Hugo JACOBS v R

Fresh evidence

1. The trial took place in December 2010, and the appellant was sentenced in May 2011. In an affidavit filed in this court the appellant deposed that, in late December 2011 or early January 2012, he received at the prison where he was being held a number of items sent to him though the post by Ms Ibrahim. There was a Christmas card and some photos of a baby, on which there were greetings and comments in her handwriting. It appears that she claims to have borne a child to the appellant, which he disputes. Indeed, there is an issue whether she had borne a child at all. Whether the baby in the photos was their progeny has been under investigation by the police. Where the truth of that matter may lie is not material for present purposes.
2. With these items, the appellant said, there was a typewritten letter, undated and unsigned, commencing "My darling Hashem." The letter expressed great resentment against the appellant, although asserting a continuing love for him. Significantly for present purposes, it included the following: "Please do not hold any grudges you betrayed me so I had not (sic) choice by (sic) to protect our son and I had to do whatever I could to get you locked up even though I lied about everything and your voice, but we set you up ha ha."
3. According to the appellant, he received further items through the post in February 2012. These comprised of a photo of him and Ms Ibrahim with a note in her handwriting on the back to the effect that it was taken in 2010 on the occasion of their wedding anniversary, and another typewritten letter, again unsigned and undated. This letter also began, "My Darling Hashem", and continued, "Happy Valentine's Day from your wife ... ." After a further expression of resentment against him, the following appears: "I have heard through the grapevine that you are appealing your conviction iv spoken to someone and if you get a retrial I have to come back and give evidence I will make sure I will say whatever I need to so I can fuck you and keep you in prison. I don't care anymore if I have to lie about everything, I will do whatever and say whatever to keep you in prison. ... I will do everything in my power to make sure you are miserable and don't have your freedom you little boy ... ."
4. The appellant had his brother deliver these items to his solicitor, who referred them to the police. No fingerprints of Ms Ibrahim or the appellant were detected on either of the typewritten letters. Detective Sergeant Dickman showed them to Ms Ibrahim in February of this year. In an affidavit filed in this court she maintained that the evidence she had given at the trial was true, asserting that she was "not the author" of the two typewritten letters and that she did not "post or send them" to the appellant. Indeed, she wrote handwritten comments on the questioned documents. On the first of them she asserted that she found it to be "fiction nothing but lies and unworthy truths (sic) against me." On the second she described her husband as "a liar", again asserting that she had told the truth in court.
5. However, there was an unexpected development at the hearing of the appeal when Ms Ibrahim gave oral evidence. She confirmed that she had sent the card and the photos on the two occasions in question, but added that she may have also sent the typewritten letters. She acknowledged that she had prepared both of them. She explained that she had recently obtained a new computer, and that she had located a USB stick for her old computer upon which the documents appeared. She said that they were two of four letters she had prepared. She said that she had contacted Detective Dickman a few days before the hearing to point out her error.
6. Nevertheless, she maintained that her evidence at the trial was true. She claimed that another letter of the four she had prepared would provide an explanation for the two letters in evidence. However, she said that she no longer had those other two letters because she had wiped them from the USB when she obtained the new computer. The contents of that letter were not pursued by either counsel in the appeal: nor was she pressed about why she had typed the two letters in question, amounting to an admission that she had perjured herself and was prepared to do so again, if she had been telling the truth at the trial. No explanation of her conduct was forthcoming in her oral evidence.
7. Counsel for the appellant in this court, Mr Turnbull SC, raised with her the police investigation of her claim that she had borne a child to the appellant, and she agreed that that investigation had been unable to establish the existence of such a child. He then suggested that that matter, together with "the realisation that these letters were going to be sheeted home to you", had led to her decision "to come clean about the lies" she had told in her affidavit. This she rejected.
8. Where the truth lies in all this is anyone's guess. Clearly, however, this is material which has arisen since the trial and it is capable of bearing significantly upon Ms Ibrahim's credibility. As will be seen when I turn to other grounds of the appeal, her credibility had already been called into question by her behaviour during her evidence at the trial. This fresh material flies in the face of her denials at the trial that her evidence was motivated by vengeance and that she was prepared falsely to identify one of the voices in the intercepted phone conversations as the appellant's.
