Barzani v R

JUDGMENT

1. N ADAMS J: I have had the advantage of reading the judgment of Chen J in draft. I agree with the orders proposed by his Honour. I am satisfied, for the reasons provided by his Honour, that upon the whole of the evidence it was not reasonably open for the jury to be satisfied beyond reasonable doubt of the applicant's guilt on count 4 but well open for them to be satisfied beyond reasonable doubt of his guilt on counts 1, 2 and 3.
2. CHEN J: Over three successive days in early October 2017, in the northern suburbs of Sydney, four members of the public were attacked. Each of the attacks involved the use, or threatened use, of a knife. Three of the attacks involved the victims being robbed of their possessions at knife point. Three of the victims were cut or slashed by the knife used in the attack.
3. Jutyar Barzani ('the applicant') was arrested by police on 12 October 2017 and charged for this offending. He was tried and found guilty by a jury. By this appeal, brought significantly out of time, he challenges his conviction.
4. In my view, for the reasons that follow, an order extending time to permit the applicant to appeal against his conviction should be made, the applicant should be granted leave to appeal, his conviction on count 4 should be quashed and an acquittal on that count entered, but otherwise his appeal dismissed.

Introduction

1. By indictment dated 11 November 2019, the applicant stood trial in the District Court for five offences, one of which was in the alternative, that were alleged to have occurred in the period between 9 and 11 October 2017.
2. The five counts were as follows: 1. Count 1: on 9 October 2017 at North Sydney, New South Wales, being armed with an offensive weapon (namely, a knife), the applicant did rob MC of a mobile phone and a wallet, being the property of MC, and at the time of that robbery, did wound him - an offence contrary to s 98 of the Crimes Act 1900 (NSW). 2. Count 2: on 9 October 2017 at North Sydney, New South Wales, being armed with an offensive weapon (namely, a knife), the applicant did rob Sangjun Shin of a mobile phone and a wallet, being the property of Sangjun Shin, and at the time of that robbery, did wound him - an offence contrary to s 98 of the Crimes Act. 3. Count 3: on 10 October 2017 at Wollstonecraft, New South Wales, being in company with others, the applicant did rob James Boyle of a mobile phone, a wristwatch, a laptop and a wallet, being the property of James Boyle - an offence contrary to s 97(1) of the Crimes Act. 4. Count 4: on 11 October 2017 at Mosman, New South Wales, being in company with others, the applicant did assault Kevin Bush with intent to rob him, and at the time of the assault, did wound him - an offence contrary to s 98 of the Crimes Act. 5. Count 5 (in the alternative to count 4): on 11 October 2017 at Mosman, New South Wales, while in the company of others, the applicant did recklessly wound Kevin Bush - an offence contrary to s 35(3) of the Crimes Act.
3. The applicant entered pleas of not guilty to each of the charges.

The trial

1. The applicant stood trial with Usman Sakhra ('Sakhra') and Noor Ali Majeed ('Majeed') (together, 'the co-accused'). The applicant and Sakhra were indicted on all counts, but Majeed stood trial only on counts 3, 4 and 5.
2. The indictment was amended during the course of the trial. The first amendment was to correct the spelling of the name of the applicant. The second was to remove the name of Rahma Mariz ('Mariz') from the particulars of the offences contained in counts 3, 4 and 5 as a person with whom the applicant and the co-accused were in company at the time the offences were committed. Mariz pleaded guilty to the four offences. He received a sentencing discount of 50% to reflect his early guilty plea and his willingness to give evidence at trial against the applicant and the co-accused. Mariz became a key witness in the Crown case against the applicant and the co-accused.
3. The trial of the applicant and the co-accused proceeded before Pickering SC DCJ ('the trial judge') and a jury over 18 days during November and December 2019.
4. The jury retired to consider its verdicts on 2 December 2019. On 4 December 2019, the following verdicts were returned: 1. In relation to the applicant: he was found guilty of counts 1, 2, 3 and 4 (count 5, the alternative to count 4, therefore not arising for consideration); 2. In relation to Sakhra: he was found guilty of counts 2 and 3; and 3. In relation to Majeed: he was found guilty of counts 3 and 4.
5. Following his conviction, the applicant was sentenced by the trial judge on 30 July 2020. His Honour imposed an aggregate sentence of 13 years imprisonment, with a non-parole period of 8 years imprisonment, to commence on 12 October 2017, and expiring on 11 October 2030. The applicant is eligible for parole on 11 October 2025.

The notice of appeal

1. By notice of appeal filed 29 July 2024, the applicant appeals against his conviction raising a single ground - namely, that the verdicts of guilty for each of the counts were unreasonable. That ground requires leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
2. The appeal itself is significantly out of time (by some 4 years), but the Crown did not (formally) oppose the Court making an order extending time. Given that stance, and the view that I have reached in connection with count 4, that order should be made. It should also be made because it is, in my view, in the interests of the proper administration of justice that the applicant's conviction be reviewed by this Court in circumstances where the convictions of the co-accused, Sakhra and Majeed, have been quashed on the basis that the jury's verdict, relying as it did upon Mariz's evidence, was unreasonable.

Background

1. The applicant's ultimate submission is that, for each count, his conviction is unreasonable. In order to assess, and contextualise, the specific arguments said to require that conclusion, it is necessary to deal with some matters of background. I will do this across three parts: first, a general description of the conduct giving rise to the charges (including some events following the applicant's arrest) and a short summary of the Crown case against the applicant across the five counts; secondly, the trial and the verdicts; and, thirdly, the appeals against conviction brought by Sakhra and Majeed, and the outcome of those appeals.

The conduct giving rise to the charges and the Crown cases for each count

1. Although it will be necessary to return to the detail of the evidence when assessing the applicant's challenge to his convictions, what follows is an outline of the offending for each count, and a short summary of the Crown case against the applicant.

Count 1

1. This count concerned the robbery of a 15-year-old male (MC) on 9 October 2017 at about 11:00pm. That evening, MC had caught the train from Redfern to North Sydney to visit a friend. After arriving at North Sydney railway station, he walked from the station into Blue Street, then onto Miller Street and Mount Street. In the area of the property at 2 Mount Street, MC saw a male person walking towards him who had come from around the corner in Edward Street. When that person was approximately one metre away from him, they pushed MC by his shoulders against a wall, holding him still. The person, who was identified by MC as male, held a knife towards the middle of MC's chest, and demanded MC "give me everything you have".
2. MC "struggled" before he "realised that in his right hand [the perpetrator] was holding a knife, [a] rather large knife as well". The perpetrator then made a further demand for what was in MC's pockets: "I know you have more in your pockets, I'm going to give maybe five seconds". At this point, the perpetrator had "prodded the knife to [MC's] chest; not stabbed… but kind of like poked" him a few times and MC emptied his pockets. MC handed over his mobile telephone, a portable phone charger (a battery pack and cable) and his wallet, after which the perpetrator told him "to run down the street", which he did.
3. After MC began running down the street, he noticed that his shirt was wet with blood which was caused by two puncture wounds to his chest, one of which required three stitches to repair.
4. In relation to count 1, the Crown case was that the applicant was the sole perpetrator of the robbery of MC.
5. The Crown sought to prove its case against the applicant partly through the evidence of Mariz - which was to the effect that whilst he was the "getaway driver", it was the applicant who got out of the car to confront and rob MC, following which the applicant returned to the car and spoke about having done so - and also sought to prove the case against the applicant on other circumstantial evidence. That other evidence included the following: identification evidence from MC; traffic management images said to depict the applicant in the front passenger seat of a car with Mariz (who was driving) very early in the following morning, 10 October 2017; and evidence that when arrested by police on 12 October 2017, the applicant was found in possession of property belonging to MC (in particular, his mobile telephone and the battery pack), in circumstances where the applicant admitted to police that the stolen property was "his".
6. For this count, the jury was directed that there was only one issue between the parties. This was described by the trial judge in his summing up as: "has the Crown proven that [the applicant] did that robbery? That is the only question that you are going to have in count 1".

