Hamide v R

Background

1. The appellant's parents resided in Proctor Parade, Sefton.
2. In November 2013, Mr Ayoub lived at an address in Bass Hill. His partner, Eman El Zamtar, and their children lived with her parents at an address in Proctor Parade, Sefton. The appellant was the cousin of Mr Ayoub's partner and her brother, Mr El Zamtar.
3. Mr Ayoub was stabbed in the late afternoon of 8 November 2013 and was observed lying stomach down in the front yard of the appellant's parents' property in Proctor Parade by police at about 5.30pm that day. Mr Ayoub told police that he had been attacked by "an Islander and two Asian" men who drove away in a Toyota Corolla. He was taken to Liverpool Hospital and was treated that night to control the bleeding from the stab wound, being a 3cm deep laceration to his lower back which breached both epidermis and dermis layers of skin.
4. On the following morning, police prepared a handwritten statement as to what Mr Ayoub, then in hospital, told them about the assault which was broadly consistent with what he had said to them the previous day (although in this statement, he referred to there being two Islanders and one Asian man). Mr Ayoub signed this statement which was to the effect that on the previous afternoon he had been on his way to a park nearby to Proctor Parade when he was approached by three males, two of whom were Islanders. He offered a description as to their build, approximate age, appearance and clothing. He also identified a third person as an Asian male and also gave a description as to his approximate age, appearance and clothing. The statement continued, as follows: "The first Islander grabbed me at my shirt at the chest area. I am unsure whether he used his left or right hand. He pushed me onto the floor. He didn't say anything. I got back up to my feet and punched him to his face with my right fist. The Asian and the other Islander came up to me. The Asian said 'Fuck this!' and pulled out a knife from under his shirt in his waist. The knife was pulled out of a sheath I think. The blade looked about the width of a hand. The blade was shiney and straight. The handle was black. The Islanders came at me and the Asian stabbed me on my left hip area. I ran around a parked car nearby on the gutter. The car I ran around was on the footpath outside Omar HAMIDE's house. The males then ran in the same direction they came from. They jumped in a car parked on the street on Proctor Parade. I think the Asian jumped in the back and the Islanders jumped in the front seats. The car then drove up the side street towards the train lines. The car the three men got into was a new white coloured Toyota Corolla hatchback with yellow and black plates. The vehicle was facing the same direction it was headed."
5. Significantly in his statement Mr Ayoub said that, although the incident happened outside the Proctor Parade home of the appellant's parents, he had "not spoken [to] or seen [the appellant] for months" and that "we're not friends but if we see each other we say hello". He said that he did not see the appellant or any of his family on the day of the stabbing.
6. Shortly before midnight on 9 November 2013, that is to say the day following the stabbing, a then anonymous source nominated the appellant as a person of interest in relation to the stabbing by making a report to Crime Stoppers.
7. In the course of his evidence during the trial, Mr El Zamtar gave evidence in chief that he visited Mr Ayoub in hospital in the early morning of 9 November 2013 and was told by Mr Ayoub that "Omar Hamide [the appellant] stabbed me… But I didn't tell the police that."
8. Mr El Zamtar said in his evidence that that day he made an anonymous complaint to Crime Stoppers reporting that the appellant was a person that they should look at in relation to the stabbing. This evidence was corroborated by other evidence from police at the trial, confirming the anonymous complaint to Crime Stoppers on the evening of 9 November 2013 and that it accorded with Mr El Zamtar's account of it.
9. Mr El Zamtar also gave evidence that in August 2014, the appellant solicited him to murder Mr Ayoub. That evidence, to which I will refer in more detail later in these reasons, was foundational to the second of the counts upon which the appellant was convicted.
10. In September 2014, some 10 months after Mr Ayoub was stabbed and had provided his initial statement to police, he and Mr El Zamtar provided statements to the police implicating the appellant as the person who had in fact stabbed Mr Ayoub. The appellant was not located by police until 2016 and the date of the indictment was 27 November 2017.

The course of the trial

1. The main witnesses in the Crown's case were Mr Ayoub, Mr El Zamtar and Eman El Zamtar.
2. Evidence was also given by a Natasha Micallef (Ms Micallef) and a Wyette Hancock (Ms Hancock), both of whom had been driving on Proctor Parade on the afternoon of 8 November 2013. Ms Micallef had told police she had observed about 10 males of Middle Eastern appearance in the street and heard loud yelling although she was less certain when giving evidence in the trial as to the ethnicity of the males she observed. She gave evidence that she observed some form of assault by one male upon another male of similar Middle Eastern appearance but did not recognise the appellant as having been one of the men she observed on that day. Ms Hancock gave evidence that she saw a group of men and that, whilst she did not see their faces, they appeared to be Lebanese. She also did not recognise the appellant as having been one of the men she observed on that day.
3. There was also some brief but, for the purposes of the appeal, significant evidence from a Detective Senior Constable Danielle Rogerson (Detective Rogerson). That is referred to at [54]−[55] below.