9. I should record that in April 2011 the appellant was tried before Latham J for murder, a charge unrelated to the present matter. He was acquitted. Ms Ibrahim also gave evidence in that trial. However, it is clear that the two typewritten letters relate to the present matter. So much is apparent from the reference in the first letter to her having lied "about everything and your voice", and from her reference in the second letter to the fact that the appellant had appealed against his conviction and to the possibility of a re-trial.
10. It is not in doubt that a ground of appeal based on fresh evidence may rely upon evidence bearing upon the credibility of a witness: Grey v The Queen [2001] HCA 65, 75 ALJR 1708, in the plurality judgment at [15] ff (1712). The principles governing a fresh evidence ground are also settled by long standing authority. They were summarised by Kirby J in R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417. At [63] (427-8), his Honour dealt with the distinction between "fresh" and "new" evidence. As I have said, the evidence in the present case is plainly fresh as it was not available at the time of the trial. His Honour continued: "..., the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial ... ."
11. Kirby J then dealt with the question whether a successful fresh evidence ground might give rise to a verdict of acquittal or an order for a new trial. In the present case it is a new trial which is sought. To obtain that order the crucial question, as his Honour posed it, is: "... would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused ... or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused ... ?" To answer that question in the present case, it is necessary to put aside the evidence of Ms Ibrahim and evaluate the other evidence at the trial.
12. It was certainly open to the jury to conclude that a drug transaction had taken place in the motel room in the afternoon in question. It was also open to them to conclude that Mr Darwiche and the man in the green Maloo had been involved in the supply of the drug. So much is apparent from the brief summary of the surveillance evidence set out above. It should also be noted that the man who alighted from the green Maloo was carrying a small, dark bag over his shoulder and was seen to enter Mr Darwiche's home. He still had that bag when the two men emerged from the home and set off towards the motel.
13. Moreover, this conclusion finds support in the evidence of the use of mobile phones. A mobile number 0415.109106 was used to contact Mr Darwiche in the evening of 18 June 2008 and throughout the following day. Those calls were intercepted and the terms of them are consistent with discussion of a drug deal. As I have said, it was the Crown case that those conversations were in a code, and evidence about that matter was given by one of the investigating police officers, Detective Sergeant Evans. (This is the evidence the subject of grounds 8 and 9 of the appeal.) The same mobile phone number was used on both days to contact a mobile number 0449.805151, which was found in the yellow Ford occupied by the two men from Melbourne when the police stopped and searched it in the Goulburn area.
14. The timing of these calls in the afternoon of 19 June is consistent with the observed movements of the man in the green Maloo and Mr Darwiche from the time the Maloo arrived at Wellington Road, Sefton to the time they departed from the motel at Casula, and is also consistent with contact with the two men from Mellbourne during that same period. The inference was available that it was the man in the green Maloo who used the mobile phone ending -106, and that it was he who was the contact with the Melbourne purchasers. The crucial question is whether, absent the evidence of Ms Ibrahim, it could be established that that man was the appellant. It is necessary to examine the circumstantial evidence which might support that conclusion.
15. I have viewed the video surveillance footage showing the arrival of the Maloo outside Mr Darwiche's home and the driver alighting from it and walking to the property. It may be that someone familiar with that man could recognise him from the footage. However, the features of the man are indistinct. He is wearing sunglasses and has a shoulder bag, but there is nothing distinctive about those items or about his clothing. Through the evidence of Ms Ibrahim, there were admitted five photos taken between May and September 2009, over a year after the offence. Three of the photos depict the appellant, and in three of them can be seen a green Maloo of the same appearance as that in the footage. No meaningful comparison could be made between the appearance of the appellant in those photos and that of the man in the footage.
16. There was evidence connecting the appellant with the Maloo seen in the footage in the months before and after the offence. The registration number of the vehicle was GRN-32F. On 13 March 2008 a traffic infringement notice in respect of the vehicle was issued to the appellant, apparently in relation to a traffic light offence. It was issued to the driver of the vehicle on the occasion in question under the name Hugo Jacobs, and enquiries of the police database by Detective Evans revealed that that person had previously been recorded as Hashem Ibrahim.
