal letter of instructions on 24 June 2019. He was advised that contact had been made with Sinniah and that a solicitor from the Legal Aid Commission had prepared draft material, presumably on instructions received from Sinniah. On the basis of that material, Mr Vertigan prepared a draft of an affidavit to be sworn by Sinniah and attended on Sinniah in gaol to take instructions and go through the draft material.
37. The file Mr Vertigan received showed that there was a number of people the appellant had asked Mr Pearson to approach, one of whom was Sinniah.
38. Sinniah made an affidavit for the purposes of the appeal on 3 July 2019.
39. Sinniah required some amendments to be made to the draft of his affidavit. On 3 July 2019 Mr Vertigan attended on the appellant with a Tamil interpreter. He prepared a file note of that attendance. The file note records that he explained that Mr Pearson was not well and he was taking over the case. His file note includes the following instructions: "SB [the appellant]: I asked the barrister to call Sinniah and Sutharshan during the Trial - at the beginning and during the Trial. I wanted [them] to tell the truth. [Sutharshan] didn't drink and was present for the incident. Buckman said Sutharshan's statement was slightly different and may or may not call him. He spoke to me at court and in the cells with a female interpreter. During the Trial, he asked me if I had any questions and I said 'Why haven't you called Sinniah and Sutharshan? He said Sinniah need not come because the case is going well. If Sinniah comes and tells something different he will impact on the case (badly). I told him this is the truth. I told him I still wanted him called. He kept saying progressing well. He then got me to sign a paper saying not necessary to call witnesses for me. Lady interpreter was there. I was complaining he had not taken a full statement. At Parklea, told me I did not have to tell everything just what happened at the beginning. Told me statements don't hurt me because I was wearing [different] clothing. Sinniah had the black jacket."
40. Neither counsel nor the solicitor who appeared for the appellant at trial was called on the application to admit further evidence from Sinniah on appeal.
41. No evidence was adduced on appeal from Sutharshan.
42. Sinniah's sentencing was stood over to await the outcome of the appellant's trial. After the appellant was convicted both the appellant and Sinniah were sentenced by the trial judge. Both were present at the hearing on sentence on 9 June 2017. The sentence hearings were conducted separately but on the same day.
43. The Agreed Statement of Facts for Sentence between the Crown and Sinniah included that: "Reckless wounding in company of Bosco (Count 2, s 35(3)) 5. Bosco went out the front of the house. Bosco saw Balachandran come from behind a car. This offender ran and hit him in the head. The offenders Balachandran and Gunathas came at the victim to assault him. During the course of this assault Bosco was stabbed whilst trying to defend himself. He saw the offender Sinniah with a knife coming towards him and reached out to block it. In doing so he was wounded to the left arm. He suffered two stab wounds, one just below the wrist of the left arm (dorsal) and the other medial. 6. After this a number of people came and set upon Bosco. Wounding with intent to cause grievous bodily harm of Newton (Count 1, s 33(1)(a)) 7. The victim Newton Anthony went outside to see what was happening. He went to intervene and tried to get hold of Balachandran's t-shirt. He asked why he was hitting Bosco. Balachandran said: 'You're a son of a bitch when we came inside you didn't allow me to hit the man.' Balachandran was holding something sharp and stabbed the victim. The victim said. 'And suddenly he put it in me.' He was standing face to face with Balachandran. He saw the silver coloured blade and the handle was covered. He was pushed backwards from the force of the blow."
44. In his affidavit of 3 July 2019 provided to Mr Vertigan, Sinniah said that at the time he was sentenced he wanted "... to tell everyone that I only had committed the crime and I wanted to speak on Sasi's (the appellant's) behalf to tell everyone that he had done nothing."
45. Sinniah deposed: "4. I didn't tell Sasi [the appellant] before his trial that I wanted to give evidence. Initially Sasi and I did not have an opportunity to discuss the case but when we were in Parklea gaol we did discuss it but I thought6 the way the trial would be run he would be freed. 5. Before sentence I had thought that I was guilty and they would free Sasi. ... 6. I told my lawyers on the day of sentence Sasi was not guilty. They told me that the trial was over and it would have to go to a higher court if I wanted to testify for him."
