Solicitors:
Lawyerscorp - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2013/074483
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 20 November 2014
Before: Berman SC DCJ
File Number(s): 2013/074483
[2]
Judgment
HOEBEN CJ at CL:
Offence and sentence
In July and August 2014 the applicant was tried before Berman SC DCJ and a jury for attempting to wound his cousin, Sleiman Chidiac, with intent to cause grievous bodily harm (count 1) and for recklessly wounding Nowell Chidiac (Sleiman Chidiac's sister-in-law) (count 2) or alternatively assault occasioning actual bodily harm to Nowell Chidiac (count 3). The applicant was convicted of count 1, but acquitted of counts 2 and 3.
The applicant was sentenced to imprisonment with a non-parole period of 18 months, commencing 20 November 2014 and expiring 19 May 2016, with a balance of term of 18 months expiring 19 November 2017.
The applicant has appealed against his conviction on the following ground:
Ground 1 - His Honour erred in directing the jury that it could bear in mind the possible commission of other offences by the applicant when considering his character.
The applicant concedes that this asserted error was not raised at trial and accordingly he requires a grant of leave pursuant to r 4 of the Criminal Appeal Rules.
Case for the Crown and defence
Habib v R [2015] NSWCCA 261 | Case summary | Zoe
In 2006 a dispute arose between the applicant and his cousin Sleiman Chidiac over a large tiling job at Parramatta Westfield Shopping Centre. Related civil proceedings were resolved at Parramatta District Court in 2012 in Mr Chidiac's favour. The applicant continued to believe that Mr Chidiac owed him approximately $300,000 - $350,000.
The applicant and Sleiman Chidiac lived near to each other in Croydon. The applicant's home was connected to a mixed business store in Queen Street which he owned and operated. Sleiman Chidiac lived on Church Street which runs parallel to Queen Street. Sleiman Chidiac's brother, Yusef Chidiac, also lived nearby. Sleiman Chidiac often drove past the applicant's shop when visiting his brother.
Tension between the applicant and Sleiman Chidiac escalated after the completion of the civil proceedings. In the two months leading up to the incident the subject of the trial, Sleiman Chidiac gave evidence that the applicant would yell profanities and threats at him every time he passed by his shop, which was approximately every second day. The threats included death threats.
There was evidence from other persons which confirmed ill feeling between the two men.
It was the Crown case that between 7.30pm and 8pm on Saturday, 9 March 2013 Sleiman Chidiac drove past the applicant's shop in a black Range Rover on his way to his brother Yusef's house. His three young children were in the back of the car. As he approached, the applicant "jumped" up, gestured with his hands and yelled out threats. Sleiman Chidiac stopped his vehicle around the corner and exited with his children. He could still hear the applicant yelling. The applicant returned to his shop and emerged with a knife in his right hand which he held behind his back. He then walked towards Sleiman Chidiac.
Part of that version of events was confirmed by footage from various CCTV cameras. The footage was tendered at trial. It showed the applicant leaving his shop with a knife in his hand and walking in the direction of the black Range Rover.
The sound of yelling in the street caught the attention of Yusef Chidiac, who exited his home to investigate. He saw the knife in the applicant's hand and said "Watch out, he has a knife in his hand".
The applicant approached Sleiman Chidiac with his right hand behind his back. When he came within a metre of Sleiman Chidiac, he pulled the knife from behind his back, raised it with his right hand and brought the knife down in a stabbing motion. Sleiman Chidiac grabbed at the applicant's right wrist and the knife grazed his forearm. As Sleiman Chidiac tried to disarm him, the applicant continued to make threats.
Yusef Chidiac assisted his brother in grabbing the applicant's right arm and trying to disarm him. He gave evidence of the applicant resisting, refusing to let go of the knife and continuing to try to stab Sleiman Chidiac. Other family members arrived and succeeded in disarming the applicant. Included in that group was Nowell Chidiac who was Yusef Chidiac's wife. Triple 0 was called and in due course police arrived.
