Barzani v R

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Jutyar Barzani, stood trial in the District Court for five offences, one of which was in the alternative, which occurred across a three-day period from 9 to 11 October 2017, 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. The trial proceeded before his Honour Judge Pickering SC ('the trial judge') and a jury over 18 days during November and December 2019. The applicant stood trial with two co-accused - 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. Rahma Mariz ('Mariz') had pleaded guilty to the four offences on the indictment and became a key witness in the Crown case against the applicant and the co-accused. His evidence was that he was the "getaway driver" and he implicated the applicant as a perpetrator of each of the robberies and assaults constituting the counts on the indictment. Mariz received a sentencing discount to reflect his willingness to give evidence at trial which, along with the discount to reflect his guilty pleas, amounted to 50%. On 4 December 2019, the jury returned verdicts of guilty against each of the applicant and the co-accused on all the relevant counts (his Honour having directed a verdict of not guilty in relation to Sakhra for counts 1, 4 & 5), as follows: 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. Following his conviction, the applicant was sentenced by the trial judge to an aggregate sentence of 13 years imprisonment, with a non-parole period of 8 years imprisonment, commencing on 12 October 2017. The applicant is eligible for release to parole on 11 October 2025. 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. Following their convictions, each of the co-accused - Sakhra and Majeed - appealed to this Court on the basis that the verdicts were unreasonable. In each instance, the Court allowed the appeals and overturned the co-accused's convictions. In the appeal involving Sakhra, Leeming JA (Wilson and Ierace JJ agreeing) found that "there were serious difficulties with Mr Mariz's evidence which undermined his and its credibility and reliability" (Sakhra v R [2021] NSWCCA 187 at [56]), and these findings were later adopted by the Court in the appeal involving Majeed (see Majeed v R [2022] NSWCCA 105 at [28]-[30]). 1. The applicant's ultimate submission was 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 and, absent his evidence, the Crown case against the applicant had to fail, notwithstanding the other "corroborating evidence" accepted to be supportive of the Crown case. The Court (per Chen J, N Adams J and Rigg JJ agreeing), granting leave to appeal, quashing the applicant's conviction on count 4 but otherwise dismissing the appeal, held: Per Chen J (N Adams J agreeing): 1. The Crown case across each count was circumstantial in nature. When considering whether a verdict based on a circumstantial case was unreasonable, the correct approach for an appellate court is 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". It is wrong for a jury (and an appellate court) to separately consider each piece of evidence in a "piecemeal" fashion (at [55]-[60]). Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55]; R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48] cited. As to counts 1, 2 & 3: 1. In the appeals involving Sakhra and Majeed, the strong findings made about the credibility and reliability of Mariz, and his evidence, were not insignificantly informed by the fact that there was an absence of any objective supportive evidence that linked the co-accused to the offending: the Crown case against each of them rested solely on the evidence of Mariz. The same could not be said for the Crown case against the applicant in relation to counts 1-3, which was supported by corroborating circumstantial evidence (at [62]-[63]). 2. The fact that there were found to be difficulties with Mariz's evidence that undermined his and its credibility does not dictate rejection of all of his evidence. Inconsistent evidence does not, in and of itself, mandate that a verdict must be, or necessary is, unreasonable (at [64]-[65]). Palmer v R [2018] NSWCCA 205 at [51] cited. 1. 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. The difficulty with this approach was that, as was accepted by 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 (at [57], [61]). 2. In relation to counts 1-3, it was open to the jury, when considering the evidence in support of each count globally, to draw the ultimate inference that the guilt of the applicant had 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 (at [61]). That evidence included: 1. For count 1: the evidence of the victim, MC, describing the perpetrator; traffic management photographs taken shortly after the robbery; evidence regarding the applicant's motive to engage in the offending; and the fact that upon his arrest, the applicant was found to have in his possession the property of MC (at [67]-[88]). 2. For count 2: the applicant's motive to engage in the offending; traffic management images taken shortly after the attack on Mr Shin; a lighter found at the crime scene, the forensic examination of which determined that the major contributor to the DNA profile was the applicant; and the fact that the applicant was found in possession of Mr Shin's property upon his arrest (at [89]-[98]). 3. For count 3: the identification evidence of the victim, Mr Boyle (including that the principal perpetrator was wearing a white-coloured hoodie); a traffic management image taken the following morning depicting the front passenger in Mariz's vehicle wearing a white Adidas brand hoodie; and the fact that when arrested, the applicant was wearing a white Adidas hoodie and was in possession of Mr Boyle's property (at [99]-[110]). As to count 4: 1. In relation to count 4, the Crown case against the applicant depended upon the jury relying upon the evidence of Mariz as to the presence and participation of the applicant. Given that this Court in Sakhra and Majeed 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, the applicant's conviction on this count should be quashed (at [111]-[113]). 2. Further, it was not reasonably open to the jury to be satisfied beyond reasonable doubt as to an essential element of count 5 - namely, an intention to rob. There were a number of issues with this aspect of the Crown case, including that nothing was said or done by either of the perpetrators suggesting that they were intending to rob the victim, and nor were any of his possessions, in fact, taken during the attack (at [114]-[117]). Per Rigg J (agreeing generally with the orders proposed by Chen J and the reasons for those orders, with the exception of the following in relation to count 1): 1. Upon a review of the evidence and arguments in relation to count 1, the possibility that Mariz was the perpetrator of the crime has a level of plausibility. This included the fact that upon his arrest, Mariz was wearing a jacket which was consistent with the jacket described by the victim, MC, as worn by the perpetrator and Mariz's ability to describe MC in detail, which raises a concern as to his proximity to the victim (at [121]-[124]). 2. However, when the evidence as a whole on this count is considered, the location of the property of MC with the applicant carries particular significance. It was therefore open for the jury to be satisfied beyond reasonable doubt of the applicant's guilt of count 1 (at [125]-[126]).