46. Sinniah then deposed to the events that took place on the night of 11 July 2015. In relation to the Statement of Agreed Facts Sinniah said: "23. I did sign the agreed facts. 24. I wasn't aware I was agreeing to the whole facts when I signed them. I signed only in relation to me. I was not aware that I was agreeing to facts about Sasi. Why would they ask me to agree to facts on Sasi? Many of the statements about him are false."
47. Sinniah gave his evidence-in-chief orally. An order was made under s 136 of the Evidence Act that his affidavit (which was an annexure to Mr Vertigan's affidavit) be admitted as evidence that Sinniah had made the affidavit and not as evidence of its truth.
48. In his evidence-in-chief Sinniah accepted that the Statement of Agreed Facts suggested that the appellant did things to Bosco and Antony, but said that at the time he was mentally upset and he did not understand when "they" were explaining to him things about the appellant.
49. Sinniah said in chief that he did not see the appellant attack anybody that night, either with fists or with a knife and did not see him stab anyone.
50. Sinniah's version of the events given orally in chief was in substance that on the night of the incident someone at 20 Veron Street called out for a person called Tamil. The appellant was talking to Akash. At some point someone suggested that Sinniah go across to 22 Veron Street to sort out a problem. Sinniah spoke to Bosco. Initially, "they" brought me outside from the house to talk to me. A heated argument ensued which became physical. Sinniah pushed Bosco. Sinniah did not know what happened to Bosco. Antony came out. At that point Sinniah was not armed with a weapon. Antony came and argued with him and said something that upset him which he took to be a reference to his mother. Sinniah said "I told him, don't talk about my mother. If you want to say anything you say, and tell me, and then I move out from that area." At that point he did not see the appellant. Sinniah had a small decoration knife. He went over to a place where he thought there would be a fight. Antony came over to him. Antony argued with him and swore at him with very bad words. Antony said he wanted to kill him and called him a traitor. Then Sinniah went close to him and the appellant came in the middle to separate them. Antony held the appellant's neck. At that time Sinniah stabbed Antony in the back. Antony was holding the appellant and they fell to the floor. Sinniah stabbed Antony again in the back, but as he was stabbing Antony turned and that's why there was one stab in Antony's front. He did not see the appellant stab Antony at any time. Nor did he see the appellant with a knife. So far as he knows he stabbed Antony multiple times. When asked whether he saw that Bosco was injured at some point Sinniah said: "No. What I assuming is a lot of people, they hit me from the back, maybe Bosco should be in that group as well, I just assuming. ... Some of the people attacked me from the back so there was a group of people attack me, really was possibly in that group."
51. In further examination-in-chief Sinniah said in response to a leading question that Antony put the appellant in a headlock and he (Sinniah) stabbed Antony a number of times. He was then asked: "Q. What I'm asking you is when he came over to you and said those words like 'traitor' and 'I'm going to kill you', did you see if he was injured at all? A. INTERPRETER: No. I'm not sure, I don't know. Q. Now-- A. INTERPRETER: He do not but I didn't see, I don't know."
52. In cross-examination Sinniah agreed that the Agreed Statement of Facts was translated to him in Tamil before he signed the document. He said that while the translator translated the document, although he was listening, he was concentrating on his issues and he did not pay any attention to what the document said about the appellant, and he was mentally very low. In cross-examination Sinniah said that he had been drinking heavily on the day in question. He had told a psychologist (whose report was admitted on sentence and was tendered by the Crown in response to the new (or fresh) evidence adduced on appeal from Sinniah) that since arriving in Australia as a refugee in 2009 his alcohol use had increased to once to twice a week at up to 25 standard drinks in each session. On the day in question he said that he had started drinking at 2.00pm. He started drinking beer and at about 5.00pm he switched to drinking whisky, either straight or mixed with Coca-Cola. By 9.00pm he was very drunk. By the time he went home he was falling over and was sick because he was so drunk. Sinniah adhered in cross-examination to his evidence that he was the only person who stabbed Antony.
53. The Crown referred to differences between the evidence given by Sinniah and that given by the appellant as to the circumstances in which the appellant is said to have been placed in a headlock by Antony. There were also differences as to what happened during and after the alleged headlock. As in the case of the evidence of witnesses called by the Crown, such differences in details in the evidence of Sinniah and the appellant are of little significance in assessing the credibility of Sinniah's evidence.
54. Of far greater significance is the fact that on his own account Sinniah was extremely drunk when the fights happened and he agreed to an inconsistent account for the purpose of his sentence.
