THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
[2]
The findings of the sentencing judge.
In terms of the offending, the sentencing judge found (at [66]) that:
(i) the applicant was present with a group of young males at the front of the premises when one of that group, probably MG, noticed that the victim was present;
(ii) the applicant participated in discussions, and in a plan, whereby members of the group who were then present would assault the victim; and
(iii) the reason for the decision to assault the victim was that the applicant believed that he (the victim) had "snitched" on him or in other words, had reported the applicant's involvement in the commission of earlier offences to the police.
His Honour did not accept the Crown's submission that the evidence established that the applicant had orchestrated the attack, in the sense that he was the sole instigator of it. He concluded (at [68]) that the applicant and others had jointly decided to launch a group attack on the victim, and that the applicant had encouraged others to do so. Having regard to these matters his Honour concluded that the applicant's moral culpability was high.
In terms of the objective seriousness of the applicant's offending, his Honour said (commencing at [76]):
[76] The evidence establishes that the offence of manslaughter in this case involved an unlawful attack involving a number of serious matters. These included the following:
(i) That the act causing death occurred in circumstances in which a group of young males including the offender (approximately six in number), identified the deceased who was known to the offender and a decision was then made to physically attack him as a group.
(ii) The attack had not been preceded on the day in question by any dispute or confrontation involving the deceased. He as an invited guest at the party was simply a participant enjoying a social occasion.
(iii) The member of the group who called (the victim) over clearly did so for the purpose of setting him up for a group attack.
(iv) The evidence as to the attack reflects a degree of co-ordinated activity amongst at least some members of the group - in the respects that I have earlier stated.
(v) (The victim) was subjected to a multiplicity of assaults including to his head causing brain damage that caused his death.
(vii) The assaults comprised punching, kicking and stomping before and after the deceased was struck with the bottle. The ferocity of the attacks was of a high order.
[77] The fact that (the victim) was outnumbered approximately six to one, that the attack was without any warning, that it was unprovoked and that a number of attackers continued to kick, punch and stomp upon an increasingly injured young man followed by the smashing of the bottle over his head, underlines the brutality and complete callousness of the attack that subsequently brought about the death of a young person approaching the threshold of young adult life.
[78] This was not, in other words, a case merely involving a spontaneous act. The objective seriousness of the offence in this case is, as I have stated, much greater than those all-too-frequent cases where someone is punched to the head and falls to the ground and dies as a result of injuries sustained. The objective seriousness of this manslaughter cannot, in my assessment, be characterised as anything other than extremely grave. The actions of the offender, and his companion attackers evidence a serious element of calculated criminal conduct.
[79] The evidence in this trial as to the existence in certain sectors of the community of a culture or code of silence designed to protect lawbreakers is a matter of great concern. It is one that has no place in our society.
[80] Any culture in which an associate of an offender, or even a victim of a criminal offence is put in fear that revenge or retribution may be expected if information concerning an offence is given to police cannot be permitted. Tragically, this is such a case. (The victim) having been interviewed by police about the assault and robbery committed against him in February 2010, he having been set-up by the offender, on the evidence and findings to which I have referred, was later targeted by the offender and his co-offenders at the Halloween party on 30 October 2010 for having provided information to police.
[81] The ferocious attack upon (the victim) was the product of the perverted culture to which I have referred. As events have turned out it rebounded badly upon the offender and his associates with convictions in three separate trials of five offenders and one pleading guilty to manslaughter. I have made reference to these matters by reason of their connection with the commission of the subject offence and possible relevance to deterrence, a matter I will separately address.
His Honour then turned (commencing at [82]) to consider the applicant's subjective case. Central to the submissions advanced on behalf of the applicant before this Court were his Honour's consideration of the applicant's youth, and his assessment of the applicant's prospects of rehabilitation.
In terms of the first of those matters, his Honour said (at [107]):
At the time of the offence, the offender had left school and he was then 15 years and 9 months, and had obtained a job working at concreting.
His Honour then said (at [111]):
By reason of the fact that he was 15 years at the time of the offending and had not long left school he was a young offender and that is to be taken into account in determining sentence.
In terms of the second matter, his Honour said (commencing at [102]):
[102] (Counsel) submitted that, on balance, the offender has good prospects of rehabilitation and that he was unlikely to offend again. He has family support and prior to bail conditions imposed he had not mixed with his co-offenders nor since.
[103] It was submitted that this reflected a desire to distance himself from their behaviour.
[104] The Juvenile Justice Report does not express an opinion that would support a confident prediction as to the offender's rehabilitation prospects. Much, no doubt, will turn upon whether the offender benefits from the therapeutic interventions which the authors of the Report address.
[105] A similar position rises from Ms Jones' report of 8 December 2014. Ms Jones, as earlier noted, indicated that his VRS estimate of his risk of violent re-offending is low range. The recommendation made for him to obtain his Year 10 Certificate and participation in therapeutic programs would appear to be factors that would increase his prospects of employment and education in the community and minimise his chance of re-offending.
[106] On the evidence as it presently is, the offender's prospects of rehabilitation, I assess, with some caution, to be moderate.
The Juvenile Justice Report referred to by his Honour at [104] stated the following under the heading "Attitude and Beliefs":
The young person has expressed throughout the current assessment that he does not feel that he acted in a manner to warrant a custodial sentence. He appears to struggle with the criminality of his actions based on what he reported to be a lack of intent to cause any serious harm to the victim.
The young person's denial of involvement in the assault on the victim and intent at wanting to cause the victim harm has not wavered since his initial arrest for the current offence. The young person does not appear to have developed any insight into his involvement in the offence.
The authors of the report proceeded to note that when discussing any involvement in anti-social behaviour, the applicant appeared to "provide responses that minimised or justified his actions, so that he may be presented in a way that is more socially acceptable". In particular, the authors said:
The young person does not recognise his behaviour as problematic or antisocial and may minimise and justify his behaviours to make them more congruent with his own self-belief.
The authors then said:
It is noted that the young person has remained committed to his account of his involvement in the offence over the four year period since its occurrence. His continued use of minimisation may be a reflection of his concerns regarding the possible repercussion of involvement in such a serious offence.
The young person would benefit from therapeutic interventions to address the underlying risk factors that have contributed to his pattern of antisocial behaviour. Specifically, the young person requires intervention to explore his use of minimisation and justification that prevents from accepting responsibility. Interventions may be delivered in a group setting or an individual basis, either in a custodial or community environment.
The report of Ms Jones, Forensic Psychologist, to which his Honour referred at [105] was prepared at the request of the applicant's solicitors and tendered in his case on sentence. Ms Jones noted (at paragraph [4.1]) that the applicant denied "any involvement in the physical assault on the victim which resulted in his death". At [4.2] Ms Jones noted that the applicant "denied any involvement in the aggressive behaviour of the group on the night of the offence" and "was adamant that he did not partake in the assault on the victim and did not even know it had occurred until after the assault had taken place". She further noted (at [4.3]) that "despite a verbal concurrence that he felt remorse, there was little indication of such".
At [6.2] Ms Jones stated the following:
There was at times an inconsistent history provided which minimised his problems and presented him more favourably…His poor insight may be reflecting a poor self-awareness of his inner thoughts and feelings or an overt attempt at impression management. It is suggested that in (JH's) case, both impression management and poor self-awareness are at play".