At some point during that confrontation, the applicant suffered an injury to his left eye. No-one was charged in relation to that injury. Sleiman Chidiac did not see any injury to the applicant that night and did not see how the injury occurred. Nowell Chidiac thought that she saw the applicant's face forced onto the top of the knife by the weight of persons holding him down. This occurred when he was resisting the efforts of others to disarm him. Police who attended at the scene, confirmed that when they arrived the applicant had suffered an injury to his left eye. As a result of that injury, the applicant effectively lost the sight of that eye.
It was the applicant's case at trial that it was Sleiman Chidiac who always shouted abuse and threats at him when he drove past his shop. On the night of 9 March 2013 he was sitting with two cousins outside his shop when Sleiman Chidiac slowly drove past and shouted insults and swore at him.
When Sleiman Chidiac stopped his car he stood on the corner and continued to swear at the applicant and shouted for the applicant to "meet me here so I can give you the money". Sleiman Chidiac then started to walk towards him.
When the applicant saw Sleiman Chidiac approaching, he went inside the shop and got a knife because Sleiman Chidiac was bigger than him and he was afraid for his family. He walked towards Sleiman Chidiac with the knife in his hand. He shouted at Sleiman Chidiac to "leave me alone". The applicant agreed that he raised the knife in his right hand to above his shoulder. His evidence was that he moved the knife forward only to scare Sleiman Chidiac, not to harm him.
Thereafter a scuffle ensued in which Sleiman Chidiac, Yusef Chidiac and others participated which led to the applicant being disarmed. The applicant denied that he had ever tried to stab Sleiman Chidiac. He said that he held onto the knife to protect himself when he was attacked by Sleiman and Yusef Chidiac and by other family members, including Nowell Chidiac, who was kicking him in the face.
The applicant denied that he was angry with Sleiman Chidiac over money matters, although he did accept that he had been upset over the money issue for seven years. His wife supported his evidence that Sleiman Chidiac used to shout threats and swear at him when he drove past.
At trial evidence of good character was called on behalf of the applicant. Michael Kalil, a friend of 15 years, gave evidence that he knew the applicant as a family man and as an honest and correct person. To Mr Kalil's knowledge he was not the sort of person who would be likely to stab anyone. In cross-examination Mr Kalil agreed that he did not know how the applicant would react when he was angry because he had never seen him angry.
Written character testimonials by Neyif Hanna and Michael Aboud to similar effect were tendered at trial as Exhibits C and D respectively. It was common ground that the applicant had no criminal record and was not known to police.
The appeal
The applicant submitted that it was agreed that he was a man of prior good character and that this was not disputed by the Crown. His counsel concluded his closing address by reference to his applicant's good character.
In summing up to the jury, the trial judge instructed them to take the applicant's good character into account. The applicant accepted that his Honour's direction as to good character was unexceptionable except for the final paragraph where his Honour said (emphasis added):
"On the other hand, Mr Habib is not an eighteen year old. He is older than that and so you might think the fact that he has not, up until now, committed any criminal offence is an important matter that you can take into account. On the other hand, of course, as Mr Russell acknowledges, there were perhaps offences that Mr Habib did in fact commit that night, threatening somebody with a knife, carrying a knife in a public place, so bear that in mind too when you consider Mr Habib's character."
The applicant submitted that the emphasised portion of the direction, not only undermined the previous unobjectionable directions as to character, but did so in a way which positively encouraged the jury to take into account bad character. The applicant accepted that even if a good character direction were given "the judge may qualify it in order to put it in perspective having regard to the circumstances of the case" (Melbourne v R [1999] HCA 32; 198 CLR 1 at 29 [79] per Gummow J). He accepted that in the present case, his Honour was giving a modified good character direction based upon his acts which preceded the wounding of the victim. He also accepted that the trial judge was entitled to qualify the good character direction because of his acknowledged willingness to engage in criminal conduct earlier that night, albeit of a lesser significance than the conduct charged.