Mr Ayoub's evidence

1. Mr Ayoub gave evidence that he had known the appellant for about 10 or 11 years as at November 2013 and that he had also known another person by the name of Amin El Mir (Mr El Mir) for about the same period. Mr Ayoub gave evidence of a fight between Mr El Mir, a close friend of the appellant, and another unnamed person who Mr Ayoub knew. Mr Ayoub said that on the afternoon he was stabbed but before the stabbing, he had heard about this fight and had rung the appellant "to fix a problem up" and that he had said to the appellant that "we, you know, got to get together and sort out this problem for him, got to help him". He went on to say that the appellant had first responded that he was not getting involved but had then said "okay, let's just meet up" and that they had agreed to meet at Ms El Zamtar's parents' house in Proctor Parade. Mr Ayoub said that he was at Bass Hill Plaza when this telephone call occurred and that he thereafter drove to Proctor Place and initially saw the appellant in a car turning into Proctor Parade with two other people including Mr El Mir.
2. Mr Ayoub said that the appellant did not turn up at his partner's parents' house in Proctor Parade as had originally been arranged but that, after a further phone call, he agreed to meet at the appellant's parents' house and walked there. He said that there were about seven "blokes" together with the appellant standing on the verandah. He said that he spoke to Mr El Mir who had been bashed and had some bruises to his face. Mr Ayoub said that Mr El Mir had said that he wanted to fight "him". I interpolate that the "him" was not identified but was presumably Mr El Mir's assailant. Mr Ayoub then said "no, we should like - you should be friends." He then said that Mr El Mir said, "I want to shoot him, I want to shoot him." Mr Ayoub described Mr El Mir as being pretty angry at this point. There then followed this passage of Mr Ayoub's evidence: "Q. So you told us you said something like "No-one's fighting, let's be friends," or something like that? A. Yeah, yeah. Q. What happened next? A. You little cocksucker, what are you looking at … (foreign language) … he pulled out a knife and he stabbed me straight in the back. Q. Who pulled out the knife? A. Him, that little fucking backstabbing prick. His Honour: Mr Ayoub, I can see you're a bit upset, but it's best if you just tell us what happened calmly and unemotionally, okay. Crown Prosecutor: Did you see where the knife came from? A: He pulled it out of his - like he had it inside, between his - in his shorts, on his stomach. Crown Prosecutor: So you're pointing with your hand down to sort of like your waist area? A: Yeah. Crown Prosecutor: Did he say anything? What brought your attention to Omar, what he said or what he did? A: First it's what he said. He goes, 'Fuck this, I'm going to get this cunt, I'm going to kill this guy.' He pulled out and he got me straight in the back. He swung it with his right-hand side, right hand, and he got me straight in the back."

Mr El Zamtar's evidence

1. Part of Mr El Zamtar's evidence, in relation to his report to Crime Stoppers on the evening of 9 November 2013, has already been referred to at [28] above. Mr El Zamtar also gave evidence that some time after the stabbing, outside a restaurant at Chester Hill on a public holiday, he had met with the appellant and asked him why he had stabbed Mr Ayoub. Mr El Zamtar's evidence was that, on this occasion, the appellant asked him if Mr Ayoub was going to the police but that he, Mr El Zamtar, assured the appellant that Mr Ayoub had given the police the false story about the Islanders and an Asian being responsible for his stabbing.
2. In a significant passage relevant to the solicit to murder charge upon which the appellant was convicted, Mr El Zamtar reported that he had subsequently received a phone call from the appellant asking him to meet. Mr El Zamtar reported that they met at the appellant's house at Campbell Hill Road, Chester Hill and that, in a conversation there, he was again pressed by the appellant as to whether or not Mr Ayoub would or had gone to the police. Mr El Zamtar suggested that the appellant should pay "blood money" to Mr Ayoub to sort the matter out but that he refused. Mr El Zamtar then gave the following evidence: "A. He refused he won't pay blood money and I kept telling him I made it clear to him if you don't pay blood money although Mark [Ayoub] hasn't put you in now you don't know what the future holds, you can't just stab someone and shoot someone and keep threatening and scaring them not to go to the police they will go then. Q. And what did he say to that? A. He acted real cocky like he doesn't care. Q. What happened then was there further conversation about what should happen to resolve the matter? A. No he just said that he made it clear that if anyone thinks of going to the police or he suspects anything he will just shoot him and that he... (Not transcribable)... that's all I just don't understand. Q. Did he ask you to do anything in that conversation? A. When we were there we didn't spoke me and Mark [Ayoub] were not on good terms back then and me and Omar [the appellant] were very close like young brother and old brother. As we were speaking he - Omar sees Mark as a problem in our life whether it be my personal life or his personal life he has always been like a problem for us somewhere. So he sort of persuaded me in a way that if we take him out and I help him I can benefit. Q. Just pause when we take him out, you would benefit tell us what he actually said, first off how were you going to benefit? A. Take him out means to kill him, murder him. Q. Right and how were you going to benefit? A. I benefit it in two ways really Mark don't get on with my sister we've got our own personal problems so all my problems will be solved and two, I benefit that he gives me money. Q. Was money mentioned? A. Yes." Mr El Zamtar's evidence was that he was offered $20,000 if he was to set Mr Ayoub up so that he could be killed, or $50,000 if he, Mr El Zamtar, was to kill him or have him killed.