17. On 30 September 2008 the vehicle was stopped and the driver was required to undergo a breath test. He produced a licence in the name of Hugo Jacobs, and the police officer observed that the photograph on the licence resembled the driver. The officer obtained further particulars from him because it appeared that the licence had been suspended due to a fine default. The address on the licence was recorded as 505N/23 Shelley Street, Sydney. The driver said that he had lived there for "years", although he had moved out for a short time and returned around July 2008.
18. The mobile phone ending -106 to which I have referred was registered on 6 April 2007 to one Brian Copper of B05/23 Shelley Street, Sydney. Enquiries by Detective Evans of the RTA database, the police database and the Australian Electoral Roll did not reveal any person of that name linked to that address. He thought that the unit number could have been B05 or 805.
19. 23 Shelley Street is one of a number of blocks of units in that street, which is in the King Street Wharf area. A security guard, Daniel Soulini, whose duties engaged him in the buildings from 23 to 49 Shelley Street, gave evidence. He knew the appellant as a resident in the area. He said that in around 2006 the appellant moved into unit 505/23 Shelley Street, and that around mid-2008 he moved to unit 302/45 Shelley Street. It might be noted that neither of those addresses is the same as that shown on the appellant's driver's licence. There was a large carpark for residents of the buildings 23-35 Shelley Street. The appellant had a bay in that carpark, but Mr Soulini did not know what number was assigned to it. He viewed still photographs taken from security footage of the carpark in the afternoon of 5 October 2008, and identified the appellant appearing in a number of them.
20. This evidence about the Shelley Street units was led to establish the appellant's association with them, and to found the Crown case that the mobile -106 was in fact the appellant's, having been registered in April 2007 under a false name. However, the unit number under which the phone was registered is different from the number on the driver's licence and from either of the numbers referred to in Mr Soulini's evidence. It will be recalled that the unit number shown on the driver's licence was 505N, and on the phone registration was B05 (or, possibly, 805). It does not appear that the question whether those notations were in error, and should have referred to 505, was explored in the evidence. Moreover, it emerged from the evidence of Mr Soulini that 23 Shelley Street is a block of 14 floors, containing roughly 220 units. He agreed that there was accommodation in the block for somewhere between 500 and 700 people.
21. Mr Soulini also said that he was familiar with the appellant's car, which he described as a green Commodore ute. As I understand it, a Maloo is similar in appearance to a Commodore. A vehicle of that kind can be seen in some of the security photos, but not enough of it can be seen to identify it as the Maloo in question. This aspect of his evidence does not appear to have loomed large in the Crown case at trial, and was referred to only in passing by the Crown prosecutor in this court.
22. In none of the intercepted phone conversations of 18 and 19 June 2008 did either of the participants refer to the other by name. However, there was also in evidence a later intercepted call in which Mr Darwiche's phone was used, on 3 July 2008. It seems that the parties to that conversation were women, who were not identified. In that call one or other of the participants refers on several occasions to "Hash". A participant is heard to ask a question, apparently addressed to someone in the vicinity, "Have you got Hashs' number, Bass?" It was the Crown case that "Hash" was a contraction of the appellant's name, Hashem, and "Bass" was a contraction of Mr Darwiche's given name, Bassam.
23. Apparently, there was no evidence that the appellant was at any stage the registered owner of the Maloo bearing the registration GRN-32F. Nevertheless, there was clear evidence of his association with that vehicle and, in particular, of his use of it over a period encompassing the date of the offence. There is also evidence that he was a resident of a unit in 23 Shelley Street at the time the mobile phone - 106 was registered in the name of Brian Copper. To this must be added the intercepted phone call of 3 July 2008 which suggests association between Mr Darwiche and someone called "Hash."
24. This evidence in combination certainly raises a strong suspicion that the appellant was involved in the offence in the manner contended for by the Crown, and was capable of lending support to the evidence of Ms Ibrahim. Nevertheless, her evidence remained central to the Crown case identifying the appellant as a participant in the criminal enterprise. While her credibility was impugned at trial, it is subject to much greater challenge now in the light of the fresh evidence, which could well justify the rejection of the whole of her testimony. In my view, if such a challenge to her credibility had been available at the trial, there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant.
25. This ground is made out, and it is sufficient to justify orders that the conviction be set aside and a new trial be had. However, it is appropriate to deal with the other grounds of appeal, albeit briefly.