Count 2

1. This count concerned the robbery of Mr Shin at around 11:40pm in Carr Street, Waverton on 9 October 2017. [1] That evening, Mr Shin had been to a gym in Walker Street, North Sydney, and was walking home when he observed a man standing on the footpath in front of him. The man moved aggressively towards him with "clenched fists", and he saw that the male was holding a knife in his right hand. The male said: "Just give me your phone, your wallet. Give me everything". Mr Shin, who was listening to music, pretended that he did not "understand English very well", and so said: "What, sorry?". The male "became just angry. Then he start (sic) threatening me, using his knife… Just his voice became aggressive and then he (sic) threatening, he's swinging the knife towards me". After the male "became angry" when Mr Shin "refused to give my items to him", he slashed Mr Shin's right knee with the knife, at which point Mr Shin realised that "this is real, this issue, so I gave everything to him".
2. Mr Shin handed the male his mobile phone (a silver iPhone 6) and threw his wallet - which contained money, his driver's licence and credit cards in his name - onto the ground. Mr Shin also described observing another man "behind the first guy", between 5 to 10 metres away. Mr Shin handed over to the first male his Ecko gym bag containing his Nike training shoes, which the first male passed to the other one. After handing over his property to the first male, Mr Shin was asked "to walk to the - the opposite way, to the Pacific Highway". He then observed both males walking towards a car, and he began walking in the same direction (which the direction of his home) but on the opposite side of the road. At that point, the first male ran towards him again with the knife and, as he was doing so, Mr Shin yelled at him that he was "going home, my home is this way", at which point the first male "went back to the car then they left". Mr Shin observed the men to enter a blue or dark-coloured four-door sedan and that neither male entered the driver's seat "so there was another driver in the car".
3. Mr Shin reported the matter to police. Later that same night, police went to the area where Mr Shin said he was assaulted and robbed and, in doing so, took a specialist police dog with a handler. The police dog indicated some items on the ground - the Ecko bag with Mr Shin's shoes, as well as a cigarette lighter with a blue leaf pattern motif in the gutter. That the item was "indicated" meant that it had been handled recently.
4. In relation to count 2, the Crown case was that the applicant was the person with the knife who was responsible for slashing Mr Shin and that the second male was Sakhra. The Crown sought to prove its case against the applicant on count 2 through the evidence of Mariz and also circumstantially. Put shortly, the Crown relied upon Mariz's evidence that the applicant was the person with the knife and responsible for the wounding; that the applicant was found in possession of the items that had been taken from Mr Shin (in particular, his mobile telephone, his driver's licence and credit cards); the traffic management image said to depict the applicant sitting in the front passenger seat of the car driven by Mariz; and, importantly, that shortly after the events occurred, police attended the scene and recovered a cigarette lighter that, when forensically examined, was identified to have "DNA on the lighter [that] matched the DNA from [the applicant]".
5. For this count, there was no issue that the Crown had proven beyond reasonable doubt all the elements of the offence and the only remaining issue was whether, as the trial judge said to the jury, the Crown had proven that it was the applicant who "did that robbery". Consistent with this, the trial judge directed the jury that the issue reduced solely to the following question: "Can the Crown prove beyond reasonable doubt that [the applicant] did it?".

Count 3

1. This count concerned the robbery of Mr Boyle at around 10:45pm in Russell Street, Wollstonecraft on 10 October 2017. Whilst walking along that street, Mr Boyle noticed a white or silver older model sedan driving past him. Shortly after that, he saw three men "all wearing sort of hoodies" over their heads step out in front of him from a pathway and commence walking directly towards him. Mr Boyle thought the men looked "suspicious" and stopped either to turn the other way or to walk away but then "it all happened quite quickly, …they surrounded me", and he observed one of them with a knife. The men grabbed him, and he was pinned against a retaining wall. One of the men, who was at the front wearing a white coloured hoodie, threatened him with a knife and a demand was made upon him in words to the effect of "[h]and over your things, you don't want me to knife you" - which he did. The property taken from him included his mobile telephone, earphones, a wristwatch, a laptop bag containing a computer, charger and mouse, as well as his wallet containing money, his driver's licence and credit cards.
2. After handing over his property, he was then told to "[l]eave" or "[h]urry up, get out of here" or something similar. Mr Boyle quickly left the scene, and police were later contacted.
3. In relation to count 3, the Crown case was that it was the applicant, Sakhra and Majeed who were involved in the robbery of Mr Boyle, and that it was the applicant who returned to the vehicle "carrying the iPhone and wallet". The Crown, like it did in relation to counts 1 and 2, relied upon the evidence of Mariz to the effect that the applicant got out of the car and robbed Mr Boyle. In addition to that evidence, the Crown had a circumstantial case and (shortly stated) relied upon identification evidence from Mr Boyle; the traffic management images showing the car that Mariz was driving (on this occasion, a Honda) and what was argued to be the applicant in the front passenger seat wearing an Adidas branded white hoodie; and the fact that the applicant was, upon his arrest, wearing an Adidas branded white hoodie and found in possession of property belonging to Mr Boyle - in particular, his laptop and its charger, his mobile telephone and his wristwatch.
4. For this count, the trial judge directed the jury that there was no issue that there was a robbery in company of James Boyle, but "a massive issue about the Crown proving who it was who did that robbery".

Counts 4 and 5

1. Counts 4 and 5 concerned the assault of Mr Bush on Spencer Road, Mosman at around 10:40pm on 11 October 2017. That evening, as Mr Bush was walking home from a restaurant, and as he was walking diagonally across the road, he was approached by two males who at that point were also on the road. They stopped about two to three feet in front of him, with one man in front of the other. Mr Bush described them "looking pretty intently at me" when the person standing at the front said: "Do you have a sec?" or "[c]an you talk, do you have a sec?". Mr Bush responded "[n]o", and the man in the front said, "[i]t's not like we're going to stab you", and then "immediately stabbed" Mr Bush in the right shoulder. Immediately prior to being stabbed, Mr Bush looked down and observed that both men "were holding knives".
2. Mr Bush fell on his back on the ground and then "both of them jumped on top of me, and were, you know, pummelling me". He began to scream "as loudly as [he] could" and after "maybe 10 seconds, something like that" the two men stood up and "raced off". Mr Bush used his mobile telephone to call police. An ambulance also arrived and he was observed to have, and was treated for, a stab wound to his shoulder and to the middle of his back.
3. In relation to counts 4 and 5, the Crown case was that it was the applicant, along with Majeed, who confronted and attacked Mr Bush. Unlike the other counts, the Crown relied solely upon the evidence of Mariz to establish it was the applicant who engaged in the offending conduct the subject of these counts.
4. The Crown also submitted that the intention of those who attacked Mr Bush was to rob him of his property: the Crown argued that the relevant intention should be found because there was no "other reason why the two men would be on top of him after they stabbed him other than to try and take his property".
5. The trial judge directed the jury that, in addition to the issue about whether the Crown could prove beyond reasonable doubt that the applicant was involved in the offending, there was also an issue about whether, whoever attacked Mr Bush, did so with the intent to rob him. The trial judge also directed the jury that if they were satisfied beyond reasonable doubt that the applicant was involved in the offending, but had a reasonable doubt about whether there was an intention to rob, then they were required to consider count 5 as the alternative. And, as to the alternative count, the trial judge directed the jury that the only issue was whether the Crown could establish beyond reasonable doubt who attacked Mr Bush.

The applicant's arrest on 12 October 2017

1. At around 12:30am on 12 October 2017, police pulled over a silver Honda Civic on Miller Street, North Sydney with four occupants. The car was being driven by Mariz, and the passengers were the applicant (in the front passenger seat), Sakhra (in the backseat on the passenger's side) and Majeed (in the backseat on the driver's side). The car was owned by Mariz's brother.
2. The applicant was observed by a police officer (Constable Nicholls), who approached the car, "to be fidgeting with items under the front passenger seat" and was told: "Keep your hands where I can see them". Police searched the vehicle and located, under the front passenger seat, a plastic bag which contained three mobile phones (which belonged to MC, Mr Shin and Mr Boyle), Mr Boyle's laptop computer and Mr Shin's driver's licence and two "bankcards" in his name. In addition, upon his arrest, the applicant was found to be in possession of a Gucci bag - which the applicant admitted to police belonged to him. The bag contained Mr Boyle's wristwatch that was taken from him in the robbery on 10 October 2017.