First discharge application

1. At the conclusion of the evidence in chief, defence counsel applied to discharge the jury by reason of Mr El Zamtar's reference in his evidence to "runners" in the passage set out above. The brief argument in support of and in opposition to this application was as follows: "Levet: Your Honour, the other one he referred to runners. Your Honour, he talked about our runners and their runners. Your Honour, the terms runners is a term commonly understood, in my respectful submission, to mean persons who run drugs for drug dealers. His Honour: Yes, so what's your application? Levet: To discharge. His Honour: Right. Runners can also mean other things. Levet: A pair of Nike's, I suppose. His Honour: No, people that go and run errands for people, errand boys, or errand girls. Anyway let me hear what the Crown says? Crown Prosecutor: Your Honour, the witness did actually say, when he said the word runners, I moved on, and he said, 'You know, people who do things for us'. So I understand the lawyers think of it in a certain way, but as the evidence has come out in the trial, the evidence is runners who do things for us, and the Crown says that that's no basis for discharging the jury. Levet: It's also, your Honour, in the context of this witness talking about fears of being shot, and what we do in our community, et cetera, et cetera. 'Don't go to police. You automatically give a false story'. His Honour: Well Mr Ayoub gave that evidence yesterday. Levet: Yes, he did. But in the context of that, in my respectful submission, the terms runners would give this jury the impression that my client was involved in the drug trade."
2. The application was refused by the trial judge who stated his reasons as follows: "We are part way through the evidence of one of the Crown's two essential witnesses, Ehmad [sic] El Zamtar. He has been giving evidence, which is of most relevance to count 3, in that he has just told the jury about an approach from the accused whereby the accused wanted him, Mr El Zamtar, to murder Mr Mark Ayoub, a person who, the Crown says, the accused had previously stabbed. In the course of Mr El Zamtar's evidence he was explaining why there was bad blood between Mr Ayoub and the accused in the first place. He referred in that context to a fight which had taken place between a man known as Amin, who was a friend of Omar's, and a friend of Mr Ayoub's, whose name Mr El Zamtar could not remember. He said that there had been some conflict about "runners". At the end of Mr El Zamtar's evidence-in-chief, Mr Levet, who appears for the accused, makes application that the jury be discharged. He is concerned that the use of the term runners suggests that the accused, in particular, was involved in drug dealing. This concern is heightened by other evidence given by Mr El Zamtar and Mr Ayoub along the lines that people in their community deal with matters amongst themselves and do not involve the police. The Crown makes two points in reply. Firstly, that whilst those involved in the criminal law on a daily basis might be familiar with the term runners that is not necessarily the case for members of the wider community. The second thing the Crown says is Mr El Zamtar explained what he meant by the term runners when he said something along these lines, "People who do errands for us". Certainly the jury would, even in the absence of the word runners, and even in the absence of evidence as to the attitude of the community in which Mr Ayoub, and Mr El Zamtar, and perhaps the accused, mix, that there was something more to this than has been made clear to them. So in that sense I do not see that the word runners, even if they think it does refer to drug dealing, really has much of an impact on the jury at all. In any case I accept the Crown submission that members of the wider community may not be familiar with the term runners as those who are involved in drug dealing. I note that this trial has had some unusual features. Mr Ayoub only gave evidence after he was arrested, for example, and there is a strong community interest in the trial, once it has started, finishing if that can be done fairly. The jury will be told to focus on the three counts on the indictment. They concern specific allegations, and it is only if those allegations are proved beyond reasonable doubt that they will be told they can find the accused guilty. Whilst no doubt it would have been better had the word runners not been used before the jury, I do not consider that it prevents the accused getting a fair trial. The application to discharge the jury is refused."