Ms Jones stated (at [7.2]) that the Violence Risk Scale ("VRS") estimated that the applicant's risk for violence was within the low range. Having identified various "therapeutic interventions" which she considered appropriate, Ms Jones concluded (at [10.5]):
The above mentioned therapeutic interventions may assist (JH's) ability to gain insight into his behaviour. This will require motivation and honesty from (JH) to be of benefit. Further qualifications and vocational training may assist with (JH's) reintegration into the community into the future, especially in conjunction with a gradual reduction in classification closer to the release date. Both (JH's) ability to reintegrate into the community and his rehabilitation efforts are anticipated to affect his likelihood of reoffending…One anticipates that providing therapeutic intervention will increase the likelihood of the individual gaining insight into their problems and making change. One cannot be certain whether not providing this intervention will result in improvement in (JH's) rehabilitation or reintegration. At best, one could estimate that his risk of reoffending would remain unchanged.
[3]
Submissions of the applicant
Counsel for the applicant expressly acknowledged that in order to make out this ground it was necessary to demonstrate that the sentence imposed was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54. In order to demonstrate that the sentence fell into that category, counsel for the applicant essentially advanced three submissions.
First, he submitted that the applicant was of a young age at the time of the offending, namely 15 years and 9 months.
Secondly, he submitted that on the whole of the evidence, the applicant's prospects of rehabilitation were "perhaps better than his Honour's categorisation as moderate". Counsel pointed out, in particular, that:
(i) the applicant was assessed as being in the low range of re-offending;
(ii) he retained the support of his family and his employers; and
(iii) he had no criminal record.
Thirdly, he submitted that although his Honour's finding that "the offence was not spontaneous but was planned and orchestrated by the applicant" was not an error in characterisation, it represented an overstatement of the applicant's role, and infected his Honour's ultimate finding as to objective seriousness.
[4]
Submissions of the Crown
The Crown submitted that the findings made by his Honour as to the objective seriousness of the offending, and as to the applicant's prospects of rehabilitation, were clearly open: Field v R [2015] NSWCCA 332 at [111] per RA Hulme J (Macfarlan JA and Johnson J agreeing).
In terms of the first of those matters, the Crown submitted that the attack on the victim was obviously not spontaneous, and that such a conclusion was supported by (inter alia) the evidence of discussions to which the applicant was a party. The Crown further submitted that the attack on the victim was one which clearly involved a co-ordination of roles to be undertaken by the members of the group and which, as his Honour found, resulted in a ferocious attack being perpetrated against a defenceless victim.
In terms of his Honour's findings as to the applicant's prospects of rehabilitation, the Crown submitted that such findings were clearly open on the evidence, particularly given the contents of the Juvenile Justice Report.
Finally, the Crown submitted that the sentencing judge had clearly considered all other relevant matters, including the applicant's age and the principles applicable to the sentencing of young persons.
[5]
Consideration
His Honour was clearly mindful of the applicant's age. He made specific reference to it on two separate occasions. In these circumstances, there is no reason to think that his Honour did not take it into account.
Moreover, the fact that an offender may be youthful does not, of itself, mean that his or her sentence will be reduced on account of that fact. Whilst youth is a mitigating factor in sentencing, and the rehabilitation of young offenders is important, there are limits upon the extent to which such matters can be allowed to influence the sentencing process: R v LLM [2005] NSWCCA 302 at [49] per R S Hulme J (Grove J and Simpson J (as her Honour then was) agreeing). In particular, where a youth conducts himself in a way in which an adult might conduct himself, and in doing so commits a crime of considerable gravity, the protective function of a sentencing court may cease to operate: R v Gordon (1994) 71 A Crim R 459 at 469 per Hunt CJ at CL (McInerney and Sully JJ agreeing); LLM (Supra) at [49]-[51] and the authorities cited therein.
In light of these principles, and in light of the seriousness of the applicant's offending, the applicant's youth, either of itself or in combination with other factors, does not support a finding that the sentence is manifestly excessive.
The sentencing judge concluded that the applicant's prospects of rehabilitation were moderate. That finding was amply supported by the evidence and, in particular, by the contents of the Juvenile Justice Report which referred specifically to (inter alia) a failure on the part of the applicant to recognise that his behaviour was problematic. Further, although various forms of therapeutic intervention have been recommended, whether they will bring about a positive outcome remains a matter of complete speculation. In her report, Ms Jones specifically acknowledged that she could not be certain whether any of her recommended interventions would improve the applicant's rehabilitation.
A failure on the part of an offender to acknowledge guilt after being found guilty at trial will not, of itself, deprive him or her of a finding that there are good prospects for rehabilitation: Alseedi v R [2009] NSWCCA 185 at [65] per Giles JA (Hidden and McCallum JJ agreeing). However, in the present case, the evidence to which his Honour expressly referred supported the conclusion that he reached.
Finally, at [68] his Honour said:
Whilst I do not consider that the evidence establishes that the offender "orchestrated the attack" as the Crown submitted (in the sense that he was the sole instigator of it), I have, as I have indicated, concluded that he and others jointly decided upon launching the group attack upon (the victim) and encouraged others to do so. That finding plainly establishes a high level of moral responsibility in the offender.
The submission of counsel for the applicant that his Honour overstated the applicant's role in the offending was based upon the proposition that his Honour had found that the applicant "orchestrated" the offending. His Honour expressly stated at [68] that he did not consider that the evidence established that fact. Counsel's submission was therefore based upon a false premise. Moreover, his Honour's findings as to the objective seriousness of the offending were open on the evidence.
It follows that this ground is not made out.
[6]
conclusion
The following orders should be made:
1. On the conviction appeal:
1. Leave to appeal granted.
2. Appeal dismissed.
1. On the sentence appeal:
1. Leave to appeal granted.
2. Appeal dismissed.
[7]
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: 03 March 2017
Solicitors:
Dr R Spence (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2011/190145
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: [2014] NSWSC 1878
Date of Decision: 12 December 2014
Before: Hall J
File Number(s): 2011/190145
Judgment OF THE COURT
The applicant, JH, was indicted on one count of murder and pleaded not guilty to that charge. The trial commenced on 25 August 2014 with a jury of 12 which was subsequently reduced to 11.
On 13 October 2014 the jury returned a verdict of not guilty of murder but guilty of manslaughter.
The Crown case was that the applicant was a party to a joint criminal enterprise. The jury's verdict of manslaughter was based upon an unlawful and dangerous act. The offence occurred by the conduct of JH and a number of other persons assaulting and ultimately killing the victim Eden Delir at a Halloween party on 30 October 2010. The co-offenders, MG, AE and SB pleaded not guilty to the murder of the deceased and they were tried jointly. They were each convicted of murder. An appeal by MG was upheld and an appeal by AE was dismissed: MG v R; AE v R [2016] NSWCCA 228. JP was tried separately and was convicted of manslaughter. AN was convicted after the Crown accepted a plea to manslaughter.
On 12 December 2014 Hall J sentenced JH to imprisonment for 10 years with a non-parole period of seven years commencing 5 October 2014 and expiring 4 October 2021.
