El Hassan v Regina

El Hassan v Regina - [2007] NSWCCA 148 - NSWCCA 2006 case summary — Zoe

[18]

6 June 2007 EL HASSAN v REGINA Judgment 1 HUNT AJA: The appellant (Borhan El Hassan) was found guilty by a District Court jury of a charge of having conspired with his brother (Marwan El Hassan) over a period of twelve months during 2001-2002 to dispose of stolen property, at that time knowing that the property had been stolen: Crimes Act 1900, s 188(1)(a). The trial judge, Andrew ADCJ, imposed a sentence of imprisonment for six years with a non-parole period of four years, pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 as that section stood at the time of the offence. 2 The appellant has appealed against his conviction, and he has sought leave to appeal against his sentence. 3 The property stolen consisted of motor vehicles and motor vehicle parts. Three shipping containers were obtained, packed with goods of which a substantial quantity had been stolen - including motor vehicles and parts, motor cycles, a boat and a Bobcat (a mobile loader) - and shipped to Lebanon. The Crown relied on the part played by the appellant in organising, disassembling, packing and the shipping of the stolen property, including organising and paying for shipping containers when his brother was overseas. 4 The defence case was that the appellant had his own busy and time-consuming business of buying motor vehicles, repairing them and selling them. He was merely helping his brother by buying things on his behalf and loading containers for shipping those things overseas. He did not know, and he had no cause to know, that some of the items he dealt with had been stolen. 5 Much of the Crown case was directed to establishing that the appellant's brother Marwan was involved in receiving stolen motor vehicles and disposing of them, knowing them to be stolen. It was ultimately conceded by the defence that that fact had been established, but it was denied that the appellant had the guilty knowledge required for the conspiracy charge against him to succeed. The appellant's argument was that he made no profit from this enterprise for himself, the whole criminal enterprise was the work of his brother Marwan, and he was an innocent party to the arrangements he made on his brother's behalf. 6 According to the evidence in the Crown case, the appellant participated with his brother in the loading of a shipping container destined for Lebanon with motor vehicles and vehicle parts, including stolen motor vehicles. The appellant was the director of one company, MC Racing Group Pty Ltd, and a director (together with his three brothers including Marwan) in another company, Mr CRX, which were both involved in his brother Marwan's illegal activities. He was an owner (as a tenant in common) with Marwan and another brother of the property in which Marwan carried out those illegal activities. The appellant contested the effect of this evidence. 7 There was a multitude of grounds of appeal filed by the appellant. Senior counsel now appearing on behalf of the appellant very wisely relied on only some of those grounds. This judgment refers only to those grounds on which reliance is now placed. 8 The first ground of appeal is concerned with a programme telecast on the evening of the first day of the eleven day trial. This programme dealt with the "re-birthing" of stolen motor vehicles, a method whereby such motor vehicles are given a false identity by affixing to them compliance plates obtained from other vehicles - often those written off by an insurer and disposed of as scrap - which include a vehicle identification number unique to the vehicle to which it had originally been fixed. For some unknown reason, the producer of the television programme had been supplied (by an unknown person) with film taken by the police of various aspects of their investigation in this case. It included a very short extract from that film showing a blurred, but nevertheless recognisable, view of the interior of the workshop in the premises associated with the appellant, and outside which his brother Marwan stored the stolen vehicles. The Crown case included photographs of the interior of this workshop, although these were not to be tendered until later in the trial, showing a red car which can also be seen in the telecast material. There was also a mention in the telecast of Bankstown, where the appellant's premises were located. 9 An application was made to the judge on behalf of the appellant the following morning for the discharge of the jury. The material actually telecast was not immediately available to be tendered, and the judge agreed to adjourn the hearing until it was obtained. Before he did so, the Crown prosecutor said that the easiest response would be to sacrifice the previous day's hearing and start with a fresh jury. He did not direct his remarks to the necessary delay of such a new trial in order to avoid empanelling a new jury which might include jurors who had also seen the programme the night before. 10 When the telecast material was obtained later in the day and played, counsel then appearing for the appellant very properly conceded that the identification of his client's premises was not as clear as he initially thought, but he submitted that the public discussion of the re-birthing of motor vehicles - whether or not the premises were identified with the appellant - was still prejudicial to his client, and he maintained his application for the jury's discharge. The Crown prosecutor submitted that a direction to the jury to disregard anything they may have seen and to focus on the evidence in the case would be sufficient in the circumstances. The judge agreed, and gave the jury the following direction: Thank you for your patience members of the jury. I wish to direct you as follows: There may have been some reports on the news last night about the re-birthing of cars and the law. I wish to direct you that that has no relevance whatsoever to this case. There is no reference to the accused and you should ignore any such record [sic] in relation to this trial. 11 It was submitted by the appellant in this Court that a direction should have been given to the jury along the lines of the direction given by the trial judge recorded in Murphy v The Queen (1988) 167 CLR 94 at 100, in which material had been published during the course of the trial prejudicial to the accused, and where the judge said, in his summing-up at the conclusion of the trial, that the jury's duty - [...] to act with complete impartiality, detachment and without letting matters of sympathy, prejudice, sentiment or emotion play any part, applies to matters extraneous to this court room and matters to which I have already referred to and from which I will now depart, those matters of publicity which you have read about, seen or heard purveyed per medium of the media and I feel quite confident that you need no further directions in that regard.