Despite that concession, the applicant submitted that his Honour was in error in giving a good character direction which, put at its highest, was confusing in that it failed to explain to the jury just how it could take into account his willingness to engage in other criminal conduct earlier in the evening. The applicant submitted that what his Honour should have done was to make sure that the jury understood that engaging in such conduct earlier in the evening could not be used as evidence of bad character. He submitted that it should have been explained to the jury that if they did have regard to the earlier conduct, they could but were not obliged to, put aside the issue of character altogether.
The applicant submitted that his Honour's error was that no clear explanation was given to the jury of how they could use this evidence. He submitted that the jury should have been told that the relevance of the evidence was limited solely to a diminution of the probative force of the good character evidence, perhaps even to the point where the good character evidence was not taken into account, but they could not use the evidence adversely to him in the sense of using it as evidence of bad character. The applicant submitted that the direction contained no such qualification. He submitted that in the form in which it was given, the direction left open and almost invited the jury to take into account his further offences as impacting on the issue of guilt.
The applicant submitted that the error by the trial judge was compounded when his Honour referred to "the acknowledgment" made by his counsel of his commission of other offences. He submitted that the "acknowledgement" to which his Honour was referring was not made during that part of the closing address dealing with the issue of good character but was made at the outset of the closing address in which counsel urged the jury to focus its attention on the offences actually charged.
"It would be no surprise to you that if a person is carrying a knife in public and they don't have a reasonable excuse for doing that, that is prohibited. If a person threatens a person with a knife, like I am doing now and shouts angry words at them, that may be an offence, but Mr Habib is not charged with those matters. He is charged with the offences you have before you in the indictment. That is very important to remember. So you must carefully examine these specific charges and what is required to prove each of them remembering always that the absolutely [sic] onus to that very exacting and high standard of proof beyond reasonable doubt remains with the Crown from start to finish." (T.304.35)
The applicant submitted that the difficulty with his Honour's reference to the "acknowledgement" was that the passage was in no way linked to the issue of good character. He submitted that in those circumstances, having referred the jury to the "acknowledgement", it was incumbent upon his Honour to make plain to them the use to which the "acknowledgment" could be put.
The applicant submitted that the direction given by his Honour suffered from the same defect as the direction held to be erroneous in R v Alkaitis [2004] EWCA Crim 1072. That direction was:
"Let me now turn then members of the jury to the defence case. Before I deal with [the appellant's] evidence, let me say something to you about what lawyers call her character. You have heard that she is technically a woman of good character in the sense that she has no previous convictions, however, she herself admits that she has on numerous occasions taken illegal hard drugs which nobody would dispute is an admission of serial offending over a period of years in any country in which she has been taking such drugs. When considering her evidence, have regard to her admission and the fact that it is made in the context of her not having been convicted, and consider whether that adds to her credibility, or the likelihood of her now committing this offence. What you must not do is jump from her admission to the conclusion that she has therefore committed the offence with which she is now charged. That would be wholly unfair."
In allowing the appeal against conviction, Penry-Davey J held (at [20]):
"It is, however, the nature of that modified direction that has troubled us. In our judgment there is force in [counsel's] main point that the only way in which one part of the direction can sensibly be interpreted is that it tells the jury that they can take into account the appellant's admission as to taking Class A drugs in relation to her credibility and more particularly, in relation to the likelihood of her having committed the offence with which she was charged. Although the final sentence counters that to some extent, it is only to a limited extent. The effect of the direction (albeit it was clearly not what the judge intended) was, if anything, potentially to damage the appellant rather than in any way to assist her on questions of credibility and propensity."
Consideration
The fact that this point was not taken at trial and requires the leave of the Court pursuant to r 4 of the Criminal Appeal Rules is a matter of importance. In Jubraeel v R [2015] NSWCCA 131 Macfarlan JA (with whom Johnson J and R S Hulme AJ agreed) set out the relevant principles:
"24 On appeal, the applicant's counsel acknowledged that because the applicant's trial counsel did not request that the trial judge give any further directions, the applicant required the leave of this Court under r 4 of the Criminal Appeal Rules 1952 (NSW) to advance this ground of appeal. In light of a trial counsel's duty to object to evidence and seek redirections following the Summing-Up, leave under r 4 is not lightly given. Obtaining leave requires an applicant to satisfy the court that the failure to give the jury a particular direction (or other error) has caused a miscarriage of justice (Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [72] per McHugh J), or at least that there is a possibility that that is the case (R v Roberts [2001] NSWCCA 163 NSWLR 138 at [55] per Howie J).