The applicant now seeks leave to appeal against both his conviction and sentence on the following grounds:
Appeal against conviction
1. The verdict is unreasonable and cannot be supported by the evidence.
1a. The identification of the applicant by Mr Crisp as being present at the time of the physical assault on Eden Delir was so unreliable as to cause this Court to have a reasonable doubt;
1b. There was insufficient evidence from any other reliable witness that the applicant was present at the time of the physical assault, so that this Court would have a reasonable doubt;
1c. There was evidence before the jury that the applicant was not present at the Halloween party at the time of the assault, sufficient for a reasonable doubt to be raised; and
1d. There was insufficient evidence to support the alleged motive of the applicant to attack Mr Delir.
2. A miscarriage of justice occurred by way of incompetent legal representation
2a. Defence representatives failed to investigate the possibility Mr Delir was subject to a second attack at a different location, and failed to adduce evidence consistent with this;
2b. Defence representatives failed to adduce relevant evidence from witnesses that detracted from the Crown's case on motive; and
2c. Defence Representatives failed to properly advise the Applicant on his right to give evidence at trial.
3. The trial miscarried by reason of prejudice occasioned by the crown prosecutor's address to the jury.
Application for leave to appeal against sentence
1. The sentence was manifestly excessive.
Ground 1 - the verdict is unreasonable and cannot be supported by the evidence
The applicant's submissions did not rely on an assertion that the evidence generally was insufficient for the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The submissions were rather directed to the alleged weakness of the identification evidence when coupled with the evidence of motive on the applicant's part. Although there was some direct evidence identifying the applicant as part of the group that assaulted the deceased, the Crown's case was largely a circumstantial one that involved inferences from observations of the applicant with the offending group both before and after the assault on the deceased, inferences from telephone calls as well as inferences and admissions from recorded conversations on the telephone and in person.
The High Court has recently said this concerning the role of the jury and the issue of unreasonable verdicts in The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 at [65] - [66]:
[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
Because this Court must be satisfied on "the whole of the evidence", considering the grounds as framed is an inappropriate way of determining whether the verdict is unreasonable. In R v Hillier (2007) 228 CLR 618; [2007] HCA 13 the joint judgment of Gummow, Hayne and Crennan JJ said at [48];
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.
Grounds 1a and 1b - identification of applicant
These two sub-grounds can be conveniently dealt with together.
The applicant submitted that it was a central part of the Crown case that he was physically present at the time the deceased was attacked. He submitted that Kane Crisp was the only person during the trial to give positive evidence that he, the applicant, was present and participating during the attack on the deceased. He submitted that any evidence of Mr Eishou to similar effect should be disregarded because of the lies that Mr Eishou told to the police and the inconsistencies in his evidence.
During the trial on 31 October 2013 Ms Hickleton of counsel, who appeared for the applicant at the trial, gave notice that she objected to the identification evidence to be given by Mr Crisp. The application was made based on sections 135 and 137 of the Evidence Act 1995 (NSW). The evidence proposed to be led was that on 1 May 2011 Mr Crisp recognised and identified to police the applicant as a person depicted in a photograph displayed on Facebook which was taken at the party and as being a person who was present when the deceased was assaulted. In a judgment given by the trial judge on 27 August 2014 his Honour ruled that the evidence was admissible. There is no ground of appeal concerned with that judgment.
In order to understand the course of events leading to Mr Crisp's identification of the applicant as well as the basis for the objection to the evidence made by counsel for the applicant at the trial, it is convenient to set out portions of his Honour's judgment:
[41] The chronology of events indicates that Kane Crisp initially gave a statement to police on 31 October 2010 (in the early hours of the morning immediately following the assault) in which he stated that he witnessed the assault upon the deceased.
[42] On 14 March 2011, he gave a further statement to police stating that he had read the copy of his statement made on 31 October 2010 and confirmed his account recorded in it. He did not refer at that point to having seen a photograph on Facebook.
[43] On 1 May 2011, Kane Crisp participated in viewing five photo board presentations. The fifth of the presentations contained a photograph of the accused, [JH]. The procedure was videotaped. In the first of two statements that Kane Crisp made on 1 May 2011 (VD"H") he stated, at [10]:
"The fifth presentation was session ID 36212. I didn't recognise anyone in the presentation."
[44] In a second statement to police dated 1 May 2011 (Exhibit VD"J") Kane Crisp stated that on that date he had attended Fairfield Police Station to view some photographs. He referred to the five separate presentations which he viewed and the fact that he had made a statement about those photographs. He then stated:
"… while doing so, I told the police about a photo I have previously seen on facebook shortly after the Halloween Party on the 30th of October 2010. The photo was of a girl in the foreground and some people who were involved in the attack of Eden in the background." (at [5])
[45] In the same statement Kane Crisp stated that Detective Barnes showed him some photographs that were taken at the Halloween party. He said that while looking at the photographs he stated "… while I [as I said] looking at the photos I saw two photos with three guys in it …".
[46] In paragraph [7] of his statement he referred to a photo which he said he recognised as the same as the one that he saw on Facebook that had a picture of "… the guys who were involved in the attack of Eden …". He went on to state that the picture included a photo of a girl in a silver dress and three males in the background. He then proceeded to refer to each of them, one of whom he said looked like "Justin", another a male next to him who was in a black jumper with white stripes who was "definitely" part of the group of Assyrian males he had described in paragraph [18] of his first statement. He then stated:
"… I am one hundred percent sure he was part of that group who I also believe were involved in assaulting Eden. I didn't see that guy actually lay a hand on Eden but he was definitely there with the rest of them when they were assaulting Eden." (Statement 1 May 2011, (Exhibit VD"J") at [7].)
[47] In the written submissions for the accused the sequence of events was noted as follows. While videotaping of the photo identification presentations proceeded Detective Barnes handed Kane Crisp four individual bundles of photographs that had been taken during the course of the party on 30 October 2010. Initially Kane Crisp looked through each bundle but was unable to recognise any particular photograph or person who he believed was involved in the assault.
[48] Kane Crisp is said to have then handed the bundles of photographs back to Detective Barnes. Detective Barnes, it was noted in the submissions for the accused, then looked through the four bundles of photographs before returning one bundle to Kane Crisp, accompanied with the suggestion that Kane Crisp take another look through that particular bundle of photographs. Kane Crisp looked through the bundle and picked out a photograph which he identified in his second statement at paragraph [7] as a photograph of the accused.
Ground 2 - a miscarriage of justice occurred by way of incompetent legal representation
There were three sub-grounds in relation to the alleged incompetent legal representation. These were:
(a) That there was a failure properly to investigate the possibility that the deceased was subject to a second attack at a different location and failed to adduce evidence consistent with that second attack;
(b) A failure to adduce relevant evidence from witnesses that detracted from the Crown's case on motive; and
(c) A failure properly to advise the applicant on his right to give evidence at the trial.
In support of these grounds the applicant sought to lead further evidence which was accepted by him as not being fresh evidence.
At the hearing of the appeal, the Court after hearing from counsel for the applicant, ruled that the application to lead the further evidence was refused on the basis that even if that evidence was before the Court it would not have the persuasive qualities necessary to justify its admission and that it could not be said that a miscarriage of justice had resulted by reason of that evidence not being available.
