Charbaji v R

The trial proceedings

1. The appellants were each charged under the Crimes Act 1900 (NSW), s 18(1)(a) with Mr McNeill's murder. Ms Jamieson also stood trial on a charge of accessory after the fact.
2. During the course of the hearing, certain evidence was adduced in the case against Ms Jamieson only. This included audio recordings of Ms Jamieson which became Exhibits Y and Z in the proceedings, and evidence of CL, a witness whose identity is the subject of a suppression order.
3. Exhibit Y was a record of telephone intercepts of conversations between, amongst others, Ms Jamieson, Haysem, and Mr Ali Charbaji, the brother of the appellants, between 18 July 2014 and 24 July 2014. At the time that Exhibit Y was tendered, the trial judge gave a direction to the jury that none of the recording could be used against Azam and that only one part of the recording, where Haysem could be heard making a comment, could be used against him.
4. Exhibit Z was surveillance device recordings of a conversation that took place on 4 November 2014 between Ms Jamieson and a number of other persons, including CL. His Honour gave a direction to the jury in respect of Exhibit Z to the effect that the evidence was tendered only against Ms Jamieson.
5. CL was a witness who had known Ms Jamieson for approximately 6 years. He gave evidence in the case against Ms Jamieson. In the sentence hearing, his Honour, at [65], described CL's evidence as "most unsatisfactory", as CL had provided a police statement from which he recanted in the witness box. CL admitted to lying in the original statement and in giving evidence in court. His Honour, however, noted, at [70], that CL disclosed that he was "terrified" of the appellants and that he had apologised to the court upon leaving the witness box.
6. Following the conclusion of the Crown's closing address, the appellants applied for the discharge of the jury on the basis that the Crown Prosecutor, during the course of her address, had relied on evidence admitted only against Ms Jamieson in respect of the case against the appellants, thus resulting in a miscarriage of justice. The appellants contended that statements made by Ms Jamieson and admitted only against her had been relied upon by the Crown Prosecutor to inculpate the appellants and, in conjunction with the evidence of CL, used to corroborate the evidence of Mr Gallo. The appellants contended that the discharge of the jury was necessary to prevent a mistrial or unfair trial.
7. In his submissions before the trial judge in respect of the application to discharge the jury, Haysem's counsel argued that: "… no direction can be strong enough to correct the real danger now of the evidence being misused in the way it was being suggested that [the jury] misuse the evidence …"
8. These submissions were adopted by Azam's counsel, who submitted additionally that the timing of the Crown Prosecutor's address was a cause of particular concern, as the directions to the jury regarding the limited use of the evidence in Exhibit Y and Exhibit Z had occurred much earlier in the trial and the Crown Prosecutor had not reminded the jury of these directions in her closing address.
9. Azam's counsel submitted that if his Honour were to reject their application to discharge the jury, it would be preferable for his Honour to issue the corrective direction to the jury and not have the Crown Prosecutor say anything to the jury.
10. The Crown Prosecutor submitted that a "robust direction" by his Honour and, if necessary, a specific withdrawal of the impugned comments by her, would be the preferable course. The Crown Prosecutor submitted that the references to evidence adduced only against Ms Jamieson to support Mr Gallo's account were "relatively innocuous", as there were many other pieces of evidence relied upon to corroborate his evidence.
11. On 14 October 2016, the trial judge refused the application to discharge the jury: R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 7) [2017] NSWSC 1518 (Charbaji (No 7)). In refusing the application, his Honour took the view that an appropriate direction from the Court could be given to overcome any prejudice that would potentially be suffered by the appellants. The matters taken into account by his Honour in exercising his discretion in refusing to discharge the jury included his preliminary view as to "the form of the direction or correction" that he proposed; the "preliminary view formed as to the direction on Mr Gallo's evidence"; his Honour's view that he would instruct the jury to "ignore the evidence of CL" entirely; and his Honour's "perception of the attitude of the jury" in respect of both the proceedings and directions from the Court.
12. His Honour gave a direction to the jury in the terms set out below, at [36]. Immediately before giving the direction, his Honour told the jury that there were rules that required counsel to base their addresses on the evidence. In particular, he told them that counsel were not permitted to merge the evidence in one case with the evidence in another. His Honour stated that that rule was even more strict in respect of the Crown.
13. His Honour pointed out to the jury that it was very rare to interfere with the addresses of counsel or even to comment upon them, as, and as he had pointed out at the beginning of the trial, addresses of counsel in the trial were not evidence and were limited to raising the manner in which the jury could address the evidence. His Honour also said that the rules governing addresses were rarely breached, but that it had occurred on this occasion in the Crown Prosecutor's address.
14. His Honour told the jury that he could deal with the problem by discharging them and have the matter returned for a retrial. Alternatively, he could give them a direction at the outset of his summing up, so that they understood "the nature" of their duty and what they "have to do vis-à-vis what has been said". His Honour stated that he had decided to take the latter course.
15. His Honour then gave the direction as follows: "There can be no doubt that the Crown's submission ought not to have been put quite in the way it was put or the inferences that arise from it because what the Crown in its submission did, and again I do not say intentionally so I am not suggesting that, but according to the Court of Appeal we all make mistakes, even me, but what it did was, what the address did was used evidence against Azam Charbaji and Haysem Charbaji that was not admitted against them. The material in the recordings, the listening devices and telephone intercepts that were played to you and the evidence of [CL] is not material you can use in determining whether the Crown has proved beyond reasonable doubt the charges against either Azam or Haysem Charbaji. That means those recordings and the evidence of [CL] cannot be used against them in any way whatsoever. It cannot be used to influence the way you treat Mr Gallo's evidence, you remember Mr Gallo's evidence, or his truthfulness. So you cannot use for example what it is suggested Ms Jamieson may have said in one of the tapes or one of the recordings in a way to bolster up the evidence of Mr Gallo. It cannot be used to supply motive for any conduct and cannot be used to corroborate or support the evidence of Mr Gallo. There are some corroborative matters adduced, scientific evidence, pathology evidence, evidence of movement which support some matters to which Mr Gallo attests but on the crucial and simple issue of who, if any, or if either of Azam or Haysem Charbaji or both, or none, Mr Gallo's evidence is the central aspect of the Crown case against each of them and both of them and it must be considered by itself in that regard without regard to anything said on any recording or by [CL]. You saw and heard Mr Gallo. You received a warning from me which I will not at this point repeat but I will when I come to my directions based on the general experiences of judges. Ultimately once you have heard from counsel for each of the accused and you have heard my summing-up you have to be satisfied again beyond reasonable doubt that Mr Gallo's version of the crucial events, who did what to whom in terms of that which led to his death, if it did, and the conduct of Azam and Haysem Charbaji are both accurate and truthful. You have to be satisfied of that beyond reasonable doubt before you can convict either accused of anything. That satisfaction will depend upon your assessment of Mr Gallo in the witness box without the assessment on these crucial issues of any other evidence."
16. His Honour gave the following further direction in respect of the Crown Prosecutor's impermissible use of the evidence: "What is important is the evidence. That is what I wanted to suggest to you. That is really what my earlier … directions were about as well, and it is important in that regard to pigeon hole the evidence in a way that makes clear. You don't use the evidence that is not admitted against any particular accused against that accused in any way, shape or form. That is really what it is all about. Not about casting blame or who is at fault, anything like that." (emphasis added)
17. Later, after counsel had concluded their addresses, his Honour in his summing up at [190] reminded the jury that the evidence of CL and the sound recordings, excluding the one comment made by Haysem, was admitted only against Ms Jamieson. After summarising the evidence against the appellants, his Honour gave a further direction regarding the evidence that could be permissibly used to corroborate Mr Gallo's account in the following terms, at summing up [226]: "That is all the evidence that is in the cases against Haysem or Azam Charbaji. To the extent that there is corroboration, and the Crown has said there is of movements, the issue of the joining up of the Chux or Chix, I think it was given both descriptions, from the body as against from what was found in the backyard; the evidence in relation to the telephone calls as to when people were there and sighting of the deceased with two or three others in the car the Crown says are corroborative of the story of Mr Gallo. That is if you wish to use material or you see that material is corroborative of Mr Gallo's story, it comes only from the evidence that I have very, very briefly summarised so far. It cannot come, I remind you of this, from the evidence of [CL]; nor from the recordings either in which he was involved or in which the accused were not involved, because the recordings by other people have nothing to do with those two accused. Now that essentially is the evidence." (emphasis added)
18. This direction was again referred to the following day in his Honour's summing up, at [253]-[254], when his Honour instructed the jury to rely only on the matters involving CL, the telephone intercept and listening device material "in considering the charge against Lexy Jamieson".
19. Later, his Honour, at summing up [291]-[293], stated to the jury: "… you should not read [CL's] evidence or consider it, or listen to the recordings, before you decide the verdicts for Azam or Haysem Charbaji. Mr Shaw in his address to you also mentioned that the Crown did not call the other participant in the conversation that was said to have occurred in July and about which the statement was given on 29th of October. Now that evidence, that is the evidence of [CL] and the evidence of the telephone intercepts, can be used only in relation to Ms Jamieson and nobody else. The Crown says in relation to Ms Jamieson's evidence, that is the evidence in her case, that you can use some of the comments she makes to support the story or version of events that is given by Mr Gallo. If you did that you could only do it, as artificial as it may seem, in relation to Ms Jamieson. You could not do it in relation to Mr Azam or Haysem Charbaji." (emphasis added)
20. The trial judge, at summing up [278], referred to the "crux of the matter" in relation to the appellants, namely, "the application of violence and of the drugs". His Honour stated that the only evidence in respect of those matters was given by Mr Gallo and that, therefore, "the issues before you turn on what you think of Mr Gallo's evidence".
21. His Honour then referred to the way in which the Crown Prosecutor relied on evidence, independently of Mr Gallo, that supported his evidence. In this respect, his Honour stated, at summing up [280]: "Now, what the Crown says in the way in which it puts its case, and it is entitled to put its case this way, is that if you have a look at the issues associated with the debt, the dispelling of any other motive from another person who may have been owed some money, the location of the deceased over the weekend, the debt to Haysem and the damage to the car, the phone context, the fingerprints on the kerosene bottle and in the car, the purchase and use of the cleaning products, the matching of the Chux from the property and the like, all of those are matters that, independently, support the story or version of events that Mr Gallo gave. That is true."
22. His Honour added that the Crown case also drew on what the autopsy revealed regarding toxic levels of Xanax and the wound to Mr McNeill's body.
23. His Honour also referred to the defence case that there was no evidence that supported the application of violence and the forced administration of drugs other than the evidence of Mr Gallo, adding that in order to convict either appellant, it was necessary to believe Mr Gallo. As his Honour stated, at summing up [282]: "In the end, that is what the trial is about, and the defence have given you the reasons why you would not. They say his demeanour is such that you would not believe him and he was unreliable because he was on drugs and because of evidence inconsistencies."
24. Other than this reference to the recordings, and the direction given to the jury following the Crown Prosecutor's address, set out above at [36], the trial judge did not refer back to the other evidence to which reference was made in the challenged portions of the Crown Prosecutor's closing address. The Crown pointed out that at trial the appellants' legal representatives had urged upon his Honour that this was the preferable course, so as not to emphasise or bring that evidence back to the attention of the jury.