Ms Ibrahim's conduct

1. Ms Ibrahim's demeanour as a witness in the trial was remarkable. In written submissions the Crown prosecutor in this court, with admirable restraint, described it as "exuberant." It might better be described as unruly. Grounds 3 to 7 complain that the trial was unfair because of her behaviour which, it is said, should have been more firmly controlled by the trial judge and, in the event, should have led to the jury being discharged or, at least, have been the subject of a more robust direction by her Honour than it was.
2. Submissions on these grounds were developed at some length, both in writing and orally, but it is not necessary to examine them in any detail. There is no doubt that, under cross-examination, Ms Ibrahim gave her evidence in an adversarial manner. She frequently gave unresponsive answers to questions which were prejudicial to the appellant or designed to bolster her own credibility. At times she answered questions in an aggressive manner directed personally to defence counsel, addressing him rudely and sometimes contemptuously. On other occasions she criticised counsel for being repetitive in the line of questioning when, in truth, he had to pursue it at length because he could not get a straight answer from her.
3. She presented the trial judge with a difficult task in controlling her while remaining evenhanded. That said, there is some force in Mr Turnbull's complaint that her Honour might have controlled her more firmly and that, although she gave the jury a direction about Ms Ibrahim's evidence in the summing up, it might have been expressed in stronger terms. However, I do not find it necessary to express any concluded view about that.
4. This aspect of the trial is undoubtedly troubling but, on balance, I am not persuaded that it gave rise to a miscarriage of justice. In the event, defence counsel took the opportunity to turn Ms Ibrahim's behaviour to his advantage in his final address to the jury. He was able to submit, as he did,: "Mrs Ibrahim quite clearly can in no way, no stretch of the imagination, be described as an objective, calm, rational, neutral witness. ... She very clearly is a woman on a mission and you would not take what she says as being objective. ... She's biased and she's prejudiced..., you don't have to go any further at all than just recalling what she was like when she was giving her evidence here in the witness box in front of you."
5. Counsel went on to compare her demeanour when giving evidence in chief to when she was under cross-examination, a process which he described as "like drawing teeth... ." He repeated that she was "on a mission regarding her estranged husband," and posed as a question to the jury whether what she was doing was "really genuinely trying to help you with your job."
6. I would not uphold these grounds of appeal although, as there must be a new trial, it is not strictly necessary to decide them. Suffice it to say that if Ms Ibrahim were to be called at a retrial, a very tight rein would need to be kept on her.