Counsel for the applicant said that, even in the light of that ruling, he did not have instructions to abandon ground 2 but no further submissions were made in support of the ground on the basis, it would seem, that the only material in aid of ground 2 was the new evidence. Nevertheless, it is necessary to explain briefly why the application to lead the new evidence was rejected and why ground 2 should be rejected.
In Baden-Clay the High Court said:
[48] Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue."
In Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 Gleeson CJ said:
[9] Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v The Queen, the applicant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.
Ground 2a - a possible second attack at a different location
The forensic pathologist who carried out the post mortem, Dr Stephen Wills, in giving the history of the assault that had been provided to him, referred to the fact that the deceased had been assaulted with a glass bottle, had tried to escape from the party where the assault occurred and was further assaulted at a nearby address. It is not known where Dr Wills obtained the information that the deceased was further assaulted at a nearby address which is likely to be a reference to 15 Restwell Road where he was found.
The applicant's present solicitors (who did not act for him at the trial) sought a report from Professor Johan Duflou asking him to consider the findings of Dr Wills and to provide an opinion as to the possibility that the occasioning of the death of the deceased occurred not outside the premises at 39 Restwell Road but at the location of 15 Restwell Road. His attention was drawn to a statement of Senior Constable Cobcroft who was the first police officer to respond to the call in respect of the assault. Senior Constable Cobcroft observed pieces of a broken glass bottle on the footpath outside the house but did not observe any blood. Professor Duflou was also provided with a statement of Sergeant Welschinger who performed a blood stain analysis of the scene where the deceased was found. Sergeant Welschinger said it was not possible to rule out the possibility that the deceased was assaulted at the position where he was found.
Professor Duflou concluded that although it was possible that the bottle caused the incised wounds on the scalp and left hand, the absence of blood at 39 Restwell Road strongly suggested that those injuries were not inflicted at that location given the subsequent movement of the deceased for a distance of more than 200 metres and there being no blood loss identified between 39 and 15 Restwell Road. Professor Duflou said that his conclusion was made on the assumption that no blood of the deceased was found at 39 Restwell Road or at any location between the two properties.
The applicant's solicitors obtained a report from Helen Roebuck, a forensic scientist with expertise in blood stain pattern analysis and related matters. Ms Roebuck considered the crime scene examination conducted by the police officers. In general terms, she thought the examination was inadequate partly by reason of the time spent and partly because it was conducted in the middle of the night.
She first commented on Professor Duflou's conclusion that there was strong physical evidence that the deceased did not sustain the incised wounds to the scalp and hand at 39 Restwell Road but rather sustained them at 15 Restwell Road. Ms Roebuck said:
8.2 In my opinion, from the material available to me, it cannot be assumed that there was no blood located elsewhere, as there is no record of a thorough search for blood being conducted.
Ground 2c - defence representatives failed to properly advise the Applicant on his right to give evidence at trial
The applicant accepts that he was advised by his lawyers of his right to give evidence in the trial. He asserts, however, that he was denied that opportunity through a misunderstanding or miscommunication with his legal representatives. The applicant submits that if he is successful on this ground the appropriate order is that a new trial should be ordered.
In R v Birks (1990) 19 NSWLR 677 Gleeson CJ summarised three relevant principles relating to the conduct of a trial by counsel. The second of these principles was this:
As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
Following TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Gleeson CJ in Nudd said that ordinarily a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard. In TKWJ Gleeson CJ said:
[16] It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.
In the present case, viewed objectively, the decision by counsel for the applicant not to call him to give evidence was a rational and probably a wise decision. The Crown case was not without some difficulty particularly in the area of identification. However, that does not diminish the earlier analysis of that material because the issue now in the light of all of the evidence is whether the verdict was unreasonable. With the obvious areas for cross-examination available to defence counsel at the trial, a decision not to call evidence from a young man who was aged 15 at the time of the events and 17 at the time of trial can well be understood. That is particularly so in the light of the conversation recorded by Ms Khokaz, the phone calls with Mr Chin and the intercepted phone calls with Marvin Georgis and MG after the police started asking questions of those involved. The fact that the applicant now asserts that he wished to give evidence at the trial does not mean that a miscarriage of justice occurred by the course that was in fact taken.
Ground 3 - the trial miscarried by reason of prejudice occasioned by the Crown Prosecutor's address to the jury.
The applicant submitted that the Crown Prosecutor, in his closing address, stated that several witnesses were scared or reluctant to give evidence, and he implied that that was because of their fear of the applicant. The applicant said that there was no evidential basis for that statement. The applicant submitted that defence counsel at the trial objected and sought that the comments be withdrawn. The trial judge directed the Crown to withdraw the remarks but the Crown did not do so or did so in an inadequate way. Defence counsel sought that the jury be discharged but the trial judge refused that application. There is no appeal from that judgment.
The Crown Prosecutor during his closing address said this (T1593:28):
… This is not the first murder charge or murder trial involving a young person at all. And there are matters that you will have to consider in this case that are matters uniquely for your consideration.
Now one of those that runs through the evidence in this case you might think
you don't snitch, do you? No, you don't. Well, you don't. Well, in their community, where these young people were dwelling, and you might have thought that witnesses as they came forward and entered the witness box, some of them were fairly hesitant. Now you probably got a fairly quick drill on
the law of evidence. I can't ask leading questions when I am asking a witness
questions, but it did occur, because some witnesses did, were hesitating, weren't they? They hesitated a lot. Because when you come to look back at the evidence, which you will, and you see what they had said originally to police, very early on, they were not so keen here to speak of it, to speak of him.
Now, this is not - this as troubling factor you might think because it may well be, and I don't know what is going to be said to you after I have finished, but it
may be suggested that witnesses were actually not very good witnesses, because they - well, they all couldn't remember so much, so much at the time. Now it's a matter for you but did these witnesses, those which you may hear of, were they having memory lapses, genuinely, or was there something else operating? And I would submit to you that there was something else operating, because you might think, and to be fair to them for their hesitance, you don't snitch, and it was Mr Eishou who said well, it's been known to happen that people get hurt if you do.
That issue of snitching runs right through this whole case, and it formed a justification for murder. That is what it did and that is extraordinary, and it is unacceptable, and you may think that to suggest that witnesses had simply forgotten because it was so long ago, in the circumstances you had seen them is just ridiculous, and if that is the kind of position that witnesses would be judged upon, then it would be to ignore the reality, that plainly, as you would well have inferred from them, they were not having a loss of memory, that they were not liars either. It's not the case that they these people had loss of memories. It's not the case that they would just, well - Mr Chin, and others, would just suddenly have a loss of memory. You are going to have to judge them for yourself because really, the large host of witnesses who did give their evidence, or gave it consistently as they did originally, under cross-examination, they all are consistent about what happened at that party.
So when you come to consider, well, what your function is? Your function is to
listen to the evidence and judge the credibility and reliability of witnesses but we don't expect you to be mushrooms. You may think, having heard some witnesses, that they were still to this day operating under the mantra, you don't snitch and, well, there wouldn't be to you any greater reminder in the murder trial of Eden Delir to bring that home. It's a worrying factor, isn't it in this case? Because the law requires proof, and it doesn't come easily when you have got the - the other law that apparently operates against snitching, with its penalty. But that is not what you represent, and it has been a foundational basis for what happened.