Second discharge application

1. Following this evidence, defence counsel made a second application to the trial judge to discharge the jury, complaining about non-responsive answers to questions: "Levet: …We've now got runners. We've got drug dealers… This jury has to … be forming the view that they are not being told something about my client's alleged involvement in drugs. His Honour: Look, I think the stage has been reached where they would believe that the initial fight was over drugs. That Mr Ayoub went as a member of one drug dealing organisation to speak to your client who was a member of another drug dealing organisation. I suspect if the jury don't believe that they suspect that that's highly likely, given the state of the evidence. Mr El Zamtar has just talked about the devil life and gangs and loyalty. Levet: Again, non-responsively, your Honour. His Honour: Well, whether it's responsive or not. I mean he sometimes needs to -- when you question him, he needs to explain his answer."
2. The trial judge again refused the application: "Following my earlier judgment in which I refused Mr Levet's application to discharge the jury, other things have happened. Mr El Zamtar was being asked about the idea that after some violence has occurred in his community, groups tend to split into two. In that context Mr El Zamtar explained that he was not talking about the mums and dads there, he was talking about drug dealers. I am comfortably satisfied that the jury would have had their suspicions confirmed as a result of that evidence. The jury now know that the accused was involved in one drug dealing group, whereas Mr Ayoub was in another. Quite clearly it would have been better had the jury not had their suspicions confirmed, but they have. It is not all evidence of an accused's bad character which leads to a jury being discharged. In many cases it is inevitable, because of the very nature of the allegations or the circumstances in which they arise, that a jury is told about accused's bad character. Gaol violence is the classic example, but other examples can be given as well. I think I earlier said that the jury will be told to focus on these specific allegations. If Mr Levet asks me to I will even go so far as to say to the jury that Mr Hamide is not [on] trial for anything in relation to drugs or any other criminal offence, he is on trial because of the allegations made against him by Mr Ayoub and Mr El Zamtar, which form the basis of the three counts on the indictment, and they can only find Mr Hamide guilty if the jury are satisfied beyond reasonable doubt about those specific allegations. Regrettable though it is that such evidence about Mr Hamide has been given, I am satisfied, especially if I do give an instruction such as I have foreshadowed, which I repeat I will give if Mr Levet asks me to, Mr Hamide's trial will still be a fair one. The renewed application for a discharge of the jury is refused."

Direction to jury

1. Following the judgment on the discharge application, the jury were given the following direction by the trial judge: "Just before we resume with Mr El Zamtar, members of the jury, there is something I should say to you now, I was going to say it at the end of the trial anyway, but I may as well say it now. The three charges that you are looking at concern two very specific allegations. The first is that the accused stabbed Mr Ayoub and the second allegation is that he solicited Mr El Zamtar to kill Mr Ayoub. They are very specific allegations and that's what you are being asked to decide has the Crown proved beyond reasonable doubt that those specific allegations are made out? So the accused isn't facing any other charge. He is facing those specific charges and that's what you should be looking at the end of the trial. As I say I will probably speak to you about this again a bit later, but it's probably a good idea to mention it in the light of some of the evidence you've just heard from Mr El Zamtar."
2. Again, no complaint per se is made in relation to the trial judge' refusal to discharge the jury on this occasion or as to the appropriateness of his Honour's direction to the jury.

Detective Rogerson's evidence

1. After Mr El Zamtar's evidence concluded, evidence was given by Detective Rogerson who had been stationed at Bankstown Police Station in 2013. It was this witness who corroborated the receipt of the anonymous identification of the appellant to Crime Stoppers on the evening of 9 November 2013. It was also Detective Rogerson who witnessed statements given to the police by Mr El Zamtar and Mr Ayoub in September 2014. Immediately after these statements had been marked for identification, Detective Rogerson was asked the following series of questions by the prosecution: "Q. Following receipt of the information that was contained in those statements, did you make inquiries to locate Mr Hamide? A. I did. Q. Mr Hamide was eventually located, is that correct? A. That's right. Q. When was he located? A. May. It was only 2016, it was by the Middle Eastern Organised Crime Squad. Q. In May 2016? A. That's right." (emphasis added).
2. Shortly after this exchange, defence counsel commenced his cross-examination of Detective Rogerson which finished relatively briefly and was followed by some exchanges between the judge and counsel as to what remained to be dealt with and what were the estimates for addresses in the event that the appellant did not go into evidence. Proceedings adjourned early that day, prior to the lunch adjournment.