25 In ARS v R [2011] NSWCCA 266, Bathurst CJ provided the following summary of important considerations in relation to r 4:
"148 The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].
The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20] - [21].
A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; 70 NSWLR 467 at [10] - [13]; Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472 at [58] - [61].
An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].""
Accordingly, it is necessary to consider whether the direction was erroneous and whether a miscarriage of justice has occurred when assessing whether leave under r 4 should be granted.
When considering the merits of the ground of appeal, what his Honour said needs to be considered in context. That context includes what the applicant's counsel said and what his Honour said concerning character. In that regard, it should be noted that the Crown said nothing about the character evidence in his address to the jury.
What counsel for the applicant said early in his address has already been set out (see [26] hereof). At the conclusion of his address, he said:
"Ladies and gentlemen, remember when you are determining this matter, and his Honour will give you some fuller and better directions than I could ever give you on this point, but the accused is a person of prior good character. I mentioned to you at the very outset that is important, it is important. It's important enough that his Honour will mention it to you because, in our law, it is a very important consideration. The consideration is along these lines. If you consider him to be a person of good character that is a matter for you but take into account the character witnesses, you heard Michael give evidence yesterday. The two statements, short as they are, saying what they know about Mr Habib - if you find he is a person of good character and I suggest there is no reason why you would not, the Crown is not suggesting he is not a person of prior good character, then the law says this in essence that you can take that into account as to whether he would be likely to commit this offence as suggested by the Crown, or these offences as suggested by the Crown. Secondly, when he denies the allegations, denying striking or having an intention to strike anyone that denial is more creditworthy if he is a person of prior good character. You must remember that prior good character cannot operate as some cloak or blanket protection for everybody because, if you think about it, if people came to court and said "I'm a person of prior good character" - "Not guilty" - it is not a blanket protection, it just means that these are things you need to take into account." (T.326.17)
The full context of what his Honour said concerning character is as follows:
"Let me move on to an issue that Mr Russell finished on. It concerns his client's character. You heard evidence that Mr Habib has no criminal convictions, whether for offences of violence or any offence at all. And not only that of course there was evidence called in the form of a witness and also two documents were tendered, and that evidence concerned Mr Habib's character as well, his honesty, him being a family man, his reputation, the fact that he was not a violent man.
Now you heard that evidence and you heard it because you are entitled to take it into account. You can take it into account two ways. The first is that a person who has not done this sort of thing in the past, and who has the character that a witness spoke about is, you might think, less likely to have committed the offences that he is charged with than a person who has a history of criminal behaviour, especially a person who has got a history of violent criminal behaviour.
So a person who has never been convicted of any offence, and especially an offence of violence, and who has the character and reputation that the witnesses have spoken about you might think is less likely to have committed this offence than a person who does not have the history that Mr Habib does and who does not enjoy the reputation that the accused does. So that is just a matter of common-sense members of the jury. You can take the evidence into account in determining the likelihood that Mr Habib would have done what the Crown alleges.
The second way you can take it into account is this. Mr Habib has given evidence and the fact that he has no criminal convictions, the fact that people speak about his honesty might, you think, be relevant to whether you accept what Mr Habib said. You might think that in other words people of good character who have never been convicted of a criminal offence are perhaps less likely to lie in court than people of bad character who do have criminal convictions. So you can take the accused's character into account in that way as well in deciding whether the prosecution has proved that he is guilty.
Now of course, as Mr Russell himself acknowledged, good character is just one of the many things that you take into account in deciding whether the guilt of the accused has been proved. Mr Russell made this point, and so will I. At every stage a person, even a person with a lengthy series of criminal convictions, at some stage that person has had no criminal convictions. So at some stage they have been able to say "I am a person with no criminal convictions", and the obvious point is that people do have to start somewhere.