We will, however, consider the matters raised by each of the grounds and in the light of that make an assessment of whether the verdict is unreasonable considering all of the evidence.
At the hearing of the appeal counsel for the applicant played two DVDs showing the interview with Mr Crisp when he was shown the various photographs.
The applicant submitted that what took place at the second of those interviews left open the suggestion that Mr Crisp was influenced by Detective Barnes' interest in the particular photograph ultimately identified by Mr Crisp as showing the applicant. The applicant eschewed any suggestion that there had been any wrongdoing or impropriety on the part of Detective Barnes. The applicant submitted that Mr Crisp's evidence was a strong example of the displacement effect at work. That theory was said to be that true memories had been displaced by memories brought about, in this case, by the fact that the photograph had been posted on Facebook and was commented upon by a number of persons suggesting that the applicant had been involved in the assault on the deceased.
The issue of the fallibility of identification evidence has most recently been highlighted in New South Wales in Wood v R [2012] NSWCCA 21 by McClellan CJ at CL (Latham and Rothman JJ agreeing) at [410]-[417]. In particular, his Honour said:
[413] The phenomenon known as the "displacement effect" was described by Stephen J in Alexander at 409:
"Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace the original memory. Any subsequent identification, in court or in an identification parade, may on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting."
[414] This type of evidence was referred to later in Stephen J's judgment at 414 as akin to "worthless"; see also Mason J in Alexander at 426; Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 at 178-179 (Latham CJ, Rich, Dixon, Evatt, McTiernan JJ); R v Carusi (1997) 92 A Crim R 52 at 55 (Hunt CJ at CL, Ireland and Newman JJ agreeing); R v Agkul [2002] VSCA 222 at [26]-[27]; [2002] 5 VR 537 ; R v Skaf [2004] NSWCCA 37 at [80]; Aslett v R [2009] NSWCCA 188 at [55]-[56]. In Skaf at [80] this Court described the displacement effect in the following terms:
"The displacement effect refers to the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier observation of the person in the flesh; and that that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person."
Mr Crisp's evidence was as follows (T1153 - T1154):
Q. We're dealing with the fellow with the stripes down the side of his top there. You have got the photograph there. Can I ask you to look at it and tell me what it was about him that caused you to choose him as someone you recognised out of this photograph?
A. He was involved in the assault of Eden.
Q. Was he, he was involved in the assault?
A. He was a member of the six males that entered the party and were out the
front.
Q. Speak up. Was this male with the stripes on his top, you say he was a
member of the group? Was he a member of group that you saw enter the
house at the beginning of the party?
A. I believe so, yes.
Q. Was he member of the group who were engaged in the activity of asking
people if they were from Campbelltown in the rear yard?
A. I believe so.
Q. Was he a member of the group who attacked Eden Delir?
A. I believe so.
Q. Can you recall what role he played in that attack?
A. Not entirely, no.
Q. What was it about the photograph, that's his appearance in the photograph, that caused you to say that he was one of the members of the group? What was it about it?
A. I saw him earlier that night socialising with the same people.
Q. That one fellow with the stripes, how much of an opportunity did you get to
see him that night? Over what period of time did you see him?
A. When he entered the house, out the front, and this here, three times.
Q. Now you said when they entered the house you had an opportunity to
speak to them?
HIS HONOUR: Before you put that question. So it is clear on the record.
Q. When you said in that last answer, when he entered the house, out the front, and this here, three times, "this here", I think you indicated you're referring to the photograph were you?
A. Correct.
In cross-examination Exhibit F was placed on the overhead projector and he gave this evidence (T1192 - T1193, T1194 - T1195 & T1197- T1200):
Q. Now, unfortunately the overhead projector, it's not quite as clear as it is just looking at it directly. Now to the right of the lady in the silver dress, we see a man in a blue shirt standing next to a man in a red black and white checkered shirt, is that correct?
A. Yes.
Q. Now the man in the blue shirt, you say is one of the men you say assaulted Eden?
A. Correct.
Q. So, and if we move to the right of the lady in - sorry left of the lady in the
silver dress - we see Aaron, we see your friend Justin, and then we see the
person you say was also with the group, is that correct?
A. Correct.
Q. Are you sure that you saw him with the group assaulting Eden, are you
sure?
A. I'm fairly sure, yes.
Q. Fairly sure?
A. Yes.
Q. But not absolutely sure?
A. I'm pretty certain.
…
Q. Now, you went through an identification photo array parade with the police
some six months after the party, that is correct isn't it?
A. Correct.
Q. And they showed you a series of five presentations in which you were able
to point out at least one person that you believed you'd seen assault Eden, that is correct?
A. Yes.
Q. I am going to show you a video of part of that photo identification process.
It is the last presentation that you were shown. For the benefit of the ladies and gentlemen of the jury this is only part of the presentation, and it's the fifth
presentation, and it's the presentation in which there was a photo of my client,
[JH] (video played). Now, Mr Crisp, you have seen in evidence an A4
page with all the images of the photographs that were shown to you during that presentation, have you not?
A. Correct.
Q. You would agree that when you went through the process at the police station you were not looking at images, you were looking at clear quality photographs on a computer screen?
A. Correct.
Q. And you made a statement on 1 May 2011 about that photo identification
process that you had been through. That is correct isn't it?
A. Correct.
Q. And in that presentation that we've just seen, which is the fifth presentation, you say, "I didn't recognise anyone from that presentation". That is correct, isn't it?
A. Yes.
Q. You could not recognise anyone, including my client?
A. I guess.
Q. After that presentation, you were shown some photographs that were taken at the party, that is correct isn't it?
A. Yes.
…
Q. And that photograph, have you found that?
A. Yes.
Q. And what is the page number that the Crown has written on there?
A. Page 6.
Q. Now, when you saw these photographs, they were in exactly the same
format as you are looking at them now, four to a page?
A. Yes.
Q. And I think when my friend was asking you some questions he asked you,
did you see the photograph on Facebook and you said no?
A. (No verbal response)
Q. Is that your evidence?
A. Yes.
Q. You didn't see this photograph on Facebook?
A. Not that I - no, I don't think so.
Q. Now, when you were shown these photographs in the police station it was
also videoed, wasn't it?
A. Yes.
Q. I am going to play you that now (video played). Now, you did give another
statement after that, did you not, to police?
A. Yes.
Q. And now this identification, if that is what it is, of the man in the black and
white striped top, in that photo, which is Exhibit F, this was done immediately
after you'd viewed a presentation featuring my client and couldn't recognise
him, isn't it?
A. Yes.
Q. When you saw the photo, the first thing that your eye was drawn to was the guy in the blue shirt, the chubby guy, that is correct isn't it?
A. I suppose so.
Q. Well that is what you say when you see the photograph, you look through
the photographs and you can't see it at first, can you?
A. No.
Q. And then the officer takes the bundles back and hands you back one
bundle and you go through that and you see a photograph and the first thing
you mention is the guy in the blue shirt as the chubby guy?
A. Correct.
Q. That is the chubby guy you had referred to as being one of the people that
assaulted Eden, correct?
A. Correct.
Q. And then you look at the rest of the photo and you have to really squint at it because it's not very clear, is it?
A. Correct.
Q. And you are able to identify Aaron, then you say that you identify the guy in the black and white stripes, as another one of those being involved with the
group?
