Jawish v R

Court of Criminal Appeal (NSW)|2014-04-04|Before: Hulme J, Davies J, Adamson J, Macfarlan JA

Judgment 1R A HULME J: Kassar Jawish ("the applicant") applies for an extension of time in which to apply for leave to appeal against his conviction for an offence of disposing of property stolen outside New South Wales committed at Kingsgrove on 22 February 2010. The offence is contrary to s 189A of the Crimes Act 1900 (NSW). 2The applicant was found guilty of this offence following a short trial before his Honour Judge Woods QC and a jury in June 2011. On 25 November 2011 he was sentenced to imprisonment for 4 years 6 months with a non-parole period of 2 years 6 months. He became eligible for release on parole last December.

Extension of time 3Section 10 of the Criminal Appeal Act 1912 (NSW) provides for the filing of a notice of intention to appeal, or to apply for leave to appeal, within 28 days after the relevant conviction or sentence. That time may be extended. Such notices have effect for a period of six months and there is provision for that period to be extended: r 3A of the Criminal Appeal Rules (NSW). A notice of appeal, or notice of application for leave to appeal, must be filed within three months after the relevant conviction or sentence or, if a notice of intention is current, then within the period in which that notice has effect: r 3B. 4In the present case, nothing was filed until the applicant filed a Notice of Application for Leave to Appeal on 4 November 2013. It was accompanied by a Notice of Application for Extension of Time for Leave to Appeal and an affidavit sworn by his solicitor. 5What emerges from that material by way of explanation for the delay is that it was "more than a year after the conviction" that the applicant initiated action to seek legal aid to fund the provision of advice as to whether an appeal would have merit. Such advice was not forthcoming until early in 2013. From that point until the filing of the applications in November, various lawyers (by no means with any apparent alacrity) carried out an assortment of tasks such as obtaining missing items of transcript, securing legal aid funding for the appeal itself, and preparation of the appeal documents. 6There is cause for concern at the time taken by the lawyers to provide advice about an appeal and then to prepare and file the appeal papers. But a more fundamental concern is the absence of any attempt to explain the inactivity of the applicant in doing anything to pursue an appeal for more than a year. 7In Simon v R [2013] NSWCCA 328, Macfarlan JA referred to the approach to be taken in the determination of an application to extend time as follows: "[23] The specification of time limits for the pursuit of appeals is based upon the principle of finality, described by the plurality in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [45] as 'a fundamental and pervading tenet of the judicial system'. In considering whether an extension of time should be granted, it is not only the interests of the applicant for leave that must be considered. Regard must be had to the interests of the Crown (representing the community) and to the administration of justice generally (Darwiche v R [2011] NSWCCA 62 at [39]). The longer the delay, the greater will be the justified expectation of the community, witnesses, victims and families of victims that the criminal proceedings are over (ibid at [38]). In considering whether to grant an extension, the Court has regard to the applicant's prospects of success on an appeal but should do so in a more summary fashion than if the applicant had brought an appeal or application for leave to appeal within time (Etchell v R [2010] NSWCCA 262 at [24] - [25]; Abdul v R [2013] NSWCCA 247 at [35]; and see generally Golossian v R [2013] NSWCCA 311 at [22] - 33])." 8In Golossian v R [2013] NSWCCA 311, another recent case in which an extension of time was sought, Leeming JA made the following terse (appropriately so in my respectful view) observations about the need for respect for the principle of finality: "[11] This is not an appeal, and should not be resolved as if it were. It is an application for a substantial extension of time within which to appeal from the applicant's conviction, which was opposed by the Crown principally on the basis that cause to do so had not been demonstrated. ... [22] This Court is required to heed time limits which are, after all, imposed by the Legislature. There must be an end to litigation, even to a serious criminal prosecution." 9Leeming JA also explained the rationale for dealing with an application for an extension of time "in a more summary fashion" than if an application for leave to appeal, or appeal, had been brought in time: "[31] ... If that were not so, the time limits imposed by the Legislature would become entirely otiose."