Third discharge application

1. On the following morning but after further exchange between bench and bar and the tender of some further evidence, defence counsel made the third application for discharge of the jury. The relevant argument before the trial judge was brief and was as follows: "His Honour: Did you want to say something, Mr Levet? Levet: Yes, two things, your Honour. One, your Honour, in reading transcript last night, I note that one of the police officers in chief said something that was unfortunate. His Honour: The Middle Eastern Organised Crime Squad? Levet: Yes, your Honour. His Honour: Yes, okay. We might delete that from the transcript. Levet: I formally renew the application that I made for discharge. His Honour: Yes. In philosophy there's the bald man paradox and we're sort of dealing with an element of that. Each little addition to the description of the character of your client adds to a picture which may - and you make this submission - eventually get to the stage where too much has been said about the accused for him to receive a fair trial. That's [as] I understand your application. Levet: Yes, your Honour. His Honour: Madam Crown? Crown Prosecutor: Well, your Honour - His Honour: Have we reached that stage yet? My ears pricked up. It wasn't just the Middle Eastern Organised Crime Squad. Crown Prosecutor: Your Honour, unfortunately all the Crown was trying to elicit was when he was arrested. His Honour: I know, I know. I don't blame you. I may blame the officer a bit but let's forget about blame at this stage. Crown Prosecutor: Your Honour, the Crown's submission is obviously each matter must turn on its own facts and in the context of the evidence which forms part of the trial the Crown submits that there isn't anything that has been led in evidence that prevents the accused from getting a fair trial given the directions your Honour clearly gives to the jury. The jury would not be oblivious to the fact that there are different squads in the police force that do different things. There is no issue here that the persons that have been called to give evidence are in fact of Middle Eastern origin. It says no more than that, your Honour."
2. This further exchange should also be noted: "Levet: Your Honour, I pricked my ears up at the time but didn't necessarily want to draw attention to it. His Honour: I understand, although we did have a bit of time yesterday. You could have made this application, but I don't hold that against you in any way in determining the application, of course, Mr Levet, and in any case we're not really delaying the jury because the witness isn't here. Do you want to say anything further, Mr Levet? Levet: Your Honour, only that it was by a police officer, it was in-chief, it was purely gratuitous. His Honour: Thank you."

Eman El Zamtar's evidence

1. The next witness in the Crown case was Eman El Zamtar. She gave evidence that on the afternoon of 8 November 2013 she and Mr Ayoub and their children were driving back to her parents' home in Proctor Parade when Mr Ayoub received a phone call from the appellant which she could overhear and in which the appellant said "Are you coming, are you coming? I'll meet you at my dad's". It will be recalled that the appellant's parents also lived in Proctor Parade. She gave evidence that Mr Ayoub then replied "Yeah, I'm on my way now" and the appellant then said "Good, cause we've got to sort this out before it gets any bigger." She gave evidence that after they arrived at her home in Proctor Parade, she saw the appellant together with two other men crossing the street and going to the appellant's parents' house in Proctor Parade.
2. For present relevant purposes, in the course of cross-examination by defence counsel, Eman El Zamtar was asked about a series of mobile phone calls on the first day of the trial between herself and her brother Ahmed who I have referred to in these reasons as Mr El Zamtar. After being taken through a log of mobile calls, this exchange occurred: "Q. … So there was some communication between your phone and Ahmed? A. That's correct. Q. Was that your daughters or you? A. Well part was me because I was trying to make sure Ahmed was aware that there was a warrant out for his arrest and also when he called me I do remember everyone was trying to make sure I was safe because my sister's house was set on fire and my family was concerned nobody could get in contact with me and I'm assuming that's why these calls were so short, it kept cutting out. I think we had, I don't know if it had left by 3 but that's probably why they were so short or not, I don't know. But I do remember he was the only one that was able to get in contact with me to make sure I was safe." (emphasis added).
3. This evidence was given around lunchtime, before the Court adjourned for the weekend on Friday 1 December 2017.