A. Correct.
Q. That assaulted Eden, and then looking as closely as you can and squinting
at it, you think that it's Justin in the picture, that is Justin Eishou, isn't it?
A. Yes.
Q. In relation to the statement that you made you said at paragraph 7: "I
recognise another photo as one I saw on Facebook that had a picture of the
guys who were involved in the attack of Eden". Now this is the photograph you are referring to, isn't it, with the girl in the silver dress in the front?
A. I suppose so.
Q. "The picture has a girl in a silver dress and you can see four guys in the background. The guy on the left is Aaron, he goes to my school. The guy next
to him looks like Justin. I don't know his last name though. The guy next to him in the black jumper with white stripes was definitely part of the group of Assyrian males I describe in paragraph 18 of my first statement. I am 100 percent sure he was part of the group who I also believe were involved in assaulting Eden. I didn't see the guy actually lay a hand on Eden but he was definitely there with the rest of them when they were assaulting Eden". That is what you said, isn't it?
A. Yes.
Q. Now, what I am putting to you is that you are associating the person in the black and white stripes with the group that you say attacked Eden, correct?
A. Yes.
Q. And I am going to suggest to you that six months later, after looking at some photographs on Facebook, that you have put him - put that person as being there when Eden was assaulted. Correct?
A. Sorry can you please say that --
Q. I will put it a different way. Have you ever heard of the displacement theory?
A. Yes.
Q. Do you understand that your memory can play tricks on itself and can displace real memories with other ones, is that what you understand?
HIS HONOUR: Ms Hickleton, you are now going into an area of expert evidence.
HICKLETON: He says he knows what displacement theory is.
HIS HONOUR: Well you might explore how much of the displacement theory.
HICKLETON
Q. You tell me how much you understand about the displacement theory?
A. That if you see something, I don't know how to put it in words.
Q. Sorry I can't hear you?
A. I don't know how you put it into words. If you see something over a prolonged period of time you can see it was there.
Q. That is a reasonable summation. So, what I am suggesting to you, you did
see that photograph with others on Facebook?
A. Possibly, yes.
Q. That is what you told the police, isn't it?
A. Yes then.
Q. I am not criticising you for not remembering that now, it's a long time after.
But at that time, six or so months after the party, you had seen that photograph on Facebook?
A. Yes.
Q. And in that photograph what was brought to your eye was the guy in the blue shirt, correct?
A. Correct.
Q. Now also in that photograph was the guy in the black and white striped top?
A. Yes.
Q. And you had seen him at the party, I'm not talking about at the time of Eden's assault, I'm talking at the party when the boys arrived with that group. That is what I am putting to you?
A. Yes.
Q. I am suggesting to you that because of that association with the group, and with seeing a person that you actually recognise is assaulting Eden, you have put the guy in the black and white, in your mind you have put the guy in the black and white striped top around at the time Eden was assaulted?
A. I believe he was involved.
Q. Six months after the fact, can you be sure when you made that identification?
A. Yes.
Q. But you are unable to identify my client shortly before, in a clear photographic identification parade, as one of those that assaulted Eden, that is true isn't it?
A. Yes.
In relation to any suggestion of influence by Detective Barnes by what happened at the second interview it is significant that Mr Crisp identified the photograph that he was talking about before Detective Barnes handed him one group of the photographs in which he identified that particular photograph being Exhibit F. The transcript reads as follows:
Q1. Alright, O.K. its about 9am Kane, we've finished all the photo ID stuff.
While we were doing that, you mentioned that you'd seen a photo or
something like that on facebook.
A. Yeah.
Q2. That was taken at the party. Is that right?
A. Yes.
Q3 Mate, I've got a copy of some photos we've obtained that were taken
at the party, there's quite a few of them here. I'm just gonna give you, basically have a look through them and see if you can make any comment about any of the photos in there. Mate there (sic) a bit all over the place obviously they've just been printed out from how we've obtained them.
A. Nothing in that one. No. Is that all of them.
Q4. That's all the ones we have.
A. Must have been taken off or something cause there was one …
Q5. What was the photo of?
A. It was, there was a girl blocking like half of them, and then there was
a picture of two of them on the side …
Q6. Alright.
A. Underneath the shelter, kitchen, outside the kitchen.
Q7. Alright. You can have another took at them.
A. Pardon.
Q8. You wanna have another look through that one.
A. Oh shit, right in front of me. He looks similar to the guy, I know, I think
I know him, he goes to my school but he looks like, you can get very confused with this guy and like, you can get confused with this guy and the guy that I said that got suspended from St Johns, they look very similar but, he's not the one though, he's not the one but he looks very similar like.
Q9. Alright, so definitely different person though.
A. Definitely different person but he looks very similar, like if that's the picture, that's probably the more similar out of them two.
Q10. Yeah.
A. Like way more similar that (sic) the one I pointed out like.
Q11. But different person to the one you pointed out.
A. Different person yeah.
Q12. Yeah.
A. But very similar, like ninety per cent he looks like.
Q13. Just have a look through the rest of them mate.
A. That's it, that's the one. The chubby guy, the guy in the blue shirt. I don't know how I missed that sorry, I was just going to (sic) fast. That one, the chubby guy, that's Aaron from my school, he's not involved.
Q14. Yep.
A. That guy right there.
Q15. Yep.
A. He's not involved. That guy is involved, the one in the white stripes and black shirt, I mean black jumper, so them two. I'm not sure about the other guy I don't think he was, I'm not sure about him.
Q16. Alright, so your (sic) saying the photo here with a girl in a silver dress.
A. Yeah.
Q17. To the right of her is a guy in a blue shirt, your (sic) saying that's the chubby guy.
A. That's the chubby guy.
Q18. Your (sic) saying the guy on the far left is Aaron he goes to your school,
you said he's not involved.
A. Yep.
Q19. You said the guy in the black and white stripes, he's involved. And
the other guy in the middle of those two you said …
A. I can't even recognise him, he kinda looks like …
Q20. Your (sic)saying you can't recognise him?
A. He actually looks like Justin.
Q21. He looks like Justin.
A. Yeah.
Q22. Do you know Justin's last name.
A. No I don't, like I said I'm more of a face person, like …
Q23. And how do you [know] these two people you refer to in that photo were involved.
A. I remember them from the night.
Q24. You remember them from the night.
A. Yeah.
Q25. Alright. And …
A. And she's like blocking the whole row of them, like they're all there. That's all of them there. There's like one two three four five. She's blocking all of them.
Q26. Did you see that photo, were you there when that photo was taken
or?
A. I was …
Q27. Or in the area, like how do you know there's other people behind her?
A. Because I was like standing at the back near the, um, clothes line, that's pretty much when they came back. That's when I was like, "lets (sic) go" to Adis.
Q28 So your (sic) saying you were standing near the clothes line that's when they came back and that's when you said lets (sic) go.
A. Yeah, and they were like hassling people coming through the doorway, like the girls.
Q29. Ok, urn, alright then, no worries. I'll just get that added to another statement. Alright, I'll suspend the video recording, its (sic) 9.07am.
From viewing the interview and reading the transcript, there is nothing to suggest anything Detective Barnes said or did might have influenced Mr Crisp.