The trial and the jury verdicts

1. On 27 November 2019, at the close of the Crown case, Sakhra applied for a directed verdict in relation to each count on the indictment.
2. Following argument, the trial judge directed acquittals to counts 1 and 4 (and the alternative, count 5) on the basis that there was insufficient evidence to establish the Crown case against him. The trial judge did so because, put very simply, he considered that, in relation to count 1, the evidence that Mariz gave was that Sakhra never left the vehicle, and there was no evidence that he was part of a joint criminal enterprise; and, in relation to count 4 (and its alternative, count 5), the evidence that Mariz gave was that Sakhra did nothing in relation to these events - in the sense that he did not leave the vehicle, only the applicant and Majeed did - and there was no evidence that Sakhra was part of a joint criminal enterprise for this offending.
3. As against Sakhra, the trial against him continued but only for counts 2 (being the offending involving Mr Shin) and 3 (being the offending involving Mr Boyle).
4. As earlier noted, on 4 December 2019, the jury found the applicant and the co-accused guilty in respect of each count (see [16], above).

The conviction appeals by Sakhra and Majeed

1. Following their convictions, Sakhra and Majeed appealed to this Court. Given the reliance placed upon those decisions by the applicant, it is necessary to refer to the key findings made and conclusions reached in those decisions. It is important however, in doing so, to emphasise that unlike the Crown case against the applicant (at least in connection with counts 1-3), the Crown case against each of the co-accused was entirely reliant upon the jury's acceptance of the evidence from Mariz.

The decision in Sakhra v R [2021] NSWCCA 187 ('Sakhra')

1. Sakhra challenged his convictions on counts 2 and 3, arguing that the verdicts of guilty were unreasonable and could not be supported by the evidence (Sakhra at [6]). Consistent with the way that the trial had been conducted, it was not contested that each of the robberies had occurred, but what was in issue was Sakhra's involvement in them (Sakhra at [10]).
2. For count 2, the Crown case was that the person who demanded Mr Shin's possessions, and ultimately slashed his right knee with a knife, was the applicant and that the person who Mr Shin described as standing "behind the first guy" was Sakhra. The need for the Crown to prove the involvement of Sakhra through Mariz was because Mr Shin was, ultimately, unable to give clear evidence identifying the appearance of the second person involved (Sakhra at [18]-[23], where the evidence against Sakhra is summarised) and because there was no other objective evidence linking Sakhra to the crime scene or the vehicle that was used by those involved in the offending (Sakhra at [24]-[25]).
3. On appeal, the Court (Leeming JA; Wilson and Ierace JJ agreeing) concluded that there were four matters that cast doubt upon the Crown case that Sakhra was present at, and had participated in, the offending giving rise to counts 2 and 3 (Sakhra at [50]), as follows. First, there "was an absence of objective evidence linking [Sakhra] to either offence" (Sakhra at [51]). In this respect, the Court noted that there was nothing to suggest that he was "jointly in possession of the property, concealed beneath the seat in which [the applicant] was sitting" when pulled over by police on 12 October 2017 (Sakhra at [52]). Secondly, neither Mr Boyle, nor Mr Shin, identified Sakhra and there were other issues with Mr Shin's evidence directed to identifying the second person involved (Sakhra at [53]-[54]). Thirdly, the evidence given by Mr Shin "raises doubts as to the second man's participation in any joint criminal enterprise" - specifically, the evidence he gave, when cross-examined, was "that there was 'no one' else around when his knee was slashed and agreed that it was only after he handed over his property that he saw the second man" and, later, where he "maintained that the first man passed the bag containing his shoes to the second man and that the second man then moved away" (Sakhra at [55]). And, fourthly, "and crucially, there were serious difficulties with Mr Mariz's evidence which undermined his and its credibility and reliability" (Sakhra at [56]).
4. As to this last matter, the Court also held that there were difficulties with Mariz's evidence, which were identified as general matters going to his credit and reliability, but also specific inconsistencies in relation to facts in issue (Sakhra at [56]-[74]). The Court concluded that it was not open to the jury to be satisfied beyond reasonable doubt as to Sakhra's guilt in respect of counts 2 and 3, for the following reasons (Sakhra at [87]): (1) There was no objective evidence, including DNA evidence linking [Sakhra] to count 2 and 3 and the identification evidence was inconsistent with or neutral as to [Sakhra's] involvement. The Crown case thus depended entirely on Mr Mariz's evidence to establish that [Sakhra], and not some other person, was present for and participated in each offence. (2) Mr Mariz's credibility and reliability were undermined by his having consumed crystal methamphetamine on the days that the offences were committed, and the many instances of untruthfulness in his testimony, particularly in relation to matters bearing upon his criminal responsibility for the offences. These issues could not have been explained by the manner in which Mr Mariz's evidence was given. The whole of Mr Mariz's evidence had to be considered in light of these issues and his apparent motives to seek to diminish his own involvement and to give evidence in accordance with his plea deal. (3) Mr Mariz gave inconsistent accounts as to whether [Sakhra] had left the car and, if he did, the extent of his involvement in the offences. These inconsistencies undermined the probative value of the version of events, in relation to each count, on which the Crown relied. (4) In relation to each of count 2 and count 3, the inconsistencies between Mr Mariz's evidence that he had not seen the victims or the robberies and his evidence indicating he knew details of the wound to Mr Shin's knee and the appearance of Mr Boyle, among other evidence, raised doubts as to the truthfulness of Mariz's claims that his involvement in the offences was limited to his having been the driver. (5) In relation to count 2, Mr Shin's evidence raised doubt as to whether the second person, whoever he was, had been present and participated in a joint criminal enterprise to commit the robbery and wounding. (6) Mr Mariz's evidence that he did not understand the conversations between the passengers in the car in respect of counts 2 and 3 because they were speaking Kurdish was inconsistent with either of those passengers having been [Sakhra], who spoke Dari and did not speak Kurdish.

The decision in Majeed v R [2022] NSWCCA 105 ('Majeed')

1. Majeed also challenged his conviction on counts 3 and 4, arguing that the verdicts of guilty were unreasonable. In that appeal, Majeed argued that his convictions should be quashed for similar reasons to those expressed in Sakhra. Further, the Crown in that appeal, as it did in the appeal involving Sakhra, conceded that the Crown case depended upon the jury accepting beyond reasonable doubt the evidence of Mariz that Majeed was present at, and had participated in, the offending giving rise to counts 3 and 4.
2. The Court (Macfarlan JA; N Adams and Dhanji JJ agreeing) considered the conclusion in Sakhra's appeal that it was not open for the jury to be satisfied beyond reasonable doubt of Sakhra's involvement based upon the evidence of Mariz was also "of relevance to the present case" (Majeed at [28]). Macfarlan JA considered that the findings made in the earlier appeal in connection with the evidence of Mariz were "correct, and, insofar as they are applicable to Mr Majeed's appeal, ought to be adopted" (Majeed at [28]). The "general credit and reliability" findings made in Sakhra's appeal at [57]-[62], and those regarding "specific inconsistencies" at [63]-[74], were also adopted: Majeed at [29]-[30].
3. In relation to count 4 (the offence involving Mr Bush), Macfarlan JA observed that parts of Mariz's evidence were "inconsistent with that of the victim, Mr Bush" (Majeed at [32]-[34]). The evidence given by Mariz was that he was driving the car when he saw a person on the street carrying a laptop, and he stopped the car about 10 metres away from the person. He also gave evidence that he saw the applicant wielding a knife, then Mr Bush fell to the ground and the two men took a laptop bag from him. However, the evidence of Mr Bush did not involve a car stopping, but of two men walking towards him; and, further, that he did not have any property taken from him in the events that occurred and was not, in any event, holding a laptop.
4. Macfarlan JA concluded that the verdicts against Majeed were unreasonable, even allowing for the jury's advantage in seeing and hearing the witnesses give evidence, and it was not reasonably open to find Majeed guilty of counts 3 and 4.
5. At the risk of repetition, it should be emphasised that unlike the Crown case against the applicant, in each appeal, there was no objective evidence linking Sakhra or Majeed to either offence such that the Crown case was entirely reliant upon Mariz's evidence, and the jury accepting that evidence: see Sakhra at [56] and [65]; Majeed at [9], [18], [25], [28] and [37].