Submissions on appeal

1. In Azam's written submissions, it was contended that the Crown Prosecutor, in her closing address, impermissibly relied on evidence that had only been adduced in Ms Jamieson's case to corroborate Mr Gallo's evidence as follows: 1. A statement by Ms Jamieson in Exhibit Z that "I got Raff to drop them off there". The Crown Prosecutor stated to the jury that this corroborated Mr Gallo's evidence regarding a "strange man", whom Mr Gallo did not know, who drove him and Azam to the Commodore motor vehicle where Mr McNeill's body had been placed the previous evening. 2. Statements by Ms Jamieson to Ali Charbaji, the appellants' brother, in Exhibit Y regarding a missing quantity of ice. The Crown Prosecutor referred to this in her closing address as providing support for Mr Gallo's evidence about a search for a "point of ice" that had gone missing in Haysem's apartment. 3. A statement by Ms Jamieson in the recorded conversation of 4 November 2014 in which she expressed concern that Mr McNeill may have been captured on CCTV leaving her apartment with Mr Gallo and the appellants. The Crown Prosecutor had referred to this as a means of corroborating Mr Gallo's evidence that Mr McNeill had been supported to the car by Mr Gallo and the appellants at the time he was taken to Azam's house in Cartwright. 4. A statement by Ms Jamieson on 4 November 2014 that a suitcase had been brought to her place, which the Crown Prosecutor had said confirmed the evidence given by Mr Gallo about purchasing a suitcase and bringing it to Haysem's apartment and then Azam's house. 5. A statement by Ms Jamieson that "it all goes back to Brendon". The Crown Prosecutor had stated in her address to the jury that this demonstrated the extent to which Mr Gallo was involved in the events surrounding Mr McNeill's murder. 6. In addition, there was a reference to a statement by Ms Jamieson in the recording marked as Exhibit Z, which the Crown Prosecutor described as part of the appellants' plan of "leaving it just to Brendon doing everything".
2. These various statements are considered in more detail below. However, it is convenient at this point to refer to the appellants' principal argument, namely, that no direction to the jury could fix the damage done by the Crown Prosecutor's references to this evidence in the respective cases against them. It was submitted that this was so as the success of the prosecution case against each appellant depended upon the extent to which the jury accepted the evidence of Mr Gallo. This, they said, was apparent from the trial judge's directions to the jury to the effect that the jury had to be satisfied beyond reasonable doubt of Mr Gallo's evidence in order to convict the appellants of murder.
3. The appellants pointed out that Mr Gallo was also the subject of a s 165 direction, in which the trial judge had emphasised to the jury the potentially unreliable nature of his evidence, due to his involvement in the conduct giving rise to the criminal charges, that he was under the influence of drugs at the time and that he had given his version of events in an induced statement. Such was the importance of Mr Gallo's evidence, it was submitted, that his Honour repeated this direction several times throughout the trial.
4. The appellants also complained that there was a delay in his Honour giving the direction, which was not given until about 11am the day after the Crown Prosecutor's address. The appellants submitted that the jury had an opportunity to absorb and ponder the Crown Prosecutor's address overnight. They submitted that even assuming the jury had listened to his Honour's direction and attempted to follow it, there was a real risk that they would have been subconsciously influenced by the Crown Prosecutor's address and thus reasoned in an improper manner.
5. It is convenient to deal with this submission immediately. The appellants did not formally apply for the discharge of the jury until the morning of 14 October 2016, although, at the conclusion of the Crown Prosecutor's address on the afternoon of 13 October, they had foreshadowed that they would make such application. To that extent, the delay was as much in their hands as in the hands of the trial judge. This is not a criticism of either, as it was likely to have been influenced by the time of day at which the Crown Prosecutor's address concluded. But in any event, as his Honour's direction was more proximate in time to addresses of the appellants' own counsel and to their deliberations in the jury room, it is as likely, if not more so, that the jury would have been focussed on the very clear directions they were given.
6. The Crown submitted that its case against all accused had been based on 20 critical aspects of the evidence. The Crown Prosecutor had only impermissibly called into aid inadmissible evidence in support of four aspects. The Crown submitted that when each part of the Crown Prosecutor's closing address that relied on inadmissible evidence to support the case against the appellants was put in its proper context in the trial overall, that evidence was not critical to establishing the key elements of the offence.
7. In making this submission, the Crown accepted that Mr Gallo's credibility was a key issue at trial, but pointed out that the jury had been clearly directed that they needed to be satisfied beyond reasonable doubt of his account insofar as there was the application of violence and forced use of drugs. The Crown submitted that, having regard to the relatively uncritical nature of the evidence that was wrongly used and the manner in which the trial judge had directed the jury in relation to Mr Gallo's evidence, a corrective direction from the trial judge was therefore the most appropriate course of action
8. It is necessary to consider each of the areas of evidence that was used impermissibly in some detail and to consider that evidence in the context of the case against the appellants generally. It is thus convenient to set out the Crown summary of the 20 aspects of the evidence relied upon as against the appellants. The four aspects of the evidence that had been impermissibly used by the Crown Prosecutor are in bold italics. The impermissible reference to "it all goes back to Brendon" is addressed separately, as is the reference to "leaving it just to Brendon".
9. The twenty aspects of evidence relied upon by the Crown Prosecutor were as follows, the bolded portions being those to which the Crown Prosecutor had impermissibly referred: "(i) Mr Gallo's account that Haysem Charbaji had told him that they were going to pick up the deceased because the deceased 'needed help with money' was supported by other witnesses' evidence that the deceased did need such help; (ii) Mr Gallo's assertion that the deceased had been stabbed in the lower back by Azam Charbaji was confirmed as true by the autopsy; (iii) Mr Gallo's assertion that the [appellants] force-fed the deceased Xanax tablets was also confirmed by the autopsy; (iv) Mr Gallo's description of the deceased being tied up with silver duct tape was supported by such material being found during the autopsy; (v) Mr Gallo had described an incident which occurred at the flat of Haysem Charbaji and Ms Jamieson at Heckenberg at a time when Azam Charbaji and the deceased were also present, when it was thought that a point of the drug ice was missing. The Crown relied upon the content of the recorded telephone conversations of Ms Jamieson as support for what Mr Gallo said in this respect; (vi) Mr Gallo's evidence was that when he and the two [appellants] took the deceased from the flat at Heckenberg to Azam's house at Cartwright, the deceased was limping so they were supporting him. The Crown said that this was confirmed by the listening device recording of the conversation between Ms Jamieson and CL in so far as Ms Jamieson talked about the deceased last being seen walking from her unit with the three men and it may have been captured on CCTV; (vii) The evidence of Mr Gallo was that once they were at the Cartwright house there was a conversation about the deceased going to the grandparents' house to get the money owed to Haysem Charbaji after having a shower. Mr Gallo said that Haysem Charbaji had told him that the money was owed by the deceased due to damage to a car. The fact that Haysem Charbaji believed that money was owed by the deceased as a consequence of damage to a car was confirmed by the evidence of the deceased's girlfriend, Jade Patterson; (viii) Mr Gallo's account included a description that at one stage whilst at the Cartwright premises Azam Charbaji had a socket adaptor (like the ratchet from the socket) that Mr Gallo said had come from a tool box at the front of the house. Photographs were tendered of the Cartwright premises after they had been boarded up by the Department of Housing and an empty socket set could be seen on the front verandah (Ex P). The Crown relied upon this evidence as capable of confirming that aspect of Mr Gallo's account; (ix) Mr Gallo's version of events included that he had been told by Haysem Charbaji that he had to go and move the deceased's car and that he should take the deceased's car to fill it up with petrol and not pay for it. The fact that Mr Gallo did this was confirmed by CCTV from a service station; (x) Mr Gallo's description of having gone to the Kmart at Merrylands to buy a suitcase was also confirmed by evidence from a Kmart employee; (xi) Mr Gallo said that after purchasing the suitcase they drove back to the Heckenberg apartment and then back to the Cartwright house. The Crown submitted that the fact that Mr Gallo said that he took the suitcase back to the apartment was supported by the listening device conversation of Ms Jamieson because she said that he even brought the suitcase back to my place; (xii) Mr Gallo's account included that and he and Azam drove around in Haysem's Commodore looking for a place to dispose of the deceased's body. After they gave up finding a suitable location, they parked the Commodore and got into the Lexus, which Haysem was driving and went to the Menai shops ... Mr Gallo said that when they were driving through the carpark of the shops, two undercover police officers stepped out in front of them and Haysem Charbaji took off, nearly hitting one of the police officers. This was confirmed by evidence from a police officer involved in such an incident; (xiii) Mr Gallo said that shortly after the incident with the police officers, Haysem Charbaji hit a stationary 4WD parked at a set of lights whilst attempting to get away. This was supported by evidence from the driver of a 4WD involved in such an incident; (xiv) Mr Gallo's account was that Haysem Charbaji later dropped himself and Azam Charbaji off and that they walked to Liverpool train station to get a taxi to Casula in order to meet Haysem (after Haysem had dropped the Lexus at Casula library) ... The evidence of a taxi driver, Dean MacGregor supported Mr Gallo's account in this respect since he said that he picked up some passengers at Liverpool railway station and that they went to Casula and waited for five minutes near the library and then he dropped them back at Heckenberg (where Haysem Charbaji and Ms Jamieson's apartment was); (xv) Mr Gallo's evidence was that after being at the apartment for about 15 - 20 minutes, he and Azam caught another taxi back to the shops at Cartwright. This was confirmed by another taxi driver (Tanvir Ahmed) who gave evidence that he picked up people from the apartment at Heckenberg and dropped them at an address at Sadlier (which is described by Mr Gallo as the Cartwright shops); (xvi) Mr Gallo said that after cleaning up the house at Cartwright and sleeping that he and Azam were picked up by a man that he did not know who took them back to where the Commodore was parked. The Crown relied upon the listening device material from Ms Jamieson as confirming that this unknown person was a person called 'Raff' that Ms Jamieson had got to drop off Azam and Mr Gallo at the Commodore; (xvii) Mr Gallo described where he had placed the deceased's body in the bag at Picnic Point whilst Azam Charbaji was in the car. He said that he had put it in that position because he had wanted it to be found. The Crown relied upon the evidence of those who found the body as supporting this aspect of Mr Gallo's account; (xviii) The fact that Mr Gallo said that Azam Charbaji was with him when driving around looking for a place to dispose of the body and when the body was disposed of was supported by tower locations recorded in Azam's mobile telephone records; (xix) Mr Gallo's version was that Azam Charbaji later collected knives from the Cartwright house that had been used to stab the deceased, and that they disposed of them. Mr Gallo said that Azam showed him one of the knives and indicated how far it went into the deceased. The Crown relied upon the fact that the autopsy showed that the depth of the stab wound was about 8cm; (xx) Mr Gallo's description of him and Azam having ended up stopping in Botany for the purpose of Azam throwing the knives in the waterway near a recycling plant was supported by evidence of a civilian witness (Adrian O'Reilly) who had seen knives in that waterway." (emphasis in original) (transcript references omitted)