55. Sinniah was cross-examined in some detail as to how he stabbed Antony and how Antony was positioned in his fight with the appellant once both Antony and the appellant were on the ground. Sinniah said that when he stabbed Antony the first time he stabbed Antony "maybe in the hand" but gave a demonstration that suggested that he stabbed Antony the first time near Antony's left shoulder. He said the next stab was to Antony in the back and he then fell down on the floor. Sinniah said he continued to stab Antony until Antony released the appellant, although he said he could not remember whether Antony was still holding onto the appellant. He could not remember how many times he stabbed Antony when both were standing up.
56. On further questioning, Sinniah said that the first stab to Antony was in the back. He could not remember whether there was another stab before Antony fell down. He stabbed Antony in "multiple places". After Antony fell to the ground he was holding the appellant and they were facing each other on the ground. Sinniah was asked whether he stabbed Antony to the front at any stage and said that maybe he stabbed him in the front. It was then put to him that he knew what the medical evidence about Antony's stab wounds were and that is why he said that he "maybe" stabbed Antony in the front. Sinniah's response was "because I'm the only one who held the knife, so I got once in the front, so I did it".
57. Sinniah did not give any evidence of a third person having stabbed Antony. Nor did the Crown suggest to Sinniah that a third person was involved, although that was part of the Crown case at trial.
58. Sinniah said that he understood that he was sentenced on the basis that he was not the only person that stabbed Antony. Sinniah rejected the proposition that he thought that if the judge had known that it was only he who stabbed Antony he would have been given more years in gaol. In a non-responsive answer when that question was first attempted to be put to Sinniah, Sinniah said that he told his barrister that what was said in the Statement of Facts was not 100 per cent true and there were a lot of lies there, but he was advised to sign it which is why he did sign it. He was then threatened, inappropriately in my view, that if he were found to have lied in his evidence, that could affect his being released on parole when he was eligible for parole in June this year. Notwithstanding this threat, Sinniah repeated that he was not lying.
59. Sinniah waived client legal privilege. On the adjourned date of the hearing of the appeal, the Crown read affidavits from the solicitor and barrister who appeared for him at trial. They were not required for cross-examination.
60. His former solicitor, Ms Maree Flynn, deposed that a proposed Agreed Statement of Facts was received from the DPP's solicitor with carriage of the matter and was read to Sinniah at a conference on 24 February 2017.
61. Counsel who appeared for Sinniah, Mr Alexander Terracini, explained to Sinniah that pleading guilty would mean that he accepted the agreed facts. Sinniah participated in the conference, asked questions and appeared to understand what was being discussed and gave instructions. Communication with him was through an interpreter. The conference went for about one hour and thirty minutes.
62. On 27 February 2017, when the matter was listed for trial but was adjourned to the following day, Ms Flynn and Mr Terracini had a further conference with Sinniah with an interpreter in which Mr Terracini advised Sinniah of the result of negotiations with the Crown in relation to the charges he faced and negotiations in relation to the agreed facts. Ms Flynn was on pre-arranged leave from 28 February and a colleague attended court that day with Mr Terracini for trial. Sinniah provided written instructions to plead guilty (again, an interpreter was present). His instructions included the statement: "I have instructed my solicitor Maree Flynn and my barrister Alexander Terracini whilst using an interpreter that I was highly intoxicated on this day and cannot remember in detail everything that took place. I have told them what I can remember of the incident and I have instructed them to enter negotiations for me to plead guilty with facts to be agreed with the prosecution."
63. After the plea of guilty there was a further conference between Mr Terracini and Ms Flynn on 28 March 2017. This was after the appellant had been found guilty at his trial. Mr Terracini discussed the agreed facts with Sinniah. Sinniah asked that they be read to him again, which they were by the interpreter. Ms Flynn deposed that Sinniah asked if the statement of facts meant that there were two wounds and Mr Terracini explained that there were two wounds and that the injury to Antony's front were caused by the appellant. The interpreter then read further written instructions to Sinniah confirming his intention to maintain his plea of guilty. He agreed to sign those instructions and did so.
64. It was not until 6 March 2019 that Sinniah told his solicitor that he wanted to give evidence on behalf of the appellant.