Introduction

1. The applicant's ultimate submission is that his conviction on each count was unreasonable (applicant's submissions at [13] and [144]), and that this Court should so conclude for a combination of reasons, being - first, that the reasons given by this Court in the appeals involving Sakhra and Majeed in connection with the evidence of Mariz should be adopted in the present appeal (applicant's submissions at [13]); and, secondly, and as a corollary to the first argument, or as an alternative to it, the applicant argued that, absent the evidence of Mariz, the Crown's case against him had to fail, and this was so notwithstanding that there was other "corroborating evidence" accepted to be supportive of the Crown case (applicant's submissions at [14], [106] and [108]).
2. Before dealing with the specific arguments raised by the applicant (in particular, those arguments directed to challenging the "corroborating evidence" in the Crown case against him), I will outline the general principles that apply in determining whether the jury's verdict was unreasonable and, given the Crown case across each count was circumstantial, identify the manner in which this Court is to approach and assess such a case.

Unreasonable verdicts and circumstantial evidence: the principles

1. The relevant principles that apply to whether the verdict of the jury was unreasonable are settled.
2. 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": M v The Queen (1994) 181 CLR 487, 494-495; [1994] HCA 63 ('M'); R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66] ('Baden-Clay'). The question is one of fact, not law, and requires this Court to make its own independent assessment of the evidence - both its sufficiency and quality - to determine it: M at 492; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8] and [12] ('Dansie').
3. As I have earlier noted, the Crown case in respect of each count was circumstantial. For counts 1-3, the arguments advanced by the applicant in aid of his ground of appeal sought to isolate particular strands in the Crown case in respect of each count and argue that those circumstances were not open to be accepted (or, at a minimum, they should be doubted) and further, or alternatively, that there was an inference consistent with the innocence of the applicant reasonably open on the evidence, albeit that the particular arguments varied across each count. Given the arguments raised, the proper approach to considering the Crown's circumstantial case against the applicant warrants emphasis.
4. Where a jury verdict based on a circumstantial case is challenged as being unreasonable, an assessment of the sufficiency of the evidence to support the verdict of guilty requires this Court "to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard" and to assess whether "the prosecution has failed to exclude an inference consistent with innocence that was reasonably open": Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55]; Dansie at [12]; Lang v The Queen [2023] HCA 29; (2023) 97 ALJR 758 at [143]. As explained in Baden-Clay at [47], for an inference to be reasonable, "it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence'".
5. In R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48] ('Hillier'), the Court confirmed the approach when considering whether a verdict based on a circumstantial case was unreasonable - namely, that it is wrong for a jury (and an appellate court) to separately and in isolation consider each piece of evidence: Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. See also R v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [128]; Baden-Clay at [47].
6. As the Crown argued, by adopting the approach mandated by these decisions, consideration is given to "the accumulation of the evidence" and "the weight which is to be given to the united force of all the circumstances put together": Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 535; [1984] HCA 7 ('Chamberlain'); Hillier at [48]. Taking that approach, when considered as a whole, the tribunal of fact "may find that one piece of evidence resolves their doubts as to another": Chamberlain at 535; R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150 at [61].
7. Here, the approach of the applicant was to identify difficulties with the numerous strands in the Crown's circumstantial case to argue that the verdicts were unreasonable. The difficulty with this approach was that, as was accepted on behalf of the applicant during the hearing, the cumulative force of the various circumstances meant that it reached a point where it became more difficult to explain each of them away. When considering the evidence in support of each count globally, as I explain in relation to each count, I consider that it was open to the jury to draw the ultimate inference that the guilt of the applicant across each count has been proved to the criminal standard and, as part of that, open to the jury to be satisfied that the inferences, argued by the applicant to be consistent with his innocence, had been excluded.

Ground 1: counts 1-3

1. The applicant advanced an overarching submission directed to all counts (relevantly here, counts 1-3), to the effect that although there were differences between the case against him and the Crown case against the co-accused, "given the difficulties previously recognised by this Court with Mariz's evidence", it would have been "dangerous and unreasonable to act on any evidence given by Mariz" (applicant's submissions at [14], [16] and [107]). The result, the applicant argued, was that his "appeal should rise and fall on whether [he] could be convicted on the supporting evidence the Crown relied upon" (applicant's submissions at [107]; Tcpt, 23 September 2024, p 2(39)-(43)). Quite why it would be unsafe to act on any part of Mariz's evidence, whether corroborated or not, was not developed during submissions. I do not accept the applicant's argument, for the following two reasons.
2. First, whilst it can be accepted that there were strong findings made about the credibility and reliability of Mariz, and his evidence, in the appeals involving Sakhra and Majeed, the findings were not insignificantly informed by the fact that there was an absence of any objective supporting evidence that linked the co-accused to the offending: the Crown case against each of them rested solely on the evidence of Mariz. However, with the exception of count 4, that is not the position with respect to the Crown case against the applicant. Consistent with this, it should simply be noted that there is nothing in either decision - expressly or impliedly - that constrains the manner in which this Court is tasked with the responsibility for considering for itself whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of each count.
3. Secondly, the fact that there were found to be difficulties with Mariz's evidence that undermined his and its credibility and reliability does not dictate rejection of all of his evidence, as the applicant appeared to argue. That is simply because inconsistent evidence does not, in and of itself, mandate that a verdict must be, or necessarily is, unreasonable. As Basten JA explained in Palmer v R [2018] NSWCCA 205 at [51]: At the most general level, a suggestion that a witness must be credible in relation to all aspects of her evidence, or none, defies common sense. First, it elides questions of unreliability and untruthfulness. Once those elements are separated, it will generally be accepted that even witnesses who lie do not lie about everything, and witnesses who are unreliable in one respect may be perfectly reliable in another.
4. The remarks in Cabot (a pseudonym) v R [2018] NSWCCA 265 at [59]-[61] are to the same effect.
5. I turn now to consider the specific arguments raised that were said to require the conclusion that the verdicts for each count were unreasonable.