[19]

No such direction was sought in this trial. Nor would the elaboration of the duties of a jury as so often given in a summing-up have been appropriate in the circumstances of this case. 12 We were shown the telecast material of which complaint was made in the present case. The relevant portion is very short - very little longer than it would have taken the judge to give the direction I have quoted. In my opinion, the application for a discharge was correctly refused. The whole of the Crown case was that the appellant's brother Marwan was using the premises in question to dispose of the stolen motor vehicles, motor vehicle parts and the other things referred to by shipping them to Lebanon. These facts were accepted by the appellant at the trial, his defence being (as I have already said) that the appellant did not know that the goods were stolen. In the course of the evidence on that issue, relevant evidence was legitimately given that, for example, loose compliance plates were found in the appellant's premises that had no legitimate purpose and that could be used for the re-birthing of stolen motor vehicles. 13 Even if the jury were to recognise the premises as those being shown in the television programme, the programme did nothing more than show the place where the appellant's brother was using the premises to dispose of stolen motor vehicles, the very fact that the appellant conceded at the trial. The telecast did nothing to reinforce the Crown case that the appellant knew the illegal nature of what was happening any more than the evidence that was admissible at the trial. The complaint that the telecast made the contents of the appellant's premises "more graphic" does not take the matter any further. The detailed evidence given by the Crown's expert witnesses relevant to the Crown case may not have been pictorial in nature, but it was no less graphic a description of what was had been going on. 14 The fact that there was a television programme dealing generally with the re-birthing of stolen motor vehicles telecast on the first day of the trial was insufficient of itself, or in combination with the other matters to which reference has been made, to warrant the discharge of the jury in this case. It has long been accepted that jurors are able to exercise a critical judgment of what they see, read and hear in the media, and to put such material out of their minds. It must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the directions given to them by the trial judge. It is a frequently recognised phenomenon that any criminal trial, by its very nature, causes all involved in it to become progressively more inward looking, with the capacity to study the evidence given and the submissions made in the courtroom to the exclusion of other sources of information. The many authorities supporting those propositions - from the High Court, this Court and the Court of Appeal - are collected in Kanaan & Ors v Regina [2006] NSWCCA 109 at [24]-[30]. The judge in the present case gave the jury a firm direction to ignore the material which had been televised, adding that the appellant had not been referred to in that material. 15 The decision as to whether a jury should be discharged is a discretionary one. The trial judge is usually in a superior position to that of this Court in determining what should be done when material alleged to be prejudicial is brought to the knowledge of the jury. The trial judge is alive to the temper and the atmosphere of the trial, and this Court must make due allowance for that fact in determining - in accordance with House v The King (1936) 55 CLR 499 at 504-505 - whether there has been an error in the exercise of that discretion; see Kanaan & Ors v Regina at [50], where this Court followed Regina v Ngo [2003] NSWCCA 82 at [49] (reported on other matters at (2003) 57 NSWLR 55) in adopting what had been said by Brereton J in Regina v Ball (1960) 61 SR 37 at 41-42. 16 I see no error in the exercise of the trial judge's discretion in the present case. Accordingly, I would reject the first ground of appeal. 17 The second ground of appeal concerns the directions given by the judge on the issues of inferences and circumstantial evidence. He dealt with them one immediately after the other. He gave illustrations to explain those directions. Omitting the illustrations, the judge said: Members of the jury, I wish to direct you now in relation to the matter of inferences. You may in your role as judges of the facts draw inferences from the direct evidence. There is nothing extraordinary about that. We all do it consciously or otherwise in our everyday lives. Inferences are conclusions of fact, rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.