65. Mr Terracini deposed that he recalled that at a conference on 16 February 2017 with Sinniah he had no memory of Sinniah indicating his view on the guilt or innocence of the appellant, but he did recall that Sinniah indicated that he stabbed Antony in the back and wished to accept his guilt in relation to that offence. He recalled Sinniah saying that he only stabbed Antony in the back and not in any other area of his body. Mr Terracini also recalled that Sinniah was unable to remember clearly what happened on the evening because of his level of intoxication. He recalled that during conferences held with Sinniah throughout the morning and day of 27 February 2017 Sinniah confirmed his previous instructions that he only inflicted the injuries to the back of Antony. Mr Terracini has no memory of Sinniah indicating that he wished to give evidence for the appellant or indicating that the appellant was either innocent or guilty of his offences.
66. On 28 February 2017 final instructions were taken. The Agreed Statement of Facts and the written instructions were read to him by the interpreter. So far as Mr Terracini can recall, Sinniah did not express any issues with the facts as they were drafted and then signed. He has no memory of Sinniah indicating that he wished to give evidence for the appellant. He has no recollection of Sinniah's indicating that the appellant was innocent or guilty of offences. At no point during the court appearance did those representing the appellant seek to discuss the prospect of Sinniah's assisting the appellant in the appellant's trial.
67. As indicated above, the appellant did not call the solicitor or counsel who appeared for him at trial. Their reasons for not calling Sinniah or asking the Crown to call Sinniah as a witness in the appellant's trial were not before this court. There is no evidence that they knew the terms of the Agreed Statement of Facts that Sinniah had signed which implicated the appellant.
68. The jury was empanelled on 1 March 2018. I infer that the appellant and his legal representatives would not have known what evidence Sinniah would give about the appellant's involvement if Sinniah were called. But it is clear that at some time during the course of the trial a forensic decision was made not to ask that Sinniah be called because of counsel's perception that the case was going well and that Sinniah's involvement might have a bad impact on the case.
69. In Ratten v The Queen (1974) 131 CLR 510 Barwick CJ said (at 517) that: "Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial. Thus, there will be no miscarriage of justice simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted. That accused nevertheless will have had a fair trial."
70. In Ratten v The Queen a conscious decision had been made on the part of the applicant not to explore by evidence a particular line of inquiry taken by certain expert witnesses other than by cross-examination of witnesses called by the Crown (at 521). Accordingly, the evidence of the expert witnesses as to the trajectory of a bullet was not fresh evidence (at 521).
71. In this case a conscious decision was made not to call Sinniah and not to ask Sinniah to be called. There is no evidence that that decision was influenced by knowledge of the Statement of Facts that Sinniah had signed, but from which he now resiles. Accordingly, his evidence led on appeal is new evidence and not fresh evidence. The question is not whether the credibility and cogency of Sinniah's evidence is such that, if believed by the jury, when taken with the evidence given at trial, the evidence would be capable of belief and likely to be believed by a reasonable jury (Ratten v The Queen (at 519)).
72. The question rather is whether Sinniah's evidence, and the other new evidence relied upon by the appellant, when taken with the evidence given at trial, persuades this Court that there is a reasonable doubt as to the appellant's guilt. Whether such a conclusion should result in an acquittal as postulated in Ratten v The Queen or an order for a new trial, is a different question having regard to the qualification later made by the High Court to the views expressed by Barwick CJ in Ratten v The Queen as to whether it is a reasonable doubt in the mind of the Court of Criminal Appeal which is the operative factor (at 516) (M v The Queen at 494-495).
73. If the jury had heard the new evidence it might or might not have convicted. The better view, it seems to me, is that if the appellate court considers that the new evidence raises a reasonable doubt as to the appellant's guilt, the appropriate order is not an acquittal, but an order for a new trial, unless the new evidence shows that the whole of the evidence would contain discrepancies, display inadequacies, be tainted, or otherwise lack probative force in such a way as to lead the court of appeal to conclude that even making full allowance for the advantages that were and would be enjoyed by the jury on a new trial, there must still be a reasonable doubt as to the appellant's guilt (M v The Queen at 495-6).