First aspect of evidence impermissibly used: the mystery man

1. The first part of the Crown Prosecutor's address about which the appellants complained was as follows, the bolded portions being those parts emphasised by the appellants in their written submissions: "The police didn't know what had happened at that early point. Except that [CL] that he was telling the truth when he said this accused, Ms Jamieson, arranged to meet him on the night before he saw that a burnt body had been discovered at Picnic Point and sought advice about what to do with a dead body. Perhaps engaging in the ruse of saying that she had stabbed the man because he had done something to her in her house. Knowing, you might think, [CL] and his friends would help her but they would perhaps be less interested in helping Charbaji brothers who they did not know. The Crown says that knowing there had been a homicide Ms Jamieson assisted both brothers by getting advice of how to dispose of a body, how to burn it, then assisted with cleaning, admits to have assisted with cleaning or at least with giving advice on the cleaning. Further, ladies and gentlemen, something out of Ms Jamieson's own mouth in exhibit Z, the mystery of the strange man is solved, and I'll come to it in more detail with Brendan Gallo's evidence, but you might recall that a lift was needed to go to get the car that had just been left somewhere about the place with Dane McNeill's body in the boot. Brendan Gallo insisted in this Court, you might think quite credibly, that someone he didn't know picked him and Azam Charbaji up to go and get the body, so as to take it somewhere and dispose of Mr McNeill's body. Ms Jamieson said at p 36, exhibit Z, 'I got Raff to drop them off there.' That's the 'strange man', that's the man Brendon didn't know but who was known, it seems in his view, to Azam Charbaji. So those things, those actions to assist render Ms Jamieson liable in the Crown case for being an accessory after the fact to the murder of Dane McNeill committed by the two male accused. Ladies and gentlemen of the jury, Brendon Gallo is the centre of this case, particularly in relation to the two male accused." (emphasis added)
2. It is necessary, however, to also include the part of the Crown Prosecutor's address that immediately preceded the part about which the complaint is made, where the Crown Prosecutor said the following: "As to the case against Ms Jamieson, the case of accessory after the fact, the Crown says and submits to you that she knew, she was fully involved in what was going on or to the extent that she could see what was going on and was almost at times giving a running narrative of what was going on. She always knew what was happening and what had happened to Dane McNeill. With that knowledge knowing he had died the Crown says - and I'll come to it in more detail later - that you would accept that [CL] was telling the police the truth."
3. The Crown Prosecutor later referred to Ms Jamieson's statement in Exhibit Z, "I got Raff to drop them off there", when she summarised Mr Gallo's account of the events surrounding the disposal of Mr McNeill's body. The bolded portion is again the portion upon which the appellants relied: "Then that night we were picked up and drove back to the Commodore. Who picked you up? Someone you haven't been speaking about already. Yes. A man or woman? A Man. You didn't know the person? No. Do you know what car he picked you up in? I can't remember to be honest. He took us to the car. That was the Commodore. He took you and Azam to the Commodore? Yes. When he got to the Commodore, what happened? We then drove off. We drove around for a few hours trying to find somewhere to place Dane, and that was Brendon Gallo driving with Azam next to him. What happened to the person who dropped you there? He just left. Mystery man, ladies and gentlemen. Raf, the person Ms Jamieson admits to [CL] being the person he got to drop Azam and Brendon to the Commodore." (emphasis added)
4. As we have indicated, the evidence about the "mystery man" related to Mr Gallo's evidence as to what occurred in relation to the disposal of Mr McNeill's body, which had been placed in the back of a Commodore motor vehicle. It is not necessary to set out the details of what occurred thereafter. In brief, however, Mr Gallo gave evidence that he and Azam had left Azam's house at Cartwright with Mr McNeill's body in the boot of the Commodore but could not find anywhere to dispose of it. They eventually left the Commodore "just in a back street". Mr Gallo's evidence was that the next day he and Azam were picked up and driven back to the Commodore by a man he did not know. Mr Gallo was challenged in cross-examination that he was making up this evidence about being picked up by a man he did not know.
5. The appellants submitted that the Crown Prosecutor's reference to Ms Jamieson's comment about "Raff" was made to bolster Mr Gallo's evidence regarding him and Azam being taken to the car in which Mr McNeill's body had been placed by a man that Mr Gallo was not familiar with, but who was known to Azam.
6. The Crown submitted, first that, as was apparent from the part of the address to which the appellants did not refer, set out above at [56], the Crown Prosecutor was addressing the case against Ms Jamieson when she made the comments referred to at [55]. The Crown accepted, however, that in the bolded portions of the address set out at [57], the Crown Prosecutor had used this aspect of Ms Jamieson's evidence as corroborative of the cases against the appellants. Nonetheless, the Crown argued that the evidence relating to Mr Gallo and Azam being driven back to the Commodore did not go to the key issue in the case, which was the infliction of violence and forced administration of drugs on Mr McNeill, which resulted in his death. Rather, it related to the events after the murder, including the disposal of Mr McNeill's body. The Crown submitted, therefore, that this evidence was not relevant to the key issue for the jury, namely, that they had to be satisfied beyond reasonable doubt of the infliction of violence and the forced administration of violence by the appellants.
7. The appellants also specifically complained about the Crown Prosecutor's statement "[l]adies and gentlemen of the jury, Brendon Gallo is the centre of this case, particularly in relation to the two male accused". This statement was made by the Crown Prosecutor in her closing address immediately following her statements regarding the "mystery man" and before turning to the topic of evidence adduced at trial regarding the debts owed by Mr McNeill.
8. The Crown submitted that there was "nothing impermissible about saying that Mr Gallo is the centre of this case in relation to the two accused", as that was always the case.

Second aspect of evidence impermissibly used: the missing 'point of ice'

1. The second matter raised by the Crown that involved reference to inadmissible material was evidence regarding a "point of ice" that had gone missing in Haysem's apartment, being item (v) at [54] above. Mr Gallo had given evidence that it was thought that a "point of ice" had gone missing in the apartment. He said that he thought that was before Mr McNeill was stabbed and said that he and Mr McNeill had "moved part of the lounge … looking for it". It appears, however, that in fact no ice was missing and that what was occurring was a "test" to see whether Mr Gallo and Mr McNeill could be trusted.
2. In the address to the jury, the Crown Prosecutor referred to the conversation between Ms Jamieson and Ali Charbaji in Exhibit Y, in which she discussed a hunt for "something… lost in the house" to support Mr Gallo's account of the search for the missing "point of ice". The Crown's address subject of complaint was as follows: "A point of ice is .1 gram Mr Gallo told us. You will remember fairly recent evidence, exhibit Y, that is the phone calls between Ms Jamieson and Ali Charbaji, which were recorded, and you have heard some of those calls. In those calls you have better evidence of this supposedly missing point of ice than you have from Brendon Gallo, but what you do have is support for what he says. … He said that Lexy didn't say anything about the missing ice. Lexy was just sitting there when Haysem and Azam were doing various things to Dane. You recall that in the telephone call of Friday 18 July at 12.49 in the early afternoon Ms Jamieson says to Ali Charbaji when he says: 'Ali Charbaji: All right, what are youse doing? Ms Jamieson: No, nothing. I'm waiting for, um, your brothers' mates to find something they lost in the house. Ali Charbaji: What? Ms Jamieson: They lost something in the house that if [M] gets he's dead. Ali Charbaji: Yeah? Ms Jamieson: If he eats it, he'll die. Ali Charbaji: Yeah? Ms Jamieson: So no-one's leaving this fucking house until they find it. Ali Charbaji: No way. Ms Jamieson: Yeah.' Then a bit further on: 'Q. Where's Azam? A. I full put the heavies on him, you don't know?' 'Ali Charbaji: What did he do? Ms Jamieson: Because I know they smoked it, yeah. I go - um, or die, I go, I go, 'so where the fuck is it?' I go, 'if my son gets it then my son will die' and. I go, 'if my son does - get on your hands and knees, no-one's leaving this house until you find it. They were like, 'we can look'. I don't give a fuck. I go, 'did you smoke it?' They go, 'no'. I go, 'if you didn't smoke it then it's in the house and no-one's fucking' - Ali Charbaji: Why don't they just own up to it? Ms Jamieson: They won't own up to it. I go, 'no-one's leaving until' ' - something, something -' 'find it'. Ali Charbaji: Who is it? Ms Jamieson: Brendon and Dane. Ali Charbaji: Yeah, seriously? Ms Jamieson: Yeah, I told them, 'no-one's fucking going nowhere, better fucking find it, no-one's going nowhere'." She knows at that time that there's no missing point of ice. She says, 'They won't own up to it'. You can just imagine that little problem only added to the tension in the house. It was a game, you might think. Later on she refers to as a 'test', 'a test to see if we could trust them'. No doubt you've seen that yourselves. But that was an added drama you might think that was going on during this business."
3. To put that part of the address in context, the Crown Prosecutor continued: "Brendan Gallo: It's difficult for him, and you might appreciate this, it's hard for him to remember whether he has slept for a whole night or an hour, and I think he extends this out to more days than it has in it. But for that though, ladies and gentlemen, you might find his recollection of the detail of what was done exceedingly accurate, particularly when we come to things like taxi drivers, where they went, where things were left, where things were brought and so forth."
4. The appellants submitted that the reference to the recorded phone call between Ms Jamieson and Ali Charbaji was to demonstrate that Mr Gallo could accurately recall details from the relevant time period.
5. The Crown conceded that the Crown Prosecutor's reference to the telephone conversation between Ms Jamieson and Ali Charbaji to corroborate Mr Gallo's evidence regarding the missing "point of ice" was an impermissible use of evidence. The Crown contended, however, that the matter was not of any great significance, as it was neither connected with or the reason for the assault on Mr McNeill. Indeed, it was submitted that it was "entirely peripheral in nature". The Crown relied in particular upon Mr Gallo's evidence that, at that point, Mr McNeill had not said that he was in debt, that Haysem had not said that there was any problem about the missing ice, and that he was not aware of any fear for anyone's safety at that point of time.

Third aspect of evidence impermissibly used: reference to the appellants leaving the apartment