The identification evidence

1. Grounds 1 and 2 assert that Ms Ibrahim's identification evidence, visual and aural, should not have been admitted. The focus of these grounds was the trial judge's rejection of a submission based upon s 114(2) of the Evidence Act 1995. That subsection provides: "(2) Visual identification evidence adduced by the prosecutor is not admissible unless: (a) an identification parade that included the defendant was held before the identification was made, or (b) it would not have been reasonable to have held such a parade, or (c) the defendant refused to take part in such a parade, and the identification was made without the person who made it having been intentionally influenced to identify the defendant."
2. The submission was founded upon the concluding words of the subsection. It was put that her Honour would not be satisfied that Ms Ibrahim's identification was made without her having been intentionally influenced to make it. The issue was the subject of evidence on the voir dire from Ms Ibrahim and the police officers who had interviewed her, Detectives McKinnon and Brahmann. The effect of their evidence was that Ms Ibrahim knew that she was being interviewed about a drug matter which related to the appellant. The evidence of Ms Ibrahim and Detective McKinnon was that she was asked to view some video footage to see if she could identify anyone in it, and to listen to some recorded conversations to see if she could identify any of the voices heard, without it being suggested that the appellant might be the person identified. The evidence of Detective Brahmann tended to the contrary. Her recollection was that the appellant was referred to in that context, but she acknowledged that her recollection was not clear and she had made no note of the exact words used.
3. Her Honour gave reasons for admitting the evidence over this objection in a separate judgement. She preferred the evidence of Ms Ibrahim and Detective McKinnon to that of Detective Brahmann. After referring to Ms Ibraham's evidence, she concluded: "So, overall, having regard to her evidence and to Detective McKinnon's evidence, and Detective Brahmann's evidence being less clear, I am not persuaded that Ms Ibrahim's identification of Mr Jacobs visually was intentionally influenced by the police officers who visited her to take a statement." On appeal Mr Turnbull acknowledged, as her Honour had held, that s 114(2) applied to the visual identification evidence only. Nevertheless, he argued that the issue raised also affected the aural identification evidence and might have led to its exclusion pursuant to s 138 of the Evidence Act.
4. The complaint on appeal was that in the passage quoted her Honour reversed the onus of proof. It was not for the appellant to persuade her that Ms Ibrahim's identification was intentionally influenced by the police officers; it was for the Crown to satisfy her that it was not. From the terms of the subsection that is clearly so, and the Crown prosecutor in this court did not suggest the contrary.
5. However, I think that there is force in the Crown prosecutor's submission that that passage of her Honour's reasons was infelicitously expressed and does not portray a misapprehension about where the burden of proof lay. In argument on this issue defence counsel had emphasised the burden of proof borne by the Crown on several occasions. The Crown prosecutor at the trial did not suggest the contrary.
6. Again, on balance, I do not find this ground made out. It was open to her Honour to assess the evidence as she did and that assessment could have led to a decision that the Crown discharged its onus on this issue. I might add that, as a practical matter, it may well be that Ms Ibrahim assumed that she was being asked whether she could identify her husband in the footage and the recordings. As I have said, she was told that police were enquiring about a drug matter in which he may have been involved. Of course, that of itself could not have amounted to intentional influence within the meaning of the subsection.