74. The Crown invited us to find that Sinniah's version of events was patently false and that he perjured himself.
75. The fact that Sinniah adhered to his evidence, notwithstanding the threat made by the Crown that in doing so he was jeopardising his chances of obtaining parole enhances the credibility, but not the reliability, of his evidence. I do not conclude that Sinniah perjured himself. No such finding could properly be made unless it were necessary to do so (Smith v New South Wales Bar Association (1992) 176 CLR 256 at 271; Whitlam v Australian Security and Investments Commission (2003) 57 NSWLR 559; [2003] NSWCA 183 at [116] 591). But independently of that consideration, I am not satisfied that Sinniah did not believe that his version of events was true.
76. Nonetheless, I do not accept Sinniah as a reliable witness. I do not accept his evidence that when he gave instructions to his lawyers to accept the Agreed Statement of Facts he was not paying attention to how those facts implicated the appellant. It may well be the case that his lawyers regarded the statements that implicated the appellant (which had been drawn by the DPP) as assisting Sinniah on the sentence hearing. There is no suggestion that this was a subject of discussion between Sinniah and his lawyers. Nonetheless, I think it probable that Sinniah knew and understood what he was agreeing to. The inconsistency weakens his credibility, although I again emphasise that I do not conclude from that that he was lying in the evidence he gave to this Court.
77. More importantly, Sinniah's memory of events was evidently affected by his consumption of alcohol. This was a matter recalled by Mr Terracini in his conference with Sinniah.
78. Having regard to all of the evidence given at the trial and the new evidence adduced on appeal, I do not have a reasonable doubt about the appellant's guilt in respect of both charges.
79. Because I do not consider Sinniah's evidence to be reliable, and having regard to the weakness of the other grounds relied upon referred to above, I would reject ground 3 of the appeal.

Ground 2

1. I would also reject ground 2 of the appeal. It was only faintly pressed. In the initial submissions of senior counsel then appearing for the appellant, the contention that a miscarriage of justice was occasioned due to incompetent legal representation at trial was confined to the fact that the appellant's counsel at trial failed to go into the specific matters later relied upon on appeal as showing that the summing-up was unbalanced. As I have concluded that that ground of appeal fails in any event, the failure of the appellant's counsel at trial to challenge any specific direction takes the matter no further.
2. Nor do I accept that the appellant's counsel at trial failed to represent the appellant competently by not pursuing the additional pieces of evidence sought to be advanced on appeal or by taking objections to evidence adduced by the Crown. Counsel's decision as to how much of a witness' statement in a prior record of interview should be adduced in cross-examination was a matter of forensic judgment. I have rejected the appellant's submission that the evidence referred to at [208]-[210] above was inadmissible.

Conclusion

1. I would grant leave to appeal, but for these reasons I propose the appeal be dismissed.
2. JOHNSON J: I have had the considerable advantage of reading the judgment of White JA. I agree with his Honour's reasons and proposed orders.
3. It is appropriate that I set out my own conclusions on two aspects of the appeal.
4. Firstly, having observed Guna Sinniah giving evidence in this Court, I do not regard his account as being reliable. He acknowledged that he had consumed a large amount of alcohol and was quite drunk on the night of these events. Further, his account moved around to a considerable degree under cross-examination, probably because of his clearly intoxicated state at the time of the incidents. Mr Sinniah's evidence is new evidence and not fresh evidence. It lacks cogency and does not advance the appellant's case in this Court.
5. Secondly, with respect to Ground 3 which asserts that the verdicts of guilty are unreasonable and not supported by the evidence, I have considered the evidence given at the trial and do not have a reasonable doubt about the appellant's guilt in respect of both charges. When regard is had as well to the new evidence adduced on appeal, like White JA, I do not have a reasonable doubt about the Appellant's guilt of these offences.
6. Apart from these specific findings and observations, I agree entirely with the reasons of White JA for concluding that the appeal against conviction should be dismissed.
7. LONERGAN J: I too have had the considerable advantage of reading the judgment of White JA and I agree with his Honour's reasons for dismissing each of the grounds of appeal, as well as the orders his Honour proposes.
8. On the issue of Mr Sinniah's evidence, I agree that it is new (not fresh) evidence. I found Mr Sinniah's evidence to be elliptical, unconvincing and ultimately unhelpful to the appellant's case as argued in this Court.
9. I have considered all of the evidence led at trial, as well as the new evidence led on the appeal. I do not have a reasonable doubt as to the accused's guilt of these offences and I agree that the appeal against conviction should be dismissed.

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: 12 February 2020