The Crown case at trial 10The applicant was tried jointly with one Samer Youssef Ibrahim. It was alleged that they were both involved in the enterprise of disposing of a large quantity of biscuits that had been stolen in Queensland by delivering them to the business of Safira Trading Pty Ltd at Kingsgrove. 11The Crown case at trial was largely circumstantial. It included the following elements. On Thursday 18 February 2010, Mr Ibrahim's sister-in-law hired a white Toyota Tarago motor vehicle. A large quantity of biscuits was stolen from a trucking company depot at Rocklea in Brisbane in the early hours of Saturday 20 February 2010. Two men were captured on CCTV cameras in and around the depot at the time of the theft. A white Tarago was also seen in the vicinity of the depot at the time. The Crown suggested that the jury might conclude from the CCTV footage that this was the same white Tarago hired by Ibrahim's sister-in-law but this was not critical to the success of its case. Sometime on that same day, a 12 tonne Isuzu truck was borrowed from a trucking firm in Sydney. It was returned late the following night but the owner of the firm was told that the truck would be required again the following morning. The owner said that he was unaware whether the truck was loaded with anything when it was returned to his yard. On the morning of Monday 22 February, the owner of the trucking firm received instructions to send the Isuzu truck, with a driver, to Kingsgrove. He complied. At 7.40am, the white Tarago and the Isuzu truck were seen outside the premises of Safira Trading in Kingsgrove. An officer from the Property Crimes Squad, Detective Sergeant Don, was there conducting surveillance. He saw a man sitting in the driver's seat of the Tarago. A short time later Sergeant Don saw the Tarago moved into a car park at the front of the premises while the Isuzu truck was reversed down the driveway of Safira Trading. Shortly after that he saw two men, including the driver of the Tarago, standing at the back of the Isuzu truck as a forklift truck was unloading it. He said that the two men appeared to be assisting with the unloading. The Isuzu truck was driven away from the premises about an hour later. A little more than an hour after that the two men who had apparently been assisting with the unloading returned to the Tarago and drove away. The Tarago was next seen by another police officer about 35 minutes later. It was parked near the home of the applicant. Around midday, the Tarago was returned to the business from which Ibrahim's sister-in-law had hired it. It had travelled 2,846 kilometres in the four days it had been on hire, consistent with it having been driven to the scene of the theft in Brisbane and back. The stolen biscuits were subsequently found by police on the premises at Safira Trading. 12To establish that the two accused were the men in the Tarago who had been involved in unloading the stolen biscuits at Safira Trading, the Crown relied upon the following evidence. Ibrahim's sister-in-law had hired the white Tarago. Sergeant Don was familiar with the appearance of the two men because their photographs were posted on a whiteboard in his office; along with those of a number of other persons suspected of such crimes. (The jury only heard that he had photographs in his office). He said that the two men he saw at Safira Trading were "similar" in appearance to the applicant and his co-accused. The Tarago was parked in the vicinity of the applicant's home a short time after it had left the scene at Safira Trading. 13The Crown also relied upon some direct evidence. Another police officer recorded some moving images of the two men at Safira Trading. The Crown case was that a comparison of those images with footage of the two accused recorded at a police station after their arrest demonstrated that they were the same.