[37]

27 It has been my experience that a circumstantial case can in some cases produce almost conclusive evidence of the accused's guilt. Circumstantial evidence does not usually depend to any great extent on the evidence of witnesses who could be either mistaken or maliciously false in their testimony: Regina v Cable (1947) 47 SR 183 at 184. Those cases I have in mind have all been of the "strands in the cable" variety of circumstantial evidence case (see par [19] supra). It is a matter of common sense that the more strands in the cable, the stronger the cable is. The more circumstances pointing to the guilt of the accused, the less likely it is that there could be any reasonable explanation for those circumstances other than the guilt of the accused, and thus the stronger is the circumstantial case against him. As McHugh J pointed out in Shepherd v The Queen (at 582): There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances. As Lord Simon of Glaisdale pointed out in Regina v Kilbourne [1973] AC 729 at 758: Circumstantial evidence [...] works by cumulatively, in geometrical progression, eliminating other possibilities. 28 A circumstantial case may, of course, be quite strong even when it is based on only one circumstance. Robinson Crusoe lived as a castaway for a long period on a little island in the Caribbean Sea, in the secure belief that he was the only human being there, and that the cannibals and savages who lived on the islands nearby had never come to his island. Yet, when he walked out on the beach one day and saw a fresh print of a naked foot in the wet sand, he knew immediately that he was not alone on the island, even though he had seen no-one. It was obviously enough a very strong circumstantial case that another human being had been on the beach only a short time before him. 29 On the other hand, it may not always be appropriate to give the direction in issue here where it is necessary for the jury to reach a conclusion on one piece of evidence before considering another piece of evidence - that is, in a "links in the chain" variety of circumstantial evidence case.

[41]

33 In my respectful view, the phrase "hypothesis consistent with innocence" is expressed in decidedly non-jury friendly language: Regina v Walters (1992) 62 A Crim R 16 at 20. The submissions made on behalf of the appellant (both written and oral) have not persuaded me that it was either necessary or appropriate that the direction now sought should have been given in this case. The direction given by the judge in the last paragraph quoted in par [17] supra, which was repeated the next day, made exactly the same point and in language more readily understood by a jury: If there is any other rational inference or possible explanation open on the evidence which is inconsistent with the guilt of the accused whose case you are considering, then you must find that accused not guilty. (See also the passage quoted in par [22] supra .) In that situation, to give the direction now sought would have done nothing but confuse the jury. I would reject this complaint also. 34 In his oral submissions, counsel now appearing for the appellant submitted that these directions were nevertheless inadequate, in that the judge did not assist the jury as to what he meant by "direct" evidence. That submission is not correct. The judge made it very clear what he meant by direct evidence in the fourth paragraph quoted in par [17] supra, where he said: Circumstantial evidence is different to direct evidence such as where a witness says, I saw the accused commit the crime. For example, in relation to the first element [of the crime alleged], there is no direct evidence from a witness who states he heard the alleged agreement in this case being made. The judge gave similar directions as to what was meant by direct evidence in the second, third and fourth paragraphs quoted in par [18] supra , and in the first paragraph quoted in par [24] supra . 35 Counsel also complained that the judge did not relate the circumstantial evidence directions to "the case at hand". Counsel also complained that the judge spent far more time in describing the evidence supporting the Crown case than he had spent on the evidence supporting the defence case. Another complaint is that the judge gave what he himself described as a "comparatively short summary" of the defence case. 36 It is not a requirement of a summing up that the trial judge must give equal time to the case of each party. In the present case, there was a very much greater quantity of detailed evidence in the Crown case than in the defence case. This evidence was relevant to proof that the appellant knew that the goods were stolen. The amount of detail in the Crown case required more elaboration than the evidence which favoured the appellant, which was largely a case of a denial on his part of any knowledge that the goods were stolen.