Fourth discharge application

1. On the morning of Monday 4 December 2017, counsel for the defence asked to take the judge "back to the sorites paradox, what your Honour referred to as the bald man paradox." The "bald man paradox" was referred to by the primary judge in the passage of argument set out at [56] above. The "sorites paradox" is also known as the paradox of the heap, the conundrum of "when, as between two heaps of grain, one large and one small, does the large one cease to be large, and the small become large, if a grain from time to time is taken from the one and added to the other": see Brown v Bowden (1900) 19 NZLR 98 at 102. Defence counsel then said, in the language of the latter paradox, "if I can take another grain of sand off the heap" and referred to the passage extracted at [61] above, submitting that it had "a colour about it." Whether there be any difference between the two paradoxes referred to, the point that both the trial judge and counsel for the defence were making concerned the cumulative effect of successive prejudicial events in the trial.
2. The trial judge then said: "Well when you made your last application I had heard that and I took that into account in my judgment. I had already factored that in, having heard the reference to the house being set on fire, so unless there's something else you want to add. Levet: No, your Honour. His Honour: Then you're protected should things go further. Levet: Indeed, thank you, your Honour."
3. It is plain enough that, although no discharge application was made in terms, the trial judge treated one as having been made. It is also plain that the trial judge was mistaken as to the sequence of the evidence about the fire and the third discharge application. Curiously, defence counsel was also mistaken because he did not correct the trial judge's statement as to timing and indeed acquiesced in what his Honour had said about the sequence of the evidence. It is to be noted that the impugned evidence was given shortly after the ruling on the third discharge application, and both had occurred in the previous week of the trial.
4. It should also be noted that the exchange set out at [64] above was the last "ruling" in the case prior to jury addresses and the summing up.

The addresses and the summing up

1. Counsel for the Crown addressed relatively briefly. The salient features of the address were as follows: 1. Mr Ayoub was stabbed outside the appellant's parents' house; 2. Mr Ayoub knew the appellant and identified him as the man who had stabbed him; 3. the fact that Mr Ayoub knew the Appellant militated against getting the identity wrong; 4. Mr El Zamtar, the appellant's cousin, gave evidence that the appellant had admitted to him that he had stabbed Mr Ayoub, and had offered him (Mr El Zamtar) $50,000 to kill Mr Ayoub; 5. the report to Crime Stoppers on the day following the stabbing in relation to the appellant was inconsistent with him being named by Mr El Zamtar because of a refusal to succumb to subsequent demands to pay haqq or blood money; 6. the sighting by two independent witnesses, Ms Micallef and Mr Hancock, of a group of young men of Middle Eastern or Lebanese appearance in Proctor Parade, "looking aggressive" and with one male on the ground, contemporaneous with the stabbing; 7. Eman El Zamtar's statement on the day of the stabbing that Mr Ayoub went down Proctor Parade to meet the appellant; 8. the paradoxical significance of Mr Ayoub's false story of being assaulted by two Islanders and an Asian looking man. In this context, the Crown Prosecutor said: "In this trial, members of the jury, you've been given an insight into a culture which existed amongst some people in the community that Mr Ayoub and Mr El Zamtar lived in. A culture where people resolved matters amongst themselves, they didn't go to police. Mr Ayoub and Mr El Zamtar were quite upfront with you about that. Clearly crime should be reported to police, people shouldn't take the law into their own hands, the police and the courts should deal with these issues, but Mr Ayoub and Mr El Zamtar told you that's not the way things operated in their community."
2. It should be noted that it was no part of the Crown's address that the appellant was a drug dealer, involved with drugs or any other criminal activity. Nor was there any mention of "runners" or any reference to the Middle Eastern Organised Crime Squad.
3. Obviously enough, defence counsel's address contained no reference to any of these matters either. What was noted in the defence address to the jury, however, was the evidence in relation to "haqq" which has been extracted at [44] and [49] above. Defence counsel said: "There's some discussion about haqq. There's discussion about payment of haqq et cetera and he denies in essence that he is the one or has been involved in the offering of haqq. He does say something else though that's important. You've heard about some evidence about this subculture, that people don't go to the police, that people don't report to the police, et cetera, and he said, 'If anyone gets hurt there's automatic split, 99% of the time in the environment we are in.' He goes on to say, 'Everyone starts splitting into two groups.' It may be that this is what happened here."

Legal principles

1. Appeals from convictions on indictment are only as of right if the grounds relied upon involve questions of law alone. In all other cases, leave must be granted to appeal from a conviction on indictment: the Criminal Appeal Act s 5(1).
2. The appellant's sole ground of appeal, as noted at [16] above, is that a substantial miscarriage of justice was occasioned as a result of irregularities in the evidence at the appellant's trial prejudicial to his interests, and the trial judge's failure to discharge the jury.
3. A decision not to discharge a jury is not, "in the strict sense", a decision on a question of law: R v TS [2004] NSWCCA 38 at [117] (TS). Rather, it is an exercise of a discretionary power: Crofts at 440-441; Santo v R [2009] NSWCCA 269 at [51]; Trieu v R [2012] NSWCCA 169 at [21] (Trieu); R v Ahola (No 6) [2013] NSWSC 703 at [18] (Ahola). Accordingly, the appellant required leave to appeal from his conviction. As noted at [15] above, that leave should be given.
4. It should be emphasised, however, that the appeal "is not against the failure to discharge the jury but against the conviction": Maric v The Queen (1978) 20 ALR 513 at 520; (1978) 52 ALJR 631 (Maric); see also Samadi v The Queen [2008] NSWCCA 330; 192 A Crim R 251 at 278 [134] (Samadi).