Count 1

1. The applicant raised two interwoven arguments directed to his conviction on this count. The first argument was that "it was not open to conclude beyond reasonable doubt that the applicant was present with Mariz in his car at any stage that evening" (applicant's submissions at 110). The focus of the applicant's arguments, as developed during submissions, was principally directed to the lack of positive identification evidence, and what were argued to be its inadequacies. The second argument was that even if it was open to conclude "that the applicant was in [the] car with Mariz, it was not open to conclude beyond reasonable doubt that the applicant was the perpetrator of count 1" (applicant's submissions at 110). The focus of the applicant's argument involved a contention that there was an inference consistent with innocence reasonably open on the evidence - namely, as was put during submissions, "[i]t could have well been Mr Mariz" (Tcpt, 23 September 2024, p 7(12)).
2. The applicant relied heavily on the lack of positive identification evidence. He drew attention to the fact that MC, one week after the robbery, attended North Sydney police station to view a photographic array presented to him by police so as to identify the perpetrator, but that MC did not select the applicant. The submission ultimately put was that it was "very difficult for the Crown to get any assistance from this" (Tcpt, 23 September 2024, p 4(18)-(19)).
3. The submission, so far as it goes, may be accepted. But the Crown's case against the applicant did not rise and fall upon the selection of the photograph made by MC and, importantly, there was other evidence that explained the selection of the photograph by MC and, no less importantly, other evidence (including from MC) that was available to assist the jury in determining whether the perpetrator was the applicant. Thus, it is, I consider, important to note that MC said in evidence, as to the photographic selection that he did make, that it was "dark" and that he "just chose one that was most like the person I could see in the dark, so" and, later, he said that "none of them looked identical to what I did see, however, like, the person I did choose, who I don't think it was, was the person I most likely saw in the dark with all the shadows and everything". Put simply, MC was by no means emphatic that the person selected was the perpetrator; to the contrary, his evidence was merely that, given the limitations including the suddenness of the events (and no doubt the shock of it) as well as the lighting, there was a likeness. In any event, as the Crown submitted, there were nevertheless similarities in the physical features between the person in the photograph selected by MC (number 3) and the applicant (number 7), including their hair colour and the general style of their hair, its length, and the fact they each had facial hair.
4. Further, the evidence given by MC extended beyond the photographic selection, and the evidence that he gave about what informed his selection of photograph number 3. It extended to describing the perpetrator as having "an Indian Arab" appearance, that he "had a beard and moustache, facial hair joined together" and a "deep voice" which "wasn't Australian, it was some foreign accent". Each of these descriptions were consistent with the applicant's appearance, and the manner in which he spoke. In relation to this last matter, at trial, the Crown played the video recording of the applicant's interview with police following his arrest on 12 October 2017 (and extracts of it were played in this Court by the Crown) and, in my view, it was open for the jury to accept this recording of the applicant and the manner in which he spoke, as consistent with the "foreign accent" described by MC. I add, the contrary was not suggested.
5. MC also gave evidence that the perpetrator was "about five ten" and, as he was "very skinny", a "beefy build compared to me" and that the perpetrator was somewhere in his "20s to 30s". The physical stature of the perpetrator, as described by MC, was also some evidence that the jury was entitled to act upon in its consideration of whether the perpetrator was the applicant. Further, as to the applicant's age, he was, it should be noted, 30 years of age at the time of the offending - again consistent with MC's evidence.
6. The applicant, as part of his argument that aspects of the identification evidence were "inadequate", drew attention to the traffic management images taken on 10 October 2017. The applicant argued that these images did not, in effect, establish that the person in the front passenger seat was the applicant: the applicant argued that, although the jury were "entitled to compare the [traffic management images] with the applicant who was in the dock before them and the forensic photographs", the traffic management images were submitted to be "so imperfect that…one cannot conclude by reference to the [traffic management images] alone that the person pictured in the passenger seat was the applicant" (applicant's submissions at [114]-[116]). It is true that the copies of the traffic management images contained within the appeal books were imperfect. But, as the applicant accepted, the jury had the benefit of observing the applicant during the course of the trial (an advantage not available to this Court) and they also had the benefit of the digital versions of the photographs and the capacity to digitally enlarge them - something that, it should be observed, the trial judge did when summing up to them. Further, to aid them in their assessment of the traffic management images, the jury were entitled to consider all the evidence (and inferences available from that evidence) including the ready explanation for why the person in the front seat was not wearing a jacket (to avoid detection: see [83], below), but also that the shirt worn by that person was similar in style to the shirt worn by the applicant when he was arrested. In short, I do not accept that the traffic management images were "so imperfect" so as to deny their use alone, or with other evidence. In my view, the opposite is so.
7. The applicant's second argument was that the Crown failed to exclude as a reasonable hypothesis that Mariz was not the driver, but the perpetrator of the offending. This argument focused upon two aspects of the evidence: the colour of an item of clothing worn by the attacker (as described by MC) and the ability of Mariz to provide a description of MC. The applicant submitted that these matters tended to raise doubt as to whether the applicant was the perpetrator, rather than Mariz.
8. MC's evidence, in relation to what the perpetrator was wearing, was that all he could remember was that he "was in a red windbreaker". It was argued in submissions in this Court that, when the transport management images are considered, it is apparent that the person in the front passenger seat was not wearing a red, or partly red, windbreaker: the submission appeared to be that if the person in the front passenger seat was the applicant, then it is clear that he was not wearing a jacket of that kind - which was argued to suggest he was not the perpetrator. I do not accept that the version given by MC that the perpetrator "was in a red windbreaker", and the fact that the person in the front passenger seat of the Hyundai shown in the traffic management images is not wearing a "red windbreaker", excludes the applicant from being the perpetrator. Nor, in my view, does it raise a reasonable doubt as to the applicant's involvement once the whole of the evidence against the applicant is considered. Confined to addressing the applicant's argument in terms, as the Crown essentially submitted, and as the applicant accepted during the course of argument, the difference is readily explicable on the basis of the applicant having removed the jacket worn during the robbery (and the subsequent one, being count 2) to avoid detection (Crown submissions at [86]).
9. The applicant also argued that as Mariz was somehow able to provide a description as to what MC looked like, that was also some evidence that supported the hypothesis that the perpetrator was Mariz, and not the applicant: the applicant argued that this added "a further layer of complexity" because, as the police did not show Mariz a photograph of MC, then it must follow that there was a serious question about how Mariz could possibly know this, unless he was involved in the attack (Tcpt, 23 September 2024, p 6(22)-(23)).
10. There is, in my view, a threshold difficulty with this submission. On the one hand, the applicant invited this Court to dismiss all of the evidence of Mariz - whether corroborated or not (see [71], above) - yet now seeks to rely upon aspects of it as a step towards demonstrating why this Court should set aside the jury's verdict on this count. Putting to one side the inconsistency in approach to Mariz's evidence, the short response, as the Crown argued, was that Mariz gave some evidence about his observations whilst "driving the car" prior to the attack.
11. Although it runs contrary to the directive not to consider a circumstantial case, such as this, "piecemeal" (see the decisions referred to in [63]-[65], above), given the applicant's arguments, it is appropriate to deal with some aspects of the evidence (albeit noting that a consideration of all the evidence will occur, later) that, in my view, were inconsistent with Mariz being the perpetrator and consistent with him being the "getaway driver" - as he said in his evidence.
12. First, the evidence given by MC of the physical characteristics of the perpetrator, including the manner in which he spoke, were consistent with the applicant, and not Mariz. In relation to his physical appearance, the jury had before it the forensic photographs of Mariz (exhibit Y) and the video recording of his interview with police following his arrest on 12 October 2017 (exhibit G), and it was open for them to make that assessment. Further, in relation to the tone in which Mariz spoke, the jury had the video recording of his interview with police (and extracts of it were played in this Court by the Crown) as well as the benefit of hearing Mariz give evidence over a number of days (a benefit not available to this Court) and, in my view, it was open for the jury to accept that the evidence was consistent with the perpetrator being the applicant, and not Mariz.
13. Secondly, the applicant admitted to police, following his arrest on 12 October 2017, that he did not hold a driver's licence and he also told police that neither Sakhra, nor Majeed, were able to drive: he told police that "only one of us had [a] licence". That only Mariz held a licence tended to support the inference that he was (in line with his evidence) the "getaway driver", and not the perpetrator. Consistent with this, it is also relevant to note the following evidence: (a) in the traffic management image taken on 10 October 2017 at 12:20am (which was shortly after the robbery the subject of count 2, and taken from a toll point located on the northern end of the Sydney Harbour Bridge), and in the traffic management image taken on 10 October 2017 at 12:54am on the WestConnex (exhibit J), it was Mariz that was driving; (b) a forensic examination of a trace swab of the steering wheel of the car being driven at that time, the blue Hyundai, determined that the major contributor to the DNA profile was Mariz; and (c) a forensic examination of a trace swab was acknowledged by the applicant as establishing "that the applicant's DNA was found on the front passenger seat" of the Hyundai (applicant's submissions at [117]).
14. For completeness, it should be noted in relation to the presence of the applicant's DNA found on the front passenger seat, the applicant submitted that this was, potentially, explicable on the basis that, as he had said in his record of interview with police, he had been friends with Mariz, Sakhra and Majeed for a "long time" (applicant's submissions at [117]). It was, thus, argued that "the applicant could have been in the car before" (applicant's submissions at [117]). In my view, there is nothing in the fact that the applicant potentially had a pre-existing friendship of some kind with Mariz which required the jury to accept that evidence, less still draw the inference that it was through this friendship that the applicant had been in the passenger seat of the Hyundai on an earlier occasion thereby accounting for his DNA in that location, as the applicant argued.
15. I turn now to address the Crown case and the evidence, considered as a whole, argued to support the conclusion that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. I have, in the course of dealing with the applicant's arguments, referred to much of the circumstantial evidence relied upon and I will not unnecessarily repeat it. In this respect, the Crown emphasised a number of matters as part of its circumstantial case put to the jury in relation to this count, submitting that when considered "as a whole, and not piecemeal,…significantly supported" Mariz's evidence and a finding of guilt beyond reasonable doubt, summarised as follows (Crown submissions at [78]).
16. The Crown relied upon the evidence of MC, earlier described, given some of the similarities in characteristics between who he identified and the applicant. Additionally, the Crown submitted that, in relation to the traffic management images, not only was the appearance of the person sitting in the front passenger seat consistent with the appearance of the applicant, but the shirt worn by the front seat passenger, described by the Crown as a "polo shirt", "matched the shape of the polo shirt" worn by the applicant when he was arrested (Crown submissions at [67]).
17. The applicant, the Crown submitted, had a motive to engage in the offending, given his (admitted) poor financial position. Following his arrest, he told police that "it's been a long time I haven't been working. I've got a big fine too, I couldn't even pay my fine"; that the $300 that he (allegedly) paid to buy the stolen goods (some of which are described in [43] above), he got "[f]rom family I think"; that he had not "been home [in 8 days] 'cause I don't have money" and that he had been living with "friends" and his "uncle". Police also observed a message on his phone "about owing someone some money", which he described as being money owed to a "friend".
18. Although most directly relevant to the offending which is count 2, an inspection by police of the area where Mr Shin was attacked located a lighter - described as a "'TRIO' lighter with multicoloured leaf design". A forensic examination of a swab of the entire surface of that lighter determined that the major contributor to the DNA profile obtained was the applicant. Thus, contrary to what the applicant told police when interviewed following his arrest - that he was, in effect, "[n]ot really" able to remember what he was doing two days prior (that is, on Monday 9 October 2017) and had not been to North Sydney before "tonight" - this provided, as the Crown submitted, considerable support for the inference that the applicant was in the area where the first robbery was committed (Crown submissions at 78). Further linking the lighter to the applicant is the fact that the lighter itself had images of marijuana leaves on it, and the applicant admitted to police that he used marijuana.
19. The Crown also emphasised that on 12 October 2017, when police pulled over the car being driven by Mariz, Constable Nicholls observed the applicant "fidgeting" with items under the front passenger seat (see [43], above). A subsequent search of the vehicle located under the front passenger seat a plastic bag containing three mobile telephones and a laptop and laptop charger. The mobile telephones belonged to MC, Mr Shin and Mr Boyle. The laptop, and the laptop charger, belonged to Mr Boyle. When police opened the laptop, they observed a driver's licence and several bankcards that belonged to Mr Shin.
20. Further, and following on from the above, upon his arrest, the applicant was found to be in possession of a Gucci bag. The applicant admitted to police that the bag belonged to him. That bag contained Mr Boyle's wristwatch that was taken from him in the robbery on 10 October 2017. [2]
21. In relation to this property (relevant to this count, MC's property), it should be noted that the applicant admitted that the property was his (the trial judge directed the jury that there was in the trial "no dispute that he was in possession of those items"). However, he provided the police with an explanation of how that came to be - in brief, that he acquired it off an unknown man when "looking for toilets" in Manly earlier that evening. That account, in my view, was easily discounted given his admittedly poor financial position, earlier described. As the applicant was in possession of recently stolen property, the trial judge gave a direction to the jury about recent possession - about which the applicant makes no complaint. Thus, in short, given the manner in which the jury was directed in connection with these items of property, it was open for them to reject the explanation proffered by the applicant as to how he came to be in possession of the stolen property and, having considered that explanation and all the circumstances, drawn the inference against the applicant that he stole this property, no other conclusion being reasonably available.
22. Having undertaken an independent assessment of the evidence relating to this count, both as to its sufficiency and quality, including in the context of dealing with the specific arguments raised by the applicant, I consider it to have been open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.