1. The Crown Prosecutor in her address referred to the statements made by Ms Jamieson in the recorded conversation of 4 November 2014, being item (vi) at [54] above, as follows: "Then Brendan Gallo says the next day, after Dane McNeill has spent the night in the laundry, tied up, drugged and stabbed at least once, he says he was taken to Cartwright and he says 'we carried him down to the car and drove him to Cartwright, me, Haysem and Azam. How did you carry him? He was limping, so supporting him. Was he distressed in anyway? Yes.' Sometime later he says that he was, I think 65 per cent able to walk or something. He gives a figure out of 100. Of course that, too, ladies and gentlemen, is confirmed in the Lexy Jamieson, [CL] listening device, the conversation from November 2014. You might recall that Lexy Jamieson talks in that about them taking him away, about the possibility of close circuit television somewhere in the building, seeing those four men all leaving the building. It was more in the context in the clear, once they have all gone and so forth. Once again, it is an aspect of Brendon Gallo's evidence that he's confirmed, independently, or confirmed by another source. Then what happened to Dane car, it got taken to Warwick Farm. He said I think the next day. Who took it to Warwick Farm? I did. Page 157. Why did you do that? Haysem asked me to. Did Haysem go with you or not? Yes, he did. So you drove that car to Warwick Farm, (page 158), you say Haysem asked you to. How did you get from Warwick Farm, if you left it there. He picked me up. Then in relation to blood in the lounge room, where did the blood go? We cleaned it up. The blood was on the floor. Who cleaned it up? Me and Haysem." (emphasis added)
2. The appellants submitted that Ms Jamieson's out of court admission about the four men leaving the building together had been relied upon by the Crown Prosecutor in a material way. The appellants submitted that Mr Gallo's credibility was in question on this point as he had been inconsistent in his account of how Mr McNeill left the building. In this regard, Mr Gallo had given three versions as to what had happened. He had originally said that Mr McNeill had been carried out. He then said that Mr McNeill was supported, as he was limping. Finally, under cross-examination, Mr Gallo said that Mr McNeill had walked out of the apartment. The appellants pointed out that Mr McNeill's ability to walk and speak to others was an important issue in the trial.
3. The Crown contended that the impermissible use of evidence was restricted to the Crown Prosecutor's statement that "once again, it is an aspect of Brendon Gallo's evidence that he's confirmed, independently, or confirmed by another source". The Crown submitted that the Crown Prosecutor's purpose at trial in referring to Ms Jamieson's evidence was to provide confirmation of a matter that was not in dispute, namely, that Mr McNeill was still alive when he left Haysem's apartment in Heckenberg. Likewise, it was not in issue that all four men left the apartment together. The Crown submitted that these two matters were common ground in the trial as the appellants had cross-examined Mr Gallo to that effect. Accordingly, Ms Jamieson's comments in the listening device material merely confirmed that Mr McNeill had walked out of the apartment with the other three men, a fact that was not in issue.
4. The Crown submitted that the contestable issue regarding this aspect of Mr Gallo's evidence was the state that Mr McNeill was in when he left the apartment and that it was only in that respect that Mr Gallo's credit was in issue. Ms Jamieson had said in the recorded conversation that Mr McNeill had a cut above the eye, "or something", and that was consistent with the cross-examination of Mr Gallo, to the effect that there had been a fight in the apartment and that Mr Gallo had punched Mr McNeill. In examination-in-chief, Mr Gallo denied that he had punched Mr McNeill, but said the appellants had started bashing Mr McNeill. Mr Gallo was also cross-examined by Haysem's counsel that Mr McNeill had an injury to his buttock before they left the unit. Accordingly, there was no question that Mr McNeill was alive when he left Haysem's apartment at Heckenburg.

Fourth aspect of evidence impermissibly used: purchase of the suitcase

1. The fourth area where the Crown relied on Ms Jamieson's comments in the listening device recording was in relation to the purchase of the suitcase by Mr Gallo and Haysem, being item (xi) at [54] above The Crown Prosecutor's statement in respect of this issue was, relevantly, as follows: "Then we drove back to Haysem's [apartment] and went back to the Cartwright house. That aspect is supported by Ms Jamieson, because in the listening device, because she says, oh, he even brought the suitcase back to my place. It show what is going on. And Haysem Charbaji knows what's going on."
2. The Crown accepted that the second sentence in the Crown Prosecutor's statement extracted above at [72] involved the impermissible use of evidence that was inadmissible against the appellants. However, the aspect of Mr Gallo's evidence that was confirmed by the out of court admissions of Ms Jamieson that the Crown Prosecutor had impermissibly used to support Mr Gallo's evidence was the act of bringing the suitcase to Haysem's apartment. Although there was no other independent evidence to that effect, the Crown pointed out that Mr Gallo was not challenged on this point in cross-examination. This was of particular significance, on the Crown's submission, as Mr Gallo was asked in cross-examination where he went after purchasing the suitcase and was not challenged when he said they went back to the apartment at Heckenburg. Further, the Crown submitted that the key issue that the Crown Prosecutor addressed the jury on was the purchase of the suitcase itself, which was corroborated by independent evidence that was not the subject of any challenge, namely, enquiries made of the Merrylands Kmart by a detective.

Fifth aspect of evidence impermissibly used: "it all goes back to Brendon"

1. The next issue raised by the appellants was the reference by the Crown Prosecutor to Ms Jamieson's statement in Exhibit Z that, "it all goes back to Brendon", to lend support to the Crown Prosecutor's argument that the appellants intended to set Mr Gallo up for Mr McNeill's death. This was not one of the 20 items of evidence upon which the Crown Prosecutor relied.
2. This statement was referred to twice by the Crown Prosecutor. The first was in relation to the evidence Mr Gallo gave that Haysem had instructed him to do a petrol run and purchase the suitcase. In this respect, the Crown Prosecutor stated, "[a]s Lexy Jamieson says to [CL] about it, always goes back to Brendon. It all goes back to Brendon". The Crown Prosecutor again referred to this when discussing Mr Gallo's evidence that Azam had remained in the car while he poured kerosene over Mr McNeill's body, stating: "… much better to let everything that could be done by Brendon Gallo be done by Brendon Gallo, ladies and gentlemen, so later on it could always be said, as Ms Jamieson said, that it all goes back to Brendon."
3. The appellants submitted that the Crown's use of Ms Jamieson's statement was unfairly prejudicial to them, particularly where the Crown had no other evidence that Mr Gallo had been instructed to perform the tasks of getting petrol or purchasing the suitcase.
4. The Crown, again accepting that the statements by the Crown Prosecutor that "it all goes back to Brendon" were impermissible, nonetheless pointed out that Ms Jamieson's comments in the recording in November 2014 were no more than an ex post facto reflection on the events surrounding Mr McNeill's death. The Crown further submitted that the inference that the appellants intended to set Mr Gallo up could be drawn from Mr Gallo's own evidence, without reference to Ms Jamieson's out of court admissions. The Crown submitted, therefore, that the Crown Prosecutor's admitted error in referring to Ms Jamieson's recorded statement in Exhibit Z did not have the significance attributed to it by the appellants.

Sixth aspect of evidence impermissibly used: "leaving it just to Brendon"

1. The final area of which the appellants complained occurred during the course of the Crown Prosecutor's address, in which she turned to the case against Ms Jamieson. Again, this was not one of the 20 items of evidence upon which the Crown Prosecutor based the case against the appellants. The Crown Prosecutor commenced this part of her address as follows: "I will turn now to Ms Jamieson and the evidence against her ladies and gentlemen and I on behalf of the Crown invite you to accept that [CL] was telling the police the truth in his initial statement … … … the evidence against Ms Jamieson is you might think extremely compelling that she was always trying to cover the tracks about this killing, cover tracks for the Charbaji brothers and for herself lest anyone think that she may have been one of the murderers."
2. The appellants submitted that the Crown Prosecutor's statement, "I will now turn to Ms Jamieson and the evidence against her", implied that the preceding parts of her address, which we have identified above as "the fifth aspect", were made in respect of the appellants.
3. In dealing with the case against Ms Jamieson, the Crown Prosecutor referred to the recording Exhibit Z, highlighting the portions which she said provided compelling evidence against Ms Jamieson, particularly in relation to cleaning up the premises, using bleach and regrouting. The Crown Prosecutor continued: Then when it is put to her 'Well who knocked him, that's the main thing?' 'Brendon' she says, 'yeah Brendon, um, Brendon burnt the body'. She says: 'Me and Haysem went to his brother's. I mean we were at Bankstown Sporty's, do you know what I mean and they came back you know what I'm saying, you know what I mean, and they took that car, they took that car the VF'. So plans were being put into contention about writing them off and leaving it just to Brendon doing everything, 'Who cares, that's his house, it's nothing to do with me'. …What emerges throughout this, you might think, is Ms Jamieson knows exactly what is going on. 'He brought the suitcase to my house'. She knows about the wrench thing but she says it all goes back to him, Brendon. 'They took him to the basement and he got in the car in the basement. All the boys went down to the basement, all four boys left and then one boy came back, Haysem, do you know what I mean and then Brendon came back and then Azam came back. Azam came back after a day or two. Two, three days later he came back but Haysem is in out, in out, you know what I mean?" (emphasis added)
4. The appellants complained that in the emphasised portion in this passage, the Crown Prosecutor again made reference to evidence that was not admitted against them. The Crown submitted that these statements were clearly made in the context of the case against Ms Jamieson and, therefore, there was no question of their impermissible use against the appellants.
5. Although we agree that the Crown Prosecutor linked her statements to the case against Ms Jamieson, the intermingling of references to "Brendon" could have confused the jury and for that reason, we also consider this to have been an impermissible reference.

General matters

1. In addition to the arguments advanced in respect of the specific parts of the Crown Prosecutor's address that the appellants challenged, both parties made submissions more generally, as follows.
2. The appellants submitted that, in the circumstances, the trial judge could not issue "sufficient corrective directions to deal with this trial irregularity such as could and did prevent a miscarriage of justice". They submitted that the Crown's intermingling of inadmissible material with evidence given by Mr Gallo was such that it was impossible for the trial judge to have isolated the inadmissible material and directed the jury not to have regard to it in a way that could overcome the "powerful effect" on the jury of the Crown's closing address. In their submission, the only proper course was to have discharged the jury.
3. The Crown submitted that his Honour's corrective direction was given in the clearest terms that the evidence to which the Crown Prosecutor had impermissibly referred was not to be used "to support the evidence of Mr Gallo or to influence the way they treated Mr Gallo's evidence". The Crown, in addition to explaining why, in the context of the trial overall, the evidence upon which the Crown impermissibly relied did not have the significance that the appellants sought to give it, also referred to those various parts of the trial judge's summing up in which his Honour dealt with the other evidence that supported Mr Gallo's evidence. In particular, the Crown pointed to the following parts of his Honour's summing up.
4. The Crown pointed to his Honour's directions at the commencement of the trial, that each of the opening addresses were not evidence, that each of the charges against the appellants must be decided separately and that evidence would be given that could only be taken into account in relation to a particular accused.
5. The Crown submitted that there were other parts of the summing up where the trial judge made it clear to the jury that certain evidence could only be used against one or other of the accused. For example, his Honour reminded the jury that evidence involving CL and the telephone intercept and listening device material could only be used in considering the charge against Ms Jamieson.
6. Later, his Honour explained to the jury, at summing up [291], that they should not deal with that evidence, that is, they should not read CL's evidence or listen to the recordings before they had decided the verdict against the appellants. His Honour reminded them that although there might be "comments" on the recordings that supported Mr Gallo's version of events, they could only use them in relation to Ms Jamieson herself, and not in relation to the appellants.
7. The Crown further submitted that, not only was the trial judge's summing up clear and comprehensible, but that no challenge was made to the direction itself. In addition, counsel for Haysem, in his closing address to the jury, had reminded them that they had been given a very particular direction that they were not to use the evidence of CL, or the evidence in the telephone recordings against Haysem. Haysem's counsel also addressed the jury in terms that: "… there is nothing that can be used to corroborate the important evidence that you would need to accept beyond reasonable doubt to convict my client in relation to the charge that he faces given by the witness Brendon Gallo."
8. Azam's counsel had addressed the jury in similar terms.

Miscarriage of justice

1. The appellants differed slightly in their respective approaches to the test for determining whether a substantial miscarriage of justice has occurred, such that the Court should allow the appeal.
2. Azam submitted that the question for determination was whether this Court as the appellate court could "say with assurance that but for the admission of the inadmissible evidence, the conviction was inevitable": Crofts v R (1996) 186 CLR 427; [1996] HCA 22. This required the Court to look at the evidence in its entirety. Azam submitted that the alternative verdict of manslaughter was a "theoretical possibility" but that outright acquittal was, in reality, the other outcome available to the jury.
3. Haysem submitted that the Court is to look principally at the question of whether there was a fair trial and whether the appellants were deprived of an opportunity of acquittal. He submitted that the intermingling of admissible and inadmissible evidence was a serious error that resulted in the appellants not receiving a fair trial. As this submission was ultimately put, there was a "real risk of a substantial miscarriage of justice" because, had they been properly addressed by the Crown Prosecutor, the jury may have reached a verdict of manslaughter. In support of this submission, Haysem pointed to the amateurish exercise in trying to dispose of the body as suggesting a lack of intent to kill.
4. The Crown submitted that the appeal fell within the third limb of the Criminal Appeal Act, s 6(1), namely, that the Court was to allow an appeal "on any other ground whatsoever [if] there was a miscarriage of justice". The third limb, it was submitted, covered cases where by reason of irregularity or otherwise an accused has not received a trial according to law or has not received a fair trial: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. However, if an error of that kind, or of a kind in either of the other two limbs of s 6(1) is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. This was a reference to the proviso in s 6(1) of the Criminal Appeal Act.