Proposed ground of appeal 14The proposed ground of appeal is in the following terms: The trial judge erred in law by declining to exclude the purported visual identification evidence of the appellant and is co-accused by the prosecution witness Det Sgt Don for three reasons: (a) That is was reasonable for police not to have conducted an identification parade; (b) That Sgt Don was sufficiently qualified as a de facto expert; (c) That in all the circumstances the probative value of Det Sgt Don's identification evidence was not outweighed by the danger or unfair prejudice to the appellant. 15Mr Wendler, counsel for the applicant now but not at trial, abandoned reliance upon sub-grounds (a) and (b) from the outset of the hearing of the application. He accepted that (a) was untenable in the light of Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290 in that it would have been impracticable (in fact impossible) for there to have been an identification parade prior to Sergeant Don recognising the applicant at Safira Trading. Sub-ground (b) was abandoned with a concession that Sergeant Don's evidence was not "opinion" evidence. That left Mr Wendler with sub-ground (c). 16The problem with sub-ground (c) is that it was founded upon a miscomprehension of what actually occurred at the trial. 17The Crown Prosecutor proposed to lead from Sergeant Don that he positively recognised the two men at the premises of Safira Trading. Counsel for each of the accused objected. The objection was based upon the same three issues reflected in the expression of the proposed ground of appeal. 18Woods DCJ acknowledged the force of the argument that had been put in relation to there having been no identification parade but accepted the Crown submission that any identification parade conducted after the identification made at Safira Trading would have yielded evidence of dubious reliability and evidence of it would likely have been ruled inadmissible at trial. (It is noted that consideration of the issue was contrary to what was said in the subsequent decision in Walford, but nothing presently turns on that). 19His Honour was not entirely convinced but was prepared to accept that the proposed evidence was "opinion evidence". On the basis of Sergeant Don's frequent viewing of the photographs in his office he was prepared to accept that he was an "ad hoc expert". 20However, his Honour then turned to the third point concerning s 137 of the Evidence Act 1995 (NSW). He indicated that he was troubled about the reliability of the evidence (for reasons which are presently irrelevant). He considered that the probative value of the evidence was "limited" and it was outweighed by a danger of unfair prejudice (although there was no elucidation of what the unfair prejudice was). He concluded: "Accordingly I rule that the witness will not be permitted to give evidence of positive identification or recognition of the accused as persons [sic]. However the familiarity of the witness with the photographs on the whiteboard would justify evidence that the two males observed on 22 February 2010 (one or both of them) was or were similar to the photographs which the witness had previously seen. That is to say, I will permit the giving of evidence of observed similarity but I will not permit the giving of evidence as to identification or recognition of the whole person." 21The proposal that the officer might give evidence of "similarity" originated from his Honour. It did not emanate from anything that had been suggested by the Crown Prosecutor or defence counsel in their submissions on the objection. His Honour directed the Crown Prosecutor to provide to his opponents a proof of the evidence that Sergeant Don may give in the light of his ruling. It is not apparent whether this was done, although there was no complaint about it not having been done. 22A jury was empanelled on the next sitting day and the trial proceeded. Sergeant Don's evidence about the similarity of the two men at Safira Trading to the photographs of the applicant and his co-accused was exceedingly brief. It entailed the following (at the beginning of the second day of his evidence): "Q. Going back to some of the material that we covered yesterday, you told us that you saw the two men that ultimately got into the Tarago and drove away from the premises. You saw them on a number of occasions that morning about the premises of Safira Trading? A. That's correct. Q. You told us that you observed that each of the two men that you saw were similar to photographs of the accused that you had in your office. A. I haven't said that as yet. Q. Is that the case? A. Yes, it is." 23There was no dispute or challenge to the reliability of that evidence during the cross-examination of the officer by either defence counsel. Counsel for the applicant made a submission in his closing address to the jury that Sergeant Don was mistaken in his evidence, but he later readily conceded to the trial judge that he had not put such a suggestion to the officer and he had no qualms about the judge telling the jury that "the undisputed evidence is that there was similarity". 24In his summing up, the judge reminded the jury of the evidence of Sergeant Don about "similarity" in the context of directions about the reliability of evidence of identification. He first discussed various matters the jury should take into account when comparing the surveillance footage of the two men at Safira Trading with the footage recorded of the accused at the police station after their arrest. He then turned to the evidence of Sergeant Don. He reminded the jury that it was not positive identification. He reminded them that the evidence was uncontested. He directed them that "mere resemblance or similarity is not of itself sufficient to prove the Crown case", but was simply a circumstance that could be considered alongside all of the other circumstances. 25The judge then reminded the jury of various aspects of Sergeant Don's evidence which may bear upon the reliability of his observations; matters such as the distance from which he was observing and the like. 26Finally, the judge directed the jury that no adverse inference should be drawn from the fact that Sergeant Don had photographs of the applicant, and his co-accused, in his office. He suggested there could be all sorts of reasons for police having photographs of people, such as for drivers' licences and fishing licences.

Disposition of the application 27As can be seen from the above, the trial judge upheld the objection to Sergeant Don giving evidence that he recognised the applicant and his co-accused but suggested that he could give evidence of similarity. Neither defence counsel thereafter complained about the nature of the evidence Sergeant Don would give, or then did give. 28No complaint was raised about the manner in which the trial judge directed the jury; particularly as to the warning he gave not to draw any adverse inference from the fact that the police had photographs of the two men. 29The submission of Mr Wendler that there was unfair prejudice was limited to matters such as a danger that the jury would find that the evidence supported other items in the Crown's circumstantial case. There is nothing unfairly prejudicial if the combined force of the circumstances relied upon by the Crown was enhanced: see, for example, Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [91] (McHugh J); and Festa v The Queen [2001] HCA 72; 208 CLR 593 at [22] (Gleeson CJ) and [51] (McHugh J). 30It was also mildly suggested by Mr Wendler that the evidence might prompt the jury to give more weight to other circumstances in the Crown case than they properly deserved. Why the jury would reason so illogically was not explained.

Conclusion 31It is most unfortunate that Legal Aid NSW has devoted precious resources to funding this application which, in the end, was conceded to involve "a technical point". In my view, it is a point that is completely devoid of merit. There is not the slightest hint of a miscarriage of justice having occurred.

Proposed order 32I propose the following order: Extension of time in which to apply for leave to appeal refused. 33DAVIES J: I agree with R A Hulme J. 34ADAMSON J: I agree with R A Hulme J.

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: 17 April 2014

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