Miscarriage of justice and substantial miscarriage of justice

1. The starting point for determining this appeal is therefore the same as any other appeal from a conviction on indictment - namely, the terms of s 6(1) of the Criminal Appeal Act: Maric at 520 (ALR); 634-5 (ALJR); Samadi at 278 [134]; Trieu at [26], cited in Scott v R [2017] NSWCCA 296 at [186] (Scott). That section provides that: "The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; 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." (emphasis added)
2. In [16] of these reasons, I drew attention to the appellant's use of the phrase "substantial miscarriage of justice" in his Notice of Appeal. In Crofts, which was an appeal from a decision of the Victorian Court of Criminal Appeal, the majority said at 441: "…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." (emphasis added)
3. In 1996 when Crofts was decided, the Victorian provision governing the determination of conviction appeals (s 568 of the Crimes Act 1958 (Vic)) was in terms that were relevantly similar to s 6(1) of the Criminal Appeal Act. Specifically, the provision distinguished between a miscarriage of justice and substantial miscarriage of justice in the same way that the current NSW legislation does.
4. In oral submissions, the Crown submitted that the use of the language of "risk of substantial miscarriage of justice" in the passage from Crofts extracted at [80] above, "conflates the proviso test with the miscarriage test". In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou), the High Court paid close regard to the words of s 6(1) of the Criminal Appeal Act, distinguishing between the question of whether there has been a miscarriage of justice, and whether there has been a substantial miscarriage of justice: Filippou at 54-5 [15].

Irregularities

1. Various terms are used in the cases on miscarriages of justice to describe the kinds of events in trials that can give rise to a miscarriage. The multiplicity of verbal formulae is unsurprising; as Gleeson CJ noted in Nudd at 163 [6] (ALR); 618 [6] (ALJR), "it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula."
2. In Crofts (at 440-1), there are references to "an inadvertent or potentially prejudicial event", "slips", "mishap[s]", and "conduct". There is also a reference to the particular event that occurred in Crofts, namely "the admission of … inadmissible evidence". In Miller v R [2015] NSWCCA 206; 252 A Crim R 486 (Miller) at 511, that event is recast in terms of "the statements said to have given rise to the prejudice", and the Court, citing Maric, also referred to "wrongly admitted evidence". In Ahola, Button J referred to "the accidental receipt of prejudicial material" (at [17]).
3. Many other cases refer compendiously to "irregularities" (see, eg: Maric; Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 (Wilde); R v Marsland (NSWCCA, 17 July 1991, unreported) (Marsland); R v Young & Phipps (NSWCCA, 31 October 1995, unreported) (Young & Phipps); Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 (Webb); Weiss; Qing An v Regina [2007] NSWCCA 53 (Qing An); Younan v R [2016] NSWCCA 248; 316 FLR 122 (Younan)).
4. The term 'irregularities' has no fixed meaning beyond being a general term to describe a departure from the 'regular' course of a criminal trial. And what is meant by the 'regular' course of a criminal trial can only be understood in historical and systemic context: see, for example, Mraz at 514 and Birks at 685.
5. Not every irregularity will be prejudicial, and not every prejudicial piece of evidence will be irregular. There is prejudice, and there is unfair prejudice: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at 325 [91]. Prejudicial evidence will have the quality of unfairness where there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL.
6. Though not directly concerned with the meaning of 'irregularity', the following passage from Wilde is a clear example of the use of 'irregularity' as a general term for describing departures from the normal course of a criminal trial. At 373, Brennan, Dawson and Toohey JJ said: "…The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt; Reg. v. Henderson; Reg. v. Couper. There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, "Venire de Novo" Law Quarterly Review, Vol. 71 (1955) 100, at p. 128; Reg. v. Rose; and, in the House of Lords. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances." (footnotes omitted)