Count 2

1. The applicant's principal submission for this count was that the Crown could not eliminate as a reasonable possibility that Mariz was one of the two men involved in the attack and robbery in count 2 and it followed, so the applicant argued, that the Crown could not eliminate as a possibility that the second man involved in Mr Shin's robbery was a third man pictured in the traffic management images - in particular, the photograph taken on 10 October 2017 at 12:54am on the WestConnex motorway that shows three people within the Hyundai (exhibit J).
2. This submission contained both a major and minor premise, and they should be identified before dealing with the argument. The Crown case was that the applicant and Sakhra were the ones that attacked and robbed Mr Shin; that the person who threatened, and slashed, him with the knife was the applicant; and that the "getaway driver" was Mariz - that is, there were three people involved, and the Crown relied (amongst other evidence) upon the traffic management images taken shortly after this offending as some evidence demonstrative of that fact. Thus, with that explanation, the applicant's argument becomes clear: there was a reasonable possibility that Mariz was a perpetrator, and not merely the "getaway driver" (the major premise) and, accepting that to be so, the Crown could not eliminate as a reasonable possibility that the other person involved was the person pictured in the traffic management images taken on 10 October 2017 (the minor premise).
3. I do not accept the applicant's submission. In my view, the circumstantial evidence strongly supports Mariz being the "getaway driver", rather than being one of the perpetrators of the offending. That evidence included the following: the fact that no person involved in the events was licensed to drive, other than Mariz; the fact that it was Mariz's car; that shortly after the occurrence of the attack on Mr Shin, the traffic management image taken from a toll point located on the northern end of the Sydney Harbour Bridge (and reasonably proximate to where Mr Shin was attacked and robbed) depicts Mariz driving; and Mr Shin's evidence that after the two men had robbed and attacked him "they both entered the car… they didn't enter the driver seat, so there was another driver in the car". Thus, independently of Mariz's evidence that he was the driver, there was a considerable body of evidence that provided a strong, and independent, basis for the jury to accept that he was and, as a corollary, to eliminate as a reasonable possibility that Mariz was involved in the attack and robbery upon Mr Shin. Further, this evidence provided considerable corroboration to Mariz's evidence that he was the driver, and not directly involved in the offending.
4. For this count, the applicant also repeated the arguments about the traffic management images advanced in respect of count 1 - in effect, that those images were too imperfect so as to preclude their use in identifying the applicant (applicant's submissions at [128]). For the reasons earlier given (see [81], above), I do not accept that submission.
5. In my view, as the Crown essentially submitted, there was a considerable body of circumstantial evidence, considered as a whole and not piecemeal, pointing to the applicant being a perpetrator of the offending. As some of that evidence has been earlier traversed in the context of count 1, it is convenient merely to summarise it and, thereafter, to emphasise other evidence relevant only to this count.
6. As with count 1, the applicant had a motive to engage in the robbery given his impecuniosity, indebtedness and his lack of employment (see [92], above); following the attack involving Mr Shin, neither of the two men involved entered the driver's seat, and the car was promptly driven away - as Mr Shin described it "they accelerate[d] immediately making a very loud noise"; within a short period of time following the attack, a series of traffic management images were taken of the vehicle, one of which was proximate to where the attack occurred, being driven by Mariz and also showing a person in the front seat with physical characteristics consistent with the applicant's and wearing a shirt consistent with the one the applicant was wearing when arrested on 12 October 2017; forensic examination of a trace swab of the steering wheel of the car being driven at that time determined the major contributor to the DNA profile was Mariz and the applicant's DNA was also obtained from a tape lift from the passenger seat of that car; and, on 12 October 2017, the applicant was found in possession of Mr Shin's property (see [94], above).
7. Additionally, the following matters should also be noted. First, at the scene of the second robbery, a police dog located on the grass between the roadway and the footpath outside 74 Bay Road, Waverton a white cloth bag containing "jogging shoes" - which belonged to Mr Shin and was handed over when he was threatened with the knife. [3] The police also located in the gutter the lighter. The evidence was that both items "had been indicated on the dog, meaning they had been handled recently". As earlier noted, a forensic examination of a swab of the entire surface of that lighter determined that the major contributor to the DNA profile obtained was the applicant, and there was other circumstantial evidence that linked the lighter to the applicant (see [93], above). The applicant, although accepting the fact that his DNA being found on the lighter next to the bag was a "problem" and made it "more likely" that he was involved in the robbery of Mr Shin, submitted without elaboration that "it was not enough" - on its own or even when considered with the fact that the applicant was in possession of Mr Shin's property when arrested by police on 12 October 2017 (applicant's submissions at [118] and [131]). I disagree. In my view, this was significant evidence linking the applicant to the robbery and attack of Mr Shin.
8. Secondly, there were, as the Crown submitted, aspects of Mr Shin's evidence that formed part of the Crown's circumstantial case identifying the perpetrator as the applicant. This included Mr Shin's description identifying the car that was driven away with the three men as being a "blue or dark colour" - the car in fact driven by Mariz was blue. It also included Mr Shin's description that the first man was wearing a hoodie and that, to the extent he observed his hair, "it wasn't the light colour"; he had "quite light skin. It wasn't like a brown or black colour" and although he had described the person in his police statement as Caucasian, he qualified that by stating that "it doesn't mean that he has pale skin. Also, for me I actually can't distinguish that well". Mr Shin also described the perpetrator as having some facial hair "but it's like some, he didn't shave for few days. He doesn't look like he's growing his beard", albeit that in the police photographic array on 17 October 2017, the person he identified (which was not the applicant) had a full beard.
9. The Crown submitted that, in the result, Mr Shin's description of the first man "was consistent with the appearance of the applicant" (Crown submissions at [59]). The Crown also submitted that Mr Shin's description of the first man speaking with an "Australian accent" was not inconsistent with that person being the applicant. To that end, the Crown played parts of the applicant's interview with police on 12 October 2017 (exhibit G) and submitted that his accent did fluctuate between a person who did, on occasions, speak with what the Crown submitted could be "characterised as an Australian accent", but also could on occasion speak "as if he has a foreign accent" (Tcpt, 23 September 2024, p 15(30)-(35)). These were all matters that were open to be accepted by the jury as part of the Crown's circumstantial case, in my view.
10. Having undertaken an independent assessment of the evidence relating to this count, both as to its sufficiency and quality, including in the context of dealing with the specific arguments raised by the applicant, I consider it to have been open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.