Expert evidence

1. Grounds 8 and 9 relate to the expert evidence given by Detective Evans. Objection had been taken to this evidence on a number of bases. As refined in oral argument, these grounds complained that he was permitted to express an opinion about a matter which was not an expert opinion.
2. Mr Turnbull accepted that the detective, from his experience in drug investigations, was qualified to express opinions about code words said to have been used in the intercepted phone conversations and about the practice of drug distribution, in particular, quantities in which drugs are normally sold and the monetary value of drugs. The complaint relates to one of the intercepted phone conversations, to which the appellant was not a party. It was a conversation between Mr Darwiche and one Ghassan Hamze. This material did not directly implicate the appellant, but it was relevant to the Crown case about the nature of the drug transaction which took place in the afternoon of 19 June.
3. As I understand it, it was the Crown case that the drug sold to the men from Melbourne had been obtained from Mr Hamze. The relevant call was at 3:09pm on 19 June, after the man alleged to be the appellant had arrived at Mr Darwiche's home but before the two men proceeded to the motel at Casula. The terms of the call convey a complaint by Mr Darwiche that the amount of drug received was less than expected. Mr Hamze is heard to enquire by "how much money" was it short, to which Mr Darwiche replied that it was "missing exactly 10."
4. Detective Evans related this conversation to the amount of methylamphetamine found later in the evening in the car driven by the Melbourne purchasers. It will be remembered that it was 413.1 grams. Detective Evans gave evidence that drugs were usually sold in kilograms, half kilograms, ounces or pounds. A pound is equivalent to 453 grams. He noted that the quantity of drug analysed was, in round figures, 40 grams short of that figure. Having regard to the purity of the drug found on analysis, he calculated that 40 grams of it would be of the value of $10,000-$12,000.
5. He interpreted the figure "10" used by Mr Darwiche in the telephone call as a reference to $10,000. That being so, he postulated that the amount of the drug which Mr Darwiche expected to receive was 1 pound, or 453 grams, and that in the call he was complaining that it was in fact 40 grams less than that amount, the shortfall being of the value of $10,000. As he put it in evidence: "To me the fact that one of the parties in this particular call says that it was - the money was exactly ten short, I interpreted that to be $10,000 and in fact the amount that was meant to be conveyed back to Melbourne was in fact meant to be a pound of methylamphetamine, being 453 grams so it was approximately 40 grams short."
6. In summing up the trial judge directed the jury about expert evidence, summarised the evidence of Detective Evans, including the evidence in question and the significance placed upon it by the Crown, and concluded: "You are not bound to accept Detective Evans' evidence simply because he is presented as an expert. You examine the basis he gave for his opinions, his reasoning and you decide if you accept his reasoning and then if you accept his opinion."
7. The complaint on appeal is that this was not expert evidence, and that it intruded in an impermissible way into the fact-finding function of the jury. Detective Evans was entitled to describe the quantities in which drugs were usually sold and to give evidence of the usual monetary value of those quantities. Those were matters within his "specialised knowledge", based on his "training, study or experience": s 79(1) of the Evidence Act. However, the interpretation of the phone call and the process of reasoning linking it with the amount of drug found in the vehicle were not. They were matters for the jury to determine themselves, informed by the information about quantities and values which was within the detective's specialised knowledge. To allow Detective Evans to express the process of reasoning as he did, Mr Turnbull submitted, was to cloak it with an unwarranted mantle of expertise.
8. This submission is sound, and the Crown prosecutor in this court accepted as much. She argued, however, that in the event no harm was done. The detective's calculations and assumptions were tested in cross-examination and the reliability of his reasoning was challenged by defence counsel. As she put it, this was a mathematical exercise which the jury was capable of carrying out itself, and her Honour had made it clear that it was for the jury to evaluate the detective's evidence and decide whether to accept it.
9. I can see the force of that argument but, in my view, these grounds are made out. The danger posed by excursions of expert witnesses into factual matters outside their specialised knowledge has long been recognised. Mr Turnbull cited Keller v R [2006] NSWCCA 204, in which Studdert J (with whom Hall and Latham JJ agreed) considered that question at [38], albeit in a very different context from the present case. His Honour referred to R v David and Gugea (CCA, Unreported, 10 October 1995) in which the court observed (at page 8) that the "principal objection to an expert giving evidence such as was given in the present case is that it is always liable to so influence a jury that they would not trouble to make up their own minds."
10. Given that the principal issue at the trial was whether the appellant was a participant in the drug enterprise, it may be that these grounds of appeal, standing alone, might not have led to the conviction being set aside. That, however, is not a matter about which I need express a concluded view. Plainly enough, at a retrial Detective Evans should not be permitted to give the impugned evidence.

Orders

1. Finally, the Crown prosecutor argued that this is a case for the application of the proviso. Given my assessment of the Crown case in the context of the fresh evidence ground, I reject that submission. I would allow the appeal, set the conviction aside and order a new trial.
2. LATHAM J: I agree with Hidden J.
3. ADAMSON J: I agree with Hidden J.

Amendments 11 October 2017 - Publication restriction removed - judgment published. 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: 11 October 2017