As can be seen from the cross-examination of Mr Crisp it was put to him that his memory might be affected by the displacement theory. He said that he understood the theory but denied that it was so. The trial judge gave careful directions about identification to the jury including unreliability based on the displacement theory. His Honour said this:
Members of the jury, I was dealing with the issue of displacement effect. I said I would come back and deal with that as part of the directions I was giving you on identification evidence. I do not need to say much about it other than, firstly, just to make clear what the understanding is about displacement effect. It is essentially concerned with the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier or original recollection or observation of the person in the flesh, and that that displaced memory may be the basis of later identification.
…
And Ms Hickleton then has suggested, well, Kane Crisp saw the photo array, did not identify it, and then saw him in the photograph, the accused in the photograph, exhibit F. Bear in mind there are differences between someone seeing a person fleetingly, as discussed earlier this morning, from one who sees a person at some length on a number of occasions, and has occasion or reason to retain a memory of that person because of the circumstances surrounding his or her observation of a particular person. In other words, there is a different effect in terms of memory from the first instance to the last one I just mentioned.
Evidence in this case of witnesses, both given to police and also in evidence, concern not just their facial features but what they were wearing, the colour of their clothing and so on. The difference between the photo array and the photograph that Mr Crisp was shown was a facial photograph, exhibit F, showed more of a body image and his clothing. Those are matters the Crown points to as saying, well, who he was talking about and that that is the photo he identified to be seen in that context.
So, members of the jury, they are all matters you can take into account in determining, in addition to sizing up, as it were, assessing Mr Crisp as a witness. Did he appear to you to be a reliable type of man whose powers of observation seemed to be good, or not good, as you may assess.
He also was successful in identifying other people in that photograph, exhibit F, that is Aaron, Justin Eishou, and I think at least one other, as well as the accused, and he was right when he identified the others. He is right in the fact he did not identify the accused. The question then becomes whether or not the point Ms Hickleton has made, well, he did not identify the photo array cancels out, as it were, the ability of him to have identified positively the accused, as he said he did with exhibit F.
A matter of some significance that the jury may well have considered was that Mr Crisp said that he was present when the photograph Exhibit F was taken. The jury may have taken the view that an identification from a photograph of a scene he actually witnessed is likely to have been more reliable than one where he had not been present and was being shown it for the first time. It was ultimately a matter for the jury having heard and seen Mr Crisp to decide if they considered that his evidence was reliable.
Mr Crisp was not the only witness who provided positive identification of the applicant's presence at and about the time of the assault. Moana Heta gave this evidence about what she and Brenda Torres did during the evening (T1272 - T1274):
Q. Something caused you to go to the front of the house later on?
A. Yeah.
Q. Can you take us through that?
A. It was just like a couple of hours later that happened, and Brenda, like me
and Brenda, we just grabbed each other and started walking toward the front
of the house, just like a random check up, how everything is going. And as we
were on our way towards the house, her mum started talking to her in like
Spanish. I didn't understand what she was saying, but Brenda just turned
around and said to me let's go out the front, and I said okay.
Q. Keep going?
A. We went out the front, and we just saw those same guys that were out the
back, they went to the front, but there was like more guys there. So we don't
do anything about it. And then they started acting like really aggressive towards each other. We thought there was going to be a fight, so Brenda went up to them and told them not to fight down here. Not fight at the time house. And so some guy come up to someone like, yeah okay, we'll move down there then. They started moving halfway towards Brenda's house and next door neighbour's house. They were in between, like arguing, so me and Brenda thought they were going to take it down somewhere else.
HIS HONOUR: Slow down a bit so it can be recorded.
CROWN PROSECUTOR: Slow it down.
HIS HONOUR:
Q. You said - take it up from where you and Brenda were together; is that right? And you said that the group moved down?
A. Uh-huh, okay. The group went like yeah, halfway between Brenda's house
and the neighbour's house. So me and Brenda started walking towards her
house, back into the party, and then Brenda started walking inside but I stayed because I saw some of my friends on the driveway. So I was standing on the driveway talking to them, and we heard like a bottle smash, and after that, like a whole bunch of guys started running up the hill, and everywhere. They just scattered everywhere.
Q. Did you see anyone hit with the bottle?
A. No.
Q. You heard a sound of smashing glass?
A. Mmm mmm.
Q. Did you know Eden at the time?
A. No, I didn't.
Q. You did know him by sight or name; is that what you're saying?
A. No.
Q. There was an assault upon him. Did you see anyone involved in an
assault?
A. No.
Q. You saw people go everywhere I think you said?
A. Yeah.
Q. Can you describe that scene for us from your point of view, where were
you standing when that happened?
A. Okay. So the hill goes like that (indicated), and then there is a garage right
behind us, so I was probably midway up the driveway. Yeah that's when we
saw it happen. About like five, ten guys went up, right, up Restwell Road, but I
saw like people ringing (sic) up the street in front of me as well. Yeah, then nothing happened, it was just clear.
Q. From where you were looking out on to the road, right, left, where did you
see people move to the right, left or both?
A. Like most of the people, they went right. They went up the road.
Q. They went right?
A. Yep.
Q. The other direction, did you see anyone go in that direction?
A. I didn't see many people go in that direction.
Q. Any or many? Did you say many or any?
A. Many.
Q. Those you did see, what point in the sequence of events was it you saw
some go in that direction?
A. Like straight afterward I saw people running up the right direction.
Q. Could you say whether they were the same or different people?
A. Probably different people.
Q. Did you know or recognise any of the people who were running?
A. No.
Q. Did you have any idea what was going on at the time?
A. No I had no idea.
Q. When you came back out to the front and saw the group there, before this
commotion occurred, did you see where [JH] was?
A. Yeah, he was in amongst the boys as well.
Q. Did you recognise any one else in that group apart from [JH]?
A. No.
Q. You told us that [JH] was a member of the group back at the clothes line
when you had a word out there?
A. Uh-huh.
Q. When was the first you noticed that [JH] was out the front?
A. Sorry?
Q. You've given evidence that you spoke to [JH] out the back?
A. Yeah.
Q. When you got out the front, where was he?
A. He was with the boys.
Mr Crisp's evidence cannot be seen in isolation from evidence of Ms Heta, nor indeed from the evidence of a number of witnesses who reported that the applicant arrived with and was seen with a number of other persons involved in the assault at various times during the evening. Some examples follow.
Jayden Mudford knew JH from school although they were not friends and he had never spoken to him. He identified the applicant from a photo presentation and said that he had seen him standing with JP and another person he knew, Alan Elia, prior to the assault on the deceased. Jasmine Dinh also knew the applicant from her school. She saw the applicant and JP arrive together in a car with some other people. She also saw them come back to the party together after the assault. She told the police in her statement of 17 November 2010 that JH was carrying a stick when he arrived and that he yelled out "Let's go have some fun boys". The significance of the evidence from Mr Mudford and Ms Dinh is that JP was one of the persons who actually assaulted the deceased.
George Eaglesham gave evidence that he was approached by a couple of people who asked him aggressively if he was from Campbelltown. He said that he was not but one of them who was holding a knife in Mr Eaglesham's direction asked him a second time. Mr Eaglesham said that he saw the applicant "hanging" with the same group of males that that had approached him, one with the knife, although he said JH did not have the knife and was not another person in the group who had a pole.