Consideration

1. There was no doubt that the Crown Prosecutor, in dealing with the case against the appellants in her address to the jury, impermissibly referred to evidence that, except for one small part of the evidence involving Haysem, was admissible only against Ms Jamieson. The Crown Prosecutor was wrong to have done so. This case thus falls into the third limb of the Criminal Appeal Act, s 6(1) which provides: "The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion … that on any other ground whatsoever there was a miscarriage of justice … 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 Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334, this Court reviewed the authorities where a Crown Prosecutor had transgressed his or her prosecutorial duties. These included where a prosecutor, in addressing the jury, had relied upon evidence that was inadmissible against an accused. The Court referred, at [25], amongst other authorities, to Whitehorn v The Queen (1983) 152 CLR 657 where Deane J at 663-664 stated: "… The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with a consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered."
3. It was accepted at trial that the Crown Prosecutor, in addressing the case against the appellants, had wrongly referred to evidence that was not admissible against them. The question for his Honour, therefore, was whether the jury should have been discharged. Not every transgression that occurs during the course of a trial will warrant a discharge of the jury. The relevant principles were stated by the High Court in Crofts, at 440-441, as follows: "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. ... [M]uch leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? … ... [I]n the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account." See also Maric v R (1978) 20 ALR 513 per Gibbs J at 520; Stirland v DPP [1944] AC 315; [1944] 2 All ER 13 at 321; Driscoll v R (1977) 137 CLR 517 at 543; Khazaal v R (2011) 265 FLR 276; [2011] NSWCCA 129 at [29].
4. The Crown, accepting that the Crown Prosecutor should not have included in her address to the jury some of those matters that are the subject of challenge, nonetheless submitted that having regard to the direction that the trial judge gave and his very clear summing up to the jury, there was no substantial miscarriage of justice such that this Court would dismiss the appeal: Criminal Appeal Act, s 6(1); Kalbasi v Western Australia (2018) 352 ALR 1; [2018] HCA 7; Filippou; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; Johnson v R [2017] NSWCCA 278; Wade v R [2018] NSWCCA 85.
5. In Filippou, the plurality of the High Court stated, at [14], that: "The third limb [of s 6(1)] covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial." (footnote omitted) As we have said, it was clearly established in the present case that the Crown Prosecutor's impermissible references to some parts of the evidence fell within the third limb of s 6(1). Looking to the terms of the proviso, the question then arises as to whether those references constituted a "substantial miscarriage of justice".
6. In determining the meaning of "substantial miscarriage of justice" in the proviso to s 6(1), the plurality in Filippou stated, at [15], that what was meant by that phrase was that: "… the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description." (footnotes omitted)
7. The plurality found that, where the third limb is engaged: "… if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate."
8. However, in Kalbasi v Western Australia, the majority eschewed the use of the language in the passage just quoted when the third limb of s 6(1) is engaged. Kiefel CJ, Bell, Keane and Gordon JJ stated, at [12], that: "Consistently with the long tradition of the criminal law, any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb …"
9. Their Honours then observed that "the determination of whether, notwithstanding the error, there has been no substantial miscarriage of justice is committed to the appellate court". However, the appellate court's assessment of that question did not depend on "its estimate of the verdict that a hypothetical jury, whether 'this jury' or a 'reasonable jury', might have returned had the error not occurred".
10. Their Honours stated that in determining whether there has been a substantial miscarriage of justice, it is not helpful to ask whether the accused lost a chance of acquittal which was fairly open. Nor was the converse of that proposition, the "inevitability of conviction", an appropriate test. The plurality pointed to the "notorious difficulties" associated with such formulations, chief among them being the question of how the appellate court is to assess the lost chance. The appellate court was not seeking to predict the outcome of a hypothetical, error-free trial, but was required to decide whether, notwithstanding error, guilt was proven to the criminal standard on admissible evidence at the trial that was actually conducted.
11. The Court continued, at [13]: "The influence of an error on the deliberations of a jury can never be known. The stipulation of the negative proposition as a condition of the engagement of the proviso recognises that the conviction of a person whose guilt has not been proved, beyond reasonable doubt, on admissible evidence, will always be a substantial miscarriage of justice. On the other hand, the appellate court's satisfaction that guilt has been proved to the criminal standard on the admissible evidence will in many instances support the conclusion that there has been no substantial miscarriage of justice notwithstanding … a miscarriage of justice (under the third limb …)." (footnotes omitted)
12. At [15], the plurality stated that Weiss, at 302, requires the appellate court to consider the nature and effect of the error in every case as some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. This may include cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases where there has been a wrong direction on an element of liability or on a defence or partial defence. Their Honours pointed out that in such cases, Weiss did not: "… disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution's case, the appellate court cannot be satisfied that guilt has been proved."
13. Their Honours noted, at [16], that: "It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt." (footnoted omitted)
14. Their Honours stated, at [57], that a misdirection upon a matter of law is always contrary to law and a departure from the requirements of a fair trial according to law, but it was not an always error of the kind that precluded the application of the proviso. Nor was it an error that denied the Court of Appeal the capacity to assess whether the appellant's guilt of the offence with which he was charged was proved beyond reasonable doubt: see [17]. They stated: "The question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred."
15. In Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14, the High Court stated, at [25]: "… if the Court of Appeal considers that no substantial miscarriage of justice has actually occurred, the appeal must be dismissed in exercise of the power the proviso confers on the Court of Appeal." (emphasis in original)
16. In determining whether, in this case, there was a substantial miscarriage of justice, it is necessary for the Court to consider each of the impermissible statements made by the Crown Prosecutor, their importance in the trial overall having regard to the other evidence in the trial, the corrective direction given by the trial judge and the other directions given to the jury.
17. This was a trial where the guilt of the appellants depended upon the evidence of Mr Gallo, whose credit on all matters was in issue. If the jury did not accept his evidence, beyond reasonable doubt, on all critical aspects of the case, the appellants could not have been found guilty. The jury was so directed in the clearest of terms, in the various passages to which reference was made above.
18. The critical matters in this regard were: the injuries inflicted at Haysem's flat, including in the bathroom, and being tied up with duct tape and force fed Xanax; the fact that Mr McNeill was still alive when he left Haysem's apartment, accompanied by Azam, Haysem and Mr Gallo; the fact that there was a motive for inflicting injury, namely the debt Haysem believed Mr McNeill owed him for damage to the car; that at the Cartwright house where Azam lived, Azam bashed Mr McNeill with a ratchet; the purchase of the suitcase in which Mr McNeill's body was placed so as to dispose of it. Each of those matters was supported by corroborative evidence as the Crown's summary demonstrated.
19. That left the four matters in the Crown Summary which had been impermissibly referred to by the Crown Prosecutor. The Crown explained the relative importance of each of those matters in the terms set out above. The Crown acknowledged that the reference by the Crown Prosecutor to the "mystery man", being item (xvi) in the Crown summary, at least on the surface, might be seen to be problematic. Subject to the reference of the "mystery man", which calls for separate consideration, the explanations provided by the Crown as to the relevance of these matters should be accepted.
20. The Crown acknowledged that the Crown Prosecutor's reference to the "mystery man" was intended to support Mr Gallo's credit. However, the relevance of the evidence was as an explanation of how Azam and Mr Gallo returned to pick up the Commodore which they had left elsewhere the day before, but which still had Mr McNeill's body in it. Mr Gallo gave evidence that having parked the car, he and Azam got into the Lexus with Haysem. There were then a series of events, including an incident with police, a collision with another vehicle, catching a cab to the Heckenburg apartment and leaving the Heckenburg apartment, also in a cab. All of those events were corroborated: see items (xii) to (xv) of the Crown summary of evidence.
21. There was no independent corroboration of being driven back to collect the Commodore by a "mystery man" and, indeed, Mr Gallo was challenged that there was "no strange man … that ever picked you up at Cartwright over that weekend". However, the appellants, and in particular Azam, did not cross-examine Mr Gallo to the effect that he and Azam were not driven back to collect the Commodore. Rather, the cross-examination was as follows: "Q. So is that right you left the Commodore do you say parked where you had parked it for that length of time? A. Yes I did. Q. Could you help me with this, when you left Cartwright was that when you say you left in a vehicle with the strange man? A. Yes. Q. I suggest sir there was no strange man-- A. Yes there was. Q. --that ever picked you up at Cartwright over that weekend? A. (No verbal reply). Q. You say you and Azam got in a vehicle with a strange man, is that your evidence? A. Yes that is. Q. This man took you where? A. To the Commodore. Q. You had to direct him, correct? A. Yes. Q. What, how did you do that, did you speak at length with him? A. No I am pretty sure we went back to the Lexus and got the co-ordinates that were left in the GPS. Q. I missed that? A. I am pretty sure we went back to the Lexus to get the co-ordinates that were left in the GPS. Q. You went with a strange man to the Lexus? A. Yes. Q. That had been left at Casula? A. Yes. Q. That is you and Azam you say? A. Yes. Q. Driven by the strange man? A. Yes. Q. Who got into the Lexus to get the co-ordinates out? A. I did."
22. There was then a series of questions seeking to test Mr Gallo about the details of the "mystery man", such as his name, build, whether this person called Mr Gallo by name, to which Mr Gallo replied "no", whether he called Azam by name, to which Mr Gallo replied that he did, and the like.
23. The cross-examination continued: "Q. I suggest you are making that up? A. I'm not. I'm not here to tell stories, I'm not here to tell a fairy tale, like - Q. Anyway back to the Commodore did you get taken by the man? A. Yes. Q. Your evidence is this, isn't it, that you and Azam got back into the Commodore, correct? A. Yes. Q. Back in, in the sense that you say Azam had travelled from Cartwright with Dane McNeill's body in the Commodore to a number of locations and then the Commodore was parked? A. Yes. Q. Before the police incident? A. Yes. Q. Anyway the two of you got back into the Commodore and you drove? A. Yes. Q. Where to? A. Not sure to be honest, we just drove around for a while. Q. Right. Did you end up somewhere? A. Yeah we ended up at Picnic Point. … Q. You got out of the vehicle, you, Brendon Gallo? A. Yes. Q. Azam Charbaji refused to get out of the vehicle? A. He got out at first and then helped then got scared and sat in the car and cowered pretty much with his passenger door open looking at me watching me do it. Q. He refused to help you? A. Yes. Q. And he didn't help you? A. No. Q. What did you do? A. Then I set Dane alight. Q. You got back into the vehicle? A. Yes. Q. Drove off? A. Yes."
24. It is apparent from that cross-examination, that there was no dispute that Mr Gallo and Azam had driven to Picnic Point, where the body of Mr McNeill in the suitcase was set alight. Mr McNeill's burnt body was found in the suitcase at Picnic Point. It is apparent that the point of the examination was to implicate Mr Gallo in the actual disposal of the body, and not Azam. That involved an acceptance that Azam drove to Picnic Point in the Commodore. But in any event, that latter point was also independently corroborated by tower locations in Azam's mobile phone records: item (xviii) in the Crown summary of evidence. The cross-examination then continued about the disposal of the knives, which was also corroborated: item (xx) in the Crown summary of evidence.
25. Once the matters that the Crown Prosecutor wrongly referred to are put to one side, the brief summary set out above demonstrates that a significant body of evidence supported Mr Gallo's evidence, and importantly, supported his evidence on matters that were material to the essential matter in issue, namely, whether the appellants were guilty of the offence charged. It is in that context that his Honour's corrective direction to the jury falls to be considered.
26. The corrective direction given by the trial judge was clear. His Honour made it clear to the jury that the Crown Prosecutor was wrong to have referred to the material in Exhibits Y and Z. He clearly directed them that they could not use Exhibits Y and Z against the appellants, save for the small portion of material relating to Haysem. He reminded the jury that Mr Gallo's evidence was already subject to a warning and he would repeat that warning in his final summing up.
27. Further, in the context of the trial overall, his Honour's directions reinforced the directions given to the jury more than once, that there was evidence in the trial that was admitted against one or other of the accused only and could not be used against any other accused.
28. It could not be said, in our opinion, that the statements made to the jury, in light of the corrective direction given to the jury by the trial judge, had so permeated the trial that the appellants were denied their right to a fair trial. This was a trial where certain evidence and, in particular, the out of court statements captured in the recordings which became Exhibits Y and Z, could not be used against the appellants, other than for the small segment in which Haysem participated.
29. The trial judge was acutely alert to this and reminded the jury that certain evidence could only be used against Ms Jamieson. His Honour directed the jury, at summing up [293], in the passage to which we have already referred, "[i]f you did that you could only do it, as artificial as it may seem, in relation to Ms Jamieson". Other passages of his Honour's summing up, portions of which are set out above, reinforce that he was very clear in directing the jury as to what evidence could be used against whom and how the evidence could be used, for example, by way of corroboration.
30. We are also of the opinion that the directions to which we have referred above, at [36]-[44], were clear and very practical directions to the jury as to how to approach their fact finding task. The jury could not have had any confusion as to how they were to deal with the evidence and the cases against the individual accused.
31. We do not consider, in the context of the trial as a whole, that the Crown Prosecutor's impermissible references to evidence that was only admitted against Ms Jamieson permeated the entire trial such as to require that the jury be discharged.
32. Where there has been a miscarriage of justice, the appellate Court is required, in determining whether to dismiss the appeal on the basis that there was no substantial miscarriage of justice, to itself be satisfied that the guilt of the accused has been proved to the criminal standard. When regard is had to Mr Gallo's evidence and the fact that in respect of every aspect materially relevant to the guilt of the appellants, other than the identity of the person who drove him and Azam back to the Commodore, there was independent corroborative evidence, we are satisfied that guilt was proved to the criminal standard. Accordingly, we are of the opinion that there was no substantial miscarriage of justice.
33. Accordingly, leave to appeal should be granted but the appeals against conviction dismissed.