Crofts and principles relating to jury discharge

1. Crofts is a key authority concerning the exercise of a trial judge's discretion whether to discharge a jury. It is also a key authority concerning the approach to be taken by an appellate court when a conviction is challenged on the basis that a miscarriage of justice was occasioned by a trial judge's refusal to discharge the jury.
2. In an oft-quoted passage, the majority in Crofts (Toohey, Gaudron, Gummow and Kirby JJ) said (at 440-441): "…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. As the court below acknowledged, much 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."
3. This passage concisely states the principles that guide the exercise of a trial judge's discretion whether to discharge a jury. Those principles are settled, though it should be emphasised that they are only guiding principles; there is "no rigid rule" prescribing how the discretion should be exercised. In Miller, Beazley P, Fullerton and Hamill JJ summarised the principles as follows (at 510-11 [126]): "(1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440. (2) In deciding an application to discharge the jury, key considerations include: (a) the fairness of the trial: Crofts at 440; (b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to "have been left vividly etched on the mind of the jury": Crofts at 441; (c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440; (d) the stage at which the mishap occurs: Crofts at 440; Maric at 635 [ALJR]; (e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635; (f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635. (3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635. … (5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, 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': Crofts at 440-441."

Appellate review of decision not to discharge jury

1. Subject to one point of clarification, the principles concerning appellate review of a trial judge's decision to refuse to discharge a jury are also settled.
2. The starting point is the following passage from the plurality judgment in Crofts (at 441): "Nevertheless, the duty of an 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?" (footnote omitted)
3. In Miller, this Court distilled the principles in the following terms (at 511 [126]): "…(4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that '[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict', and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can 'say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable'. (5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, 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': Crofts at 440-441. (6) Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge 'is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind': Crofts at 441, but rather must apply the broader test stated at (4) above." See also Samadi at 277-8, Trieu at [26]−[28] and Younan at 128-130 [32]−[40].
4. Additionally, the authorities are replete with statements expressing the trust that our legal system places in juries to follow judicial directions. In The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 (Glennon), Mason CJ and Toohey J said at 603: "The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence."

Was there a substantial miscarriage of justice?

1. The appellant's submission was that, by the time of the third discharge application, prejudicial descriptions of the appellant such as "little cocksucker", "a little fucking backstabbing prick", "a little shit", "a little backstabber"; "an evil person" (on three different occasions); and "as having no remorse" (on two occasions) and allusions to the appellant's involvement in drug running and gang membership and being the object of interest of the Middle Eastern Organised Crime Squad precluded a fair trial.
2. As to the various descriptions of the appellant proffered gratuitously by various Crown witnesses, given the nature of the case and the allegations, it would hardly be surprising to the jury that Mr Ayoub would have feelings of considerable hostility to the man he had accused of attempting to murder him and subsequently seeking to procure his murder. That these hostile feelings manifested themselves in the strong and at times crude language used by Mr Ayoub which I have highlighted in [130] above did not in my opinion impact on the fairness of the trial nor do I consider that they would have had a prejudicial impact of any materiality on the jury's view of the accused or his guilt. Indeed, an agitated, fiery, emotional and argumentative witness will often lose credibility with a tribunal of fact. In that context, it may be noted that in relation to Mr Ayoub's description of the appellant as "that little backstabbing prick", the trial judge said, in the jury's presence, "Mr Ayoub, I can see you're a bit upset, but it's best if you just tell us what happened calmly and unemotionally, okay" (see [35] above). The trial judge made a similar intervention at a later point in Mr Ayoub's evidence, with an implicit reprimand and a direction to Mr Ayoub to answer the question: see [41] above.
3. I am fortified in my view as to the lack of material prejudicial impact of the various terms used by Mr Ayoub to describe the appellant by the fact that no complaint was raised with the trial judge about these terms, one of which ("you little cocksucker") may have been a term Mr Ayoub attributed to the appellant addressing him, Mr Ayoub, shortly before the stabbing: see [35] above. That evidence could not be described as an "irregularity".
4. Turning to the matters underpinning the first discharge application, the immediate background to this application is set out at [44]−[45] above with the short oral argument reproduced at [46]. The focus of the argument was on the use by Mr El Zamtar of the word "runners" which defence counsel said implied a connection with drug running and drug dealing.

Conclusion

1. It follows, in my opinion, that, whilst leave to appeal should be granted, the appeal should be dismissed.
2. DAVIES J: I agree with Bell P.

Amendments 13 July 2020 - Changes made due to a suppression order to reflect correct title of R v TS [2004] NSWCCA 38 in coversheet; Headnote at (ii); [77]; [91]; and [120]. Reference to publication of [2004] NSWCCA 38 in A Crim R has also been removed. 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: 13 July 2020