Elias Daccour saw a group of boys one of whom had a pole in his hand. He, like others, described the group as moving from the front through to the backyard and then back out the front. He described the boy with the pole as using it to hit the deceased. Shortly before the assault he heard one of the boys in the group call out the deceased's name and say "You're the guy that snitched". That evidence was, therefore, linked to the motive for the bashing and that motive concerned the applicant. The issue of the motive is discussed when considering ground 1(d).
Finally, the jury also heard the evidence of Justin Eishou who identified the applicant as being part of the group that was involved in the assault. It may be accepted that Mr Eishou's evidence was unsatisfactory in that he admitted to having lied to the police on more than one occasion and he retracted evidence that he saw the applicant actually strike the deceased. Nevertheless, it was open to the jury to accept parts of his evidence, as the trial judge made clear in his directions to them when dealing with Mr Eishou's evidence. That evidence included that the applicant had told Mr Eishou sometime before the party not to bring the deceased over to the applicant's place or the applicant would punch the deceased. It was also open to the jury to accept that part of Mr Eishou's evidence that placed the applicant with the group of boys who assaulted the deceased because that evidence was at least consistent with evidence of other witnesses already referred to.
As was observed by N Adams J (Hoeben CJ at CL and Campbell J agreeing) in Kees Langelaar v R [2016] NSWCCA 143:
[71] The ultimate question for an appellate court is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open.
Her conclusions otherwise were these:
9.1 The bloodstaining present on the gate and concrete at 15 Restwell Road in my opinion can be explained by Eden Delir having being laid with his head on the base of the gate whilst injured and bleeding. Whilst there are projected blood stains on the gate, the location of these could be explained by Eden Delir having expelled blood from his airways.
9.2 In my opinion, there is no evidence in the form of the bloodstain pattern evidence that could identify that an assault has taken place in the location that Eden Delir was found. However, I am unable to exclude this as a possibility as:
• blows may have been delivered to surfaces of the body that were not wet with blood,
• and given the lack of a through blood examination of the vicinity it is possible that additional blood staining was present but not identified.
9.3 There is no evidence that a thorough examination for the presence of blood at either 15 or 39 Restwell Road (or the areas in between) has been conducted. Therefore, extreme caution must be taken when determining where the assault took place, as blood may have been present, but not identified.
The applicant otherwise relies on the evidence of the phone call from the deceased to Adam Chanthavong saying that he had been bashed, the fact that two people chased after the deceased when he ran up Restwell Road but could not locate him and the fact that a resident at 15 Restwell Road heard the sound of a car leaving quickly at about 10:30pm. Those matters are entirely neutral on the issue of whether the deceased was bashed on a second occasion at or near 15 Restwell Road. There is no evidence showing where Dr Wills based his assumption that the deceased was bashed a second time and the evidence of Ms Roebuck casts considerable doubt on Professor Duflou's conclusions.
The evidence is not of sufficient cogency that either innocence is shown to this Court's satisfaction or that this Court entertains a reasonable doubt as to the applicant's guilt.
As was made clear in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63], the concept of a miscarriage of justice must be considered in the light of the way the trial was conducted where tactical decisions will have been made on the part of the applicant about evidence which should or should not be called or challenged. The applicant's case was always that he was not involved in any way in the assault of the deceased. It is no surprise, therefore, that lawyers acting for the applicant were not concerned to establish that the deceased had been assaulted on a second occasion and it was that occasion that led to his death. Such a course might have been seen as undermining the applicant's primary position that he was not involved in any event.
The evidence sought to be put forward is entirely speculative. It is not fresh evidence since all of it was available to be called at the trial. Indeed, some of the police officers gave evidence at the trial.
This ground should be rejected.
In the light of the rational decision, objectively considered, on defence counsel's part at the trial not to call the applicant, there is no basis for examining the new evidence that the applicant seeks to put forward to impugn that decision. It is not demonstrated that there is a miscarriage of justice. This ground should be rejected.
The remarks made by the Crown Prosecutor were inappropriate. They painted far too broad a picture of the witnesses who gave evidence. The remarks ought to have been expressly withdrawn and, if it was appropriate to do so, the Crown Prosecutor should have identified the witnesses whose evidence justified the remarks.
As part of the argument on defence counsel's application to discharge the jury the Crown Prosecutor gave an explanation for not having expressly withdrawn what he had previously said and for having gone about the matter in a different way. That explanation (at T1661) was to the effect that he considered that by referring to particular passages and repeating references it would have created a more damaging situation and reinforced the problem that was complained of.
Significantly, in his summing up the trial judge said this:
Members of the jury, there is another matter in talking about witnesses who have given evidence. You may recall that the Crown Prosecutor, in the course of his submissions, indicated that in his submission that witnesses who are hesitant in giving evidence and that the explanation they lie and what has been referred to as snitching in this case, it is necessary to say in relation to that submission, firstly, a witness may hesitate, and it could be for any number of reasons. It could be the young person is giving evidence and they are anxious. They might be anxious because they fear if they say the wrong thing they might get into trouble so they're treading very carefully. That can be a fact of life and there is nothing sinister about that. A person may be hesitant
because they are not used to speaking in a public forum like this and they can
be overawed. A person could be hesitant in giving evidence because they
might be fearful, for example, on this snitching business.
But can I say, firstly, it is plain, for example, that this would not apply to all witnesses, that is clear. You have seen examples of this. Ms Khokaz, she knew all about snitching but it wasn't going to stop her from going to the police. So it is the case, as you have heard, that a lot of these, most if not all, of these witnesses, went to the police and gave their statements. They did not have to, they could have said, "I don't want to get involved", but they did. So you must bring that into account in saying, "Well, they mightn't have liked it but they did step forward and give their account." So if they appeared to be hesitant in court, you should not draw the conclusion that they were doing it because of some fear of snitching.
I am just making this plain to you because although the Crown has raised it as a possibility, at the end of the day it is a matter for you. You saw these witnesses. There is no particular evidence that they have been threatened or anything of that kind. Certainly there is no evidence of that kind against the accused in suggesting that they have in any way become hesitant because of
him or about the case or anything of that kind. In fact, some of these witnesses were quite forthcoming. They varied. Some might have appeared a
bit hesitant, others did not. They seemed quite willing it appeared to me. It is
a matter for your impression, though, not mine. So at the end of the day you might think you could not place too much, if any, weight on the submission about hesitant witnesses. Yes, some of them might be a bit hesitant here and there about their evidence, the whole of their evidence, but that does not necessarily mean it is for any sinister reason at all.
In Lane v R [2013] NSWCCA 317 Bathurst CJ, Simpson and Adamson JJ said:
[131] We are bound to accept, there being no contrary indication, that the jury applied the directions of the trial judge: Demirok v The Queen [1977] HCA 21; 137 CLR 20 at 22 per Barwick CJ. We do not consider that, once directed by the trial judge in the terms set out above, there was any reasonable possibility that the jury would have been acting under a misapprehension as to the onus of proof or that it was for the applicant to provide an answer to the questions posed by the prosecutor, even if the posing of such questions had had such an effect in the first place.
With no contrary indication from the jury, it should be accepted that the jury followed the direction given by the trial judge in that regard.