Appeal against sentence

1. Following the convictions for the murder of Dane McNeill, Haysem was sentenced to imprisonment for 36 years with a non-parole period of 27 years, whereas Azam was sentenced to imprisonment for 32 years with a non-parole period of 24 years.
2. Haysam appeals his sentence on the following grounds: "Ground 2: He has been left with a justifiable sense of grievance where his sentence is greater than that of his co-offender Azam Charbaji. Ground 3: The sentence was manifestly excessive for a co-offender who acted with an intention to cause grievous bodily harm and who did not inflict the injuries that caused death, nor was present at the time they were inflicted."
3. Azam has not appealed against his sentence.
4. The factual background of the murder is detailed at [10]-[21] above. This background is derived from the trial judge's sentencing remarks at [11]-[70].
5. In determining the facts relevant to Haysem, the trial judge was mindful that his view of the facts must be consistent with the verdict of the jury and that findings of fact made against Haysem must be arrived at beyond reasonable doubt: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67.

Some findings by the trial judge

1. For the purpose of dealing with the sentence appeal it is necessary to recount some of the specific factual findings made by the trial judge as to Haysem's involvement in the murder.
2. The trial judge found that it was Haysem who had organised with Mr Gallo to meet with the deceased at the pub near the Heckenberg apartment and that they were going to pick him up because "he needs help with money".
3. His Honour said that at the apartment, both Haysem and Azam commenced to "bash" the deceased. Mr Gallo saw them punch him repeatedly in the face.
4. His Honour found that Haysem was wrestling with the deceased when Azam got a steak knife from the kitchen drawer and stabbed the deceased in the lower back. Haysem tried to stop the bleeding by taping Chux cloth onto the deceased's wound. Whilst he was doing so, the deceased was screaming.
5. The deceased, his Honour said, was then force-fed Xanax, tied up with tape and put in the laundry. Mr Gallo was unable to recall who fed Xanax to the deceased but Azam and Haysem were right next to him. His Honour found, at [32], that it was Haysem who placed the deceased in the laundry.
6. On the next day, the deceased was taken to the house at Cartwright where after all four men had smoked some ice, Haysem said to the deceased "we'll put you in the shower and you can have a shower and then you can go". The trial judge said that Haysem and Azam took the deceased to the bathroom and brought in a chair on which he could sit.
7. The trial judge found that about 30 seconds after they had entered the bathroom, there was a scream from the deceased. Haysem asked Mr Gallo for some Chux and a plastic bag which Mr Gallo gave him. His Honour said that Haysem and Azam were in the bathroom with the deceased for about five minutes before Haysem came out to check if Mr Gallo was still there. After another five minutes, they came out of the bathroom. During this time, the deceased was screaming a lot and screaming out "help".
8. His Honour said that Haysem came out of the bathroom and indicated to Mr Gallo that they would go back to the Heckenberg apartment. Once there, Haysem told Mr Gallo to go inside and grab the Xanax. Haysem told Mr Gallo that they needed more Xanax, because the deceased was screaming and wouldn't stop. After Mr Gallo obtained a bottle of Xanax, Haysem and Mr Gallo returned to the Cartwright house.
9. His Honour said that Haysem told Mr Gallo to run inside the house and give the Xanax to Azam. Azam approached the car and spoke with Haysem, but Mr Gallo could not hear what was said. When Azam returned to the house, he was in possession of a ratchet and as Mr Gallo walked back to the car, he heard bangs and screams which he recognised as the voice of the deceased. Mr Gallo drove off with Haysem.
10. The trial judge found that it was Haysem's idea to do the petrol run on the next day. It was also Haysem's direction to buy the suitcase of a size that would be around his size as if he "was to crouch down".
11. His Honour found that when Mr Gallo took the suitcase into the house at Cartwright, the deceased had already died. The suitcase that Azam was then using was not big enough to fit the deceased's body. Azam asked Mr Gallo to help him move the deceased's body from the first suitcase to the suitcase purchased by Mr Gallo, which he did.
12. At the time Azam and Mr Gallo placed the suitcase in the boot of the car, Haysem was sitting in the vehicle. When Mr Gallo filled up the jerry can, he paid for the fuel with cash provided by Haysem. For present purposes, it is unnecessary to further refer to other specific factual findings made by the trial judge.

Some further findings by the trial judge

1. The trial judge said, at [63], that he believed Mr Gallo: "… on the essential matters relating to the infliction of the injuries (the knife wound and it seems the beating with the ratchet and the administration of an overdose of Xanax, each of which was a substantial cause of the death of the deceased)".
2. His Honour found that the deceased was beaten by Azam and Haysem for a period from Friday evening until sometime on Sunday, by which time he had died. During that time, the deceased was stabbed, beaten and administered a lethal dose of Xanax.
3. After beating, stabbing and force-feeding the deceased drugs, Azam and Haysem decided to place his body in a suitcase and burn it. They also decided to bleach all areas with which the deceased came in contact. These latter steps were taken to avoid detection.
4. After recounting that the Charbaji brothers detained, beat, tortured and killed the deceased, his Honour noted the Crown's submission that this was not the worst-case category of murder. His Honour observed that there were not multiple victims and said, at [77]: "… Further, at least at the outset of the criminal conduct, it seems that the Crown is unable to prove an intention to kill, as distinct from an intention to cause grievous bodily harm."
5. His Honour went on to say, at [78]-[79]: "By the time the suitcase was purchased by Mr Gallo, a time before the deceased had died, it was clear that the Charbaji brothers required the purchase in order to dispose of the body by dumping it somewhere. If there were an intention to kill at a time prior to the administering of the second dose of Xanax, it is difficult to describe the conduct as not in the worst category. The Crown's concession seems to be based upon the proposition that an intention to kill was not proved to be the original intent. Nor was the killing planned, in the sense that, at the time that their conduct commenced, there may well have been 'merely' an intention to cause grievous bodily harm. It would be most inappropriate for the Court to come to a conclusion that this conduct was in the worst category, in circumstances where the parties have conducted the case on the basis that the Crown was alleging otherwise. Nevertheless, the Court considers, measured by objective standards, that the offending conduct was well above mid-range in seriousness and approaching a worst case scenario. In the case of the two charges of murder, the only appropriate sentence is a full-time custodial sentence."
6. His Honour found that the offending conduct was well above mid-range in seriousness and approaching a worst case scenario.
7. After discussing the subjective cases of the brothers, his Honour found that Azam was the person who inflicted the knife wound and was the offender who, over and above his brother, inflicted the beating (either by hand or by use of the ratchet) that caused further unnecessary pain to the deceased. His Honour said, at [130]: "… [Azam's] involvement in the 'torture' seems greater than that of Haysem Charbaji".
8. His Honour went on to say, at [131]: "On the other hand, Haysem Charbaji seems to be the instigator of the joint criminal enterprise. The debt was 'owed' to Haysem Charbaji and it was he who lured the deceased to the pub and brought him back to the Heckenberg apartment. As a consequence, it seems that their culpability (leaving aside the subjective aspects of the circumstances of Azam Charbaji) are similar, albeit that different conduct was occasioned by each of them. Azam Charbaji was the more violent, but both occasioned harm and both administered drugs. As a matter of law, given the joint criminal enterprise, each is responsible for the other's conduct."
9. In considering Haysem's subjective case, his Honour observed there were some similarities in the subjective circumstances of the brothers. Their backgrounds were similar and Haysem also had a significant criminal history. His Honour referred, at [103], to the acts of violence for which Haysem had previously been convicted: "… including robbery, assault, stealing from the person, multiple offences of assault occasioning actual bodily harm in company, stalk and intimidate, assaults on police officers, contravention of an AVO (domestic) and offences involving dishonesty such as dishonestly obtaining property by deception and giving a false name."
10. The trial judge concluded that neither Haysem nor Azam were entitled to the leniency associated with a first offender. Nor were they entitled to any consideration on account of this being their first time in prison.
11. His Honour gave detailed consideration, at [105]-[108], to the report of a clinical psychologist Mr Sam Borenstein that had been tendered for Haysem.
12. After recounting that Haysem had a strong work ethic and that he had stated to the psychologist his motivation to change and abstain from drugs, his Honour noted that Haysem had longstanding behavioural problems and, in particular, suffered from impulsivity, resulting in him acting without considering the consequences of his actions.
13. The trial judge found, at [109], that: "Like his brother, Haysem Charbaji has not expressed true remorse and I do not take it into account. He also has poor prospects for rehabilitation."
14. His Honour declined to find special circumstances.