Count 3

1. For this count, the applicant raised two submissions - both essentially relating to the photographic evidence said to show him in a car wearing a particular branded white hoodie shortly after the offending - that were submitted to raise a doubt about his conviction. By way of summary, the applicant's submissions were that the transport management image taken on 11 October 2017 was "imperfect" and did not enable a jury to be satisfied that the man wearing the Adidas white hoodie was the applicant and, given Mariz gave inconsistent versions as to what occurred, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was involved in this offending.
2. It is useful to briefly recap aspects of the Crown case on this count so as to give the submissions some context, and to distil the essence of the applicant's argument.
3. As earlier explained (see [36]-[38], above), the Crown case was that the applicant was involved in the robbery of Mr Boyle on 10 October 2017 and, most likely, was the principal perpetrator - namely, the person who Mr Boyle described as having threatened him with a knife and made the demand that he hand over his property. The Crown sought to demonstrate this part of the case against the applicant, essentially as follows: the Crown relied upon the evidence given by Mr Boyle that the person who threatened him with a knife and made the demand that he hand over his property was wearing a white-coloured hoodie; that in the traffic management image taken on 11 October 2017 (exhibit J), the car being driven by Mariz had in the front passenger seat a person - who the Crown argued was the applicant - wearing a white Adidas brand hoodie; and when arrested on 12 October 2017, the applicant was wearing a white Adidas hoodie.
4. With that short summary of the Crown case, I now return to the applicant's arguments for this count, and why they were submitted to result in a conclusion that the jury's verdict in relation to it was unreasonable.
5. The applicant first argued that the transport management image used to prove the applicant was present in the vehicle (a silver Honda) was "imperfect" and did not establish that the applicant "was the man pictured…seated in the front passenger seat" (applicant's submissions at [132], [133] and [135]). The thrust of the submission appeared to be that, given the photograph was argued to be "imperfect", it was not open for the jury to be satisfied that the man wearing the Adidas white hoodie was the applicant. I do not accept this submission; in my view, there was a considerable body of evidence enabling the jury to conclude that it was, as I next explain.
6. Mr Boyle's evidence, as has earlier been noted, was that three people were involved in the robbery and attack upon him and that the person who threatened him with a knife, and made a demand that he hand over his property, was wearing a white hoodie. He also gave evidence that, prior to the attack, he observed a "white or silver older model sedan" drive past him, and that the front passenger was "wearing a white hoodie" or a "white jumper of some sort". Mr Boyle also gave evidence that the man in the white hoodie had a beard, stating "I know he had a beard", and although it was "quite dark", said that all three men involved in the attack had a "sort of darker complexion".
7. On 11 October 2017 at 5:15am (the robbery having occurred at around 10:45pm on 10 October 2017), a traffic management image showed a silver Honda travelling southbound on the Cahill Expressway. It is clear from the photograph that the driver of that car was Mariz (I add: the applicant did not submit to the contrary). The front seat passenger was wearing an Adidas jumper and, like the applicant, had facial hair. As has been noted, when arrested on 12 October 2017, the applicant was wearing a white Adidas hoodie (which was tendered during the trial: exhibit EE) - to be clear, a hoodie with the exact same logo as the one shown in the traffic management image.
8. As the Crown essentially submitted, it was open for the jury - particularly in circumstances where it had an advantage, not enjoyed by this Court, of assessing for themselves whether the applicant was the front passenger in the Honda - to be satisfied about the applicant's involvement in this offending given this evidence. Furthermore, the Crown submitted that when considering the evidence not piecemeal, but as a whole, the evidence was capable of demonstrating that the applicant was one of the three men who attacked and robbed Mr Boyle. I agree.
9. The Crown also emphasised the following matters that were argued to be (and I accept are) demonstrative of this, as follows: the applicant had a motive for engaging in the offending (see [92], above); the person identified by Mr Boyle as wearing the white hoodie was in the front passenger seat when the car initially drove by him, which was the position of the person who the Crown submitted was the applicant in the traffic management image; within six hours of the robbery, "a man bearing significant similarities to the applicant" and wearing a white Adidas hoodie was photographed in a vehicle travelling away from the location of the attack (Crown submissions at 100); the next day, the applicant was arrested and was wearing a white Adidas hoodie; and, within 24 hours following the robbery, the applicant was found in possession of Mr Boyle's property - namely, his laptop and laptop charger (which, when the applicant was arrested, were contained in the bag under the front seat of the Honda) and his wristwatch (which was contained within the applicant's Gucci bag): see [94]-[96], above.
10. Thus, although Mariz gave evidence that the applicant was involved in this offending, that evidence was significantly corroborated by the other evidence in the Crown's circumstantial case.
11. The applicant further submitted that, considering the inconsistent versions given by Mariz as to who was involved in the attack and robbery on Mr Boyle as set out in Sakhra at [64], it was not open to this Court to take into account Mariz's evidence, so far as it sought to implicate the applicant (applicant's submissions at [137]). I do not accept this submission, for reasons earlier given (see [71]-[74], above). I also do not accept the submission for the further reason that although there were inconsistencies in the versions given by Mariz about who was involved in this offending (as set out in Sakhra at [64]), they related - and only related - to the involvement of one or other or both of Sakhra and Majeed. Put another way, on each of the versions given by Mariz referred to in Sakhra at [64], Mariz consistently gave evidence across each of those accounts that the applicant was involved in this offending. Additionally, as I have explained (see [52]-[61], above), a critical holding in that case and in Majeed, was that - unlike the present one - the Crown case was entirely dependent upon the evidence of Mariz. That is not this case, as I have explained.
12. Having undertaken an independent assessment of the evidence relating to this count, both as to its sufficiency and quality, including in the context of dealing with the specific arguments raised by the applicant, I consider it to have been open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.