On the other hand Mr Habib is not an 18 year old. He is older than that and so you might think the fact that he has not, up until now, committed any criminal offence, is an important matter that you can take into account. On the other hand of course, as Mr Russell acknowledges, there were perhaps offences that Mr Habib did in fact commit that night, threatening someone with a knife, carrying the knife in a public place, so bear that in mind too when you consider Mr Habib's character." (SU 13.9 - 15.6)
In circumstances where the Crown was not disputing that the applicant was of good character, a direction of the kind sought by the applicant would in the context of what his Honour said, have been unfavourable to him. It would of necessity have drawn the jury's attention to the issue of bad character (a subject which had received no mention anywhere in the trial). Having raised that issue, it would have been necessary for his Honour to point out that the possible effect of the applicant having committed other offences earlier in the evening might produce a result whereby good character should be entirely ignored so that the applicant would have received no benefit.
Looked at in context, what his Honour said was very different to the direction impugned in R v Alkaitis. His Honour's direction made no mention of "bad character" and most particularly, did not raise the possibility of "bad character" being relevant to the likelihood of the applicant committing these offences. The total effect of his Honour's direction was positive, so far as the applicant was concerned. It ended with an appropriate qualification that in assessing good character, the jury also had to take into account the acknowledged offending which might also have occurred that night.
The content of his Honour's character direction is consistent with that which was approved by the House of Lords in Regina v Aziz [1996] AC 41. That was a case where the trial judge had given what the court described as a "credibility" good character direction in respect of two accused and a "propensity" good character direction in respect of another. There was evidence that the two offenders, who had received only the "credibility" direction had committed other illegal (dishonest) conduct for which they had not been convicted. The Court of Appeal held that all three should have received both credibility and propensity good character directions, quashed the convictions and granted retrials.
In dismissing the Crown appeal, Lord Steyn (with whom the other four Law Lords agreed) said at 52:
"(d) What is good character?
The certified question, although phrased in very general terms, was intended to raised the problem whether a defendant without any previous convictions may "lose" his good character by reason of other criminal behaviour. It is a question which was not directly before the Court of Appeal in Vye [1993] 1 W.L.R 471. It is a complex problem. It is also an area in which generalisations are hazardous. Acknowledging that a wide spectrum of cases must be kept in mind, the problem can be illustrated with a commonplace example. A middle-aged man is charged with theft from his employers. He has no previous convictions. But during the trial it emerges, through cross-examination on behalf of a co-defendant, that the defendant has made dishonest claims on insurance companies over a number of years. What directions about good character, if any, must the judge give?...
That brings me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie the directions must be given. And the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye [1993] 1 W.L.R. 471 and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial…"
It follows that I am not satisfied that there was error in his Honour's direction as to good character. Even if his Honour did err and it is found that he should have given a more comprehensive direction which took into account the possibility of a finding of bad character, there is no indication that the jury took his direction into account in that way. There was simply no mention of bad character anywhere in either the addresses of counsel or the summing up. The summing up on character was positive in its terms and favoured the applicant. The ultimate qualification did no more than make it clear to the jury that the positive value which they could give to the applicant's good character might need to be tempered by regard to his acknowledged earlier offending.
Such a conclusion is strengthened by the fact that the applicant was acquitted of counts 2 and 3, that there was no suggestion by the Crown that the applicant was not a person of good character and that counsel for the applicant did not consider it necessary to seek a redirection as to good character. Accordingly, even if there were an error in the direction, I am not satisfied that any miscarriage of justice occurred. It could certainly not be said that the applicant lost a chance of acquittal which was fairly open. This ground of appeal has not been made out.
In view of the fact that the ground of appeal is based on a bare possibility and that there is no indication anywhere in the evidence, addresses, or summing up of that possibility eventuating, leave to appeal under rule 4 should not be granted.
Pursuant to r 4 of the Criminal Appeal Rules I would refuse leave for the applicant to rely upon this ground of appeal.
PRICE J: I agree with Hoeben CJ at CL.
BUTTON J: I agree with Hoeben CJ at CL.
[3]
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Decision last updated: 25 September 2015