Ground 3: The sentence was manifestly excessive for a co-offender who acted with an intention to cause grievous bodily harm and who did not inflict the injuries that caused death, nor was present at the time they were inflicted

1. Notwithstanding the order in which the grounds of appeal have been set out, it is appropriate to deal with Haysem's complaint of manifest excess before moving on to ground 2, which raises the issue of parity. It is well accepted that an argument relating to parity should be dealt with last because a complaint of disparity accepts that the sentence is otherwise appropriate: Jimmy v R [2010] NSWCCA 60 at [251]; Corda v R [2014] NSWCCA 281 at [59]; Estephan v R [2015] NSWCCA 100 at [83].

Submissions

1. Haysem submitted that the sentence imposed was manifestly excessive for a conviction for murder where: • His intention was not to kill but rather an intention to cause grievous bodily harm; • His role in inflicting grievous bodily harm was limited; • He did not inflict the injuries said to have caused death; • He was not present when those injuries were inflicted; • He was not responsible for the torturous acts of stabbing to the head and neck and beating with a ratchet, nor present when they occurred; and • He was not present when death occurred.
2. Haysem submitted that his involvement was consistent with a person acting with an intention to cause the deceased grievous bodily harm to obtain money for a debt, but never intended to kill him.
3. Whilst accepting that the trial judge contemplated the possibility of such an intention at one stage prior to the second administration of Xanax, Haysem submitted that his Honour ultimately did not make a positive finding of an intention to kill.
4. Haysem referred in written submissions to what were said to be comparative cases of murder above the mid-range of objective seriousness but involved an intention to kill and pointed out that many of the sentences imposed were of a similar length to that imposed in the present case. Other cases referred to concerned participants in joint criminal enterprise murders who were not present at the time of death and did not inflict the fatal injury.
5. The Crown contended that this Court would conclude that the trial judge did find that there was an intention to kill. The Crown submitted that the effect of his Honour's finding was that the intention to kill had developed, however, it "was not proved to be the original intent" and the conduct was not planned, in the sense that at the time the brothers' "conduct commenced" there may have been "merely" an intention to cause grievous bodily harm. The Crown argued that this submission was supported by the written submissions and oral argument before the trial judge.
6. The Crown submitted that his Honour's ultimate conclusion that the offending was well above mid-range and approaching a worst case scenario was also consistent with his Honour having found that whilst at the outset, the Crown was not able to establish an intention to kill, the Crown had been able to prove that one had crystallised.
7. The Crown pointed out that Haysem had not specifically challenged his Honour's overall finding of objective seriousness. Further, any favourable findings in respect of Haysem's subjective case were relatively limited.
8. As to Haysem's submission that Azam had inflicted more serious injuries upon the deceased and that he was not present at the death, the Crown submitted that his Honour had specifically concluded Haysem's culpability (leaving aside Azam's subjective circumstances) was similar, albeit that different conduct was occasioned by each of them.
9. In response to Haysem's reliance upon comparative cases, the Crown referred to the prolonged nature of the offending conduct; the detention and torture of the deceased that were significant features of the offending that needed to be reflected in the sentence imposed. Haysem also fell to be sentenced after trial. These features were said by the Crown not to be present in many of the cited cases. The Crown reminded this Court of the limitations upon relying on comparative cases.

Consideration

1. In Book v R [2018] NSWCCA 58, Johnson J summarised the relevant legal principles where a complaint of manifest excess is made. His Honour said: "[54] To succeed on this ground, the Applicant must establish that the sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 371 [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538-539 [59]. [55] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing Judges are required to reach a sentence for an offence by balancing many different and conflicting features: Markarian v The Queen at 371 [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at 72 [34]. [56] Sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles and this Court will not interfere in a sentence merely because it may have exercised its sentencing discretion differently: Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221 at 185-186 [443]. As Hayne J observed in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at 159 [128] 'there will be a range of possible sentences that could be imposed without error'."
2. Haysem's contention of manifest excess includes the submission that he played a lesser role in the infliction of grievous bodily harm and that it was Azam who inflicted the injuries that caused the death.
3. As Azam's conduct was done in carrying out the joint criminal enterprise to which Haysem was a party, it may be accepted as a matter of principle, that Haysem was to be sentenced for the full range of the criminal acts done by his brother in carrying out the enterprise: R v Potter & Ors [2003] NSWCCA 273 at [90]; R v Wright [2009] NSWCCA 3 at [28].
4. The appropriateness of assessing with any degree of precision the role that each party played in the consummation of the joint criminal enterprise was raised in R v Hoshke [2001] NSWCCA 317 at [18]. However, this does not automatically mean that every participant in a joint criminal enterprise shares the same degree of culpability.
5. In R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49, Spigelman CJ observed at [161]: "It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with 'precision', because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise. Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced. (See, eg, Lowe v The Queen (1984) 154 CLR 606 at 609; R v Howard (1992) 29 NSWLR 242 at 254-259; R v Spathis [2001] NSWCCA 476 at [193]-[197]. See generally A Dyer and H Donnelly, 'Sentencing in Complicity Cases - Part 1: Joint Criminal Enterprise', Sentencing Trends and Issues, No 38, Judicial Commission of New South Wales, June 2009.) I do not understand the brief observations in Hoschke to qualify this well established principle."
6. The trial judge gave careful consideration to the part that each of the brothers played in the joint criminal enterprise. His Honour said that Azam's involvement in the torture seemed greater than Haysem's, that it was Azam who inflicted the knife wound, and over and above his brother, inflicted the beating (either by hand or by use of the ratchet) that caused further unnecessary pain to the deceased. However, his Honour said that Haysem seemed to be the instigator of the joint criminal enterprise and referred to the debt that was owed to him and that it was Haysem who lured the deceased to the pub and brought him back to the Heckenberg apartment.
7. His Honour found that their culpability (leaving aside Azam's subjective case) was similar, albeit that different conduct was occasioned by each of them.
8. On any view, Haysem's participation was at the centre of the crime. After he brought the deceased to the Heckenberg apartment, his conduct included the bashing with his brother of the deceased, the force feeding with Xanax and placing him in the laundry. On the next day, he and his brother tortured the deceased in the bathroom at the Cartwright house. It was Haysem who directed Mr Gallo to obtain Xanax. It was Haysem who accompanied him to the Heckenberg apartment and upon return to the Cartwright house, directed Mr Gallo to give the Xanax to Azam. It was Haysem's idea to do the petrol run and it was his direction to Mr Gallo to buy the suitcase. Not only was Haysem the instigator of the crime but he was also a willing participant in much of the violence and the co-ordinator of much of what occurred. His culpability was equally as great as that of his brother.
9. It was open to his Honour to conclude that their culpability was similar.
10. Another matter in contention is whether his Honour found that the brothers had an intention to kill. Haysem submitted that the trial judge's finding on intent was confined to an intention to inflict grievous bodily harm, whereas the Crown argued that the effect of his Honour's finding was that by the time that the large suitcase was purchased, the intention of the brothers had crystallised into an intention to kill.
11. This was the Crown Prosecutor's position both in written submissions and oral argument before the judge. In written submissions on sentence, the Crown Prosecutor advanced the following argument: "(2) Murder was put to the jury as having occurred in circumstances of a joint criminal enterprise arising as an understanding or arrangement that together the offenders would, over a period of days, inflict injuries upon the deceased, whom they detained and bound and force him to consume 'Xanax', with the intent to inflict upon him at least grievous bodily harm. (3) The Crown would submit that, by at the latest 9 - 10 am on Saturday 19 July 2014, when the witness Brendan Gallo was encouraged to commit a 'fail to pay' for petrol in the deceased's car, later deliberately abandoned, and then told, by the offender Haysem Charbaji, to buy a large suitcase the intention of the offenders crystallised into an intention to kill the deceased."
12. The state of mind in which a murder is committed is directly relevant to a sentencing judge's assessment of the objective seriousness of the crime: Apps v R [2006] NSWCCA 290 per Hunt JA at [5]; Simpson J at [49]. The intent to kill is a consideration generally tending to greater objective seriousness than an intention to inflict grievous bodily harm but the question of intent is not the only consideration relevant to the assessment of the seriousness of murder: Apps at [49]; Versluys v R [2008] NSWCCA 76 at [32].
13. However, the absence of an intention to kill does not necessarily mean that the murder is less serious. In R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252, the Court said, at [16]: "Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case. In R v Nelson (unreported, NSWCCA 25 June 1996) McInerney J said (Gleeson CJ and Studdert J agreeing) that 'there are circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill'; see also R v Wilson [2005] NSWCCA [112]."
14. In the passage of his Honour's sentencing remarks that we have quoted at [148]-[149] above, his Honour addressed the question of the brothers' intention. His Honour reached the conclusion that their offending was well above mid-range in seriousness and approaching a worst case scenario of the crime of murder.
15. It is evident from his Honour's reasons and assessment of the objective gravity of the crime that he accepted the Crown's concession that the intention to kill was not the original intent but found that the suitcase was purchased before the deceased's death and by that time the brothers' intention was to kill the deceased.
16. The judge's assessment of the murder as being well above the mid-range was not specifically challenged on appeal. This was a brutal, cruel, and callous crime; the deceased's suffering being prolonged by his detention and torture at the Cartwright house and Heckenberg apartment. No error in his Honour's assessment of the objective gravity of the crime has been demonstrated.
17. Haysem drew this Court's attention to a table of cases. As was explained by the majority of the High Court in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41], a history of cases does not establish "the outer bounds of the permissible discretion" but stands "as a yardstick against which to examine a proposed sentence". Consistency in sentencing is not synonymous with numerical equivalence and what is sought is consistency in the application of the relevant legal principles and the treatment of like cases alike and different cases differently: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49].
18. In Haysem's table, the sentences imposed, for instance in R v McGuren [2010] NSWSC 744; R v Willard [2005] NSWSC 402 and O'Connell v R [2006] NSWCCA 82, tend to support the conclusion that there was no misapplication of principle by the trial judge and Haysem's sentence was not outside the bounds of a possible range of sentences. As is often the case, there are objective and subjective differences between the cases referred to by Haysem and the circumstances of his case. We are not persuaded that Haysem's table of cases demonstrate that the sentence is manifestly excessive.
19. Ground 3 has not been established.