Ground 2: count 4

1. In relation to count 4, the applicant submitted that, given the Crown case was "almost entirely dependent on… Mariz's evidence", the Court should find that the conviction for this count was unreasonable for essentially the same reasons given in the appeals involving Sakhra and Majeed (applicant's submissions at [15]-[16] and [139]). Further, the applicant submitted that the conviction was unreasonable because the evidence was such that the Crown could not establish beyond reasonable doubt that the perpetrators of the attack upon Mr Bush had an intention to rob him (applicant's submissions at [16] and [143]).
2. The Crown accepted that, as the case against the applicant for this count depended upon the jury relying upon the evidence of Mariz as to the presence and participation of the applicant, it would be open to this Court to conclude that the verdict for count 4 was unreasonable for the reasons given in the Sakhra and Majeed appeals and for an acquittal to be entered (Crown submissions at [103],[112] and [115]).
3. In my view, the Crown's concession was properly made. That is because, in Sakhra and Majeed, this Court assessed Mariz's evidence as having serious difficulties which undermined his and its credibility and reliability in circumstances where there was an absence of objective support. It is also because aspects of Mariz's evidence in relation to the events raised doubt about his recall. For example, the evidence of Mariz was that he stopped the car he was driving about 10 metres away from Mr Bush, following which the attack occurred, whereas Mr Bush's evidence was not that a car approached him, but merely two men on foot. Furthermore, Mariz gave evidence that he observed Mr Bush carrying a laptop (Mr Bush was not carrying a laptop, but had a backpack), which was more consistent with the events relating to count 3 (see [37] and [55], above).
4. Separately, I consider the jury's verdict in relation to count 4 to be unreasonable for the further reason that it was not reasonably open for the jury to be satisfied beyond reasonable doubt as to an element of this offence - being the intent to rob. I will, briefly, explain why.
5. The Crown case was, in effect, that the requisite intent should be inferred based upon the fact that, following the men attacking Mr Bush, they were "on top of him" and that there was no "other reason why the two men would be on top of him after they stabbed him other than to try and take his property". Thus, the Crown case was that this was not a random attack involving stabbing, but an attack involving stabbing with intent to rob - albeit that the perpetrators did not follow through and rob Mr Bush.
6. There are difficulties with this aspect of the Crown case, which include the following: first, at the time of the attack, nothing was said by either of the perpetrators suggesting that they were intending to rob Mr Bush - for example, no demand of any kind was made for his property (the extent of what was said by either of them has been earlier set out (see [40]-[41], above)); secondly, at the time of the attack, nothing was done by either of the perpetrators suggesting that they were intending, and attempting, to rob him - for example, there was no evidence about, say, either perpetrator seeking to take any of the personal belongings that he had on him, including an iPad in his backpack; and, thirdly, as Mr Bush himself said, none of his possessions were, in fact, taken in the attack.
7. The potential difficulty with this element of the offence may well explain why there was an alternative count (count 5 - reckless wounding). As the trial judge directed the jury, if they had a reasonable doubt about whether there was an intention to rob, then the jury should consider count 5, which the trial judge described as "dealing with if it was just a random stabbing without any intention to rob". However, the jury did not deal with the matter by convicting the applicant of count 5: he was convicted of count 4.
8. For those reasons, in my view, it was not reasonably open to the jury to be satisfied beyond reasonable doubt as to the applicant's guilt for this count. His conviction on this count should be quashed.

Orders

1. Given the orders that I propose, it would have been open for this Court to embark upon re-sentencing the applicant: see generally RM v R [2024] NSWCCA 148 at [274]. However, the applicant was not placed to proceed with any re-sentencing and, in those circumstances, the applicant and the Crown accepted that remittal to the District Court was necessary to enable that to occur.
2. For the above reasons, I propose the following orders: 1. Order that the time for filing the Notice of Appeal be extended to 30 July 2024. 2. Grant leave to appeal. 3. Allow the appeal against the conviction in relation to count 4, but otherwise dismiss the appeal in relation to counts 1-3. 4. Quash the conviction of the applicant on count 4 of the indictment. 5. In lieu thereof enter a verdict of acquittal on count 4. 6. Quash the sentence imposed in the District Court on 30 July 2020. 7. Remit the matter to the District Court for the applicant to be re-sentenced in relation to counts 1-3. 8. List the matter for mention before Judge Pickering SC on 15 November 2024 at 9:30am to fix a date for re-sentence.
3. RIGG J: I have had the advantage of reading the judgment of Chen J in draft. I agree with the orders proposed by his Honour. Having undertaken my own assessment of the evidence I am satisfied, for the reasons provided by his Honour, that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on count 4, but that it was open to be satisfied beyond reasonable doubt of his guilt on counts 2 and 3.
4. With count 1, I am grateful for the outline of the evidence and arguments set out in the judgment of Chen J. I am of the view that the possibility that Mr Mariz was the perpetrator of the crime has a level of plausibility. Apart from the problems with his credibility generally, the fact that he was wearing a jacket with significant red on it upon his arrest, consistent with the jacket described by MC as worn by the perpetrator, is of concern. When confronted with this he suggested that the applicant had taken it from him and worn it; but this is not on its face convincing. The fact that his voice, as recorded in his interview by police, may not be readily described as "deep" does not mean it could not have been projected while performing a violent robbery so as to be perceived that way by a 15 year old boy. I do not regard his appearance as inconsistent with the description provided by MC.
5. Mr Mariz's ability to describe MC in the detail he did raises a concern as to his proximity to him, inconsistent with other evidence as to the distance the vehicle was from MC. His contention that he was able to provide such description because the police had shown him a photograph of MC is, on his own later concession and an answer provided by a police officer asked about it, unlikely to be correct.
6. There was no evidence from MC that the perpetrator did not go to and enter the door at the driver's seat of a car. Particularly if count 1 was committed by an offender acting alone, I do not regard it as any less likely that Mr Mariz would offend and then drive himself away (whether or not others were in the car) than that the applicant would offend and expect Mr Mariz to immediately drive him away. The evidence did not suggest the car was left at a location at which it could not be easily parked, left, and quickly accessed and driven away by the one person.
7. However when the evidence as a whole on this count is considered, the location of the property of MC with the applicant, as set out in the judgment of Chen J, carries particular significance. Any possibility that Mr Mariz may have stored the proceeds of robbing MC this way is not reasonable in light of the applicant's specific admission to possession of this property and the proceeds of the other robberies, alternative explanation for his possession of these items (which it was well open to the jury to reject), and the balance of the Crown case on count 1.
8. Accordingly I agree with Chen J that it was open to the jury to be satisfied beyond reasonable of the applicant's guilt of count 1, and with the totality of orders proposed by his Honour.

Endnotes

1. The indictment alleges the offence occurred in North Sydney, but the evidence was that it occurred in Waverton. Nothing turned upon the precise location of where the offending took place.
2. The Crown submissions were to the effect that also within the Gucci bag was the portable phone charger stolen from MC.
3. There was other evidence that suggested that the items were located outside 76 Bay Road, Waverton (for example, the evidence given by Detective Sgt Harvey), but nothing turns upon the precise location of where these items of property were discovered. 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: 16 October 2024