[45]

40 Complaint is also made that the judge encapsulated part of the Crown case as being - (a) that the appellant was reluctant to talk about certain matters on the telephone, (b) that, when something sensitive was said on the telephone, the appellant would speak in Arabic rather than English, and (c) that the appellant had requested someone to use the "McPhee" telephone "and, as we know, it is not registered to the accused". That was indeed the Crown case. The jury could not have understood the judge as doing otherwise than what he said he was doing, which was to inform them of the Crown case. It is not suggested that the Crown had not sought to describe the appellant's behaviour in that way. 41 Next, complaint is made that, when repeating his directions concerning inferences and circumstantial evidence, the judge referred to the Crown case but not to the defence case. There was no complaint at the trial or application to the judge to remind the jury of the defence case. That may well have been because counsel then appearing for the appellant at the trial recognised that it was only the Crown case that relied on inferences and circumstantial evidence, and that the jury would have understood that that was the purpose of referring only to the Crown case. It would have been a simple thing for the judge to give another short summary of the defence case if counsel had thought otherwise. But no application was made. I would refuse leave pursuant to Rule 4 of the Criminal Appeal Rules to enable the appellant to rely on this point on appeal, on the basis that, even if error were demonstrated, no miscarriage of justice has been established by the appellant: Regina v Wilson (2005) 62 NSWLR 346 at [24]. 42 Complaint is finally made of the judge's statement: There are conversations which, again covert, for example, "don't use my name", and reversion to indirect and imprecise language. You can only conclude that things being discussed are not lawful. Further in that context the applicant discusses "I've got the thing", further evidence of illegality and again in that context there are discussions about a hot CRX and the vehicle being hidden until the next day".

[64]

62 It is therefore necessary for this Court to make its own findings in relation to all those matters on which the judge relied in sentencing the appellant. We are entitled to proceed on the assumption that the jury must necessarily have eliminated any reasonable possibility that the exculpatory evidence of the appellant was true in order to convict him. Considering the evidence in the Crown case, rejecting the appellant's sworn denial, and acknowledging that we have not had the benefit of having seen and heard the witnesses, I am myself nevertheless satisfied beyond reasonable doubt that the findings made by the judge were correct. The Crown case that the appellant was part of the conspiracy was, in my opinion, an overwhelming one as the Crown had submitted at the trial (see par [39] supra). Once that fact is accepted beyond reasonable doubt, the other facts found by the judge follow almost inescapably, but in any event beyond reasonable doubt. 63 The appellant complains that the judge did not find special circumstances in his favour. He relies primarily on his age (he was thirty years old when sentenced), the lack of any serious criminal record and the fact that it was his first custodial sentence. As Spigelman CJ said, in Regina v Kama (2000) 110 A Crim R 47 (at [15]): It is by no means clear that these matters are special circumstances warranting a relationship between the minimum term and the additional term other than the statutory relationship to any significant degree or at all. Although that statement was made in relation to s 5 of the Sentencing Act 1989, it is equally applicable to the succeeding statutory provisions in s 44 of the Crimes (Sentencing Procedure) Act. The appellant also relies on the matters enumerated by the judge and referred to in pars [52] - [53] supra as amounting to special circumstances. All were matters in mitigation of sentence, but they do not necessarily lead to a finding of special circumstances either by themselves or together with the matters on which primary reliance is placed. In particular, the diagnosed psychological problems (including depression and low self-esteem) were of minor significance and they do not, in the circumstances of this case, carry any particular weight at all in considering whether special circumstances had been established. In the event, however, an error made by the judge in fixing the non-parole period renders the issue of special circumstances academic in relation to the sentence he imposed. 64 The sentencing regime at the relevant time required the judge to fix first the term of the whole sentence, and then the non-parole period which, in the absence of special circumstances, was not to be less than three-quarters of that term. Having fixed a term of six years, the judge could not fix a non-parole period of less than four and a half years in the absence of special circumstances. The appellant has therefore already obtained the benefit of a non-parole period six months less than it should have been.

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