Ground 2: Haysem has been left with a justifiable sense of grievance where his sentence is greater than that of his co-offender Azam

Submissions

1. Haysem submitted that his participation in the joint criminal enterprise with Azam and Mr Gallo to detain and cause grievous bodily harm to the deceased was arguably different to that of his brother. He contended that his involvement in the initial attack upon the deceased was something less than that of his brother and that this should have been reflected in a reasonable difference in the starting points of both sentences.
2. He pointed out that the knife wound, the beating with the ratchet and the administration of an overdose of Xanax, each of which was a substantial cause of the deceased's death, were inflicted or administered by Azam.
3. Whilst Haysem accepted he was jointly responsible for the infliction of grievous bodily harm, it was submitted that there was a hiatus of a day between the initial acts of Haysem and then the return to the house by Mr Gallo and Haysem, when Mr Gallo observed the victim to be dead. Haysem argued that it could not be said that he had inflicted any one particular injury which caused the death and his involvement should be distinguished from that of Azam who remained with the deceased for another day and was the only person present when he died.
4. As to the respective subjective circumstances, Haysem referred to the reduction in sentence for Azam's mental illness but noted that the reduction was said to be moderated where the court sought the need to protect society from Azam. Haysem argued that whilst the judge seemed to equate his subjective circumstances to that of his brother, he was not afforded any leniency in circumstances where he was also reported by expert evidence to be suffering from impulsivity, abusing prohibited substances at the time and had an upbringing conducive to the antisocial behaviour demonstrated by Haysem.
5. Haysem contended that the greater involvement of Azam being responsible for the significant acts that caused the death and prolonged torture of the deceased raised the objective criminality of his involvement well above that of Haysem, as a starting point. The resulting sentence where Haysem will serve four years more than his brother created, it was argued, a justifiable sense of grievance such that this Court would intervene.
6. The Crown submitted that the judge was well aware of the different conduct of each of the brothers and concluded their culpability was similar. The Crown said that the difference in the sentences could be explained by Azam's mental illness issues.
7. The Crown provided the following table which included the relevant findings by the judge as to the subjective features of Haysem and Azam. PARITY CONSIDERATION HAYSEM AZAM Prior record Yes, a significant criminal history. A number of offences are vehicle related (drive while disqualified, etc) but also acts of violence. [103] Yes, a significant criminal history. A number of offences are vehicle related (drive while disqualified, etc) but also acts of violence. [103] Not entitled to leniency associated with a first offender. [104] Not entitled to leniency associated with a first offender. [104] Remorse / contrition Has not expressed true remorse. [109] No direct evidence of remorse. [101]-[102] Prospects of rehabilitation/ re-offending risk Poor prospects of rehabilitation. [109] Poor prospects of rehabilitation. [102] Moral culpability Culpability is the same as his brother's (leaving aside his brother's subjective circumstances). As a consequence of psychiatric disorders, is not an appropriate vehicle for general deterrence. Has less moral culpability than a person engaging in that conduct without such disorders. [98] The same psychiatric disorders point to real need for a sentence that takes account of protection of the community. [98] & [129] Special circumstances No. [132] No. [132] Family/personal background Family background same as Azam. Was 10 years old when parents separated. Mother re-married when he was 16 and he has positive relationship with step­father. [105] Mother was in custody for over 5 years, released in about 2014. Father died in 2013. Raised by older sister after mother left the family in 2003 when he was 13 years old. [86] Worked as a welder and bricklayer. [86] History of poor attention in class and restlessness, would get impatient and irritated or angry if he had to wait or if things done not as he wanted. Reported being bullied at school and picked on by teachers, started fighting back in Year 9. Expelled in Year 11. [84]-[85] Mental No history of physical or sexual abuse or domestic violence. Witnessed his parents taking drugs and understood his father was a drug dealer. Expelled from school at 15. [105] Psychiatrist reported paranoid thinking which Azam said commenced in childhood. [87] illness/psychologist or Psychologist described him as distracted, agitated and indifferent during assessment. A poor historian and very guarded in his responses. Cognitively intact. Both cognitive and emotional intelligences estimated at no better than low-average. [106] Psychiatrist opinion is that he meets the criteria for diagnosis of schizophrenia, Substance Abuse Disorder (in remission), persistent neurocognitive disorder (acquired brain injury) and anti-social personality disorder. Azam has limited insight into schizophrenia and has significant functional impairment as a consequence of the combined disorders. Likely to remain chronically impaired. [90] psychiatrist report Longstanding behavioural problems and impulsivity. [108] No evidence that a custodial sentence will weigh more heavily on him. Psychiatric issues have been stabilised. [95] Currently medicated. Drug addiction Substance abuse disorder with associated criminogenic and antisocial behaviours. Abused ice, heroin, marijuana and Xanax and/or Valium. Would be awake for days due to ice. Dealt drugs to pay for his own habit. [106]-[107] Did not consume alcohol. Cannabis from age 16 to early 20s, but ceased in 2014. Abused Oxycontin, Xanax (25-50 tablets per day prior to arrest). Smoked ice from 2014 and used heroin 2 years prior to arrest. MDMA occasionally. [88] Other subjective features Psychologist reported strong work ethic and motivation to change direction for the sake of his children. [108] Single. Religious, devout, attended mosque daily. [86]

Consideration

1. Where there is a marked disparity between the sentences imposed on co-offenders giving rise to a justifiable sense of grievance, this Court will intervene: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the appellant's grievance as justified: R v Ilbay [2000] NSWCCA 251 at [6]; R v Kollas and Mitchell [2002] NSWCCA 491 at [50]. The plurality (French CJ, Crennan, and Kiefel JJ) in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 said, at [31]: "…The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (Footnotes omitted.)
2. When considering the submissions raised on alleged disparity, it must be recognised that the trial judge had the advantage of presiding at the trial and sentencing Haysem and Azam. His Honour was conscious of the need for parity and considered in some detail the part that each of the brothers played in the murder and their subjective cases.
3. Haysem's complaint of marked disparity arising from a difference in the part that he played in the murder has no merit. His culpability was equally as great as that of his brother: see [176] above.
4. As the table at [194] above helpfully demonstrates, there is little difference in the brothers' subjective cases, save for his Honour's finding that Azam was suffering from a significant cognitive disorder.
5. A report of a Forensic Psychiatrist, Dr Richard Furst had been tendered in Azam's case. His Honour observed, at [90]: "In the opinion of the psychiatrist, Azam Charbaji meets the criteria for diagnosis of schizophrenia; substance use disorder (in remission); persistent neurocognitive disorder (acquired brain injury); and anti-social personality traits. Azam Charbaji has only limited insight into the schizophrenia and has significant functional impairment as a consequence of the foregoing, combined with the acquired brain injury, substance use disorder and his underlying emotional/personality disorder, being the anti-social traits earlier mentioned. He is, according to the psychiatrist, likely to remain chronically impaired in this respect."
6. However, his Honour said that the psychiatric disorders outlined in Dr Furst's report required some qualification largely as the diagnosis depended upon the accuracy of the history given by Azam to the psychiatrist. His Honour said, at [97], that he had "little confidence of that matter". His Honour went on to say: "[98] Secondly, even if the diagnoses are correct (and there has been no independent testing), they point markedly to an anti-social behavioural pattern and cognitive disorder, which, ordinarily, would require condign punishment in order to provide specific deterrence. A person with significant cognitive disorder may, often, need greater punishment in order for them to understand, without having to utilise rational choice, that conduct of that kind is unacceptable and prohibited. Nevertheless, I accept that, as a consequence of psychiatric disorders, Azam Charbaji is not an appropriate example for general deterrence and has less moral culpability than a person engaging in this conduct without such disorders. Further, the psychiatric illnesses or disorders suffered by Azam Charbaji point, markedly, to the need for a sentence to be imposed that takes account of the real need to protect society. [99] Having made those statements, it is clear that the offending was done in company, was extremely violent and involved a cruelty beyond that which was necessary to occasion the death of the deceased."
7. In Haysem's case, a report of a clinical psychologist Mr Sam Borenstein dated 30 November 2016 was tendered. Mr Borenstein's opinion was summarised by the trial judge as follows: "[107] The psychologist described Haysem Charbaji's circumstances in the following manner: 'Mr Charbaji's beginnings provided a very poor template and set the scene for a life defined by Substance Use Disorder and associated criminogenic and antisocial behaviours. Mr Charbaji says he dealt drugs in order to supply his daily drug habit at a cost of approximately $800 per day. Mr Charbaji abused 'ice', heroin, marijuana and also used Xanax and/or Valium 'to come down'. Mr Charbaji would be awake for days on end due to 'ice'.' [108] Haysem Charbaji has a strong work ethic and stated to the psychologist a motivation to change direction in his life for the welfare of his children and to abstain from drugs. He has had longstanding behavioural problems and, in particular, suffered from impulsivity, resulting in him acting without considering the consequence of actions."
8. It is clear that in Azam's case, his Honour found in accordance with well-established sentencing principles where an offender is suffering from a mental condition that Azam's moral culpability for the murder was reduced as a consequence of his psychiatric disorders and he was an inappropriate vehicle for general deterrence: see DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. On the other hand, his Honour concluded that weight was to be given to the need to protect the public. No such findings were made in Haysem's case, nor could they have been, as Haysem was not suffering from a mental illness.
9. Notwithstanding these material differences, we do not consider that they justify disparity in the sentences of 4 years in the head sentence and 3 years in the non-parole period. The reduction in Azam's sentence for his lesser moral culpability and the elimination of the need for general deterrence was to be balanced against the increased need for the protection of the public.
10. In our view, such a marked disparity gives rise to a justifiable sense of grievance and should be moderated to some degree.
11. Ground 2 of the appeal is allowed.

Re-sentence

1. As error has been established, the Court's function is to exercise the sentencing discretion afresh. Haysem does not have to establish that the sentence imposed by his Honour was manifestly excessive for the Court to exercise its discretion in his favour under the Criminal Appeal Act, s 6(3).
2. The maximum penalty is life imprisonment and a standard non-parole period of 20 years applies. These two legislative guideposts are to be borne in mind when the appropriate sentence is considered, having regard to the objective circumstances of the offence and Haysem's subjective case.
3. An affidavit of Miriam Rottenberg, a solicitor employed in the Office of the Director of Public Prosecutions was admitted on re-sentence. It annexed a copy of Haysem's custodial history and misconduct and discipline reports. The purpose of the tender by the Crown was to support the argument that this Court would not differ from the judge's conclusions that Haysem had poor prospects of rehabilitation.
4. We find that the murder was well above mid-range in seriousness and approaching a worst case scenario. Haysem is equally culpable with his brother for the crime.
5. Save for the issue of parity, the judge's findings as to Haysem's subjective case were not challenged on appeal. In the exercise of the sentencing discretion, we find that Haysem's unattractive prior criminal history does not entitle him to considerations of leniency. Furthermore, he is not remorseful and has not shown contrition for the offence. He has poor prospects of rehabilitation.
6. The sole issue that justifies re-sentencing Haysem is the marked disparity in the sentences.
7. Having regard to the lesser moral culpability, the inappropriateness of general deterrence which is to be balanced by the increased need to protect the public in Azam's case, we conclude that the difference in sentence should be reduced to two years. Accordingly, Haysem will be sentenced to a term of 34 years imprisonment.
8. We do not find special circumstances. The period on parole without an adjustment in the statutory ratio is sufficient to enable him to adjust to a normal life upon release. Haysem will be eligible for release on parole on 13 August 2041.

Orders

1. The Court makes the following orders: In matter 2015/5665 (Azam Charbaji): (1) Leave to appeal against conviction granted. (2) Appeal against conviction dismissed. In matter 2015/26215 (Haysem Charbaji): 1. Leave to appeal against conviction and sentence granted. 2. Appeal against conviction dismissed. 3. Appeal against sentence allowed. 4. Sentence imposed at first instance quashed. 5. In lieu thereof, Haysem Charbaji be sentenced to 34 years imprisonment consisting of a non-parole period of 25 years 6 months, commencing on 14 February 2016 and concluding on 13 August 2041, with a balance term of 8 years 6 months which will expire on 13 February 2050.

Amendments 20 February 2019 - File number corrected 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: 20 February 2019